Public designations of this kind will make it possible for this subcommittee to pass upon the agency's judgment and make suggestions if, in the opinion of the subcommittee, the agency is becoming more or less restrictive than circumstances justify.

That concludes the statement on the first topic, Mr. Chairman. The CHAIRMAN. Thank you, Mr. Tipton.

I notice you have another page on the other topics. Would you like that to just be included in the record?

Mr. TIPTON. Yes, if it may and when we reach those topics, I think it would be sensible if I then elaborated on them.

The CHAIRMAN. All right. Your prepared statement on the other three topics will be included in the record at this point. When we reach those topics, you may elaborate on your views.

(The material referred to follows:)

STATEMENT OF STUART G. TIPTON

TOPIC II

The committee has had before it a number of able and experienced hearing examiners. There is nothing I can add to what they have said, particularly since the ATA participates in very few formal proceedings. However, I was struck by two comments made by Mr. Brown, chief examiner of the Civil Aeronautics Board. In his opinion the salary classifications of hearing examiners have not kept pace with developments in the Government generally. There have been great efforts in recent years, through the creation of special classifications, to compensate at a higher level those Government employees carrying particularly heavy responsibilities. I understand from his statement that the responsibilities of hearing examiners have not been adequately recognized. view of the major role played by the hearing examiner in administrative agencies and the extent to which a corps of competent hearing examiners can make for the expeditious disposition of cases, this area is one which should be reviewed by the subcommittee. No legislation seems to be required. Action by the Civil Service Commission could solve the problem.

In

Another point made by Mr. Brown related to the "creation" of hearing examiners. He pointed out that under present civil service experience requirements it was not possible to employ "apprentice" examiners, who could be brought into the agency at a relatively low salary and trained by the experienced examiner group. It seems to me that Mr. Brown's point is extremely well taken. Here again no legislation is necessary. The Civil Service Commission has the power to solve this problem if it cares to do so.

TOPIC III

I have no comment on this topic except to the extent that my comments on topic I bear on the question presented here.

TOPIC IV

I have no comment on this subject. Mr. Mulligan, of the Civil Aeronautics Board, put forward a number of legislative changes. We will comment on them as they are brought up by this committee.

The CHAIRMAN. Gentlemen, you have had the matter opened up to you on topic No. 1.

Mr. Connor, I wonder if you would like to take a shot at this item at this point.

Mr. CONNOR. I wonder if I might postpone it until a later time, Mr. Chairman, if you please.

The CHAIRMAN. Who would like to?

Mr. ZWERDLING. Mr. Chairman, I would like to make a comment on one point in connection with the proposed legislation to outlaw ex parte influence.

I have seen the many statements which have been given before this committee on that subject and many of the speakers have pointed out difficulties and problems which will confront the Congress in drafting such a bill.

What I want to throw out and then rebut is a new type of argument or objection which was presented to me recently by a person of very high stature who has spent many years in this connection with regulatory proceedings. He expressed the fear that if a bill were to be passed by Congress outlawing ex parte contacts by private parties with the members of the Commission, the net result of such legislation would be merely to make the members of the Commission captives of the agency staff.

He was thinking of the possibility that the Commission, not being able to get its answers to these problems from the outside parties by informal discussions, would then get its answers exclusively from staff in informal discussions, and, therefore, he suggested that the best system is the one where both the outside parties and the staff are able to communicate freely with the Commission on these matters.

I feel that the answer to this type of argument is that it is equally wrong for members of the Commission to discuss the contested issues with staff personnel or with the outside parties, and I would also like to make the point particularly that there is no real reason why the members of the Commission need to have that type of ex parte discussions to really decide the cases themselves.

I think that the real answer here and the real issue is whether the Commission members themselves will do the homework and acquire their own understanding of the issues so that the decision will be their

own.

It is my feeling that if the Commission members will make a careful study of a comprehensive and helpful hearing examiner's initial decision and a careful study of the briefs and if they will refer to such portions of the record that may seem necessary to look at in that connection, they then will get their own understanding of these issues.

To me the danger is that if the Commission 'does not do that kind of homework, then when they speak privately to the staff and to the outside parties, the Commission members are not able to protect themselves because they do not at that time have their own understanding of these complexities, and I feel the answer to these problems is to keep everything on the record and the decision should be based solely on the record.

Thank you.

Mr. May. Mr. Chairman.

The CHAIRMAN. Yes, Mr. May.

Mr. MAY. Mr. Tipton, I wonder if you make any distinction on ex parte communications between those which relate to the merits of the case and procedural problems?

I don't think there is any question in anybody's mind, and at least there is not in mine, that there should not be any ex parte communications relating to the merits of the proceeding.

What I have in mind is that the Federal Power Commission has promulgated a proposed rule which would not inhibit ex parte communications relating to solely procedural problems, such as continuance of a hearing that hasn't yet been assigned to an examiner and matters of that nature.

Would you distinguish in your own mind between such ex parte communications, or do you think it should be broad enough to cover everything?

Mr. ZWERDLING. I certainly would make that distinction and in that connection one reaction I have had in reading many of the statements given on topic I at this session is that everybody seems to agree that of course it is completely improper for the Commission members to have an ex parte discussion with an outside party on a contested issue in a contested case. Then they run very quickly past that point to spend practically all their time warning the Congress that the danger is in outlawing the type of ex parte communications which Mr. May refers to, and I think all of us would agree as to procedural matters, as to situations where the lines of communication must be kept on, but I think it is important for this committee not to be led down the path of concentrating on the negatives.

As the committee itself has indicated in its questions during this session, the area that we agree should be outlawed needs outlawing by legislation and those problems are not as isolated as they might appear to be, as this committee has developed through its hearings in the past 2 years.

The CHAIRMAN. Mr. Zwerdling, you have been with the Federal Power Commission as a hearing examiner for some time, I assume. Mr. ZWERDLING. Yes, sir.

The CHAIRMAN. After you have heard a case and made a record, made your report, and the matter reaches the Commission for Commission consideration, do you contend that it would not be proper procedure for the Commission to talk to you about further explanation of any part of the record?

Mr. ZWERDLING. I would feel that very strongly, sir, and the reason I would feel that way is that in a difficult contested case where the issues are complex, I don't feel that there is any better way independently I could explain my positions to the Commission than the analysis I have made in my decision. If the Commission attempts to get a short explanation from me, I don't think the Commission will get the kind of understanding it should have itself of the issues to make its own decision.

Also, as Commissioner Kuykendall, of the Federal Power Commission, pointed out to this committee, if the examiner is later called in the Commission office to explain his decision, it sounds nice to use the word "explain," but I don't think you can treat the examiners as not being human, and they certainly will feel under some tension and stress when they write their decision if they know that later as a matter of practice they are going to get called in to "explain." I don't think it is necessary or desirable.

The CHAIRMAN. Mr. Sahm.

Mr. SAHM. Mr. Chairman, the Congress has shown concern in that respect and this is evidenced by its passage in 1947 of the Taft-Hartley Act, particularly section 4(a) which provides that—

No trial examiner's report shall be reviewed either before or after its publication and no trial examiner shall consult or advise with the Board with respect to exceptions taken to his findings, rulings, or recommendations.

The CHAIRMAN. Yes, and we had a similar provision in an effort to reach the same problem in connection with the McFarland amendments to the Federal Communications Act of 1952, I believe it was.

I might also say that a lot of people feel Congress went entirely too far in connection with those amendments and have, as a matter of fact, shackled the operation of the Commission.

Does anyone from the Federal Communications Commission want to tackle that phase of it.

Mr. Bond.

Mr. BOND. Mr. Chairman, if I might comment, I have, as you know, lived with that and I would like to express my endorsement of Mr. Zwerdling's views that it is a very salutary provision.

I certainly among the hearing examiners heard no complaint about it. Instead, the affirmative has been expressed strongly among hearing examiners that it is a worthwhile provision. It protects chiefly, I believe, the independence of the hearing examiner who has the challenge of preparing a well-reasoned decision, but does not have the threat, as it were, of having to come in and be called on the carpet for what he has said.

Thank you.

The CHAIRMAN. I believe you have a prepared statement on this topic, too, do you not, Mr. Bond?

Mr. BOND. I have a prepared statement in which this topic is discussed as well as other topics.

The CHAIRMAN. Do you want to throw it in at this point with the rest of it, or would you rather wait until a later time and have it go in altogether?

Mr. BOND. I did not prepare it in a severable form.

I would be glad to give the statement or to give what I believe is the essence of the statement on this point, either now or later, as the committee wishes.

The CHAIRMAN. Why not give us the benefit of it?

Just give us a brief résumé of the first topic so we will have it and then your entire statement may be included in the record.

Mr. BOND. Thank you, Mr. Chairman.

I can be very brief by giving just the résumé. I appreciate the opportunity to have the statement in full incorporated in the record.

In perhaps two sentences, I can say that the gist of my approach to this topic No. 1 is based on some disagreement perhaps with the view earlier expressed that agencies have few similarities to courts.

I take the contrary view, but I should point out that in doing so I have in mind what I think of as adversary proceedings. When adversary proceedings, whether rulemaking or adjudication, or investigation, or something else, are involved before administrative agencies and where the rights of parties are to be resolved on the basis of a hearing record, it seems to me that agencies are engaged in courtlike proceedings, and my thesis, therefore, is that the best way to handle these propositions is to adopt the procedures that are applied in the courts.

That means a cardinal emphasis on the proposition that the decision in the case at all levels should be based solely and exclusively on the publicly made hearing record. That means that ex parte representations on so-called procedural matters or on matters of substance would be totally banned and outlawed just as such communications are outlawed in the processes of the courts.

That in substance I believe presents my position.

Thank you, sir.

(Prepared statement of Mr. Bond follows:)

STATEMENT OF J. D. BOND, HEARING EXAMINER (FCC)-TOPIC II

(Also touches on topics I, III, and IV)

My name is J. D. Bond. I am grateful for the invitation and opportunity to express to this committee some of my views on the enormously important and difficult problems that confront you. I have served as a hearing examiner at the Federal Communications Commission since section 11 of the Administrative Procedure Act became effective on June 11, 1947. As a matter of possible further interest in your evaluation of my opinions, I have appended to this statement a brief outline of my professional experience. Although I appear under the auspices of the Federal Trial Examiners' Conference, the statements I make have not been expressly endorsed by that group. Nevertheless, I believe my views are shared by most of the Federal hearing examiners.

Administrative law and its processes touch the daily lives of virtually all citizens and businesses. We are told that there are more hearing examiners than Federal judges, and that these administrative officers handle more cases of greater dollar value than all civil cases in the Federal courts. The people want to know-indeed they must know if they are to honor and support our system of government—that fairness and integrity are scrupulously observed in these administrative proceedings. There seems to be agreement among all who study this problem that the role of the hearing examiner is a pivotal element in the administrative process. Just as the status and stature of our Federal judges for the past 175 years have built and maintained high public esteem for the justice afforded in our national judiciary, so must the citizen's confidence in the administrative process be rooted in a conviction that able and honorable men will impartially hear and decide controversies in this realm of government.

I offer no partisan support for the debaters of the question as to whether administrative procedure would be more improved by getting better men or by legislating better processes. It is certain that these are not mutually exclusive alternatives; both objectives are desirable, and both are interdependent. Abler men will improve procedures and improved legal procedures will attract and retain abler men. Hence, the role of the hearing examiner is a vital, but not a separately measurable, adjunct of the administrative law process. I approach the challenge of enhancing the status of the hearing examiner by first looking into the procedures that envelop his work. The hearing examiner is chiefly engaged in conducting adversary proceedings which might usefully be described as formal proceedings before administrative tribunals in which conflicting or competing interests of parties are required to be resolved by decision based on a hearing record. Characteristically, public interest considerations are of ultimately great significance in adversary proceedings, but the basic issues of contention may involve a variety of adversary claims among and between private parties and public agencies and authorities.

Hearing adversary proceedings, shaping a formal record upon which a decision is made, and making the initial or recommended decision are the duties of the hearing examiner. These are responsible judicial functions of high importance. The object of the proceeding is to decide justly a controversy, be it a contest by two individuals for one available public license or an extremely complex arraignment of competing interests in the big rate or regulatory cases. Manifestly, the size, clarity, and expense of the hearing record depend largely on the capabilities of the presiding officer, the hearing examiner. Undue delay and expense are elements of unfairness which can be minimized by competently conducted hearings. To rule wisely on procedural and evidentiary matters that arise in hearings is to promote justice. The hearing examiner must have in addition to personal abilities of a judicial character, full authority to control the course and conduct of the hearing. New legislative measures to this end could add much to the hearing examiner's effective management of proceedings before him. Significant improvements in this direction were made by the 1952 amendments to section 409 of the Communications Act, but more could be done.

The parallels and precedents of judicial experience suggest the wisdom of endowing administrative proceedings of an adversary character with the environmental attributes of judicial justice. Centuries of growth in our Anglo-Saxon jurisprudence underlie our devotion to the principles of equal justice under law.