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April 03, 2020 National Conference of the Administrative Law Judiciary

NCALJ Chair's Column

By Hon. Robert S. Cohen, Tallahassee, FL

As Chair, once the Midyear Meeting has come and gone, your time remaining begins to seem short.  Reflecting on the first half of my term, I see substantial progress being made but realize that the real work lies ahead.  Our focus this year has been on supporting those among our ranks whose decisional independence has been put at issue.  As adjudicators in the executive branches of federal, state, and local governments, we are never completely independent as a separate and co-equal branch of government.

Try as we might, through the creation of central panels of adjudicators, or in separate offices from the main agencies for whom we labor, there is always a sense that our decisional independence is scrutinized at a greater level than our brethren in the federal and state judiciaries.  The creation of state and, in some instances, local central panels has resulted in more independence in the decision-making process than when we are employees of the agencies whose matters we adjudicate.  We have spent a great deal of time this year discussing the concept of a federal central panel of administrative adjudicators, taking the direct supervision of these individuals out of the hands of agency heads and executives.  The idea of a central corps of federal adjudicators is not new; these discussions have been around for decades now.  The implementation of a separate body of these adjudicators, however, has been and will continue to be difficult so long as the leaders of the executive branch agencies refuse to release all or some control of the adjudicatory function of their agencies to a central panel. 

For the rest of this year and, most likely, into the next several years, NCALJ will strive to ensure that people who bring their grievances before government agencies will do so in a system where due process and fundamental fairness control the proceedings.  Our aim is not to grab power from the duly elected and appointed executives, but rather to give the regular citizen, the small business, and even the large national and multi-national litigant a fair opportunity to be notified of the agency action, the right to be heard before an impartial and unbiased adjudicator, and the right to challenge the agency decision and, when necessary, the adjudicator’s decision to a federal or state court.  Quite the opposite of a power grab, this is merely the recognition of our fundamental rights under the United States and the individual states’ constitutions.  Working with our diverse constituent groups within NCALJ and our fellow conferences within the Judicial Division, we hope to move the ball closer to the goal line at least a little bit this year, and even more in the years to come.

Nominating Committee and Elections.  Under the leadership of our Immediate Past Chair, Retired Admiral and Judge Jud Scott, the Nominating Committee has developed an outstanding slate of officers and executive council members for the 2020-2021 year.  I had made clear in my discussions with our Executive Committee (EC) and fellow members of the Nominating Committee (NC), that I think it is a positive step to have competition for open positions and that we should encourage people to submit their names, regardless if they are all successful in making the cut.  Accordingly, we had 12 applicants for four open EC positions.  The NC met face-to-face in Austin, then again by telephone to complete an outstanding slate of officers and EC members that will take us ahead as we navigate troubled waters for administrative adjudicators in the coming years.  We are proud of the response to our leadership recruitment and plan to bring those who do not make the board to become more involved in the leadership of committees and programs.

Membership and Recruiting.  We are shoring up our recruitment through educating potential members of the need for greater numbers as we attempt to have our voices heard as the often anonymous, at least to much the general public, adjudicators.  What we have learned is that membership recruitment and retention require constant attention.  If the focus is only on recruiting new members, the attrition of old members increases.  If we focus only on retaining our existing members, we miss out on the new blood necessary to keep an organization fresh and thriving.  We are focusing our efforts on both recruiting new members and keeping the longstanding members in the know as to what benefits are available and the importance of bringing new and diverse ideas into the conference.  Our goal is to have every member involved in bringing new people into the fold.

Hon. Robert S. Cohen

2019-2020 NCALJ Chair