Performance evaluation of federal administrative law judges: challenge for public administration?

The thesis herein is that the challenging question of applying performance evaluation to the small but significant category of federal administrative law judges (ALJs) deserves wider attention and more disinterested discussion than it has so far received. Logically, the public administration community (particularly its personnel administration component) has reason to be attentive to the topic and can perhaps offer suggestions. The essence of the problem is stated in the next three paragraphs.

Performance appraisal systems, if fairly administered, are viewed as a desirable element of public personnel administration. They are touted as providing numerous advantages to organizations and their employees: giving feedback to employees, ensuring self-development, facilitating organizational rewards to meritorious employees, and informing management in its personnel decisions and its training and development programs (Steers & Black, 1994, pp. 201-202).

ALJs, however, are not conventional employees of federal agencies. Because they preside over formal hearings and make initial or recommended decisions for each agency that employs them, their decisional independence must be protected. Therefore, this "special class of semi-independent subordinate hearing officers" (Ramspeck v. Federal Trial Examiners Conference, 1953) is exempt from the statutory performance appraisal requirements that apply to all but a comparative handful of federal civil servants.(1) Although the necessity of preserving ALJs' decisional independence is universally acknowledged, there remains the nagging issue of how to ensure a high performance level for "effectively life-tenured occupants of positions that are within the highest level of the federal career service" (Scalia, 1979, p. 61). Inevitably, in the half century since passage of the Administrative Procedure Act of 1946 (APA) established the semi-independence of "examiners" (as they were then called), there have been periodic disputes over their prerogatives vis-a-vis those of the employing agencies.

As might be expected, resolution of the tension just mentioned is anything but simple. Below, after emphasizing the close relationship of law and administration and summarizing the evolution of the ALJ position, we focus on the most sensitive aspect of the topic: Who should evaluate federal ALJs' performance? This query is discussed in the context of actual proposals made during the last decade and a half.

ALJs AND LAW-ADMINISTRATION LINKS

It may be helpful to think of ALJs and agencies as a highly specific example of the intricate and sometimes contentious relationship between law and administration. This relationship has been characterized as "central to the operation of government," one having "a profound impact on public affairs" (O'Brien & Wise, 1985, p. 641). Examples abound in a nation guided by the rule of law. The U.S. Constitution mandates the president to see that the laws are faithfully executed; meaning, in effect, that executive-branch agencies must operate within legal limits. For independent agencies that Congress created to regulate segments of the economy, the law-administration connection was especially close. The earliest independent regulatory commissions were surrounded with legal safeguards because of a fear that they would take private property without due process of law. It was believed that judicial review of their actions in exercising legislative and judicial authority was needed to avoid violating the constitutional separation of powers.

As time went on, it became apparent to regulatory commissioners that they needed help in hearing the ever-growing numbers of formal cases. Once again, the law-administration interaction was demonstrated. The position of hearing officer was created in response to administrative need and, later, achieved prominence through law (judicial decisions and a congressional statute). Faced with broadened responsibilities under the Hepburn Act of 1906, the Interstate Commerce Commission persuaded Congress to relieve the commissioners from hearing all formal cases themselves. The Hepburn Act empowered the commission to employ "special agents or examiners who shall have power to administer oaths, examine witnesses, and receive evidence" (U.S. Statutes at Large, 1905-1907, 1906, pp. 584,595). Between 1913 and 1940, 18 other regulatory statutes authorized the appointment of such hearing officers (for a list, see Musolf, 1953, p. 53).

Enhancement of the position occurred in the 1930s when the Supreme Court, under the stimulus of the New Deal cases, turned its attention to administrative procedure. One of the important consequences of this orientation was to spotlight the role of the presiding officer at formal administrative hearings. Subsequently, …