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Many
topics are included in the range of things that may suggest bias. Bias claims may involve
issues of fact, law, policy, financial interest, or personal interest. In addition, the type of
agency
action that is involved is important. Bias is of relatively little concern where the decision
need
not be made on the record, and it is of most concern where the decision must be based upon a
closed record created by an adversarial hearing process. In degree of seriousness, bias
involving financial or personal interest are the most likely to lead to disqualification, while bias
as to policy or law are, relatively speaking, the least likely to lead to disqualification. Bias
as to
facts will depend, in part, on whether the facts were legislative or adjudicative in character, to
use the Davis descriptors. Bias must generally be demonstrated by showing specifics rather
than a general atmosphere of distrust, and substantial prejudice must be shown to have resulted
from the alleged bias. |
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Where
prejudicial bias can be shown the decisionmaker may be disqualified. The agency head
who must run the agency, however, has many statutory duties that may involve him or her in the
matter prior to the final decision. For example, the agency head may need to authorize the
initial investigation or may need to give approval to the sending of notice of adjudication to the
nongovernmental party. The ALJ may have no statutory duties beyond conduction of the
hearing and deciding. The differences in duties will impact on courts when they are asked to
decide if there was disqualifying bias. |
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This
doctrine generally provides that if the only authorized decisionmaker is subject to
disqualification for bias, necessity may require that the biased person make the decision
anyway, since there is no one else authorized by statute to so act. |
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Ex
parte contact can lead to disqualifying bias, especially where the other side has no way of
knowing what adjudicative facts it should be attempting to rebut. |
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Several
functions may be involved, including investigation, advocating, judging or deciding, and
the settlement function. The decisionmaker usually can be involved in settlement efforts without
disqualification. As a matter of due process, combining investigation and deciding is not per
se
prohibited. The combination of advocacy and deciding is likely to come closest to showing a
disqualifying bias, where specifics can be shown. |
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A
general allegation of bias will not be adequate to show error in the agency action. Specific
bias resulting in specific and substantial prejudice must be shown. For example, members of a
given profession in a trade association may be sharply divided over many fundamental issues. In
one case, self employed optometrists had negative views about the activities of corporate
employed optometrists. The mere showing of such divisions is not necessarily proof of
disqualifying bias. When the agency head makes a speech or issues interpretative rules
showing a definite bias as to the meaning of a statute, this will not usually be treated as
disqualifying bias. Where disqualification is sought, the burden is on the proponent to prove
specific instances involving substantial prejudice. General allegations or demonstrating an
unfriendly atmosphere will not be sufficient. Showing bias without showing prejudice will not
result in a successful challenge of agency action. |
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1. Adjudication, Formal
