When it comes to Texas agencies, the State Office of Administrative Hearings operates in relative obscurity. Ask the average person what the office does, and he or she probably won’t have an answer.
But the office, whose judges preside over disputes involving state agencies, made headlines this year when an administrative judge was forced to resign after presiding over a case involving the Texas Medical Board.
The chief judge who forced that resignation is now taking fire from people, including administrative law experts and her predecessor, who say her actions threaten the agency's independence. But the judge, Lesli Ginn, says she was justified in asking for the judge’s resignation.
The controversy is brewing as Gov. Greg Abbott considers whether to reappoint the chief judge to another two-year term — or opt for someone new.
“We’ve had SOAH for 27 years, and we’ve never had a chief judge who took any type of formal action against one of their judges because of the way that they determined the facts,” said Ron Beal, a Baylor Law School professor and administrative law expert. “For over two decades, SOAH served its purpose well. Now, it’s in crisis at the hands of Ginn.”
Created in 1991, the State Office of Administrative Hearings was established to settle disputes between state agencies, other governmental bodies and private citizens.
In May 2017, an administrative law judge at the office heard a case that the Texas Medical Board brought against a doctor after allegations that the doctor behaved inappropriately with two patients. In his findings, the judge, Hunter Burkhalter, found the charges against the doctor lacked sufficient evidence.
The state medical board accepted Burkhalter's findings, but filed a complaint accusing him of bias — in part because he referenced the attractiveness of a witness. Burkhalter said the allegations of bias were unfounded, but after an internal investigation he was forced to resign by Ginn.
Beal says the office’s independence is threatened if judges can be forced out as Burkhalter was. In a letter to Gov. Greg Abbott following Burkhalter’s dismissal, Beal called for Ginn’s replacement, suggesting it was critical to restoring the agency’s integrity.
“As a Chief Judge, Leslie [sic] Ginn has done a miserable job that threatens the very essence of what SOAH stands for in our government,” Beal wrote. “This crisis can only be resolved by the appointment of a highly skilled, competent administrative lawyer who understands the essence of SOAH’s mission.”
Ginn’s predecessor, Cathleen Parsley, who worked for the agency for more than two decades, said she’d never witnessed a situation like this.
“It’s just critical that the judges are able to do their work without fear of losing their jobs,” Parsley said. “It is the chief [administrative law judge’s] statutory duty to defend the agency’s independence. This is not how the rule of law works — it can’t be.”
But Ginn says that any second-guessing of her actions and concerns about the agency’s independence are unwarranted.
In a statement to The Texas Tribune, Ginn said her office fully reviewed the Medical Board’s complaint against Burkhalter. She added that the investigation found that one aspect of the complaint had merit.
“ALJ Burkhalter, in a case before SOAH, inappropriately interjected his opinion of the physical attractiveness of female witnesses,” Ginn wrote. “Describing a witness as ‘an attractive woman in her early 20s’ blatantly falls below the standards applicable to SOAH hearings, which require that all individuals be treated with respect and dignity and that [administrative law judges] perform their duties without bias.”
In a formal response to the medical board's complaints, Burkhalter noted that a female witness’ appearance was a “small point” in his overall decision, not the “singular fact that disproved [TMB’s] case.”
Before Abbott appointed her as chief administrative law judge in 2015, Ginn served for a decade in the Texas Attorney General’s office and had been a litigator before that. She had never served as a judge, although she noted that she practiced administrative law at the attorney general's office and has served on the Council of the Administrative and Public Law Section of the State Bar of Texas since 2010.
Some of her critics say herlack of experience as a judge raises questions about her qualifications to oversee other judges. Tom Walston, a retired administrative law judge who sought the chief judge appointment in 2016, said Ginn’s experience as a lawyer required a different skill set than those required for a judge.
“There’s a big difference between being a litigator, an advocate for one side, and being a judge,” Walston said. “With SOAH, you have to make decisions based on the law or the evidence that you might not personally believe are right.”
In a letter to Sen. Kirk Watson, D-Austin, the vice chairman of the Senate Nominations Committee, Walston wrote that judges in the Office of Administrative Hearings “fear termination of employment or other adverse action if they rule against a state agency … As a result, [judges] now feel pressure to rule in favor of state agencies to avoid adverse employment actions, and the public’s faith in SOAH as a fair and neutral forum will be lost.”
In her own letter to Watson, Ginn says she has worked to uphold the independence of the agency.
“I have fulfilled that responsibility in all respects while heading this agency,” she wrote.
Abbott’s office did not respond to requests for comment. If he does reappoint Ginn, whose two-year appointment expired this month, her confirmation would go through the Senate Committee on Nominations when the Texas Legislature is back in session next year.
While it’s unclear when Abbott will make his decision, Watson said he’s aware of the current climate at SOAH.
"This situation is very troubling for a number of reasons, and all the parties involved bear some responsibility for how troubling it is,” Watson wrote in a statement to the Tribune. “I'm continuing to gather information from all sides so that I have the complete picture if and when Gov. Abbott chooses to re-appoint Chief ALJ Ginn."
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Correction: A previous version of this story incorrectly stated the number and gender of the patients who made allegations against a doctor.