D. SURVEY RESULTS AND ANALYSIS
4. Volume of Appeals and Recordkeeping on Appeals
One of the key objectives of this report was to identify the current volume of appeals in the public administration and assess whether statistics on appeals are actually collected and used for purposes of analysis. Requests for statistical information by each level of appeal were included in the questionnaires for subordinate institutions as well as the ministries.
In general, a review of responses to the questionnaire revealed the following:
• Very few institutions maintain comprehensive statistics on either numbers of appeals or the outcome of appeals at each level of internal appeal and with respect to judicial review.
• Significant number of the institutions maintain no statistics on appeals, including the State Police, State Forest Service, State Breeding Inspectorate, Traffic Bureau, State Agency for Mandatory Health Insurance, State Agency for Public Health, State Land Service, Latvia Sea Administration, State Electro Communication and Connection Inspectorate, and the Road Traffic Safety Directorate.
• Where appeals are submitted to certain ministries as an internal appellate instance, the statistics for this level of appeal provided by the ministries and relevant
subordinate institutions differed markedlyand/or there were simply no statistics kept either by the ministry or by the institution as to that level if appeal.
• For most of the institutions purporting to keep statistics on appeals, the volume of appeals appears very low. This is the case for the State Plant Protection Service, which had the largest reported number of issued administrative acts in 2003 and reports having no appeals whatsoever. Similarly the non-profit LLC National Metrological Center, while having the fourth largest number of reported administrative acts, reports that no acts have been appealed. Also the Regional Environmental Boards report very small numbers of appeals (0 or 1).
The table below (Table D-8) presents aggregate statistics on appeals, ranking the
agencies reporting the largest number of appeals.36 While all of the reported statistics on
appeals were used to derive the rankings, it should be noted that most of the responding institutions lacked statistics for all of the levels of appeal that they themselves described.
Therefore, both the absolute numbers of appeals and comparisons between institutions are limited in their accuracy and usefulness. The complete results for the nine ministries that reported the largest volume of appeals can be found in the Annex (Table 6).
One of the planned objectives of the report was to analyze possible differences in outcomes of appeals in cases where there is one pre-court instance and in cases where there are 2 or 3 pre-court appeal levels. One might hypothesize that in the case of institutions where two pre-court instances exist, the second instance might result in a noticeable reversal rate. Due to the lack of comprehensive statistics, it was not possible to make such a comparison. However, in the few situations where such statistics were available, they indicated, perhaps somewhat surprisingly, that the 2nd pre-court instance usually reaffirmed the decision of the first instance. For example, out of 75 cases appealed to the 2nd Level (Enlarged) Session of the State Physician Commission for Health and Working Ability, all 75 were upheld in 2001. The same results appeared in 2002, where 97 out of 97 second-instance appeals within the administration were upheld.
In the case of State Revenue Service in 2001 and 2002, approximately 77 % of appealed administrative acts were left in force at the regional (first instance) level of review, while 71% (2001) and 65% (2002) of those acts that were appealed to the next instance were left in force through Central Office review. Interestingly, the chances of taxpayers increased dramatically in the courts, where around 30-40% of appealed acts were
repealed fully, with about 5-6% repealed in part (data for 2001 and 2002). It is unwise to generalize from such limited statistics, but the uniformity of results within at least certain of these institutions having multiple levels of appeal suggests that the nature of the review may not be that searching and that additional training of review personnel and organizational steps to increase decisional independence of reviewers might be warranted in order to encourage closer review of the merits of appellants’ cases and/or the handling of appeals by subordinate officials.
The relative dearth of recordkeeping and statistics on administrative appeals indicates that at present, little if any real analysis is or could be conducted by Latvian public institutions on the types and outcomes of appeals. In turn, this prevents the
administration from identifying possible deficiencies in their operations and using such information to improve the level of service to the public. In particular, it prevents policymakers from determining whether there are possible systemic substantive and/or procedural problems affecting the outcomes of appeals in particular types of cases or in particular institutions or units.37 Without such information, institutions are left having to rely simply on anecdotal or impressionistic information about their appeals procedures – a situation that can favor extreme or partial viewpoints propounded by appellants, the press, government officials, or politicians.
37 Accurate, well-maintained statistics within institutions would also make it possible to compare outcomes within agencies and ministries to outcomes in the courts. This could help shed light on persistent failures to
ank Project “Implementation of Laws Governing Administrative Procedures and Information Openness.” Component 2: Development of Appeal Mechanisms With Ministries. Table D-8. Number of Reported Appeals of Administrative Acts in Institutions Having the Largest Number of Such Appeals 20012002 so far in 2003 (by Oct.) in 2001 In 2002 so far in 2003 (by Oct.)
# of adm . ac ts
issued
# of adm . ac ts
issued
# of adm . ac
ts issued
number of appe aled
acts left in for ce
repeal ed fu lly
repeal ed in par t
another act issued number of appe aled
acts left in for ce
repeal ed fu lly
repeal ed in par t
another act issued number of appe aled
acts left in for ce
repeal ed fu lly
repeal ed in par t
State Revenue Service 13082071139038 1275920 123 188 40 18831312317 234 20 27101938411 237 State Physician Commission for Health and Working Ability 50518 49879 37714 947 909 32 0 32 1037984 48 0 48 644 559 79 0 State Social Insurance Agency 294206340477521913183 N/AN/AN/AN/A342N/AN/AN/AN/A304 196 49 3 Enterprise Register 30 87136 14339 233162 118 36 3 0 174 120 37 4 1 188 139 33 7 0 Citizenship and Migration Issues Board 23906929914435267748 15 3 0 20 63 9 3 0 21 87 38 0 0 Border Guard869911914 40036 17 8 6 0 3 14 4 6 0 4 43 17 10 0 State Labor Inspectorate 621955513018 20 12 5 3 0 25 18 6 1 Rural Support Service 45533 1111522899195 4 0 0 1 15 13 1 0 0 22 16 1 0 Consumer Rights Protection Bureau 0 0 0 0 0 6 4 2 0 0 15 10 5 0 State Sanitary Inspectorate 34602769147926 20 3 1 3 26 19 3 1 3 11 2 0 0 Procurement Supervision Bureau 0 111 104 0 0 0 0 0 10 6 1 0 0 11 1 2 0 Competition Council 54 51 32 5 0 0 0 0 5 3 0 0 0 9 0 0 1 State Employment Service 2174832177241631798 6 2 0 0 13 8 5 0 0 8 5 3 0 Patent Board 11752 15594 17257 7 6 1 0 0 11 4 4 3 0 5 2 3 0 g indicates that no statistics are available. eported number of the issued administrative acts is obviously incomplete, as the number of appealed acts is larger than the reported number of the issued acts in 2003
5. Current and Anticipated Internal Organization and Processes for Handling Appeals Within the Administration
This report also sought to ascertain the extent to which administrative agencies in Latvia were currently organized, as a practical matter, to handle appeals, or the extent to which such agencies were making preparations to organize themselves in light of the impending effective date of the APL. To obtain information relevant to these inquiries, the
questionnaire sought information from institutions on the following three issues:
• Special organizational arrangements or units within the institution to review all or part of appealed administrative acts;
• The existence of internal guidelines or instructions for handling appeals;
• The existence of standardized forms for purposes of issuing administrative acts, including decisions on appeals.
Overall, the answers of Latvian public institutions to both the questions on internal organizational arrangements and internal guidelines to be used for handling appeals reveal a profound systemic issue. The level of formalization of the appeals or complaints management system across the government is very weak. Analyzing the responses and additional comments provided by the institutions clearly indicates that ad hoc processes predominate: officials in many institutions typically decide how to handle an appeal once it has arrived, without reference to procedural protocols or established substantive
guidelines or written precedent. Purposefully designed processes with some internal regulation, guidelines, and clearly specified duties and obligations for the individuals reviewing the appeals appear to exist only in a very few institutions.
As regards organizational arrangements within institutions to review all or part of
appealed administrative acts, 16 institutions (out of 83 responding) reported having some kind of arrangements in place.39
Table D-9. Institutions Having Special Organizational Arrangements to Review All or Part of Appealed Administrative Acts.
Institution Appeals Division
Name of appeals division or other unit carrying out review of appealed
adm. acts:
Standing commissi
on
Legal basis and jurisdiction
Appellate board or council
TOTAL 7 8 1
1. State Revenue Service X Appeals Division
2. State Police X Complaints and
Applications Group within Traffic Police 3. Enterprise Register X Legal Division 4. Railway Technical
Inspectorate
X
Analytical Division 5. State Social Insurance
Agency
X Insurance Supervision Division
39 See Question 10 in the questionnaire for subordinate institutions for exact wording of this question.
Institution Appeals Division
Name of appeals division or other unit carrying out review of appealed
adm. acts:
Standing commissi
on
Legal basis and jurisdiction
Appellate board or council 6. State Labor
Inspectorate
X
Legal Division 7. State Civil Service
Board
X Civil Service Control Dep’t.
8. Rural Support Service
X
Based on CM Regulation No. 154.
Decides appeals related to EU subsidies.
9. Environmental Impact Assessment Bureau
X
Set up by an internal instruction.
Commission for review of complaints and appeals.
10. State Revenue Service
X
Decides on appeals for a reduction of penalties.
11. Inspectorate for Quality Control of Medical Services and Working
Ability Expertise X
On the basis of the Inspectorate’s internal regulations. Decides administrative violation-related cases.
12. State Agency for
Insolvency Administration X Appeals Commission established
by internal order.
13. Society Integration
Fund X
Handles all appeals; based on the procedure manual.
14. Road Traffic Safety Directorate (CSDD)
X
Within the Ministry for reviewing one type of decision [WHICH ONE?].
15. State Physician Commission for Health
and Working Ability X
16. Patent Board X
When the foregoing list of 16 responding institutions with some special kind of organizational arrangement for hearing appeals (Table D-9) is compared with the
institutions reporting the largest number of appeals (Table D-8), an interesting correlation emerges. The State Revenue Service, Enterprise Register and State Social Insurance Agency, for example, all of which feature dedicated structural divisions carrying out internal review of appealed administrative acts, are also among the institutions with the highest numbers of reported appeals.40 Similarly, the State Labor Inspectorate, which features the seventh largest number of appeals, also assigns internal review of all of its appeals to its Legal Division. Interestingly, none of these institutions is characterized by particularly large numbers of originally issued administrative acts (see section D. 2 (b)).
While the interpretation of these findings should be approached with care – it might well be the case that certain institutions failed to report accurate information about original administrative decisions, appeals, or the existence of special appellate units – it does appear that institutions with dedicated divisions for internal review also feature a larger number of reported appeals, regardless of the relative number of original administrative
40 The State Physician Commission for Health and Working Ability, which has the 2nd largest number of reported appeals, has a different organizational structure than most of the other public administration institutions. Its basic operations are carried out in the form of commissions consisting of physicians and with separate sessions of such commissions hearing appeals.
acts issued. The logical explanation for this state of affairs is that these institutions with more defined systems for internal review are also the ones that keep more complete statistics on appeals and/or more easily identify which applications actually constitute administrative appeals. This also tends to support the notion that the figures on appeals provided by many other institutions are understating the true number of appeals and/or that no real statistics are maintained. The danger of this situation – which can become a vicious cycle – is obvious: responsible officials in many institutions may mistakenly believe that low numbers of reported appeals do not warrant the establishment of a special system or unit for handling them, even though it is precisely the creation of those systems or units that will help the institutions more accurately ascertain and follow the numbers of appeals brought in the first place. They will also minimize ad hoc
decisionmaking and likely dispense better and more efficient justice for citizens.
The relatively brief nature of the questionnaire did not allow for detailed inquiries into the specific characteristics of the dedicated appeals units reported by responding institutions, but it is worth noting that rather than structural divisions with individual reviewers handling appeals, a number of institutions had standing appellate commissions (7), while one – the State Patent Board – said it had a special board or council.41 Each of these latter types of structures may permit even more focused handling of administrative appeals, along with the possibility of special appeals procedures. Generally speaking, such review board or council systems may be preferable to an individual reviewer system when an institution’s cases are so complex as to favor the collegial interchange provided by the former; or when an institution’s caseload becomes too large for a single person, or even a handful of individual reviewers, to handle.42 On the other hand, collegial
decisionmaking can sometimes prove more time-consuming as to each individual case.
Latvian institutions should give careful consideration to the creation of dedicated internal appellate units or boards where they do not currently exist. They should also strongly consider appointing individuals with legal backgrounds to staff such positions. The ability of such units to render independent decisions and create a more formal, professional appellate culture cannot be underestimated. However, it is important for these dedicated units to maintain their independence by avoiding institutional or political review of their decisions by agency heads or their designees. Such review can be time-consuming, meddlesome, and create significant perception problems about the integrity of the unit’s decisions. Only in cases raising high-level policy issues should an agency head or other high-level appointee become involved in reviewing a case, and only at the request of an appeals unit or individual reviewer.43
41 The experience of the Rural Support Service, in charge of managing Latvian and EU subsidy programs for agriculture, may be of interest to other institutions that will shortly assume the role of implementing agencies for the purposes of managing the EU Structural Funds in Latvia. The Rural Support Service has established a standing appeals commission that is reviewing such appeals.
42 Weaver, R., 1996. “Appellate Review in Executive Department and Agencies,” Administrative Law Review, vol. 48, pp. 296-303.
43 The argument in favor of limited political review by institutional heads holds that only political appointees are in a position to take tough policy stands in high-level or controversial cases, Id.
As for the existence of internal guidelines or other internal instructions for handling appeals, the situation is such that 50 institutions reviewing appeals internally reported having no guidelines on this process. Only nine institutions, indicated in the table below, stated that they had prepared or used some kind of internal guidance on appeals for administrative decisionmakers. The following responses were received:
• Seven institutions reported having guidelines and/or internal instructions
describing the assignment (to an individual or unit) of responsibility for review of appealed acts of subordinate institutions (four institutions provided copies of these);
• Four institutions reported having guidelines and/or internal instructions describing how to conduct a substantive review of appealed acts of subordinate institutions, including, e.g., guidance on bases or principles for review (two institutions provided copies of these);
• Four institutions reported having checklist(s) of necessary elements for rendering decisions on appealed acts, but none provided a copy of such a checklist; and
• Two institutions reported having standardized forms for rendering decisions on appealed acts, but none provided any copies of these forms.
Table D-10. Institutions Reporting the Existence of Some Form(s) of Internal Guidance for Handling Appeals Guidelines and/or
internal instructions describing the assignment (to an individual or unit)
of responsibility for review of appealed acts of
subordinate institutions / in
this institution
Guidelines and/or internal instructions
describing how to conduct a substantive review
of appealed acts fully or in parts,
including, e.g., guidance on the procedure, bases or principles for review
Standardized form(s) for rendering decisions
on appealed acts
Checklist(s) of necessary elements
for rendering decisions on appealed acts YES Attached YES Attached YES Attached YES Attached
TOTAL 7 4 4 2 2 0 4 0
1. Environmental Impact
Assessment Bureau YES YES
2. State Revenue Service YES 3. Procurement Supervision
Bureau YES YES YES YES
4. Border Guard YES YES YES YES
5. Patent Board YES YES
6. Society Integration Fund YES YES YES YES YES
7. Ministry of Transport YES
8. Latvia Sea Administration YES YES
9. State Civil Service Board YES YES
Samples of instructions and by-laws on the operation of appeals commissions, review of complaints and appeals provided by the following institutions – the Environmental
Impact Assessment Bureau, Society Integration Fund, State Environmental Inspection, Procurement Supervision Bureau and Naturalization Board – are located in Annex 4.
Meanwhile, standardized forms are used by a majority of institutions for the more general purpose of issuing administrative decisions, which is obviously relevant for purposes of citizens’ ability to understand the basis for such decisions and their appeals rights (see the table below). Review of the forms submitted with responses to the questionnaire
revealed that in most cases the forms related strictly to administrative violations cases and indicated the period for appeal, the institution to which the appeal should be submitted, and at least some reference to the relevant articles of the Administrative Violations Code under which the decision was rendered. Other forms tended to be less concrete on where exactly the appeal should be submitted and would be reviewed, while still indicating the time period for appeal. In general, many of these current forms will need to be revised to reflect the changes in procedure required by the APL (e.g.,
statement of grounds for the decision, submission of appeals to the institution issuing the decision) and the forthcoming amendments to the Administrative Violations Code, which are designed in part to align it with the APL.
Table D-11. Standardized Forms for Issuance of Administrative Acts (total for subordinate institutions of each of the ministries).
Yes
Copies of forms
attached Planned No
TOTAL 51 23 6 16
Ministry of Agriculture 5 2 0 0
Ministry of Economy 7 6 1 2
Ministry of Environment 7 3 1 0
Ministry of Finance 2 2 0 4
Ministry of Health 4 0 0 2
Ministry of Interior 4 0 0 2
Ministry of Justice 6 4 1 1
Secretariat of the Special Tasks Minister for the
Integration of Society 1 1
Ministry of Transport 8 3 1 0
Ministry of Welfare 5 2 1 0
Note: for complete list of institutions please see Annex Table 7.
Experts in the field of public administration increasingly refer to the term “management systems” when discussing ways in which to improve the operation of the government and its agencies. This term specifically implicates a variety of tools that public institutions can use to improve the efficiency of their internal operations and fairness and
transparency to citizens. The most popular management systems used include workflow management, business process analysis and modeling, performance management through recordkeeping, performance analysis and benchmarking, and quality management
systems. Many of these systems are in fact being introduced in a few public institutions in Latvia and such experience should be shared more widely. Approaching the
implementation of the APL from this perspective means that it is not enough for public institutions simply to inform citizens that they have a right to appeal a decision and then
to accept such appeals. These institutions should be proactive in analyzing the possible volume and flow of appeals, designing and modeling the specific avenues and internal workflow of various types of appeals, describing what kinds of communications and cooperation may be needed from other institutions having relevant information and records, prescribing how and by whom certain kinds of appeals will be handled and decisions issued, how appeals records will be kept, and when a comprehensive review of their appeals management system will be undertaken.
The purposeful management of at least some of these management dimensions is what differentiates a few institutions – such as the Enterprise Register, State Revenue Service and State Social Insurance Agency, and the Society Integration Fund – from the vast majority of Latvian public agencies. While the first three institutions were discussed above, the last deserves special mention as an agency that appears to have established a comprehensive minimum set of procedures for managing the key aspects of the appeals process. The agency features designated reviewing officers and a commission, as well as an internal procedure manual that outlines all of the key aspects of the internal review process. This is an ideal approach to which most Latvian institutions should aspire in its broad outlines, and could be replicated with variations across a variety of agency contexts if the Latvian government issued certain requirements (even on a phased basis) for the public administration.
In developing specific internal guidance for administrative decisionmakers, Latvian public institutions could rely on the example of the above institutions and the various kinds of internal guidance submitted by the limited number of institutions in response to the questionnaire (in Annex 4). At a minimum, guidelines on internal appeals should specify the following:
• The administrative acts and decisions that can be appealed.
• Avenues of appeal for all acts, with a discussion of other separate avenues if these are mandated for certain acts and so indicated by special legal norms.
• Designation of internal review officers, or a special unit, division, or other organizational arrangements for reviewing appeals, such as a standing commission or appeals board. In cases where the internal appeal is reviewed within the same agency, the guidelines should specify the procedure for internal review with the aim of ensuring that it is sufficiently independent of the primary decision maker and that appellants perceive it as such.44
• Obligations of impartiality and objective review of appeals on their merits.
44 As discussed above in Section D.3, internal review officers should be organizationally distinct from primary decision makers and this should be the structure that is projected to clients of the agency.
“Organizationally distinct” refers to a situation where, within the structure of the agency, internal review officers are kept physically or managerially separate from the primary decision makers whose decisions they review. Examples of ways in which this can be achieved include: having internal review officers in physically separate locations, not having internal review officers as part of the same team as primary decision makers, or supervised by the same manager, having the salaries of internal review officers funded from a separate part of the organization, and having appropriate protocols in place with a view to
maintaining an arm’s length relationship.