Strengthening Administrative Accountability Through Improved Administrative Appeals Systems: Opportu

1
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

2
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

3
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

4
Recent worldwide attention paid to administrative
procedure reform

• Major new laws on administrative procedure passed
  in Korea, Japan, and Taiwan in the early 1990s
  
• 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

5
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

6
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

7
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 underresourced
  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

8
Progress of Administrative Procedure Reform in
Latvia

• Historical antecedents of the new Administrative
  Procedure Law (Inter-war period, Soviet period,
  1990s)
  
• 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

9
Latvias 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)

10
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

11
Translating the APLs 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

12
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 Ministers Working Group
  
• Two separate questionnaires one for ministries
  and one for subordinate institutions
  
• Basically limited to supply-side concerns

13
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

14
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

15
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

16
(No Transcript)
17
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)

18
Differences of Opinion Re Avenues of Appeal
19
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

20
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

21
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

22
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
  

23
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.

24
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

25
Retrieval of information between institutions

• APL requires institutions to gather all
  information necessary to a decision, rather than
  requiring citizens to obtain it. Many dont.
  
• 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
  

26
Percentage of Civil Servants (7) by Ministry Who
Have Received Some APL Training
27
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
  priority-setting 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

28
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

29
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 2nd instance
  decision-makers
  
• Additional survey emphasis on probing other
  reasons for failure to decide appeals on merits
  

30
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

31
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 its 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