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Hearing Examiners can be removed from Administrative Hearings

Published: Jan 15, 2021 by John Izzo

Hearing examiners should not hear cases if they have shown bias towards attorneys involved in the case.  The same standards to determine bias for a judge, according to the Ohio Attorney General’s Administrative Law Handbook, arguably should be applicable to a hearing examiner.  If a judge has a personal bias or prejudice concerning a lawyer, then the judge must recuse himself or herself.

Recently, Graff & McGovern Attorney Doug Graff filed an Affidavit of Disqualification in an Ohio Dental Board hearing.  Attorney Graff stated in his affidavit that the hearing examiner showed “unprofessional conduct, Judicial bad faith, and bias towards me and resulting prejudice to” his client.  As a result, the hearing examiner requested the Board assign the case to a different hearing examiner for the remainder of the proceedings, and cancelled the next scheduled hearing date.

Graff & McGovern Attorney John Izzo has also been put in situations where he felt, based upon a hearing examiner’s prior decision, that bias was shown towards him.  Several Affidavits of Disqualification have been filed.  As a result, a State Commission decided to create a system for review of affidavits of disqualification.  Under that system, a second hearing examiner will review the allegations in an affidavit of disqualification, then make a recommendation to the agency for review. 

At a recent prehearing conference, Attorney Izzo was ensured that the Affidavit of Disqualification had been addressed and that the case was ready to be heard the following week.   However, two day before the scheduled hearing, the Commission requested a continuance.  Upon review of their records, it was determined that the Commission did not follow its own policy on how to address the Affidavit of Disqualification.

Just as licensees and applicants are expected to follow laws, rules and policies, so too are state agencies.  “What’s good for the goose is good for the gander…”  Hughes v. Ohio Department of Commerce, 2007-Ohio-2877, at Paragraph 17.  The Commission corrected its error, but as a result the respondent must wait longer before his case will be heard.  Justice delayed is justice denied.

To raise the issue of bias from a hearing examiner, an affidavit setting forth the basis for that opinion must be provided to the agency no later than seven days before the scheduled hearing.  Once it is filed, the hearing examiner in question cannot rule upon matters that affect a substantive right of any of the parties.  The hearing examiner should not file a response unless requested to do so by the agency.  Essentially, the matter is stayed, awaiting a final decision on the Affidavit of Disqualification.

The attorneys at Graff & McGovern fight for you.  We believe you deserve a fair and impartial hearing examiner, and will take necessary steps if we don’t believe you have one.  If you have any questions about administrative hearings, contact an attorney at Graff & McGovern.  You can e-mail Attorney Graff or Attorney Izzo, or you can call the office at 614-228-5800.