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Scope of the Administrative Hearing

by Lewis D. Kowal, Administrative Law Judge
Vol. 20, July 2001

At the commencement of an administrative hearing, it is important to determine whether the parties understand the scope of the hearing, i.e., what issues will be addressed during the hearing. It has been my experience that even in an appealable agency action, the party requesting the hearing may not necessarily understand what is going to be addressed at the hearing. Or, to put it another way, what issues the Administrative Law Judge will determine as a result of the hearing.

The Administrative Law Judge, as well as the parties, can gain insight as to what really needs to be addressed during the hearing by having a brief discussion at the beginning of the hearing as to what the parties believe is the scope of the hearing. Issues that were not mentioned in the Notice of Hearing may be addressed if the Administrative Law Judge believes it to be appropriate and the parties agree, with a proper waiver of the required notice.

When a person appeals an agency action, it is the state agency that specifies in the Notice of Hearing what issues are being appealed. Because the agency generates the Notice of Hearing, the Notice should be read very carefully. If there is any question as to what facts or issues are going to be addressed during the hearing, a party may wish to address the Administrative Law Judge by submission of a written motion to clarify the scope of the hearing.

If the parties disagree as to the scope of the hearing, the Administrative Law Judge may hear oral argument from the parties and rule on the scope of the hearing. Once that ruling is made, the parties will have an understanding as to the road map to be followed concerning the nature of the facts and issues to be presented and addressed during the hearing.

In a number of administrative matters that go to hearing, situations change since the filing of a complaint, issuance of the Notice of Hearing, and the date of the hearing. Recently, in a Registrar of Contractors case, a complaint was filed against a contractor alleging certain construction deficiencies and overcharging by the contractor. By the time the matter came on for hearing, the only issue of concern to the Complainant was the overcharging issue. After an on the record discussion with the parties as to the scope of the hearing and the presentation of some evidence, the parties settled the matter. Settlement was facilitated by the Respondent contractor having learned that the sole issue to be addressed was the alleged overcharge even though construction deficiencies were originally alleged in the complaint.

Another point of inquiry that, as an Administrative Law Judge, I like to make at the beginning of the hearing is to have an understanding what each party is seeking as a result of the hearing. In some cases, the person who requested the hearing did so because the process was available without fully understanding what issues can be addressed or what relief may be obtained.

For example, in an appeal of a denial of an application for a professional license based upon prior felony convictions, a party cannot re-litigate those convictions. That process, if available, would have to occur in a different forum. An Administrative Law Judge cannot overturn a prior criminal conviction nor can the judge ignore or overrule a civil judgment.

An inquiry by the Administrative Law Judge at the beginning of an administrative hearing as to the scope of the hearing provides the parties with a realistic understanding as to what will be considered during the hearing as well as a reasonable expectation as what each party may accomplish as a result of the hearing. Getting the parties together to discuss what they believe the hearing is about can narrow the issues and facts to be addressed during the hearing. This enhances the administrative process by providing for a more efficient and meaningful hearing.

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