Do you need a license to perform your job? Texas requires individuals in more than 500 occupations to have licenses to be able to engage in one’s job. This affects one in three Texans in our economy. If the state agency regulating your profession decides to deny you a license or determines your license should be revoked, in almost all cases you have a right to an impartial hearing where the agency must prove facts to justify its action. It’s only just that the government should provide you a fair hearing.
For most of our history since 1876, the Texas Legislature provided that this “impartial” hearing should be held by the very agency that denied you the license or wants to revoke your license. Say what? Your accuser also gets to be judge to determine what the facts are? Yes, that was once true. However, the Legislature studied this issue in the 1980s and decided not only did it have the appearance of impropriety, lawmakers believed that many times “judges” of the agency were simply deciding cases in the manner chosen by the regulatory agency itself. Therefore, in 1991, the Legislature created the State Office of Administrative Hearings (SOAH).
SOAH was created for one purpose: to provide fair hearings for Texas citizens who were denied a license or when an agency wanted to revoke the license. It’s solely comprised of judges and their only function is to hear and decide cases referred from other agencies. In essence, it’s the “independent judiciary” of administrative agencies. A chief judge runs the agency and he or she is appointed by the governor. The law requires that the chief judge “protect and ensure the decisional independence of each administrative law judge.” Isn’t that amazing? The Legislature specifically wanted the chief judge “to protect” judges from other agencies! The Legislature clearly did not trust the agencies to play fair!
The great news? For 25 years, SOAH has done its job. It has been the model of impartiality. Texas residents have had the right to a fair hearing where facts must be proven by an agency by a preponderance of the evidence before an impartial decisionmaker — a SOAH judge.
But crisis now looms over SOAH and Texans’ right to a fair hearing. Gov. Abbott appointed Chief Judge Leslie Ginn in May 2016. Chief Judge Ginn has wholly failed to comply with the law to protect the decisional independence of SOAH judges. This past year a SOAH judge decided a very complex and long trial that included many witnesses, lay and expert. He analyzed the case and wrote a 77-page opinion deciding the agency did not prove its case. Two other judges reviewed the decision and gave comments but said the decision was sound. The agency accepted the decision by not appealing and dismissed the charges.
The judge who held the hearing and made the decision had more than 10 years experience, had recently been promoted and was also assigned the job of supervising other SOAH judges.
However, even though the agency accepted the opinion, the agency sent a letter to Chief Judge Ginn and met with her personally in a closed-door meeting to quietly complain that the judge got the facts wrong. They did not complain the judge was unethical, failed to comply with the law or failed to comply with the procedure. Simply, he was wrong.
Chief Judge Ginn then fired the judge. Oh, not really. As her letter stated, she allowed resignation in lieu of termination. An outcry followed. Many current judges stated they would balk at ruling against an agency for fear they might lose their job. They said this confidentially because they could lose their jobs for saying so.
SOAH no longer exist for its only purpose — to hold fair hearings. Morale could not be lower. Judges feel they should start a hearing with a presumption the agency is right. The right of Texans for a fair hearing is gone.
Abbott has been pummeled with requests that Gill be removed. What has he done? Ginn’s term expired on May 1. Amazingly, he has allowed her to remain in office without a formal nomination. If you contact his office, no one will tell you what’s happening.
Governor Abbott, do you not believe Texans have a right to a fair hearing before government? Why do you allow Judge Ginn to continue to destroy this fantastic agency? You must replace her immediately with a seasoned, experienced administrative lawyer. The lives of Texas citizens depend on it.