Sunday, August 10, 2008

Decision -Maker Can't Testify in Matter

In Verizon Bus. Svcs et all ve Dep't of Corrections et al, the First District reiterated a simple proposition that seems to escape courts reviewing local government decisions: it is a fundamental violation of due process for an administrative decision maker to also provide testimony (evidence) in the matter decided.

This case involved a bid dispute in a matter where the Secretary made the bid determination. The challenger (disappointed bidder) took the Secretary's deposition. The ALJ recommended dismissal, and the Secretary (rather than an appointee) issued the final order of dismissal. The aggreived vendor appealed and the First District reversed and remanded for a decision by a neutral appointee, noting that there is no no way that a decision maker can impartially reveiw a decision based on in any part on his or her own testimony (this is the Ridgewood Properties principle). The Court also noted that this was a violation that survived the failure to raise it before the tribunal, because it is fundamental.

How basic. How simple and obvious. How lost on courts reviewing local government decisions, where the commissioners chime in with their own views of a matter or statements of fact regarding the petition - often after the record is closed - in making decisions. This case should be cited when challenging decisions where a commissioner makes prejudicial or other statements on the record that are relied on for the decision later.

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