Bias in environmental agency decision making.

• Author: Kuehn, Robert R.
• Position: II. Fairness in Administrative Law C. A Taxonomy of Agency Bias 4. Separation of Functions through IV. Conclusion, with footnotes, p. 992-1019

4. Separation of Functions

   Issues of bias may occur where prosecutorial and adjudicatory functions are combined in the same person, creating the possibility of a partial adjudicator. The federal APA prohibits an agency employee engaged in investigative or prosecutorial functions in an agency adjudication from participating or advising in the decision on that or a factually-related case. (204) This separation of functions requirement, sometimes framed as a prohibition against improper commingling of functions, reflects concerns that a prosecutor or investigator, if allowed to serve as the decision maker, might be tempted to rely on facts not in the record or to feel partial toward the prosecution. (205) State administrative procedure statutes similarly preclude a person who has served as an investigator, prosecutor, or advocate in an adjudicative proceeding from serving as a presiding officer in the same proceeding. (206)

   As stated in the APA, this restriction further prohibits "advising" on a decision. (207) Thus, an agency officer or employee who has served in an investigative or prosecutorial function becomes unavailable not only to decide that matter, but also to consult or advise others making the decision, unless those views are presented as a witness or counsel to a party in the public proceedings. (208)

   The APA's separation of functions requirement only applies to formal adjudications, not to other types of agency proceedings. (209) It also does not apply to the agency itself, which can combine functions, or to a member or members of the body that comprise the agency. (210) In addition, the separation of functions requirement "does not preclude agency decisionmakers from taking part in a determination to launch an investigation or issue a complaint, or similar preliminary decision, and later serving as a decisionmaker in the same case." (211) A decision maker is not permitted, however, to review his or her own initial decision. (212)

   In matters where the APA's requirements do not apply, due process may still require separation of functions. (213) Generally, unconstitutional bias is not created by combining investigative, prosecutorial, and adjudicatory functions in the same agency. (214) Yet, combining those duties in the same person on the same case is "inherently suspect" and does raise due process concerns. (215) Nevertheless, to succeed on a due process challenge the party must show evidence of bias or an intolerably high risk of unfairness from combining functions in a single government employee, and overcome a presumption of honesty and integrity in those who serve as adjudicators. (216)

   Environmental adjudications reflect the general rule that a combination of prosecutorial and adjudicative functions in the same person is incompatible with due process, such as where the person prosecuting a case on behalf of a public body is also a member of the decision-making body or advisor to it on the same matter. (217) Problems have repeatedly arisen when an attorney represents the government in a proceeding and simultaneously advises the decision-making tribunal in that same proceeding. Thus, a city solicitor improperly represented the town in a zoning application dispute while also acting as legal advisor to the zoning board hearing the matter. (218) This prohibition does not extend, however, where a person is acting as an advisor to a board in one matter while acting in a prosecutorial capacity before the board in an unrelated matter, reflecting the APA's prohibition of commingling of functions only in "a factually related case." (219)

   Agency officials are allowed to initiate an environmental enforcement action or issue a draft permit without being disqualified from later reviewing that decision in light of more complete information. (220) Courts are divided, however, on whether the separation of functions doctrine prohibits an attorney in an ongoing agency enforcement action from advising agency officials on how related permit matters should be resolved. (221)

   Where different persons within a government office or agency assume the conflicting roles, courts have not found an improper commingling, provided the person making the decision or advising the decision-making body is free to act independently of the interests of the agency. (222) In some environmental agencies, separation of functions is achieved by creating a separate adjudicatory office with hearing officers and their legal advisors outside the control of the parties appearing before them. (223) Others rely on attorneys within agency legal counsel offices who are not connected to the underlying case. This latter practice was upheld in V-1 Oil Company v. Department of Environmental Quality, where the Utah Supreme Court found that the duty of loyalty that a staff attorney might have toward the agency did not prevent that person from presiding at a hearing to decide if a company had violated underground storage tank regulations. (224) The court reasoned that the attorney was segregated from the agency's investigative and prosecutorial activities related to underground storage tank enforcement and that his duty of loyalty to the agency required him to act impartially. (225) Other cases have similarly held that agency attorneys may preside over hearings in which other attorneys from the same agency perform prosecuting or investigative functions, provided that the attorneys serving as presiding officers have no prior connection with the case. (226) This tolerance for separate roles for employees of the same government body may not hold where a party's counsel and the attorney advising the hearing tribunal are from the same law firm, as the practical considerations allowing a public agency to use its staff legal counsel are not present when the government body is hiring outside counsel and can find representation free of any potential conflict. (227)

5. Ex Parte Communications

   Ex parte communications occur when a person interested in the outcome of a proceeding makes an off-the-record communication to a decision maker regarding the merits of the proceeding without prior notice to other parties. (228) The one-sided communications create potential bias by communicating facts or views on a contested issue outside the proper channel, thereby excluding other interested parties from effectively participating or responding to the arguments or information. (229)

   The federal APA precludes ex parte communications, but only in formal adjudications and formal rulemaking. Under section 557(d)(1), an interested person outside the agency is prohibited from making or knowingly causing to be made an ex parte communication relevant to the merits to a decision maker or government employee involved in the decision process. (230) Similarly, a decision maker or employee involved in the decision process is not allowed to make an ex parte communication to any interested person outside the agency. (231) State administrative procedure acts contain similar prohibitions. (232)

   As the ban on ex parte communications only addresses communications with persons outside the agency, agency employees and officials are free to communicate with each other, provided they do not run afoul of the separation of functions doctrine. (233) Even where ex parte restrictions do apply, only communications that could affect the outcome or decision in a contested case are prohibited, not inquiries about procedural matters, requests for status reports, or background discussions about an industry. (234) Also, the communication must be from an "interested person," defined as someone with an interest in the proceeding greater than the general interest of the public. (235) Agencies are not prohibited from having other contacts or general discussions about matters of common interest with interested parties. (236) Nor does the APA prohibit agencies from having ex parte communications in informal adjudications or informal rulemaking. (237)

   Where there has been a prohibited communication, an agency decision is not void, but voidable by a reviewing court. (238) Usually, the agency addresses the unfairness by placing the contents of the ex parte communication in the record of the proceeding. The legislative history of the APA indicates that a communication would not be considered ex parte if it were placed in the public record or docket of the proceeding when it was made or if all the parties to the proceeding had advance notice of the communication. (239) However, a proceeding may be set aside if "the agency's decisionmaking process was irrevocably tainted so as to make the ultimate judgment of the agency unfair, either to an innocent party or to the public interest that the agency was obliged to protect." (240) In PATCO, the court set forth the factors to be considered in deciding whether to vacate a voidable agency proceeding:

   the gravity of the ex parte communications; whether the contacts may have influenced the agency's ultimate decision; whether the party making the improper contacts benefited from the agency's ultimate decision; whether the contents of the communications were unknown to opposing parties, who therefore had no opportunity to respond; and whether vacation of the agency's decision and remand for new proceedings would serve a useful purpose. (241) "If the ex parte contacts are of such severity that an agency decision-maker should have disqualified himself, vacation of the agency decision and remand to an impartial tribunal is mandatory." (242)

   Even in proceedings that are not covered by the APA's restriction, due process rights may prohibit ex parte communications. In Sierra Club v Costle, (243) the court explained that "[w]here agency action resembles judicial action, where it involves formal rulemaking, adjudication, or quasi-adjudication among 'conflicting private claims to a valuable privilege,' the insulation of the decisionmaker from ex parte contacts is justified by...