How would you like to have a claim in court and find that the person who is giving advice to the judge is your opponent? How would you like it if that advice were given without you having an opportunity to be heard?
Such an arrangement would hardly square with most people’s notion of a neutral magistrate or an impartial approach to decision-making. Picture your client’s reaction to a proceeding conducted along those lines.
Oddly, the above scenario is the norm when a Connecticut resident seeking benefits under programs for the poor comes before a hearing officer of the Department of Social Services (DSS). That department has taken the position that its attorneys can have ex parte discussions with hearing officers about the law applicable to a particular appeal without hearing from the claimant. The DSS commissioner claimed in legislative testimony that it would be “burdensome” to include the claimant or counsel for the claimant in such discussions and might “lead to erroneous decisions.”
In the closing hours of the legislative session, the state Senate and then the House of Representatives passed, on consent calendars, SB 410, now Public Act 14-209, An Act Concerning Administrative Hearings Conducted by the Department of Social Services.
One section of this bill requires an opportunity for claimants and their counsel to be heard on issues of fact rather than having hearing officers rely on ex parte discussions with DSS employees. This provision would level the playing field for advocacy when the hearing officer has a question that will affect whether an applicant obtains or is denied crucial services.
The provision states what seems like an obvious tenet of due process and fairness: “If the Department of Social Services is conducting a hearing in a contested case and it also has an interest adverse to any party in the proceeding, the hearing officer may not communicate with any other employee of the agency, including its counsel, directly or indirectly, in connection with any issue of fact or law involved in that hearing, without advance notice and opportunity for all parties to participate on the record.”
No one is saying that hearing officers always do what DSS lawyers or staff members suggest, and, of course, hearing officers should listen to and consider the agency’s position. But advocates and institutions see issues from their own perspectives, and a basic requirement for any fair proceeding is to hear from all sides.
In the age of teleconferences and Skype, issues of burden do not seem insurmountable.
There will certainly be times when hearing officers need advice on the legal or factual issues before them. This legislation recognizes that need. It merely requires that both parties to a hearing be informed of the hearing officer’s questions and that they be given an opportunity to respond.
It’s an issue of basic fairness, as important in DSS hearings as in any other adversarial setting.
Gov. Dannell Malloy has often spoken about his concern for the safety net for the most vulnerable and needy of Connecticut’s citizens. It is to be hoped that he will sign this bill improving the fairness of adjudication of their claims.•