Looking Back, Learning from a Recently Retired Administrative Law Judge

An Interview with former ALJ Butch Elkins

By Ann B. Wall
ALJ Augustus B. (Butch) Elkins II officially retired from the Office of Administrative Hearings on September 30, 2019. This article, based on an interview before his retirement, will offer answers to some interesting questions.

What kinds of legal experience did Judge Elkins have that qualified him to serve as an ALJ? 

Judge Elkins’ legal career began in the military, where he served from 1979 to 2001, first in the U.S. Air Force, ultimately retiring as a Lieutenant Colonel from the Air Force Reserve. In the course of his military career, he handled a variety of administrative law related matters, including employment, environmental, health and mental health law, as well as serving as legal advisor on investigations. He gained extensive hearing officer experience while conducting Article 32 investigations and hearings, including ruling on motions and submitting findings and recommendations regarding possible courts martial.

Six years of service as Deputy Director in the NC Department of Administration provided experience in interpreting and applying administrative law and rules from the agency side of things. Then his administrative law experience was further honed at the Governor’s Advocacy Council for Persons with Disabilities, as Deputy General Counsel (for two years), then General Counsel and Senior Managing Attorney (for nine years). There he dealt with issues related to abuse and neglect in state-regulated medical facilities, as well as with disability related education issues. He appeared regularly in the Office of Administrative Hearings on behalf of children and parents, both in litigation and settlement conferences.

How did Judge Elkins become the “go to” ALJ for special education cases?

Around 2006, OAH began receiving an increasing number of special education related petitions for contested case hearings. By legislation, the Office of Administrative Hearing and the Department of Public Instruction entered into a Memorandum of Understanding regarding the handling of special education petitions. Because of his extensive prior experience with special education related cases, Judge Elkins was appointed by the Chief Administrative Law Judge to oversee all special education due process filings and rule on pre-hearing motions. There were about 90 special ed cases in OAH last year.

Have special ed cases changed over the years? 

Judge Elkins’ answer was a definite “yes”. He said that in the early years, there were few parent attorneys participating in the special ed cases. Now, more and more parents and children are represented by attorneys. As such, a great many of the cases go first to mediation prior to litigation with fairly successful resolution of all issues. If mediation does not result in settlement, often it helps bring more complex issues into focus before being tried at the OAH.

Is there a decision in your career as an ALJ that you are particularly proud of?  

Judge Elkins said “yes”. He said, “there was a case involving the Sheriff’s Training and Standards Commission in which a young man’s juvenile record was being used against him in a certification matter. The man appearing before him pro se was clearly so different from what he was as a juvenile.”  Judge Elkins said that he spent a lot of time researching the issues in the case and laws regarding juvenile delinquency and wrote a lengthy decision, finding in his favor. The Commission agreed with the opinion. Six years later, in 2012, Judge Elkins received an email from the petitioner in which he told him about what had happened since he received his certification and thanking the judge for his research and opinion. After a law enforcement career in North Carolina in which he made more than 750 arrests, he had moved to Florida and was continuing his law enforcement career there in a more senior status.

After more than 18 years as an ALJ, is there something worth passing on to attorneys appearing in OAH for the first time?

Without appearing to pause, Judge Elkins responded, “Be prepared.”  He said that as an ALJ, “I could really tell who was prepared. It makes for such a different hearing if the attorney is prepared. The issues are narrowed instead of splattering all over. If you are prepared, you are more confident, you are more focused.”  Judge Elkins said that “I was always a little surprised when unprepared attorneys did such a wide approach instead of focusing on what was important.”

In your experience, how can attorneys better impact cases before an ALJ?

There are several ways but one worth mentioning is, “If the ALJ starts asking questions, and your witness is on the stand, that should be a real clue to you, to pause in your prepared questions and listen carefully to the question. I already have an idea of what the case is about. I have read all of the documents before the hearing. I do not ask questions just to be asking them. If I start asking questions, it should be a clue that you, as the attorney, should pick up on. You should delve into it more or consider asking for a brief break if it something that has not been prepared for.”  He said, “I was always surprised when attorneys just ignored the fact that I was asking questions, indicating possible areas of importance or lack of understanding, or just where more focus was needed.”  He summed it up: “In other words, if the judge is speaking, listen to what he or she is saying, and the question being asked. At times I would ask a question of the witness and the next question from the attorney was not related to my question in any way.”

Another way to have an impact goes back to preparation. Judge Elkins said that a sign that the attorney is prepared is when she or he proceeds logically. “Some of the ones who did that well were the Certificate of Need attorneys. They move their cases in a logical progression and sequence that makes sense.”  A logical progression, he indicated, does not have to be chronological. It can be by issue, for example. It helps an ALJ, “receive the kind of information needed to make the best decision possible based on all the admitted evidence”.

Did you have a pet peeve as an ALJ?

Judge Elkins did not have an “across the board” answer for this one. He said that “more frequently than I would like, an attorney would object to an answer from a witness (who was actually answering the question) as opposed to the question. That is what cross-examination is for. It was particularly odd if it happened during an attorney’s direct examination of his or her own witness.”

What do you wish attorneys and their clients knew about ALJs? 

Judge Elkins said, “Each and every ALJ wants to get it right so to speak and they try their hardest to be fair and centered with really no particular philosophical bias.”  “They have a real, sincere desire to administer justice as best they can.”

What did he look for with regard to the APA’s requirement that ALJs give “due regard to the demonstrated knowledge and expertise of the agency with respect to facts and inferences within the specialized knowledge of the agency”? (G.S. § 150B-34(a))

Judge Elkins said that he does not hold an agency witness’ testimony to “expert” standards. He said that he looked for “methods and why what the agency did was logical”. He said that “the witness does not have to have been doing whatever it was “forever” but needed to articulate a level of expertise”. He said it does not hurt to show, for example, that the witness has been recognized for his or her specialized knowledge and expertise by way of awards or prior court appearances. He said “questions need to be asked and evidence introduced” to show the agency has the specialized knowledge and expertise on the issues before the OAH. It is not simply a given.

 

Wall is General Counsel at the North Carolina Department of the Secretary of State, and former chair of the NCBA Administrative Law and Government and Public Sector Sections.