Strengthening Administrative Accountability Through Improved Administrative Appeals Systems

Strengthening Administrative Accountability Through Improved Administrative Appeals Systems: Opportunities and Challenges Some Preliminary Observations from Reform Initiatives in Latvia and Bosnia-Herzegovina Malcolm Russell-Einhorn IRIS Center, University of Maryland The World Bank, June 8, 2004

Overview § Potential significance of administrative appeals systems (and administrative procedures generally) to promotion of ‘everyday justice’ and governmental integrity § The specific purposes served by an effective administrative appeals (internal review) system § Use of a questionnaire in Latvia to assess functioning of various ministries’ appeals systems; additions to such a questionnaire through work in Bosnia § Public sector management and political economy challenges to implementing administrative appeals reform efforts: picking appropriate targets of opportunity

A sound administrative procedure system § Concerned with constraining bureaucratic discretion § Encompasses procedural rules for initial administrative decision-making as well as an opportunity to appeal to administrative body; may also encompass court review (e. g. , everything from tax to pension appeals) § Through substantive and procedural protections, ‘evens the playing field’ between the state and citizens § Is concerned with both efficiency and fairness, which has a potential impact on citizen trust in government and the investment climate

Recent worldwide attention paid to administrative procedure reform § Major new laws on administrative procedure passed in Korea, Japan, and Taiwan in the early 1990 s § Major new codes adopted in past several years in transition countries, including Latvia, Estonia, Georgia, § Coincides with political realignments and greater contestation; and EU accession efforts

Relative priorities: first-instance decision-making and deregulation vs. administrative appeals vs. court review § Complementary parts of an integrated system of administrative justice § Deregulation and first-instance decision-making significantly more important § Significant public sector management challenges and demand-side usage problems attend administrative appeals systems

Purposes of an administrative appeals system § Provides quick and inexpensive way for public to challenge administrative decisions without going to court § Raises public trust in the administration § Provides agencies opportunity to use expertise to check lower instance decision-making for correctness and consistency § Clear interpretation of law and procedure discourages unnecessary second instance and court appeals by public; and incorrect case processing by first instance decision-makers

Internal review systems are generally neglected § Not accorded as much attention or prestige as court review as source of substantive legal interpretation § Second instance decision-makers in ministries or agencies often under-staffed and under–resourced; often lack appropriate expertise § Also sometimes lack sufficient organizational independence and/or political support by agency § Hard for agencies and government as a whole to share information/good practices on internal review

Progress of Administrative Procedure Reform in Latvia § Historical antecedents of the new Administrative Procedure Law (Inter-war period, Soviet period, 1990 s) § Among many reasons for a new law, most crucial was improving court procedure and enunciating modern European substantive review principles § Drafting of new law began in 1999; law enacted in 2001, effective date February 2004 § Implementation grant from World Bank in 2003: five components, incl. assessment of admin. appeals

Latvia’s new administrative procedure law (APL)(2004) § A framework law that provides a ‘floor’ for proper administrative decision-making § Features decision-making based on democratic principles (equality, proportionality, lawful basis), introduces new court procedural rules § Also features decision-making informed by clearer procedural regularity (opportunity to be heard, to present evidence, to be given reasons for a decision)

Key obligations of civil servants under the new APL § Provide citizens relevant information and obtain such information from other agencies if necessary § Clarify and assess arguments of citizens seeking an administrative decision § Issue decisions that contain arguments of the parties and a reasoned justification for the decision § Give citizens a right to be heard on appeal in a ‘higher institution”

Translating the APL’s promise into reality As usual, an ‘implementation gap’ may exist: § Legal norms need to be harmonized § Commentaries need to be written § Internal guidelines and forms need to be developed § Civil servants need training § Public needs information § Better recordkeeping and monitoring needed

Use of a survey to clarify APL implementation issues § Designed to gather information about existing internal review procedures and plans for implementing the APL § Drafted with input from, and administered to, members of a Prime Minister’s Working Group § Two separate questionnaires: one for ministries and one for subordinate institutions § Basically limited to supply-side concerns

Key topics of the surveys § § § § § Types and volume of administrative decisions Levels and avenues of appeal Volume of appeals and recordkeeping Internal processes for handling appeals Review/monitoring of appeals practices Training of civil servants Public information practices Retrieval of information between agencies Resource needs for implementation of the law

Survey responses § 15 out of 17 ministries responded (88%) § 83 out of 95 subordinate institutions (87%) § High response rate can be considered comprehensive for national-level government § Survey not administered to municipalities, but results are suggestive for them as well

Types and volume of administrative decisions § Many institutions could not supply full list of types of administrative decisions they issued § Information on volume of administrative decisions was better, but still understated § Most agencies failed to identify procurement, freedom of information, or civil service decisions as decisions § Failure to fully identify types and volume of decisions reduces agency ability to comply with law and ensure good management practices

Levels & avenues of appeal § Special legal norms often govern avenues of appeal § Ideally should have one internal appeal level, but 38 of 83 institutions reported more than one § Appeals often made to head of a regional or structural unit, and then to the head of an institution or to ministry § For fairness and efficiency, better to focus on quality of review and limiting number of appeal instances (avoiding “appeal fatigue”)

Differences of Opinion Re: Avenues of Appeal

Volume & recordkeeping of appeals § Few institutions keep statistics on numbers or outcomes of appeals § Many institutions that do keep statistics on appeals have very low figures § Of those that keep statistics, several have very high affirmation rates, possibly problematic § Dearth of statistics prevents analysis, learning, and improvements in quality of service

Organization and processes for handling appeals § Only 16 out of 83 subordinate institutions have a dedicated unit to handle appeals § 8 had standing appellate commissions with collegial decision-making § Dedicated appeals units or boards may be required where large numbers of appeals are filed and/or special expertise is needed

Considerations affecting location & nature of internal appeals units To ensure quality review, set up appeals units that have: § Reviewers with adequate legal and technical expertise and writing skills § Reviewers with adequate political support and resources/salaries § Functional independence from line agency personnel

Procedures and guidelines for handling appeals § 50 institutions reported having no external or internal guidelines for handling appeals § Number is probably higher, since only 9 institutions clearly reported having guidelines § Only 4 institutions reported guidelines governing substantive review of appeals § Only 4 institutions reported using checklists of necessary elements for rendering decisions

Forms and information for the public on appeals procedures § Although many agencies have standardized forms for issuance of administrative acts, most relate only to administrative violations cases § Most forms do not provide clear guidance on where appeals will be lodged and processed under the APL § 21 agencies have web sites that explain something about appeal rights, while 12 institutions have brochures on the subject.

Systemic reviews/monitoring of appeals practices § 51 out of 83 responding institutions said they conducted no systemic analyses § How ‘systemic’ actually are such reviews? § Value of such reviews: identifying problems in policy, procedures, practices § Helpful to periodically survey staff & appellants § Appeals should be analyzed to identify trends and rectify recurrent problems

Retrieval of information between institutions § APL requires institutions to gather all information necessary to a decision, rather than requiring citizens to obtain it. Many don’t. § 82 out of 98 institutions said they will use letters of request to fulfill this obligation; 54 said they will use access to online government databases to obtain data; § 44 said they will also use phone calls to track down needed data

Percentage of Civil Servants (7%) by Ministry Who Have Received Some APL Training

As a result of the surveys § Ministries have better understanding of what the implementation issues are § Agencies can advocate more persuasively for resources and/or legal and regulatory changes § Individual agencies can engage in prioritysetting as well as joint initiatives (special norms, training, information exchanges) § Government as a whole is sensitized to need for more resources, donor support, and relationship of APL reform to other public sector management & legal reforms

Mapping Procedures and Writing/Publicizing Guidelines to Eliminate Vagueness & Discretion • Avenues of appeal; designation of internal review • Procedures for reviewing appeals, including taking of evidence and conduct of hearings; publicizing same • Procedures and forms to document appeals • Minimum requirements for recordkeeping

Additional Diagnostic Emphases in Bosnia § USAID project focused on administrative procedural reform at local and national level § Intensive internal review work with a few ministries (strategic planning, training, case management) § More emphasis in surveys on probing pay, education, and independence of 2 nd instance decision-makers § Additional survey emphasis on probing other reasons for failure to decide appeals on merits

Challenges for administrative appeals systems reform § Political economy considerations (sufficient political contestation; ministry leadership, corruption dynamics) § Need for concomitant civil service and other public sector management reforms § Need demand-side pressures from civil society, esp. the media and ombudsman, if any § Judiciary can also be a source of pressure

Picking the right targets of opportunity § Generally best to take a sectoral, ministry-focused approach based on demonstrated ministry leadership and a motivated community of system users § Better if it’s part of, and complements, a broader public sector management initiative § Better if public users of system can be surveyed or otherwise provide input on procedures