The State Office of Administrative Hearings recently welcomed a new Chief Administrative Law Judge, following the April 24 Senate confirmation of the recommendation of its Committee on Nominations.
Kristofer Monson, for the last 15 years an assistant solicitor general, was nominated for the position by Gov. Greg Abbott on March 22. On April 11, Monson appeared before a brief hearing of the Senate committee, as the sole witness on his own nomination. On April 17, the committee (chaired by Sen. Dawn Buckingham, R-Lakeway) recommended Monson’s nomination to the full Senate for what became reflexive approval.
Monson succeeds Lesli Ginn, who announced her departure as Chief ALJ in January and stepped down April 5. Ginn’s tenure had been troubled by dissatisfaction among the ALJs, most of whom had more experience in administrative law than she and several who objected to her rigid managerial style. Matters came to a head early last year, when Ginn forced the resignation of ALJ Hunter Burkhalter, after the Texas Medical Board objected to his decision in a contested case. Ginn’s action appeared to violate the “decisional independence” accorded to ALJs under state law, and Ginn received widespread criticism inside and outside the agency. ("Controversial SOAH Chief Judge Takes Her Leave," Jan. 25.)
Judging from his perfunctory review, it’s not clear that Monson will be an improvement. His self-introduction emphasized his Texas roots and his love for his family (in attendance), the Boy Scouts, and barbecue, although he did say that administrative law is where “the rubber meets the road most directly” in the government’s effects on Texas consumers and property owners. When Buckingham, referring vaguely to current “criticism” of SOAH, asked what Monson might do in response, he described the need to “manage the [ALJs] egos” by providing a “shared sense of mission,” and also to “upgrade” the agency’s technology. He said he would “protect the independence [of the ALJs],” and make certain that “they are accountable to me.”
Unmentioned during the brief discussion was Monson's recent failed run for a seat on the Third Court of Appeals – he finished fourth in the March 2018 GOP primary, a contest ultimately won in a runoff by assistant AG Mike Toth – then defeated in the general by Gisela Triana, despite Abbott's preemptive appointment of Toth to the seat following Bob Pemberton's abrupt retirement.
Monson, who garnered less than 10% in that primary, may have been a slightly saner alternative to Toth, who campaigned for the judicial seat as an unapologetic right-wing ideologue. But also unremarked in the Nominations hearing was Monson's successful litigation (as solicitor) against Planned Parenthood, eventually forcing the healthcare organization out of the Texas Women's Health Program, much to the subsequent detriment of Texas women's health care. ("Report: Thousands Fewer Women Served by Texas Women's Health Program," March 25, 2015.)
Back at SOAH, Ginn had long outstayed her designated two-year term, which nominally concluded May 1, 2018; Monson’s assumption of the office (officially for two years) will presumably reduce by one the number of “holdover” appointees serving under the Abbott administration – officials whose terms have expired, but who have neither been reappointed nor confirmed by the Senate, instead simply serving on, indefinitely. In 2016, the Texas Tribune identified 336 such holdovers among some 3,000 appointed officials, some of whose terms had expired five years before. In response to a public information request by the Chronicle, the governor’s office provided a list of holdovers that has now grown to 418.
The Senate Committee on Nominations is at full-speed, after high-speed-hearings now recommending Abbott appointees to the full Senate literally by the dozen, so presumably they've made a dent in that total. Nevertheless, considering additional appointees and the diminishing session schedule, they're unlikely to eliminate it altogether.
The appointees represent a wide range of agencies, from the State Board of Public Accountancy to the Workforce Investment Council, and most do not appear to be executive positions like that of SOAH’s Chief ALJ. A few offices are publicly prominent (e.g, the Historical Commission, the Parks and Wildlife Commission), but most are specialized boards that only occasionally address broad public concerns. For an example of the latter, the holdover list includes 20 members of one of four TMB district review committees, whose responsibilities are to “evaluate medical practice and professional competency, and make recommendations on investigations conducted by the Board” (from the TMB web site). The appointments of eight of those committee members expired in 2016, the remainder last year.
Prof. Ron Beal of the Baylor University Law School has analyzed the 418 holdover list: the terms of more than half (236) expired this year (identified as “during the session” in Abbott’s accounting), and another 45 (10.7%) in the previous year. The rest (238 in all) held terms that expired from two years (61 appointees) to eight years ago (2) – Beal terms those offices as officially “vacant.” As Beal sees it, those holdovers now serve only at the pleasure of the governor, who via this practice “totally controls their actions related to the agency they serve.” He has written repeatedly to the governor and the members of Nominations, insisting, “Holdover Officers are blatantly unconstitutional.” Scarcely a week goes by without Abbott announcing new appointees that, in Beal’s words, “create a fiefdom of officers to serve at his will” and thereby undermine the state constitution’s establishment of a “weak governor” system.
Thus far, Beal has been unable to generate concern (or even responses) about the practice from either Abbott or the senators. In his latest salvo of letters to Abbott and the Senate, he asks that the governor or Lt. Gov. Dan Patrick request an attorney general’s opinion on the legality of the practice. “Clearly,” Beal concludes, “the citizens of Texas are entitled to a resolution of the constitutional legality of what the Governor is doing.”
Beal has continued his one-man campaign in op-eds published in the state's major newspapers. He writes, Abbott's "executive branch powers should not come at the expense of our constitution."
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