Friday, June 21, 2019

admin. law - duty of hearing officer - pro se litigant

Duty to conduct fair and impartial hearing   
The General Rules of Administrative Practice and Procedure (GRAPP). See Section 56.1 of the Pennsylvania Code, 31 Pa. Code § 56.1. Section 35.189 of GRAPP specifies: “It is the duty of the presiding officer to conduct a fair and impartial hearing and to maintain order.” 1 Pa. Code § 35.189.

Pro se litigants
This Court has declared relative to Department hearings: The Pennsylvania Supreme Court has long held that ‘any layperson choosing to represent himself in a legal proceeding must, to some reasonable extent, assume the risk that his lack of expertise and legal training will prove his undoing.’ Vann v. UCBR . . . 494 A.2d 1081, 1086 ([Pa.] 1985) (quoting Groch v. Unemployment Comp. Bd. of Review, . . . 472 A.2d 286, 288 ([Pa. Cmwlth.] 1984)).

Referee must be “unusually cautious” with pro se litigant – make sure all issues fully and fairly  examined
More recently, this Court clarified that, ‘referees should reasonably assist pro se This Court has also concluded “that where a person proceeding before an administrative agency is not represented by counsel, the hearing officer must be unusually cautious to insure that all issues are fully examined.” Zong v. Ins. Dep’t, 614 A.2d 360, 363 (Pa. Cmwlth. 1992). To that end, an administrative tribunal[] has the power to ask questions to clarify matters and to elicit relevant information not presented by counsel. Dayoub v. State Dental Council [&] Examining B[d., 453 A.2d 751, 753 (Pa. Cmwlth. 1982)]. [It] will have overstepped its bound only when it heatedly questions and argues with [a party] and [his/her] witnesses ‘in such a manner that [the presiding officer’s] behavior . . . [is] much more in line with that of a prosecuting attorney than of a neutrally detached and impartial decision-maker.’ [Id.]. Shah v. State Bd. of Med., 589 A.2d 783, 797 (Pa. Cmwlth. 1991).  

In the instant matter, the Presiding Officer “reasonably assist[ed] the litigant to elicit facts that [were] probative for [her] case[,]” Hackler, 24 A.3d at 1115, to ensure that both parties had the opportunity to fully present their cases. There is no evidence that the Presiding Officer impermissibly advocated for the litigant, assisted her in a manner that biased the proceedings, or gave the appearance of impropriety. Rather, it is clear from the record that the Presiding Officer was ensuring that all relevant facts were available for the Commissioner’s review. Accordingly, the Presiding Officer did not irreparably bias the proceedings or give the appearance of impropriety.