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ASSISTING SELF REPRESENTED PARTIES IN ADMINISTRATIVE HEARINGS

ASSISTING SELF REPRESENTED PARTIES IN ADMINISTRATIVE HEARINGS. 2011 AOC Conference | Thursday June 9, 2011. Context. Rise of administrative agency adjudications Common areas where agencies operate Public benefits Licensing Professional discipline Land use Public employees.

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ASSISTING SELF REPRESENTED PARTIES IN ADMINISTRATIVE HEARINGS

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  1. ASSISTING SELF REPRESENTEDPARTIES IN ADMINISTRATIVE HEARINGS 2011 AOC Conference | Thursday June 9, 2011

  2. Context • Rise of administrative agency adjudications • Common areas where agencies operate • Public benefits • Licensing • Professional discipline • Land use • Public employees

  3. Why are there administrative hearings? • Due process (Goldberg v. Kelly) • Statutes and regulations

  4. What should happen in administrative process • Written notice with enough detail about allegations to prepare a defense • Opportunity to be heard by neutral decision maker • Opportunity to appeal to court (required by California Constitution)

  5. State Agencies with large numbers of Self-Represented Parties (SRPs) • California Department of Social Services • Employment Development Department/California Unemployment Insurance Appeals Board • Office of Administrative Hearings for child support, special education and Regional Center/Department of Developmental Services • Department of Motor Vehicles • State Personnel Board (increasing trend) • Workers Compensation (increasing trend)

  6. Local agencies with large numbers of SRPs • Housing authorities • Welfare department (General Assistance) • County indigent health care programs

  7. Federal Agencies with large numbers of SRPs • Social Security Administration • Department of Veterans Affairs • Immigration

  8. Initial steps for the SRP • Determine what agency is involved • Determine time to appeal • Determine time to appeal to keep benefits pending hearing • Determine process to appeal • Make sure agency accepts appeal and client gets receipt for filing

  9. Requesting hearing • Follow directions on notice • State issue in general terms (agency action is wrong) unless directed otherwise • Make special requests on form (interpreter, disability accommodation)

  10. Preparing for the hearing • Gather documents • Talk to witnesses (written statement is OK, but in person testimony is better) • Look at case file (if applicable) • Research on legal arguments • Get position statement prior to hearing (if applicable)

  11. Preparation for hearing – Investigation • Subpoena for documents • Subpoena witnesses • Employee file (Labor Code 1198.5)

  12. Prior to hearing • Copies of documents for judge and opposing party • Confirm witnesses will attend • (optional) prepare written statement • Prepare what will say at hearing and what witnesses will say

  13. Settlement • Sometimes can negotiate settlement • Not required to take agency offer – if do not like proposal can say no.

  14. If issue is overpayment, SRP needs to know about potential criminal charges • Criminal charges are possible, especially if large overpayment (over $10,000) • People should not talk to anyone, especially police or fraud investigator, about case • What is said in hearing can be used against person • Upside – if individual wins, cannot proceed with criminal prosecution

  15. Initial assessment of SRP • Does SRP have any issue with ability to read and comprehend written materials? • Does SRP have any issue with ability to hear or speak? • Does SRP have any disability that needs an accommodation from the agency?

  16. Initial assessment of SRP • Is SRP a person with Limited English Proficiency (LEP)? • Is SRP able to read written materials in native language? • Is SRP able to write in native language?

  17. Initial assessment of SRP If SRP is a person with LEP, or is Deaf or Hard of Hearing, or needs an accommodation: • Help SRP notify agency of need for • Qualified interpreter in language of SRP • Qualified American Sign Language Interpreter • Accommodation for Disability (reading, writing, physical disability)

  18. Interpreters TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 Recipients of federal financial aid (state agencies) cannot discriminate on the basis of national origin • must provide meaningful language access to LEP persons • cannot engage in intentional discrimination or have practices that have a discriminatory intent

  19. Department of Justice (DOJ) implementation 2002 DOJ memo to the recipients of federal funds: • All recipients are required to reduce language barriers in order to assure meaningful access to benefits and information; and, • All recipients are required to do individualized assessment of need.

  20. Recipients’ individualized assessment Individualized assessment must determine: • The number of proportion of LEP persons in the eligible service population • The frequency with which LEP persons have contact with the agency or program • The nature and importance of the program, service, or activity, and • the resources available to the recipient of federal funds and the costs involved in providing language services

  21. DOJ’s recent reminder: Language Access Matters • DOJ Guidance letter (8/16/2010) • EO 13166 “Improving Access for Services for Persons with Limited English Proficiency”(8/2010)

  22. SRP should insist on proper translation of documents • Most agencies have Spanish-speaking staff • Bilingual staff receive higher pay • Ability to speak/read varies • Often bilingual staff translate evidentiary documents for hearing (paid by the word) • Advise SRP to ask interpreter at hearing to check translation for accuracy

  23. SRP re: interpreters • Is SRP able to understand the interpreter? • Some ALJs will inquire, but many do not • If individual cannot understand the interpreter, tell the ALJ at the beginning of the hearing on the record

  24. SRP re: Interpreter – Part 2 • Interpreter is required to review file with SRP before hearing • Interpreter should translate all documents in the file, not just identify what the document is • If interpreter does not translate the documents, even after SRP requests it, SRP should tell the ALJ at beginning of hearing, on the record

  25. SRP re: Interpreter – Part 3 • Agency should provide testing/certification for interpreters; as a practical matter, cannot do so for all languages • If interpreter is not certified, ALJ should question interpreter to determine how gained proficiency in language • If ALJ does not inquire, SRP should ask ALJ to find out interpreter’s qualifications

  26. SRP re: Interpreter – Part 4 Prepare SRP for potential use of “phone interpreter” and to insist on in person (unless SRP has to appear by telephone) • Not as effective as in-person assistance • Often have no court experience or very limited • Cannot review file with SRP in person • May delay hearing, so SRP must be willing to wait for agency to find qualified interpreter

  27. SRP re: Interpreters and Phone Hearings • If telephone hearing is optional for SRP (i.e. agency desire, not SRP’s need), ask for in-person hearing, but may cause delay • If telephone hearing necessary for SRP, ask for time to review file over the telephone with interpreter prior to hearing • SRP should make sure has all documents in file (this is true for all telephone hearings)

  28. SRP re: Quality of Interpretation • Qualified interpreter in SRP’s native language required • Interpreter is supposed to interpret exactly what judge says and exactly what SRP says • Interpreter should not advise SRP how to answer or give verbal cue how to answer • Interpreter should not “explain” what judge is saying; if SRP does not understand, ask the judge

  29. Additional tips to prepare SRP for hearingPart 1 • SRP may call local agency office to ask questions • California Unemployment Insurance Appeals Board (CUIAB) has a duty ALJ at every office who will answer questions staff are not able to answer • Explain SRP should know what his or her witnesses will say; no need to make the other side’s case case

  30. Additional tips to prepare SRP for hearingPart 2 • Attend the hearing in person or by telephone, not by written declaration if two party case; sworn testimony, subject to cross, generally is more persuasive than hearsay evidence; • Bring 3 copies of all documents, including audio tapes and video discs; and, • Remove hats, caps, chewing gum, and sunglasses, unless medically needed, before testifying.

  31. Additional tips to prepare SRP for HearingPart 3 • Refrain from profanity or jokes; • Wait for the witness to finish the answer before asking the next question; • Wait for the interpreter’s translation of the question asked before giving an answer or asking a new question; • Truthfully answer the question asked; and, • Be respectful of the other side.

  32. Additional tips to prepare SRP for hearingPart 4 SRP SHOULD NOT: • Laugh, sneer, shake the head or gesture after a witness answers a question; • Interrupt, especially the ALJ; • Rustle papers; and, • Be intimidated because the other side has a lawyer or representative.

  33. Additional tips to prepare SRP re: hearingPart 5 • May bring anyone for assistance; must be own advocate and be persistent while being polite • Most ALJs explain issue, applicable law, and procedure to SRPs; • ALJ may actively question SRP and witnesses; some ALJs do not • Witnesses may appear by video, telephone or submit sworn or unsworn written statements – explain significance of hearsay

  34. Additional tips to prepare SRP re: hearingPart 6 • Depending on the type of case, hearings at Office of Administrative Hearings (OAH) may be more formal, and ALJ may not directly question SRP, but most do • Child support cases at OAH are typically by phone, and SRP must request in person hearing – but will delay case • Special education cases are more formal, and decisions are lengthy, based on expert testimony

  35. Additional tips to prepare SRP re: hearingPart 7 • In certain cases, ALJ will help SRP reframe a cross examination question, and permit leading questions on direct examination. • If medical issue, advise SRP to bring 3 copies of all pertinent medical records and test results. • If financial issue, or SRP wants waiver of overpayment, advise to bring 3 copies of all financial documents showing hardship

  36. Additional tips to prepare SRP re: hearingPart 8 • Bring 3 copies of all documents, audio recordings and video. • Make sure cell phone evidence is on a paper, CD, or other tangible format; ALJ cannot incorporate cell phone displays as evidence • SRP may have to authenticate exhibit and explain that picture is accurate depiction

  37. Additional tips to prepare SRP re: hearingPart 9 • Trend is toward ALJ in “engaged neutrality” with SRPs; SRP should not get upset if ALJ asks lot of questions . • SRP is not required to admit incriminating facts such as SRP is undocumented, possesses fake identification or social security card, or is using someone else’s social security number

  38. Additional tips to prepare SRP re: hearingPart 10 • ALJs may seal hearing and record, even though hearings are open to the public and decisions are too. • SRP must waive confidentiality if testifying about drugs and alcohol (or related treatment)

  39. Post Hearing Procedures Unemployment, state disability and state tax assessment appeals – SRP may appeal to appeals board with a letter • No cost to claimant; record is transmitted by agency • 6 months to file writ in superior court if wants further review.

  40. Post Hearing Procedures – Part 2 Office of Administrative Hearings • Particular Agency may substitute decision if unhappy with ALJ decision • SRP then must file a brief in opposition. • Final review is writ, filing time shorter than writs from CUIAB • Check and follow particular agency/department writ procedure and time frame – a lot of variation

  41. Additional Resources for SRPs Additional Resources for SRPs • Self Represented Litigation Network A collaborative group of organizations housed at the Center for State Courts; the working group meets monthly to share information and strategies re: judicial education; state codes of judicial conduct as they relate to SRLs and SRPs; and the deficiencies in the recently adopted Model State Administrative Procedure Act (MSAPA). Anyone interested should contact Richard Zorza, Richard@Zorza.net.

  42. Additional Resources for SRPsPart 2 • www.selfhelpsupport.org A national source of information on self-represented litigation, the site includes over 1,000 resources and has 1,400 members. The site has a newsletter with updates that goes to all members.

  43. Additional Resources for LEP SRPsPart 3 • www.lep.gov • Consortium for Language Access in the courts, www.ncsc.org/education-and-careers/state interpreter-certification.aspx • National Association of Judiciary Interpreters and Translators, www.najit.org

  44. Additional Resources for SRPsPart 4 • Access to Justice on the World Wide Web: An annotated bibliography, Edmund J. Gorman, Jr., Public Interest, Public Service, and Professional Responsibility (January 9, 2009) • Roadmap to Justice, Deborah H. Rhode and Dmitry Bam, http://blogs.law.stanford.edu/road maptojustice/

  45. Law Librarians: First Responders to SRPs in Crisis • A day in the life of a legal librarian: helping the SRP under stress. • Attempt to teach SRP skills for dealing with legal crisis, deadlines, and give resources within the library and outside the library to cope with the crisis. • Translate what the SRP is trying to do into what the SRP realistically can do, without practicing law.

  46. Law Library Resource • Provides public with access to legal information, including use of computers for use in SRP cases • Provides referrals to organizations that may provide legal assistance, as well as assistance with basic human needs (food, shelter, employment) • Handles referrals from Courts and Legal Services

  47. SRPs with LEP at the law library • SRPs with LEP present unique challenges to the Public Law Library • Challenge helping any SRP with accessing regulations and agency precedent, but SRPs with LEP have even greater needs. • Lack of interpreters, materials available in many, but not, all languages in locale of library

  48. Links to Library Resources • San Francisco Law Library www.sflawlibrary.org • To find a local library: http://www.publiclibrary.org • To find your nearest California Public Law Library: http://www.publiclibrary.org/find.html • To find legal services and LawHelpCalifornia http://www.lawhelpcalifornia.org/CA/index.cfm • To find LawHelpCaliforniaResourceDirectory,which you can select by county http://www.lawhelpcalifornia.org/CA/StateDirectory.cfm/County/%20/City/20%/demoMode/%3D%201/Language/1/State/%20/TextOnly/N/ZipCode/%20/LoggedIn/0/directory11/searchesletters/bysa

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