Strengthening Administrative Strengthening Administrative Accountability Through Accountability Through Improved Administrative Improved Administrative Appeals Systems: Opportunities Appeals Systems: Opportunities and Challengesand Challenges

Some Preliminary Observations from Reform Some Preliminary Observations from Reform Initiatives in Latvia and Bosnia-Herzegovina Initiatives in Latvia and Bosnia-Herzegovina

Malcolm Russell-Einhorn Malcolm Russell-Einhorn

IRIS Center, University of MarylandIRIS Center, University of Maryland

The World Bank, June 8, 2004The World Bank, June 8, 2004

Overview Overview Potential significance of administrative appeals systems Potential significance of administrative appeals systems

(and administrative procedures generally) to promotion of (and administrative procedures generally) to promotion of ‘everyday justice’ and governmental integrity‘everyday justice’ and governmental integrity

The specific purposes served by an effective The specific purposes served by an effective administrative appeals (internal review) system administrative appeals (internal review) system

Use of a questionnaire in Latvia to assess functioning of Use of a questionnaire in Latvia to assess functioning of various ministries’ appeals systems; additions to such a various ministries’ appeals systems; additions to such a questionnaire through work in Bosniaquestionnaire through work in Bosnia

Public sector management and political economy Public sector management and political economy challenges to implementing administrative appeals reform challenges to implementing administrative appeals reform efforts: picking appropriate targets of opportunityefforts: picking appropriate targets of opportunity

A sound administrative A sound administrative procedure systemprocedure system

Concerned with constraining bureaucratic discretionConcerned with constraining bureaucratic discretion

Encompasses procedural rules for initial administrative Encompasses procedural rules for initial administrative decision-making as well as an opportunity to appeal to decision-making as well as an opportunity to appeal to administrative body; may also encompass court administrative body; may also encompass court review (e.g., everything from tax to pension appeals)review (e.g., everything from tax to pension appeals)

Through substantive and procedural protections, Through substantive and procedural protections, ‘evens the playing field’ between the state and citizens‘evens the playing field’ between the state and citizens

Is concerned with both efficiency and fairness, which Is concerned with both efficiency and fairness, which has a potential impact on citizen trust in government has a potential impact on citizen trust in government and the investment climate and the investment climate

Recent worldwide attention Recent worldwide attention paid to administrative paid to administrative procedure reform procedure reform

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

Major new codes adopted in past several years Major new codes adopted in past several years in transition countries, including Latvia, in transition countries, including Latvia, Estonia, Georgia, Estonia, Georgia,

Coincides with political realignments and Coincides with political realignments and greater contestation; and EU accession efforts greater contestation; and EU accession efforts

Relative priorities: first-instance Relative priorities: first-instance decision-making and deregulation decision-making and deregulation vs. administrative appeals vs. vs. administrative appeals vs. court reviewcourt review

Complementary parts of an integrated system of Complementary parts of an integrated system of administrative justiceadministrative justice

Deregulation and first-instance decision-making Deregulation and first-instance decision-making significantly more importantsignificantly more important

Significant public sector management Significant public sector management challenges and demand-side usage problems challenges and demand-side usage problems attend administrative appeals systems attend administrative appeals systems

Purposes of an Purposes of an administrative appeals administrative appeals system system

Provides quick and inexpensive way for public Provides quick and inexpensive way for public to challenge administrative decisions without to challenge administrative decisions without going to courtgoing to court

Raises public trust in the administrationRaises public trust in the administration Provides agencies opportunity to use expertise Provides agencies opportunity to use expertise

to check lower instance decision-making for to check lower instance decision-making for correctness and consistencycorrectness and consistency

Clear interpretation of law and procedure Clear interpretation of law and procedure discourages unnecessary second instance and discourages unnecessary second instance and court appeals by public; and incorrect case court appeals by public; and incorrect case processing by first instance decision-makersprocessing by first instance decision-makers

Internal review systems Internal review systems are generally neglectedare generally neglected

Not accorded as much attention or prestige as court Not accorded as much attention or prestige as court review as source of substantive legal interpretationreview as source of substantive legal interpretation

Second instance decision-makers in ministries or Second instance decision-makers in ministries or agencies often under-staffed and under–resourced; often agencies often under-staffed and under–resourced; often lack appropriate expertise lack appropriate expertise

Also sometimes lack sufficient organizational Also sometimes lack sufficient organizational independence and/or political support by agencyindependence and/or political support by agency

Hard for agencies and government as a whole to share Hard for agencies and government as a whole to share information/good practices on internal reviewinformation/good practices on internal review

Progress of Administrative Progress of Administrative Procedure Reform in Latvia Procedure Reform in Latvia

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

Among many reasons for a new law, most crucial Among many reasons for a new law, most crucial was improving court procedure and enunciating was improving court procedure and enunciating modern European substantive review principlesmodern European substantive review principles

Drafting of new law began in 1999; law enacted in Drafting of new law began in 1999; law enacted in 2001, effective date February 20042001, effective date February 2004

Implementation grant from World Bank in 2003: five Implementation grant from World Bank in 2003: five components, incl. assessment of admin. appeals components, incl. assessment of admin. appeals

Latvia’s new administrative Latvia’s new administrative procedure law (APL)(2004)procedure law (APL)(2004) A framework law that provides a ‘floor’ for proper A framework law that provides a ‘floor’ for proper

administrative decision-making administrative decision-making

Features decision-making based on democratic Features decision-making based on democratic principles (equality, proportionality, lawful basis), principles (equality, proportionality, lawful basis), introduces new court procedural rulesintroduces new court procedural rules

Also features decision-making informed by Also features decision-making informed by clearer procedural regularity (opportunity to be clearer procedural regularity (opportunity to be heard, to present evidence, to be given reasons heard, to present evidence, to be given reasons for a decision)for a decision)

Key obligations of civil Key obligations of civil servants under the new APLservants under the new APL

Provide citizens relevant information and obtain Provide citizens relevant information and obtain such information from other agencies if necessary such information from other agencies if necessary

Clarify and assess arguments of citizens seeking Clarify and assess arguments of citizens seeking an administrative decisionan administrative decision

Issue decisions that contain arguments of the Issue decisions that contain arguments of the parties and a reasoned justification for the decisionparties and a reasoned justification for the decision

Give citizens a right to be heard on appeal in a Give citizens a right to be heard on appeal in a ‘higher institution”‘higher institution”

Translating the APL’s Translating the APL’s promise into realitypromise into reality

As usual, an ‘implementation gap’ may exist:As usual, an ‘implementation gap’ may exist: Legal norms need to be harmonizedLegal norms need to be harmonized Commentaries need to be writtenCommentaries need to be written Internal guidelines and forms need to be Internal guidelines and forms need to be

developeddeveloped Civil servants need training Civil servants need training Public needs informationPublic needs information Better recordkeeping and monitoring neededBetter recordkeeping and monitoring needed

Use of a survey to clarify Use of a survey to clarify APL implementation issuesAPL implementation issues

Designed to gather information about existing Designed to gather information about existing internal review procedures and plans for internal review procedures and plans for implementing the APLimplementing the APL

Drafted with input from, and administered to, Drafted with input from, and administered to, members of a Prime Minister’s Working Groupmembers of a Prime Minister’s Working Group

Two separate questionnaires: one for ministries Two separate questionnaires: one for ministries and one for subordinate institutionsand one for subordinate institutions

Basically limited to supply-side concerns Basically limited to supply-side concerns

Key topics of the surveysKey topics of the surveys

Types and volume of administrative decisionsTypes and volume of administrative decisions Levels and avenues of appealLevels and avenues of appeal Volume of appeals and recordkeepingVolume of appeals and recordkeeping Internal processes for handling appealsInternal processes for handling appeals Review/monitoring of appeals practicesReview/monitoring of appeals practices Training of civil servantsTraining of civil servants Public information practices Public information practices Retrieval of information between agenciesRetrieval of information between agencies Resource needs for implementation of the lawResource needs for implementation of the law

Survey responsesSurvey responses

15 out of 17 ministries responded (88%)15 out of 17 ministries responded (88%)

83 out of 95 subordinate institutions (87%)83 out of 95 subordinate institutions (87%)

High response rate can be considered High response rate can be considered comprehensive for national-level governmentcomprehensive for national-level government

Survey not administered to municipalities, but Survey not administered to municipalities, but results are suggestive for them as well results are suggestive for them as well

Types and volume of Types and volume of administrative decisions administrative decisions

Many institutions could not supply full list of Many institutions could not supply full list of types of administrative decisions they issuedtypes of administrative decisions they issued

Information on volume of administrative Information on volume of administrative decisions was better, but still understated decisions was better, but still understated

Most agencies failed to identify procurement, Most agencies failed to identify procurement, freedom of information, or civil service freedom of information, or civil service decisions as decisions decisions as decisions

Failure to fully identify types and volume of Failure to fully identify types and volume of decisions reduces agency ability to comply with decisions reduces agency ability to comply with law and ensure good management practices law and ensure good management practices

0

200000

400000

600000

800000

1000000

1200000

1400000

Zemkopības ministrija(padotības iestādēm –

kopā)

Satiksmes ministrija(ministrijai un

padotības iestādēm –kopā)

Iekšlietu ministrija(padotības iestādēm –

kopā)

Ekonomikas ministrija(padotības iestādēm –

kopā)

Labklājības ministrija(padotības iestādēm –

kopā)

Tieslietu ministrija(padotības iestādēm –

kopā)

Veselības ministrija(padotības iestādēm –

kopā)

Vides ministrija(padotības iestādēm –

kopā)

Finanšu ministrija(padotības iestādēm –

kopā)

2001 2002 līdz šim 2003 (līdz Okt.)

Levels & Levels & avenuesavenues of of appealappeal Special legal norms often govern avenues of Special legal norms often govern avenues of appeal appeal

Ideally should have one internal appeal level, but Ideally should have one internal appeal level, but 38 of 83 institutions reported more than one38 of 83 institutions reported more than one

Appeals often made to head of a regional or Appeals often made to head of a regional or structural unit, and then to the head of an structural unit, and then to the head of an institution or to ministryinstitution or to ministry

For fairness and efficiency, better to focus on For fairness and efficiency, better to focus on qualityquality of review and limiting number of appeal of review and limiting number of appeal instances (avoiding “appeal fatigue”)instances (avoiding “appeal fatigue”)

Differences of Opinion Re: Avenues of Differences of Opinion Re: Avenues of Appeal Appeal

CURRENT SITUATION AFTER APL ENACTMENT

Institution: Appeal to

the supervising ministry?

Ministry: Appeal to

the supervising Ministry?

Instances of

different interpre-

tation

Institution: Appeal to

the supervisingministry?

Ministry: Appeal to

the supervising ministry?

Instances of

different interpre-

tation Ministry of Agriculture 2 3 1. State Forest Service NO YES 2. State Fishery Board YES NO YES YES 3. Food and Veterinary Service NO YES 4. State Plant Protection Service NO YES 5. State Breeding Inspectorate YES NO YES YES Ministry of Economy 4 2 6. Central Statistical Board NO YES 7. State Metrology Inspectorate NO YES YES YES 8. Nonprofit State LLC National

Metrological Center YES NO YES NO 9. State Electricity Inspectorate NO YES NO YES Ministry of Environment 3 3 10. Environmental Impact Assessment

Bureau NO* YES NO 11. Jelgava Regional Environmental

Board YES NO NO* 12. Liepaja Regional Environmental

Board YES NO YES NO 13. North Vidzeme Biosphere Reserve YES NO YES NO

Volume & recordkeeping of Volume & recordkeeping of appealsappeals

Few institutions keep statistics on numbers or Few institutions keep statistics on numbers or outcomes of appealsoutcomes of appeals

Many institutions that do keep statistics on Many institutions that do keep statistics on appeals have very low figuresappeals have very low figures

Of those that keep statistics, several have very Of those that keep statistics, several have very high affirmation rates, possibly problematichigh affirmation rates, possibly problematic

Dearth of statistics prevents analysis, learning, Dearth of statistics prevents analysis, learning, and improvements in quality of service and improvements in quality of service

Organization and processes Organization and processes for handling appealsfor handling appeals

Only 16 out of 83 subordinate institutions have Only 16 out of 83 subordinate institutions have a dedicated unit to handle appealsa dedicated unit to handle appeals

8 had standing appellate commissions with 8 had standing appellate commissions with collegial decision-makingcollegial decision-making

Dedicated appeals units or boards may be Dedicated appeals units or boards may be required where large numbers of appeals are required where large numbers of appeals are filed and/or special expertise is neededfiled and/or special expertise is needed

Considerations affecting location Considerations affecting location & nature of internal appeals & nature of internal appeals unitsunits

To ensure quality review, set up appeals units To ensure quality review, set up appeals units that have:that have:

Reviewers with adequate legal and technical Reviewers with adequate legal and technical expertise and writing skillsexpertise and writing skills

Reviewers with adequate political support and Reviewers with adequate political support and resources/salariesresources/salaries

Functional independence from line agency Functional independence from line agency personnel personnel

Procedures and Procedures and guidelines for handling guidelines for handling appeals appeals

50 institutions reported having no external or 50 institutions reported having no external or internal guidelines for handling appealsinternal guidelines for handling appeals

Number is probably higher, since only 9 Number is probably higher, since only 9 institutions clearly reported having guidelinesinstitutions clearly reported having guidelines

Only 4 institutions reported guidelines Only 4 institutions reported guidelines governing substantive review of appealsgoverning substantive review of appeals

Only 4 institutions reported using checklists of Only 4 institutions reported using checklists of necessary elements for rendering decisions necessary elements for rendering decisions

Forms and information for Forms and information for the public on appeals the public on appeals procedures procedures Although many agencies have standardized forms Although many agencies have standardized forms

for issuance of administrative acts, most relate for issuance of administrative acts, most relate only to administrative violations casesonly to administrative violations cases

Most forms do not provide clear guidance on Most forms do not provide clear guidance on where appeals will be lodged and processed under where appeals will be lodged and processed under the APL the APL

21 agencies have web sites that explain 21 agencies have web sites that explain something about appeal rights, while 12 something about appeal rights, while 12 institutions have brochures on the subject. institutions have brochures on the subject.

Systemic Systemic reviews/monitoring of reviews/monitoring of appeals practices appeals practices 51 out of 83 responding institutions said they 51 out of 83 responding institutions said they

conducted no systemic analysesconducted no systemic analyses

How ‘systemic’ actually are such reviews?How ‘systemic’ actually are such reviews?

Value of such reviews: identifying problems in Value of such reviews: identifying problems in policy, procedures, practicespolicy, procedures, practices

Helpful to periodically survey staff & appellantsHelpful to periodically survey staff & appellants

Appeals should be analyzed to identify trends Appeals should be analyzed to identify trends and rectify recurrent problems and rectify recurrent problems

Retrieval of information Retrieval of information between institutionsbetween institutions

APL requires institutions to gather all APL requires institutions to gather all information necessary to a decision, rather information necessary to a decision, rather than requiring citizens to obtain it. Many don’t.than requiring citizens to obtain it. Many don’t.

82 out of 98 institutions said they will use 82 out of 98 institutions said they will use letters of request to fulfill this obligation; 54 letters of request to fulfill this obligation; 54 said they will use access to online government said they will use access to online government databases to obtain data; databases to obtain data;

44 said they will also use phone calls to track 44 said they will also use phone calls to track down needed datadown needed data

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

Training Training

31%

28%

17%

17%

14%

11%

11%

6%

3%

3%

3%

2%

0%

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

Zemkopības ministrija

Valsts Kanceleja

Īpašu uzdevumu ministra bērnu un ģimenes lietās sekretariāts

Kultūras ministrija

Vides ministrija

Satiksmes ministrija

Labklājības ministrija

Finanšu ministrija

Ekonomikas ministrija

Iekšlietu ministrija

Īpašu uzdevumu ministra sabiedrības integrācijas lietās sekretariāts

Tieslietu ministrija

Ārlietu ministrija

As a result of the surveysAs a result of the surveys Ministries have better understanding of what Ministries have better understanding of what

the implementation issues arethe implementation issues are

Agencies can advocate more persuasively for Agencies can advocate more persuasively for resources and/or legal and regulatory changesresources and/or legal and regulatory changes

Individual agencies can engage in priority-Individual agencies can engage in priority-setting as well as joint initiatives (special setting as well as joint initiatives (special norms, training, information exchanges) norms, training, information exchanges)

Government as a whole is sensitized to need Government as a whole is sensitized to need for more resources, donor support, and for more resources, donor support, and relationship of APL reform to other public relationship of APL reform to other public sector management & legal reformssector management & legal reforms

CHECKLIST OF KEY ADMINISTRATIVE APPEAL PROCESS ELEMENTS AND INSTITUTIONAL

ARRANGEMENTS FOR APL IMPLEMEN TATION IN LATVIA

Submission of

an appeal Using forms describing bases for

deicison and appeal rights

Within 7

days, appeal

must be sent to

reviewing institution

Application of the amin.

Act suspended

unless otherwise

provided for by special

norms special

Recording

of the appeal in the higher institution

Designation of the reviewing unit/officer, equipped with standards of conduct

Review of the appeal using APL standards translated

into internal

guidelines

Preparation of the

decision on appeal in format

prescribed by APL

Issuance of decision on appeal with notice to appellant and agency

Record- keeping, auditing,

and analysis

of decisions

•Avenues of appeal; designation of internal reviewAvenues of appeal; designation of internal review•Procedures for reviewing appeals, including taking of Procedures for reviewing appeals, including taking of

evidence and conduct of hearings; publicizing sameevidence and conduct of hearings; publicizing same•Procedures and forms to document appealsProcedures and forms to document appeals•Minimum requirements for recordkeepingMinimum requirements for recordkeeping

Mapping Procedures and Mapping Procedures and Writing/Publicizing Guidelines to Writing/Publicizing Guidelines to Eliminate Vagueness & DiscretionEliminate Vagueness & Discretion

Additional Diagnostic Additional Diagnostic Emphases in Bosnia Emphases in Bosnia

USAID project focused on administrative procedural USAID project focused on administrative procedural reform at local and national levelreform at local and national level

Intensive internal review work with a few ministries Intensive internal review work with a few ministries (strategic planning, training, case management)(strategic planning, training, case management)

More emphasis in surveys on probing pay, More emphasis in surveys on probing pay, education, and independence of 2education, and independence of 2ndnd instance instance decision-makersdecision-makers

Additional survey emphasis on probing other Additional survey emphasis on probing other reasons for failure to decide appeals on meritsreasons for failure to decide appeals on merits

Challenges for Challenges for administrative appeals administrative appeals systems reform systems reform

Political economy considerations (sufficient Political economy considerations (sufficient political contestation; ministry leadership, political contestation; ministry leadership, corruption dynamics)corruption dynamics)

Need for concomitant civil service and other Need for concomitant civil service and other public sector management reformspublic sector management reforms

Need demand-side pressures from civil society, Need demand-side pressures from civil society, esp. the media and ombudsman, if anyesp. the media and ombudsman, if any

Judiciary can also be a source of pressureJudiciary can also be a source of pressure

Picking the right targets Picking the right targets of opportunityof opportunity Generally best to take a sectoral, ministry-focused Generally best to take a sectoral, ministry-focused

approach based on demonstrated ministry approach based on demonstrated ministry leadership and a motivated community of system leadership and a motivated community of system usersusers

Better if it’s part of, and complements, a broader Better if it’s part of, and complements, a broader public sector management initiativepublic sector management initiative

Better if public users of system can be surveyed Better if public users of system can be surveyed or otherwise provide input on proceduresor otherwise provide input on procedures