The Perils of Administrative Law

“The public doesn’t realize how poor their chances are when they file an appeal with the Department of Revenue. Because it’s assigned to an admin law judge, and they assume, I think, that an administrative law judge is going to give them a fair decision, a relatively impartial decision, but I don’t believe that’s the case, and that’s why I think the system, somehow should be changed … Taxpayers now have too big of an expectation that they have a chance of winning.”

Q&A With David Dressel, Former DOR Administrative Law Judge

Dave Dressel worked as an administrative law judge at the Department of Revenue (DOR) for 27 years before retiring in 2012. On his last day he sent an email criticizing the agency for stacking the odds against the taxpayer and calling the system an “affront to due process.” The Washington State Wire had an opportunity to sit down with Dressel to learn about his time at the DOR. Read on to hear, in his own words, what concerns him about the appeals system.

What percentage of the time would you say you were uncomfortable with the mandatory outcome of taxpayer appeals cases? “I would say, probably 25 percent.”

Were you simply unhappy with how those were handled, or do you think they should have been decided in favor of the taxpayer? “They were cases that I felt that should have been in favor of the taxpayer. But you can’t get these things approved unless appeals review manager says ‘ok,’ and often times the only way you can get that result is to change a decision in favor of a taxpayer to a result in favor of the department.”

On how he felt signing decisions he didn’t agree with: “The only person that signs that decision – even thought it’s contrary to the research and the trying of the case that the ALJ has done, – the only person who signs it is the ALJ himself or herself. When you do that and it’s not your opinion that you’re signing, that’s troubling. That was really troubling for me. I had great difficulty with it.”

On time constraints and how they played a role against the taxpayer: “You’re criticized, or (an ALJs) evaluation is less than it should be if you don’t get those decisions out in less than a year. And the only way to do that in some instances is to cave in and come to a result that favors the department. Otherwise your decision won’t go out and it becomes late.”

On the shift at the agency during his tenure: “I worked there 27 years as an ALJ, basically the same position for the entire time. For the first 15 years at least, we functioned like at least a relatively independent administrative law judge. In other words if we had a case, heard the testimony and read the briefing and all that, we could decide it according to what we felt was appropriate based on the law and the administrative rules and all the precedent. But increasingly in the last 10 years, we can’t do that.”

On what changed: “They’ve always had some sort of review process, like when we write a draft decision, the decision would go to somebody to look at to make sure it wasn’t too far off base. Well, the scrutiny in the last seven to 10 years has (increased) … In the last seven years (I worked at DOR), the manager basically had to approve what you write … The net effect was the appeals review manager controlled everything that went out the door. It was like one person was making all the decisions. And the decisions were – it was obvious to me – that the result they wanted most of the time was what the action of the department’s operating division wanted, which was appeals to be affirmed. In other words, they didn’t favor taxpayer victories.”

On how the agency exercised influence in the outcome of cases: “They kind of held decisions hostage until you caved in and went the other way. And that’s how they controlled the result and decisions that we issue. And the appeals review manager would sometimes research the law – this was my impression – to try to find precedent that was contrary to a decision (in which) an ALJ wrote that gave some relief to a taxpayer. And then he would present that and tell you to look at it, but rarely did they (come out and) say, ‘you have to go the other way.’ But they didn’t approve the decision until you did go the other way. A lot of the initial impressions that an ALJ had in a case that favored a taxpayer would be swayed in the other direction to the point where a decision reflecting the opposite result was issued.”

On what he saw as the systemic problem: “I’ve always been bothered by the fact that my paycheck came from the Department of Revenue, and the Department of Revenue was one of the parties who was squaring off against the taxpayer and I was deciding the case. Certainly an appealing taxpayer who thought about it much must have seemed unfair.”

Why he wrote the email: “I was increasingly frustrated by the fact that somebody else was making decisions for me. You sort of have a guilty conscience calling yourself and administrative law judge when you’re really not the judge. It came to a point where we were more or less administrative law scribes, I thought. And some of my fellow ALJs feel the same way. I think most of them are (afraid to talk about it) because they want to keep their jobs. They’re worried about retribution.”

On the public’s misconception of the process: “The public doesn’t realize how poor their chances are when they file an appeal with the Department of Revenue. Because it’s assigned to an admin law judge, and they assume, I think, that an administrative law judge is going to give them a fair decision, a relatively impartial decision, but I don’t believe that’s the case, and that’s why I think the system, somehow should be changed … Taxpayers now have too big of an expectation that they have a chance of winning.”

Washington State Wire post by Valerie Bauman Nov 24, 2014

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