D R A F T
FOR DISCUSSION ONLY
REVISED
NATIONAL CONFERENCE OF
COMMISSIONERS
ON UNIFORM STATE LAWS
For
November 17-19, 2006
Drafting Committee Meeting
WITH PREFATORY NOTE AND COMMENTS
Copyright 820076
By
NATIONAL CONFERENCE OF
COMMISSIONERS
ON UNIFORM STATE LAWS
The ideas and conclusions
set forth in this draft, including the proposed statutory language and any
comments or reporter=s notes, have not been passed upon by the National
Conference of Commissioners on
DRAFTING COMMITTEE
TO
The Committee appointed by and representing the National Conference of Commissioners on Uniform State Laws in revising this Act consists of the following individuals:
FRANCIS J. PAVETTI, 18 The
DUCHESS BARTMESS,
JERRY L. BASSETT,
Legislative Reference Service, 613
STEPHEN C. CAWOOD, 108 2
Kentucky Ave., P.O. Drawer 128,
VICCI COLGAN, Wyoming Attorney General, 123 Capitol Bldg.,
KENNETH D. DEAN,
University of Missouri-Columbia
BRIAN K. FLOWERS, Office of the General Counsel, 1350 Pennsylvania Ave. NW, Suite 4, Washington, DC 20004
JOHN L. GEDID, Widener Law School, 3800 Vartan Way, P.O. Box 69382, Harrisburg, PA 17106-9382
H. LANE KNEEDLER,
RAYMOND P. PEPE,
17 N.
ROBERT J. TENNESSEN,
GREG OGDEN,
Pepperdine Univeristy,
EX OFFICIO
HOWARD J. SWIBEL, 120
MICHAEL B. GETTY,
AMERICAN BAR ASSOCIATION ADVISOR
JIM ROSSI, Florida State University College of Law, 425 W. Jefferson St., Tallahassee, FL 32301-1609, American Bar Association Advisor
ROSE MARY BAILLY,
80 New
EDWIN L. FELTER,
JR.,
EDWARD J. SCHOENBAUM, 1108 S. Grand Ave. W, Springfield, IL 62704‑3553, American Bar Association Section Advisor
EXECUTIVE DIRECTOR
WILLIAM H. HENNING, University of Alabama School of Law, Box 870382, Tuscaloosa, AL 35487-0382, Executive Director
Copies of this Act may be obtained from:
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
211 E. Ontario Street, Suite 1300
312/915-0195
www.nccusl.org
REVISED
TABLE OF CONTENTS
Prefatory Note.................................................................................................................................. 1
[ARTICLE 1]GENERAL PROVISIONS
SECTION 101. SHORT TITLE...................................................................................................... 4
SECTION 102. DEFINITIONS...................................................................................................... 4
SECTION 103. APPLICABILITY................................................................................................ 11
SECTION 104. SUSPENSION OF PROVISIONS WHEN NECESSARY TO AVOID
LOSS OF FEDERAL FUNDS........................................................................................... 11
[ARTICLE 2] PUBLIC ACCESS TO AGENCY LAW AND POLICY
SECTION 201. PUBLICATION, COMPILATION, INDEXING, AND PUBLIC
INSPECTION OF RULES................................................................................................. 13
SECTION 202. REQUIRED AGENCY RULEMAKING AND RECORDKEEPING.................. 15
SECTION 203. DECLARATORY ORDER.................................................................................. 16
[SECTION 204. DEFAULT PROCEDURAL RULES.................................................................. 17
[ARTICLE 3]RULEMAKING; ADOPTION AND EFFECTIVENESS OF RULES
SECTION 301. CURRENT RULEMAKING DOCKET.............................................................. 19
SECTION 302. AGENCY RECORD IN RULEMAKING PROCEEDING................................. 20
[SECTION 303. ADVICE ON POSSIBLE RULE BEFORE NOTICE OF PROPOSED
RULE ADOPTION............................................................................................................ 21
SECTION 304. NOTICE OF PROPOSED RULE ADOPTION.................................................. 22
SECTION 305. REGULATORY ANALYSIS.............................................................................. 23
SECTION 306. PUBLIC PARTICIPATION............................................................................... 25
SECTION 307. TIME OF ADOPTION........................................................................................ 26
SECTION 308. VARIANCE BETWEEN NOTICE OF RULE AND RULE ADOPTED............. 27
SECTION 309. EMERGENCY RULES; FAST-TRACK RULES................................................ 28
SECTION 310. GUIDANCE DOCUMENTS............................................................................... 29
SECTION 311. CONTENTS OF RULE....................................................................................... 32
SECTION 312. CONCISE EXPLANATORY STATEMENT...................................................... 32
[SECTION 313. INCORPORATION BY REFERENCE............................................................. 33
SECTION 314. COMPLIANCE AND TIME LIMITATION....................................................... 34
SECTION 315. FILING OF RULES............................................................................................ 34
SECTION 316. EFFECTIVE DATE OF RULES.......................................................................... 35
SECTION 317. PETITION FOR ADOPTION OF RULE............................................................ 36
[ARTICLE 4]ADJUDICATION
SECTION 401. WHEN ARTICLE APPLIES. DISPUTED CASES............................................. 37
SECTION 402. PRESIDING OFFICERS..................................................................................... 38
SECTION 403. DISPUTED CASE PROCEDURE....................................................................... 40
SECTION 404. NOTICE.............................................................................................................. 44
SECTION 405. INFORMAL ADJUDICATION IN DISPUTED CASES................................... 46
SECTION 406. INFORMAL ADJUDICATION PROCEDURE.................................................. 47
SECTION 407. AGENCY RECORD IN DISPUTED CASE........................................................ 48
SECTION 408. EMERGENCY ADJUDICATION....................................................................... 49
SECTION 409. EX PARTE COMMUNICATIONS.................................................................... 51
SECTION 410. INTERVENTION................................................................................................ 53
SECTION 411. SUBPOENAS..................................................................................................... 54
[SECTION 412. DISCOVERY..................................................................................................... 55
SECTION 413. CONVERSION................................................................................................... 56
SECTION 414. DEFAULT........................................................................................................... 57
SECTION 415. LICENSES.......................................................................................................... 58
SECTION 416. ORDERS: RECOMMENDED AND FINAL....................................................... 59
SECTION 417. AGENCY REVIEW OF RECOMMENDED DECISIONS................................. 60
SECTION 418. RECONSIDERATION........................................................................................ 62
SECTION 419. STAY.................................................................................................................. 63
SECTION 420. AVAILABILITY OF ORDERS; INDEX............................................................. 63
[ARTICLE 5]JUDICIAL REVIEW
SECTION 501. RIGHT TO JUDICIAL REVIEW; FINAL AGENCY ACTION
REVIEWABLE................................................................................................................... 66
SECTION 502. REVIEW OF AGENCY ACTION OTHER THAN ORDER............................... 67
SECTION 503. RELATION TO OTHER JUDICIAL REVIEW LAW AND RULES................... 67
SECTION 504. TIME FOR SEEKING JUDICIAL REVIEW OF AGENCY ACTION, LIMITATIONS 68
SECTION 505. STAYS PENDING APPEAL.............................................................................. 69
SECTION 506. STANDING........................................................................................................ 69
SECTION 507. EXHAUSTION OF ADMINISTRATIVE REMEDIES....................................... 69
SECTION 508. AGENCY RECORD ON JUDICIAL REVIEW; EXCEPTION........................... 71
SECTION 509. SCOPE OF REVIEW.......................................................................................... 71
[ARTICLE 6]OFFICE OF ADMINISTRATIVE HEARINGS
SECTION 601. CREATION OF OFFICE OF ADMINISTRATIVE HEARINGS....................... 76
SECTION 602. DUTIES OF OFFICE.......................................................................................... 76
SECTION 603. APPOINTMENT AND DUTIES OF CHIEF ADMINISTRATIVE LAW JUDGE 77
SECTION 604. POWERS OF CHIEF ADMINISTRATIVE LAW JUDGE................................. 77
SECTION 605. ADMINISTRATIVE LAW JUDGES................................................................... 78
SECTION 606. COOPERATION OF STATE AGENCIES......................................................... 79
SECTION 607. POWERS OF ADMINISTRATIVE LAW JUDGES........................................... 80
SECTION 608. DECISION-MAKING AUTHORITY OF ADMINISTRATIVE LAW
JUDGES............................................................................................................................. 80
[ARTICLE 7]RULE REVIEW
[SECTION 701. GOVERNOR=S VETO....................................................................................... 81
[SECTION 702. GOVERNOR=S OBJECTION........................................................................... 81
[SECTION 703. LEGISLATIVE [RULES REVIEW COMMITTEE.]........................................... 83
[SECTION 704. [RULES REVIEW COMMITTEE] DUTIES...................................................... 84
[SECTION 705. [RULES REVIEW COMMITTEE] PROCEDURE AND POWERS.................. 85
[SECTION 706. ATTORNEY GENERAL REVIEW.................................................................... 87
[ARTICLE 8][ELECTRONIC PUBLICATION AND NOTICE]
[SECTION 801. ELECTRONIC PUBLICATION........................................................................ 89
[SECTION 802. PUBLICATION IN ELECTRONIC FORMAT.................................................. 89
[ARTICLE 9]
SECTION 901. EFFECTIVE DATE............................................................................................. 91
REVISED
Prefatory Note
The 1946
The
The 1946 Act incorporated basic principles with only enough elaboration of detail to support essential features[1] of an administrative procedure act. This is the major characteristic of a Amodel@, as distinguished from a Auniform@, act. The drafters of the 1946 Act explained that a model act approach was required because details of administrative procedure must vary from state to state as a result of different general histories, different histories of legislative enactment and different state constitutions. Furthermore, the drafters explained, the Act could only articulate general principles because 1) agencies--even within a single state--perform widely diverse tasks, so that no single detailed procedure is adequate for all their needs; and 2) the legislatures of different states have taken dissimilar approaches to virtually identical problems.[2] By about 1960, twelve states had adopted the 1946 Act.[3]
The 1961
As
a result of several studies conducted in the nineteen fifties, the Conference
decided to revise the 1946 Act. The
basis given for that decision was that a maturing of thought on administrative
procedure had occurred since 1946. The drafters of the 1961 Act explained that
their goals were fairness to the parties involved and creation of procedure
that is effective from the standpoint of government.[4]
The resulting 1961 Act also followed the model, not uniform, act approach,
because Adetails
must vary from state to state.@ The 1961 APA purposely included only Abasic
principles@
and Aessential
major features.@ Some of those major principles were:
requiring agency rulemaking for procedural rules; rulemaking procedure that
provided for notice, public input and publication; judicial review of rules;
guarantees of fundamental fairness in adjudications; and provision for judicial
review of agency adjudication. Over one
half of the states adopted the 1961 Act or large parts of it.[5]
The
1981
In
the nineteen seventies, the Conference began work on another revision of the
Act which was completed in 1981. The Conference based the need for this
revision upon greater experience with administrative procedure by state
governments, and growth in state government in such areas as the environment,
workplace safety and benefit programs.
This growth, it was argued, was so great as to effect a change in the
nature of state government. The 1981 Act
sought to deal with those changes.
The
preface to the 1981 Act explained that the approach to drafting had changed
from the 1946 and 1961 Acts. According
to the drafters, the 1981 Act was entirely new, with more detail than earlier
versions of the Act. This expanded focus
on detail was based upon changed circumstances in the states and greater state
experience with administrative procedure since 1961.[6] The 1981 Act, when completed, consisted of
ninety-four sections[7].
In the twenty-odd years since promulgation of the 1981 Act,
The
Present Revision
There
are several reasons for revision of the 1981 Act. It has been more than
twenty-five years since the Act was last revised. There now exists a
substantial body of legislative action, judicial opinion and academic
commentary that explain, interpret and critique the 1961 and 1981 Acts and the
Federal Administrative Procedure Act. In the past two decades state
legislatures, dissatisfied with agency rulemaking and adjudication, have
enacted statutes that modify administrative adjudication and rulemaking
procedure. At the present time the
American Bar Association has undertaken a major study of the Federal
Administrative Procedure Act and is recommending revision of that act. Since some sections of the Model State
Administrative Procedure Act are similar to the Federal Act, the
REVISED
[ARTICLE
1]
GENERAL
PROVISIONS
SECTION 101. SHORT TITLE. This [act] may be cited as the [state]
Administrative Procedure Act.
SECTION 102. DEFINITIONS. In this [act]:
(1) AAdjudication@
means the process for determination of facts or application of law pursuant to
which an agency formulates and issues an order.
(2) AAgency@
means a statewide board, authority, commission, institution, department,
division, officer, or other statewide government entity, that is authorized or
required by law to make rules or to adjudicate. The
term includes the agency head and one or more members of the agency head,
agency employees, or other persons directly or indirectly purporting to act on
behalf of, or under the authority of, the agency head. The
term does not include the Governor, the Legislature, and the Judiciary.
(3) AAgency
action@
means:
(A) the whole or part of any agency order or
rule;
(B) the failure to issue an order or rule; or
(C) an agency=s
performance of, or failure to perform, any duty, function, or activity or to
make any determination required by law.
(4) AAgency
head@
means the individual or one or more members
of the body of individuals in
which the ultimate legal authority of an agency is vested.
(5)
“Agency Record” means the agency rulemaking
record in rulemaking and means the
agency hearing record
in adjudication governed by section 403, and the agency record in
cases governed by Section 406 (informal
adjudication proc
(6)[(5)] “Contested Case”
means an adjudication in which an opportunity for an evidentiary hearing is
required by the federal or state constitution or by a federal or state statute
or by the common law ADisputed
case@
means an adjudication in which an opportunity for an evidentiary hearing is
required by law.
(7)[(6)] AElectronic@
means relating to technology having electrical, digital, magnetic, wireless,
optical, electromagnetic, or similar capabilities.
(8)[(7)] AElectronic
record@
means a record created, generated, sent, communicated, received, or stored by
electronic means.
(9)[(8)] AEmergency
adjudication@
means an agency adjudication taken in a disputed case in which there is an imminentimmediate
danger to the public health, safety, or welfare that requires immediate action.
(10)[(9)] AEvidentiary
hearing@
means a hearing for the receipt of evidence to resolve a disputed issue in
which the decision of the hearing officer may be made only on material
contained in the agency record
created at the hearing.
(11)[(10)]
AGuidance
document@
means a record other than a rule developed
by an agency that informs the general public of an agency=s
current approach to, or opinion of, law, including, interpretive
rules, and general statements of policy that describe where
appropriate, the agency=s
exercise of discretionary functions. Guidance documents do not have the force of
law and are not intended to prescribe the rights and duties of
persons subject to agency regulation under a delegation of authority to
thatagency. current practice,
procedure, or method of action based upon that agency=s
current approach or opinion.
(12)[(11)] AIndex@
means a searchable list of items by subject and caption in a record with a page
number, hyperlink, or any other connector that links the list with the record
to which it refers.
(13)[(12)] AInformal
adjudication@
means a contested disputed
case in which the presiding officer is permitted to follow an informal proc
(14)[(13)]
AInternet
website@
means a centralized Internet website that
permits the public to search a permanent database that archives
materials required to be published with the [publisher] under this [act] or
subscribe to an automated e-mail notification of selected notice types.
(15)[(14)]
ALaw@
means federal or state constitution or statute, judicial decision, common law,
rule of court, executive order, or rule or order of an agency.
(16)[(15)] ALicense@
means a permit, certificate, approval, registration, charter, or similar form
of permission required by law which is issued by an agency.
(17)[(16)]
ALicensing@
means the grant, denial, renewal, revocation, suspension, annulment,
withdrawal, or amendment of a license.
(18)[(17)] ANotify@
means to take such steps as may be reasonably required to inform another person
in the ordinary course, whether or not the other person actually comes to know
of it.
(19)[(18)] AOrder@
means an agency adjudication of particular applicability that determines the
legal rights, duties, privileges or immunities, or other legal interests of one
or more specific persons.
(20)[(19)] AParty@
means the agency taking action, the person against whom the action is directed,
and any other person named as a party or permitted to intervene.
(21)[(20)] APerson@
means an individual, corporation, business trust, estate, trust, partnership,
limited liability company, association, joint venture, [public
corporation, government, or governmental subdivision, agency or
instrumentality,]
or any other legal or commercial entity. [The
term does not include a public corporation, government, or government
subdivision, agency or instrumentality.] Note: delete one of the bracketed
phrases to ensure inclusion or exclusion of governmental entities.
(22)[(21)] APresiding
officer@
means the person who presides over the evidentiary hearing in a contesteddisputed
case. A
presiding officer may be an [administrative law judge,] agency staff member[,]
or one or more members of the agency head.
(23)[(22)] AProceeding@
means any type of formal or informal agency process or proc
(24)[(23)] APublisher@
means the state official or agency to which is assigned the tasks of publishing
rules and other substantive functions under this act. [Legislative
Note: throughout this act the drafting committee has used the term publisher to
describe the official or agency to whom substantive publishing functions are
assigned. All states have such an
official, but their titles vary. Each
state using this act should determine what that agency is, then insert its
title in place of publisher throughout this act.]
(25)[(24)] ARecommended
decision@
means a proposed action issued by a presiding officer who is not the agency
head which is subject to review by the agency head.
(26)[(25)] ARecord@
means information that is inscribed on a tangible medium or that is stored in
an electronic or other medium and is retrievable in perceivable form.
(27)[(26)] ARule@
means the whole or a part of an agency statement of general applicability and
future effect that implements,
interprets, or prescribes law or policy or the organization, procincludes the
amendment, repeal, or suspension of an existing rule, but
does not include:
(A) statements concerning
only the internal management of an agency and not affecting private rights or
procedures available to the public;
(B) agency declaratory
orders issued under this [act];
(C) a decision or order
in a disputed case;
(D) an intergovernmental
or interagency memorandum, directive, or communication that does not affect the
rights of, or procedures and practices available to, the public;
(E) an opinion of the
Attorney General;
(F) an executive order of
the Governor;
(G) a statement that
establishes criteria or guidelines to be used by the staff of an agency in
performing audits, investigations, or inspections, settling commercial
disputes, negotiating commercial arrangements, or in the defense, prosecution,
or settlement of cases, if disclosure of the criteria or guidelines would
enable law violators to avoid detection,
facilitate
disregard of requirements imposed by law, or give a clearly improper advantage
to persons who are in an adverse position to the state;
(H) guidance documents.
(28)[(27)]
ARulemaking@
means the process for adopting, amending, or repealing a rule.
(29)[(28)]
ASign@
means with present intent to authenticate or adopt a record:
(A) to execute or adopt a
tangible symbol; or
(B) to attach or
logically associate with the recordsymbol
an electronic symbol, sound,
or process.
(30)[(29)]
AState@
means a state of the
(31)[(30)] AWritten@
means inscribed on a tangible medium.
Comment
Adjudication.
This definition gives the general meaning of adjudication that distinguishes it
from rulemaking. See disputed
case, defines a subset of adjudications that must be conducted as prescribed in
Article 4 of this Act.
Agency.
The object of this definition is to subject as many state actors as possible to
this definition. See 1981 MSAPA
Section 1-102(1)
Agency
Action. This definition is added for purposes of identifying those matters
subject to judicial review. Failure to issue an order or rule does not include
an agency denial of a petition to
initiate rulemaking. See Section 317 of
the Act. This definition is
taken from 1981 MSAPA Section 1-102(2) .
Agency
Head. This definition differentiates between the agency as an organic whole and
the particular persons (commissioners, board members or the like) in whom final
authority is vested. This definition is
taken from 1981 MSAPA Section 1-102(3) .
Contested
caseDisputed
case. This term is
similar to the Acontested
case@
definition of the 1961 MSAPA. Like the 1961 MSAPA, this Act looks to external
sources such as statutes to describe situations in which a party is entitled to
a hearing. However, this term differs
from the 1961 MSAPA=s
term Acontested
case@
because it also includes hearings required by constitution, and makes provision
in Article 4 for the type of hearing to be held
in a case where a constitution creates the right to a hearing. Including constitutionally created rights to
a hearing within the provisions of this Act eliminates the problem of looking
outside the Act to determine the type of hearing required in cases where the
right to the hearing is created by constitution.
See
Record. Modern electronic-age statutes such as the
Uniform Computer Information Transactions Act and the Uniform Electronic
Transactions Act adopt a broad definition of the term record that includes the
term document. This act follows those definitions.
Electronic. The term Aelectronic@
refers to the use of electrical, digital, magnetic, wireless, optical,
electromagnetic and similar technologies. It is a descriptive term meant to
include all technologies involving electronic processes. The listing of
specific technologies is not intended to be a limiting one. The definition is
intended to assure that this act will be applied broadly as new technologies
develop. For example, biometric identification
technologies would be included if they affect communication and storage of
information by electronic means. As electronic technologies expand and include
other competencies, those competencies should also be included under this
definition. The definition of the term Aelectronic@
in this act has the same meaning as it has in UETA SECTION 2(5) and in the
Uniform Real Property Electronic Recording Act.
Electronic
Record. This definition is identical to '
2(7) of the Uniform Electronic Transactions Act. An Aelectronic
record@
is a document that is in an Aelectronic@
form. Documents may be communicated in electronic form; they may be received in
electronic form; they may be recorded and stored in electronic form; and they
may be received in paper copies and converted into an electronic record. This Act does not limit the type of
electronic documents received by the publisher. The purpose of defining and
recognizing electronic documents is to facilitate and encourage agency use of
electronic communication and maintenance of electronic records.
Guidance
document. This definition is taken from
the Michigan APA, M.C.L.A. 24.203(6), and the Virginia APA, Va. Code Ann. SECTION 2.2-4001. See also the; Idaho I.C. SECTION 67-5250 and
N.Y. McKinneys State Administrative Procedure Act, SECTION 102. This is a definition intended to recognize
that there exist agency statements for the guidance of staff and the public
that differ from, and that do not constitute, rules. Many states recognize such statements under
the label Ainterpretive
statement@
or Apolicy
statement.@ See Wash. Rev. Code, SECTION 34.05.010(8)
& (15). Later sections of this Act
will provide for the publication and availability of this type of record so
that they are not Asecret@
records. See: Michael Asimow, Guidance
Documents in the States, 54 Adm. L. Rev. 631 (2002); Michael Asimow,
Index.
The definition of index has been added as a
guide to agencies, publishers and editors about their duties to make
records available and easily accessible to the public in the form of an index,
as that term is used throughout this act.
License.
The definition of license is drawn largely from the 1961 MSAPA.
Order. Unlike the federal APA which defines rule,
but not order, this section provides a positive definition of order based on
case law and agency experience. The key concept is that an order includes
solely agency legal determinations that are addressed to particular, specific,
identified individuals in particular circumstances. An order may be addressed
to more than one person. Further, the definition is consistent with modern law
in rejecting the right/privilege distinction in constitutional law. The
addition of the language Aor
other interests@
is intended to clarify this change and to include entitlements. See also
Cal.Gov.Code SECTION 11405.50.
Party. This definition includes the agency, any
person against whom agency action is brought and any person who
intervenes. Its terms also include any
person who may participate in a rulemaking proceeding, such as someone who
offers a comment. This section is not
intended to deal with the issue of a person=s
entitlement to review. Standing and
other issues relating to judicial review of agency action are addressed in
Article 5 of this Act.
Presiding
Officer. This definition includes an agency staff member, an
administrative law judge or one or more members of the agency head when
designated to preside at a hearing.
Person. The definition of a Aperson@
is the standard definition for that term used in acts adopted by the National
Conference of Commissioners on Uniform State Laws. It includes individuals,
associations of individuals, and corporate and governmental entities.
Rule. The essential part of this definition is the
requirement of general applicability of the statement. This criterion
distinguishes a rule from an order, which focuses upon particular applicability
to identified parties only. Applicability of a rule may be general, even though
at the time of the adoption of the rule there is only one person or firm
affected: persons or firms in the future who are in the same situation will
also be bound by the standard established by such a rule. It is sometimes
helpful to ask in borderline situations what the effect of the statement will
be in the future. If unnamed parties in the same factual situation in the
future will be bound by the statement, then it is a rule. The word Astatement@
has been used to make clear that, regardless of the term that an agency uses to
describe a declaration or publication and whether it is internal or external to
the agency, if the legal operation or effect of the agency action is the same
as a substantive rule, then it meets this definition. The exceptions to the definition are widely
used in state APAs.
SECTION 103. APPLICABILITY. This [act] applies to all agencies unless the
agency is expressly exempted.
Comment
This
section is intended to define which agencies are subject to the provisions of
this act. Many states have made use of
an applicability provision to define the coverage of their Administrative
Procedure Act. See: Iowa, I.C.A. SECTION 17A.23; Kansas, K.S.A. SECTION 77-503;
Kentucky, KRS SECTION 13B.020; Maryland, MD Code, State Government, SECTION
10-203; Minnesota, M.S.A. SECTION 14.03; Mississippi, Miss. Code Ann. SECTION
25-43-1.103; Washington, West=s
RCWA 34.05.020.
SECTION 104. SUSPENSION OF PROVISIONS WHEN NECESSARY TO
AVOID LOSS OF FEDERAL FUNDS.
(a) To the extent necessary to avoid a denial of
funds or services from the federal government which otherwise would be
available to the state, the [Governor, by executive order][Attorney General, by
emergency rule], may suspend, in whole or in part, one or more provisions of
this [act]. The [Governor, by executive order][Attorney
General by emergency rule], shall declare the termination of a suspension as
soon as it no longer is necessary to prevent the loss of funds or services from
the United States.
(b) If any provision of this [act] is suspended
pursuant to this section, the [Governor] [Attorney General] shall promptly
report the suspension to the Legislature. The report shall include
recommendations concerning desirable legislation to conform this [act] to
federal law, including the exemption from this [act], if appropriate, of a
particular program.
Comment
This
approach to the federal funds and federal requirements problem divides the
state response between the governor or attorney general and the
legislature. Many states use provisions
of this type. Subsection (b) provides
for immediate notification of the legislature in case of suspension of any law
under the provisions of this section.
[ARTICLE
2]
PUBLIC
ACCESS TO AGENCY LAW AND POLICY
SECTION 201. PUBLICATION, COMPILATION, INDEXING, AND
PUBLIC INSPECTION OF RULES.
(a) The [publisher] shall administer this section
and other sections of this [act] that require publication.
(b) The [publisher] shall prescribe a uniform
numbering system, form, and style for all proposed and adopted rules.
(c)
The [publisher] shall maintain the official record for adopted rules, including the
text of the rules and
any supporting documents,
filed with the [publisher] by
the agency.
[(d)(c) The [publisher] shall create and
maintain an Internet website. The [administrative bulletin and
administrative code] must be published online via the Internet website [or
other appropriate technology]. The
publisher may not charge for public access to the Internet website.]
(e)(c)[d]
The [administrative bulletin] shall be published by the [publisher] at least
once per [_]. [The [administrative
bulletin] must also be [published] in written paper
form, for which the [publisher] may charge a reasonable fee.]
The [administrative bulletin] is deemed published under the requirements of law other than this
act.
(f)
The [administrative bulletin] must be made
available in written paper
form upon request, for which the [publisher] may charge a reasonable fee. For
purposes of calculating
adherence to time requirements imposed by this [act], an issue of the
[administrative bulletin] is deemed published on the later of the date
indicated in the issue or the date of its dissemination via the format and
medium as prescribed.
(f)(d)[e] The [administrative bulletin] must contain:
(1) notices of proposed rule adoption [prepared
so that the text of the proposed rule shows the text of any existing rule
proposed to be changed and the change proposed];
(2) newly filed adopted rules [prepared
so that the text of the newly filed adopted rule shows the text of any existing
rule changed and the change being made];
(3) any other notices and materials designated by
[law] [the [publisher]] for publication in the administrative bulletin; and
(4) an index to its contents by subject and
caption.
(g)(e)[f] The [administrative code] must be compiled,
indexed by subject, and published in a format and medium as prescribed by the
[publisher]. The rules of each agency must be published and indexed in the [administrative
code].
(h)[(f)][g]
Each agency shall also make available for public
inspection and copying those portions of the [administrative bulletin and
administrative code] containing all rules adopted or used by the agency in the
discharge of its functions and an index to those rules.
(i)
The [publisher] may correct minor, nonsubstantive
errors in spelling and format in proposed or adopted rules provided that the
agency is notified.
(j)
The [publisher] shall publish online via the internet
website [or other appropriate technology] agency guidance
documents filed with the publisher by the agency
issuing the guidance document.
CommentComment
This
section seeks to assure adequate notice to the public of proposed agency
action. It also seeks to assure adequate
record keeping and availability of records for the public. Article 2 is intended to provide easy public access to
agency law and policy that are relevant to agency process. Article 2 also adds
provisions for electronic publication of the administrative bulletin and
code.
The
arrival of the Internet and electronic information transfer, which occurred
after the last revision of the Model State Administrative Procedure Act, has revolutionized communication. It has made available rapid, efficient and
low cost communication and information transfer. Many states as well as the federal agencies
have found that it is an ideal medium for communication between agencies and
the public, especially in connection with rulemaking. Since the last Model Administrative Procedure
Act was written, many states have adopted various types of statutes that permit
agencies to use electronic technology to communicate with the public. The agencies have found this technology particularly
useful in connection with rulemaking.
Subsection
(c) requires that the publisher maintain the
official record for adopted rules, including the text
of the rules and any supporting documents,
filed by the agency.
Bracketed
subsection (d)(c)
requires the publisher to 1) maintain an
Internet website, and 2) publish all matters required to be published under
this act to be published on that website If a state chooses to use subsection (d)(c),
they will create a centralized website for use by all agencies.
The bracketed text of
subsection (f)(1), and (f) (2) is included so that agencies
may utilize redlining or underlining and
striking of the text of the proposed or adopted rules so that changes from the
existing text of the rule are clearly
delineated. Agencies
that are proposing or adopting new
rules or that have some other system for showing changes
need not use the bracketed text.
It
is possible to go much further in providing for use of the Internet that the
publication adopted here. For example, a
state could choose to permit agencies to operate their own websites, and to
accept comments on rules on the website.
They could also provide for maintenance of a dataebase
of all comments received that the public could access. These provisions are extremely useful, but
may be quite expensive. The central
system adopted here, means only one Internet website is required. In terms of cost benefit, this is an
effective method of providing for electronic communication and agency access.
Subsection
(i)
provides for a limited nonsubstantive power to edit agency rules provided that
the agency is notified by
the rules publisher of the changes.
Subsection (g) is based on the Maine
Administrative Procedure Act, 5 M.R.S.A.
Section 8056(10).
Subsection
(j) requires that the
publisher publish agency guidance documents filed with the
publisher. See section 202(4) and Section 310,
below.
SECTION 202. REQUIRED AGENCY RULEMAKING AND RECORDKEEPING. In addition to any other rulemaking
requirements imposed by law, each agency shall:
(1) adopt as a
rule a description of its organization, stating the general course and
method of its operations and the methods whereby the public may obtain
information or make submissions or requests;
(2) adopt rules of practice setting forth the
nature and requirements of all formal and informal procedures available,
including a description of all forms and instructions used by the agency;
(3) adopt as a rule a description in plain
English of the process for application for a license, available benefits, or
other matters for which an application is appropriate, unless the process is
prescribed by law other than this [act];
(4) file with the [publisher] all rules,
including any emergency rule adopted under Section 309(a) and all guidance
documents; and
(5) file all current
rulemaking dockets, proposed rules, adopted rules including emergency rules, direct
final fast- track
rules, guidance documents, notices, and orders issued in contested cases with
the [publisher] in electronic format acceptable to the [publisher].
Comment
One
object of this section is to make available to the public all procedures
followed by the agency, including especially how to file for a license or
benefit. It is modeled on the 1961 Model
State Administrative Procedure Act, Sections 2(a) (4) & 2(b), and the
Kentucky Administrative Procedure Act, KRS Section 13A.100. Persons seeking
licenses or benefits should have a readily available and understandable
reference sources from the agency. A second reason is to eliminate Asecret
law@
by making all guidance documents used by the agency available from the agency
and the administrative publisher.
SECTION 203203. DECLARATORY ORDER.
(a) Any interested person may petition an agency
for a declaration of the applicability of any rule or order issued by the
agency.
(b) Each agency shall adopt rules prescribing the
form of the petitions and the procedure for their submission, consideration, and
prompt disposition. The provisions of
this [act] for formal, informal, or other applicable hearing procedure do not
apply to an agency proceeding for a declaration, except to the extent provided
in this [article] or to the extent the agency so provides by rule or order.
(c) Within 60 days after receipt of a petition
pursuant to this section, an agency shall either decline in writing to issue a
declaration or schedule the matter for hearing.
(d) If an agency declines to consider a petition,
it shall promptly notify the person who filed the petition of its decision and
include a brief statement of the reasons
for declining. An agency decision to decline to issue a declaration is not
subject to judicial review.
(e) If an agency issues a declaration, the
declaration must contain the names of all parties to the proceeding, the
particular facts on which it is based, and the reasons for the agency=s
conclusion. A declaratory order has the
same status and binding effect as an order issued in an adjudication.
Comment
This
section embodies a policy of creating a convenient procedural device that will
enable parties to obtain reliable advice from an agency. Such guidance is
valuable to enable citizens to conform with agency standards as well as to
reduce litigation. It is based on the 1981
MSAPA, Section 2-103 and Hawaii Revised Statutes, Section 91-8.
Subsection
(e) is based on the California APA, West=s
Ann.Cal.Gov.Code Section 11465.60; and the Washington APA, West=s
RCWA 34.05.240. A declaratory decision
issued by an agency is judicially reviewable; is binding on the applicant,
other parties to that declaratory proceeding, and the agency, unless reversed
or modified on judicial review; and has the same precedential effect as other
agency adjudications. A declaratory decision, like other decisions, only
determines the legal rights of the particular parties to the proceeding in
which it was issued. The requirement in subdivision (e) that each declaratory
decision issued contain the facts on which it is based and the reasons for its
conclusion will facilitate any subsequent judicial review of the decision=s
legality. It also ensures a clear record of what occurred for the parties and
for persons interested in the decision because of its possible precedential
effect.
[SECTION 204. DEFAULT PROCEDURAL RULES.
(a) The [Attorney General] [Legislature] shall
adopt default procedural rules for use by agencies. The default rules must
provide for the procedural functions and duties of as many agencies as is
practicable.
(b) Except as otherwise provided in subsection
(c), an agency must use the default procedural rules published under subsection
(a).
(c) An agency may adopt a rule of procedure that
differs from the default procedural rules adopted under subsection (a) by
adopting a rule that states with particularity the need and reasons for the
variation from the default procedural rules].
Comment
One
purpose of this provision is to provide agencies with a set of procedural
rules. This is especially important for
smaller agencies. Another purpose of
this section is to create as uniform a set of procedures for all agencies as is
realistic, but to preserve the power of agencies to deviate from the common
model where necessary because the use of the model rules is demonstrated to be
impractical for that particular agency.
This section requires all agencies to use the model rules as the basis
for the rules that they are required to adopt under Section 202. An agency may
deviate from the model rules only for impracticability.
[ARTICLE
3]
RULEMAKING;
ADOPTION AND EFFECTIVENESS OF RULES
SECTION 301. CURRENT RULEMAKING DOCKET.
(a) As used in this
article, Arule@
does not include an emergency rule adopted under Section 309(a), a direct final fast-track
rule adopted under Section 309(b), or a guidance document.
(b) Each agency shall
maintain a current rulemaking docket. [The current rulemaking docket must be
published on the [publisher]=s
Internet website.
(c) A current rulemaking docket must list each
pending rulemaking proceeding. The docket must indicate or contain:
(1) the subject matter of the proposed rule;
(2) notices related to the proposed rule;
(3) where written
or electronic comments may be
inspected;
(4) the time within which written
or electronic comments may be made;
(5) electronic and
written requests for public
hearing;
(6) appropriate information about a public
hearing, if any, including the names of the persons making the request;
(7) how comments may be made in
writing and electronically;
and
(8) the timetable for action.
[(d) Regardless of
whether an agency maintains a docket electronically, it must maintain a written
paper
docket.]
Comment
This
section is modeled on Minn. M.S.A. Section 14.366. This section and the following section,
Section 302 state the minimum docketing and rulemaking record keeping
requirements for all agencies. This
section also recognizes that many agencies use electronic recording and
maintenance of dockets and records.
However, for smaller agencies, the use of electronic recording and
maintenance may not be feasible. This
section therefore permits the use of exclusively written, hard copy
dockets. The current rulemaking docket
is a summary list of pending rulemaking proceedings or an agenda referring to
pending rulemaking.
SECTION 302. AGENCY RECORD IN RULEMAKING PROCEEDING.
(a) An agency shall maintain a rulemaking record
for each rule it proposes to adopt. The record and materials incorporated by
reference must be available for public inspection in
the office and, unless unavailable for display on the internet because
proprietary in nature or incapable of being displayed
electronically, available for public display on the internet.or
be available via the Internet.
(b) A
rulemaking record must contain:
(1) copies of all publications in the
[administrative bulletin] with respect to the rule or the proceeding upon which
the rule is based;
(2) copies of any portions of the rulemaking
docket containing entries relating to the rule or the proceeding upon which the
rule is based;
(3) all written or electronic petitions,
requests, submissions, and comments received by the agency and all other
written or electronic materials or records considered by the agency in
connection with the formulation, proposal, or adoption of the rule or the
proceeding upon which the rule is based;
(4) any official transcript of oral presentations
made in the proceeding upon which the rule is based or, if not transcribed, any
tape recording or stenographic record of those presentations, and any memorandum
prepared by the agency official who presided over the hearing, summarizing the
contents of those presentations;
(5) a copy of the rule and explanatory statement
filed in the office of the [publisher]; and
(6) all petitions for exceptions to, or
amendment, or repeal or
suspension of, of
the rule.
Comment
Several
states have adopted this type of agency rule-making record provisions: Az.,
A.R.S. Section 41-1029;
The
language of subsection (a) is based on Section 3-112(a) of the 1981 Model Act.
Similar language is found in the Washington
Administrative Procedures Act, RCWA Section 34.05.370. The
requirement of an official agency rulemaking record in subsection (a) should
facilitate a more structured and rational agency and public consideration of
proposed rules. It will also aid the
process of judicial review of the validity of rules. The requirement of an
official agency rulemaking record was suggested for the Federal Act in S. 1291,
the AAdministrative
Practice and Regulatory Control Act of 1979,@
title I, Section 102(d), [5 U.S.C. 553(d) ], 96 Cong.Rec. S7126 at S7129 (daily
ed.
Subsection
(b) requires all written
submissions made to an agency and all written
materials considered by an agency in connection with a rulemaking proceeding to
be included in the record. It also requires a copy of any existing record of
oral presentations made in the proceeding to be included in the rulemaking
record.
[SECTION 303. ADVICE ON POSSIBILE
RULE BEFORE NOTICE OF PROPOSED RULE ADOPTION ADVICE
ON POSSIBLE RULE BEFORE NOTICE OF PROPOSED RULE ADOPTION: NEGOTIATED
RULEMAKING .
(a) An agency, before
notice of the proposed adoption of a rule, may solicit comments and
recommendations from the public on a subject matter of possible rulemaking
under active consideration within the agency by causing notice of possible
rulemaking on the subject matter to be published in the [administrative
bulletin] and indicating where, when,
and how persons may comment.
(b) Before publication of
a notice of the proposed adoption of a rule, each agency may appoint a
committee to comment or to make recommendations on the subject matter of a
possible rulemaking under active consideration within the agency. In making the
appointments, the agency shall seek to establish a balance in representation
among interested stakeholders and the public. The agency shall publish a list
of all committees with their membership at least [annually] in the
[administrative bulletin].] Notice of
meetings of committees appointed under this section shall be published in the
[administrative register] at least 15 days prior to the meeting. Meetings of committees appointed under this
section shall be open to the public.
Comment
Seeking
advice before proposing a rule frequently alerts the agency to potential
serious problems that will change the notice of proposed rulemaking and the
rule ultimately adopted. This section is
designed to encourage gathering information.
It is not intended to prohibit any type of reasonable agency information
gathering activities; however, the section seeks to insure that agencies act in
a fashion that will result in a balance among interested groups from whom
information is received.
Several
states have enacted provisions of this type in their APAs. Some of them merely authorize agencies to
seek informal input before proposing a rule; several of them indicate that the
purpose of this type of provision is to
promote negotiated rulemaking. Those states are
SECTION 304. NOTICE OF PROPOSED RULE ADOPTION.
(a) At least [30] days before the adoption,
amendment, or repeal, of a rule, an agency shall publish notice of
the proposed adoption in the [administrative bulletin]. The notice of the
proposed adoption of a rule must include:
(1) a short explanation of the purpose of the
rule proposed;
(2) a citation or reference to the specific legal
authority authorizing the rule proposed;
(3) the text of the rule proposed;
(4) where, when, and how persons may present
their views on the rule proposed;
(5) where persons may obtain copies of the full
text of the regulatory analysis of the rule proposed; and
(6) where, when, and how persons may present
their views on the rule proposed and request an oral proceeding thereon if one
is not already provided.
(b) Within three days after publication of the
notice of the proposed adoption of a rule in the [administrative bulletin], the
agency shall cause a copy of the notice to be mailed or sent electronically to
the [rules review committee] [speaker of the house of representatives and
president of the senate] [governor] [attorney general] and each person that has
made a timely request to the agency for a mailed or electronic copy of the
notice. An agency may charge a person for the actual cost of providing written
mailed copies if the person has made a request for a written paper copy.
Comment
Many
states have similar provisions to provide notice of proposed rule adoption to
the public and to rule review agencies.
SECTION 305. REGULATORY ANALYSIS.
(a) An agency shall
prepare a regulatory analysis for a rule proposed by the agency having an
estimated economic impact of more than [$ ].
(b) An agency is not
required to prepare a regulatory analysis for a rule proposed by the agency having
an estimated economic
impact of less than [$ ], unless,
within [20] days after the notice of the proposed adoption of the rule is
published, a written request for the analysis is filed in the office of the
[publisher] by [the Governor], [a political subdivision], [an agency], [or] [a
member of the Legislature]. The
[publisher] shall immediately forward a certified copy of a request for
regulatory analysis to the agency proposing the rule. The agency shall then prepare a regulatory
analysis of the proposed rule.
(c) A regulatory analysis must contain:
(1) a description of any persons or classes of
persons that would be affected by the rule and the costs and benefits to that
class of persons;
(2) an estimate of the probable impact, economic
or otherwise, of the rule upon affected classes;
(3) a comparison of the probable costs and
benefits of the rule to the probable costs and benefits of inaction; and
(4) a determination of whether there are less
costly or less intrusive methods for achieving the purpose of the rule.
(d) An agency preparing a regulatory analysis
under this section shall also prepare a concise summary of the regulatory
analysis.
(e) An agency preparing a regulatory analysis
under this section shall file the analysis with the [publisher] in the manner
provided in Section 315 [and submit it to the [regulatory review agency]
[department of finance and revenue] [other]].
(f) A concise summary of a regulatory analysis required under this
section must be published in the [administrative bulletin] at least [20] days
before the earliest of:
(1) the end of the period during which persons
may make written submissions on the rule proposed to be adopted;
(2) the end of the period during which an oral
proceeding may be requested; or
(3) the date of any required oral proceeding on
the rule proposed to be adopted.
Comment
Regulatory
analyses are widely used as part of the rulemaking process in the states. The subsection also provides for submission
to the rules review entity in the state, if the state has one.
SECTION 306. PUBLIC
PARTICIPATION.
(a) For at least [30] days after publication of a
notice of the proposed adoption of a rule, an agency shall allow persons to
submit information and comment on a rule proposed by the agency. The information or comments may be submitted
electronically or in writing.
(b) The agency shall consider fully all
information and comments submitted respecting a rule proposed to be adopted by
the agency.
(c) Unless a public hearing is required by law
other than this [act], an agency is not required to hold a public hearing on a
rule proposed to be adopted. If an
agency does hold a public hearing, the agency may allow persons to present
orally information and comments with respect to the rule.
(d) A public hearing on a rule proposed to be
adopted may not be held earlier than [30] days after notice of its location and
time is published in the [administrative bulletin].
(e) An agency official shall preside at a public
hearing on a rule proposed to be adopted.
If the presiding agency official is not the agency head, the official
shall prepare a memorandum for consideration by the agency head summarizing the
contents of the presentations made at the oral proceeding. Oral proceedings must be open to the public
and recorded by stenographic or other means.
(f) If the default procedural rules promulgated
under Section 204 do not include provisions for the conduct of public hearings,
each agency shall issue rules for the conduct of public hearings.
Comment
This
section gives discretion to the agency about whether to hold an oral hearing on
proposed rules in the absence of a statutory or constitutional requirement that
an oral hearing be held.
SECTION 307. TIME OF ADOPTION.
(a) An agency may not adopt a rule until the
period for submitting information or comments has expired and notice has been
given to the officials under subsection (b).
(b) At the expiration if the period for
submitting information or comments on a rule, the agency shall transmit copies
of the rule to be adopted to the [Rules Review Committee] [Speaker of the House
of Representatives and President of the Senate] [Governor] [Attorney General].
(c) Except as otherwise provided in subsection
(d), within [ ] days after the
time of transmission of the rule to be adopted under subsection (b), an agency
shall adopt the rule pursuant to the rulemaking proceeding or terminate the
proceeding by publication of a notice to that effect in the [administrative
bulletin].
(d) With the approval of the Governor, an agency
may obtain one extension of the period specified in subsection (b). The Governor, by executive order, may impose
an extension of the period of [ ]
days if there is a change in the rule from the rule initially proposed.
(e) A rule not adopted and filed within the time
limits set by this section is void.
SECTION 308. VARIANCE BETWEEN NOTICE OF RULE AND RULE
ADOPTED.
(a) An agency may not adopt a rule that
substantially differs from the rule proposed in the notice of proposed adoption
of a rule on which the rule is based unless the rule being adopted is the logical
outgrowth of the rule proposed in the notice, as determined from consideration
of the extent to which:
(1) any persons affected by the adopted rule
should have understood that the published proposed rule would affect their
interest;
(2) the subject matter of the adopted rule or the
issues determined by that rule are different from the subject matter or issues
involved in the published rule proposed; and
(3) the effects of the adopted rule differ from
the effects of the published rule proposed had it been adopted instead.
Comment
This
section draws upon provisions from several states. See
SECTION 309. EMERGENCY RULES; Direct
Final RulemakingFAST-TRACK RULES.
(a) If an agency finds that an imminent peril to
the public health, safety, or welfare requires immediate adoption of a rule and
states in writing its reasons for that finding, the agency, without prior
notice or hearing or upon any abbreviated notice and hearing that it finds
practicable, may adopt an emergency rule. An emergency rule may be effective
for not longer than [ ] days
[renewable once up to [ ] days]. The adoption of an emergency rule does not
preclude adoption of an identical rule under Sections 304 through 308. The agency shall take appropriate measures to
make an emergency rule known to the persons who may be affected by it. An
emergency rule proceeding can be used to
change agency
program requirements to avoid the imminent
loss of federal funding for agency programs.
(b) A rule that is expected to be
noncontroversial may be promulgated in accordance with this subsection. [With
the concurrence of the Governor, and after written notice to the
applicable standing committees of both houses of the Legislature, [the Attorney
General,][and the Rules Review Committee ]
[An] agency may submit a direct final fast-track
rule. A direct final rulefast-track
rule is subject to Sections
202 and 304, and must be published in the [administrative bulletin] along with
a statement by the agency setting out the reasons for using direct
final rulemaking fast-track rulemaking.
If an objection to the use of the direct final
rulemaking fast-track
process is received within the public comment period from any
person[50] or more persons
[or any member of the applicable standing committee of either house of the
[Legislature] [or the Rules Review Committee],
the agency shall file notice of the objection with the [publisher] for
publication in the [administrative bulletin] and proceed with the normal
rulemaking process set out in this [article], with the initial publication of
the fast-track rule serving as the notice of the proposed adoption of a rule.
(c) Each agency shall maintain a separate,
official, current, and dated index of all rules adopted under this
section. Each agency shall also maintain
a compilation of all rules adopted under this section. Each addition to, change in, or deletion
from, the official compilation must also
be dated and indexed and a record thereof kept. The index and compilation must
be made available at agency offices for public inspection and copying [and
online via the publisher=s
Internet website]. The index and compilation must be kept current by the agency
at least every [30] days. The full compilation must also be furnished to the
[publisher] [Governor] [Secretary of State] [ Attorney General].
Comment
This
section is taken from the 1961 MSAPA, Section 3(2)(b), and the Virginia
Administrative Procedure Act, Va. Code Ann. Section 2.2-4012.1. Some state courts have indicated that any
exemption from rulemaking
requirements must be strictly construed to be limited to an emergency or
virtual emergency situation.
Subsection
(a) can be used adopt program requirements necessary to comply with federal
funding requirements, or to avoid suspension of federal funds
for noncompliance with program requirements.
Subsection
(b) is based upon a recommendation from
the Adminstrative Conference
of the
In
order to prevent misuse of this procedural device, noncontroversial rule
promulgation requires the consent of elected officials, and may be prevented by
the requisite number of persons filing objections.
SECTION 310. GUIDANCE DOCUMENTS.
(a) An agency may issue a guidance document. An agency may not issue a guidance document
in place of a rule.
(b) An agency need not follow the procedures of
Sections 304 through 308 to issue a guidance document.
(c) A guidance document binds the agency, but is
advisory to, and does not bind, any other person.
(d) A reviewing court shall
give no deference to agency
interpretations in a guidance document
and shallmay
determine de novo the validity of a guidance document. A
reviewing court may consider whether or not the agency followed the
guidance document, and may enforce the provisions of the guidance document
against the agency.
(e) Each agency shall publish annually in the [administrative bulletin] an index of
all guidance documents upon which the agency currently relies. The filing shall
be made on or before January 1 of each year in a format to be developed by the
[publisher].
(f) Each agency shall
file all currently operative guidance documents with the [publisher] so that the
full text of the guidance document
can be published by the [publisher] on the internet or
other appropriate electronic technology.
(g)
Each agency shall maintain an index of all of
its currently operative guidance documents, make the index available for public
inspection, and make available for public inspection the full texts of all
guidance documents to the extent inspection is permitted by law; and, upon
request, make copies of guidance indexes or guidance documents available
without charge, at cost, or on payment of a reasonable fee. In case of failure to index a guidance
document, the burden of proof shall be upon the agency in any proceeding to
establish that parties were not entitled to rely upon the guidance document.
(h)(g) A person may petition an agency for a
declaratory order under this [act] that requests conversion of a guidance
document into a rule. Upon submission of
the petition, the agency shall notify the [Rules Review Committee ]. Within [ ] days of submission of the
petition, the agency shall either deny the petition and state its reasons in
writing for so doing, or shall initiate rulemaking proceedings under this
[act]. The agency shall notify the Rules
Review Committee of any action taken on the petition.
Comment
This
section draws upon the provisions of the
This
section seeks to encourage an agency to advise the public of its current
opinions, approaches, and likely courses of action by means of guidance
documents. This section also recognizes the need for guidance documents that an
agency will prepare 1) as a guide to its employees and 2) as a guide to the
public. Agency law often needs interpretation, and agency discretion needs some
channeling. The public needs to know the agency opinion about the meaning of
the law and rules that it administers. Increasing public knowledge and
understanding reduces unintentional violations and lowers transaction costs.
See Michael Asimow,
Many
states have recognized the need for this type of exemption in their statutes.
They are also referred to as interpretive statements or policy statements. These states have defined interpretive and
policy statements differently from rules, and also excused agencies creating
them from some or all of the procedural requirements for rulemaking. See Ala.
Ala. Code Section 41-22-3(9)(c) (2000) (Amemoranda,
directives, manuals, or other communications which do not substantially affect
the legal rights of, or procedures available to, the public.@);
Colo. Colo. Rev. Stat. Section 24-4-102(15), 24-4- 103(1) (exception for
interpretive rules or policy statements Awhich
are not meant to be binding as rules@); AMAX,
Inc. v. Grand County Bd. of Equalization,
892 P.2d 409, 417 (Colo. Ct. App. 1994) (assessors=
manual is interpretive rule) (2001); Ga. Ga. Code Ann., Section 50-13-4 (APrior
to the adoption, amendment, or repeal of any rule, other than interpretive
rules or general statements of policy, the agency shall@)
(emphasis added); Mich, M.C.L.A. 24.207(h) (excepts AA
form with instructions, an interpretive statement, a guideline, an
informational pamphlet, or other material that in itself does not have the
force and effect of law but is merely explanatory.).
Four
states in particular have adopted detailed provision for guidance documents. They are:
This
section seeks to provide protection from abuse of guidance documents by various
definitional and procedural measures.
One measure not provided is a requirement of a notice on all guidance
documents that informs members of the public of the right to petition the
agency to convert the guidance document to a rule. Only one state,
The
federal Administrative Procedure Act also makes a similar distinction. See 5
U.S.C. Section 553(b)(A) (1988) (Under this section Ainterpretative
rules, general statements of policy, or rules of agency organization,
procedure, or practice@
are excused from normal Section 553 notice and comment procedural
requirements).
Subsection
(d) provides for de novo judicial review
of the validity of guidance documents. Under
this standard, also known as the independent judgment or the substituted
judgment standard, reviewing
courts considering the validity of guidance
documents will not defer to the agency interpretation contained
in the guidance document. Subsection (d) also
contains provisions addressing reliance interests of
persons who follow the provisions of agency
guidance documents.
If an agency fails to follow the provisions of the guidance document, the
reviewing court may apply principles
of equitable estoppel to preclude the
agency from a change in position that causes detrimental reliance to the
affected person. Equitable estoppel is
generally not recognized
in federal administrative law (Office of Personnel
Management v. Richmond (1990) 496 U.S. 414) unless a due process of law fair notice
standard is violated (General Electric
Co., v. EPA, 53
Fed. 3d 1324 (DC Cir.1995). Equitable estoppel
is more widely recognized in state administrative law (Footes Dixie Dandy,
Inc. v. McHenry, 607
S. W. 2d 323 (
SECTION 311. CONTENTS OF RULE. Each rule adopted by an agency must contain
the text of the rule and be accompanied by a record containing:
(1) the date the agency adopted the rule;
(2) a concise statement of the purpose of the
rule;
(3) a reference to all rules repealed, or amended,
or suspended by the rule;
(4) a reference to the specific statutory or other
authority authorizing the rule;
(5) any findings required by any provision of law
as a prerequisite to adoption or effectiveness of the rule; and
(6) the effective date of the rule.
SECTION 312. CONCISE EXPLANATORY
STATEMENT.
(a) At the time it adopts a rule, an agency shall
issue a concise explanatory statement containing:
(1) the agency=s
reasons for adopting the rule, which must include an explanation of the
principal reasons for and against the adoption of the rule, the agency=s
reasons for overruling substantial arguments and considerations made in
testimony and comments, and its reasons for failing to consider any issues
fairly raised in testimony and comments; and
(2) the reasons for any change between the text
of the proposed rule contained in the published notice of the proposed adoption
of the rule and the text of the rule as finally adopted.
(b) Only the reasons contained in the concise
explanatory statement required by subsection (a) may be used by a party as
justifications for the adoption of the rule in any proceeding in which its
validity is at issue.
Comment
Many
states have adopted the requirement of a concise explanatory statement.
[SECTION
313. INCORPORATION BY REFERENCE. An agency may adopt a rule that incorporates
by reference all or any part of a code, standard, or rule that has been adopted
by an agency of the United States, this state, another state, or by a
nationally recognized organization or association, if:
(1) incorporation of the text of the code,
standard, or rule in the rule would be unduly cumbersome, expensive, or
otherwise inexpedient;
(2) the reference in the agency rules fully
identifies the incorporated code, standard, or rule by location, date, and
otherwise, [and must state that the rule does not include any later amendments
or editions of the incorporated code, standard, or rule]; and
(3) the code, standard, or rule is readily
available to the public;
(4) the rule states where copies of the code,
standard, or rule are available at cost from the agency issuing the rule and
where copies are available from the agency of the United States, this state,
another state, or the organization or association originally issuing the code,
standard, or rule; and
(5) the rule is of limited public interest.
Comment
Several states have provisions that require
the agencies to retain the voluminous technical codes. See,
SECTION 314. COMPLIANCE AND TIME LIMITATION. No rule adopted under this [act] is valid
unless adopted in substantial compliance with the procedural requirements of
this [act]. A proceeding to contest any rule on the ground of noncompliance
with the procedural requirements of this [act] must be commenced within two
years from the effective date of the rule.
Comment
This
section is a slightly modified form of the 1961 Model State Administrative
Procedure Act, section (3)(c).
SECTION 315. FILING OF RULES. An agency shall file with the [publisher]
each rule it adopts and all rules existing on [the effective date of this
[act]] that have not previously been filed. The agency shall also file a rule
under this section as an electronic record.
The filing must be done as soon after adoption of the rule as is
practicable. At the time of filing, each rule adopted after [the effective date
of this [act]] must have attached to it the explanatory statement required by
Section 312. The [publisher] shall affix to each rule and statement a
certification of the time and date of filing and keep a permanent register open
to public inspection of all filed rules and attached explanatory statements. In
filing a rule, each agency shall use a standard form prescribed by the
[publisher].
Comment
This
section is based on the 1961 Model State Administrative Procedure Act,
Section 4(a) and its expansion in the
1981 MSAPA, Section 3-114.
SECTION 316. EFFECTIVE DATE OF RULES.
(a) Except as otherwise provided in subsection
(b), (c), or (d), each rule adopted after [the effective date of this [act]]
becomes effective [60] days after publication of the rule in the
[administrative bulletin] [on the publisher=s
Internet website.]
(b) A rule may become effective on a later date
than that established by subsection (a) if the later date is required by
another statute or specified in the rule.
(c) A rule may become effective immediately upon
its filing or on any subsequent date earlier than that established by
subsection (a) if the agency establishes the date and finds that:
(1) it is required to be implemented by a certain
date by the federal or [state] constitution, a statute, or court order;
(2) the rule is an emergency rule under Section
309(a).
(d) A fast-track rule adopted pursuant to Section
309(b) to which no objection is made becomes effective 15 days after the close
of the comment period, unless the rulemaking proceeding is terminated or a
later effective date is specified by the agency.
(e) A guidance document becomes effective
immediately upon its filing or at a later date established by the agency.
Comment
This
is a substantially revised version of the 1961 Model State Administrative
Procedure Act, Section 4 (b)&(c) and 1981 Model State Administrative
Procedure Act, Section 3-115. Most of the states have adopted provisions
similar to both the 1961 Model State Administrative Procedure Act and the 1981
Model State Administrative Procedure Act, although they may differ on specific
time periods.
SECTION 317. PETITION FOR ADOPTION OF RULE. Any person may petition an agency to request
the adoption of a rule. Each agency shall prescribe by rule the form of the
petition and the procedure for its submission, consideration, and disposition.
Within [60] days after submission of a petition, the agency shall:
(1) deny the petition in a record and state its
reasons for the denial;
(2) initiate rulemaking proceedings in accordance
with this [act]; or
(3) if otherwise lawful, adopt the rule.
Comment
This
section is substantially similar to the 1961 MSAPA.
[ARTICLE
4]
ADJUDICATION
SECTION 401. WHEN ARTICLE APPLIES. CONTESTEDDISPUTED
CASES. This [article] applies to an adjudication made
by an agency in a contesteddisputed
case. If the requirements for informal
adjudication under Sections 405 and 406 or an emergency adjudication under
Section 408 are met, a hearing in a contesteddisputed
case may be conducted following the procedures in those sections.
Comment
Article 4 of this Act does not apply to all
adjudications but only to those adjudications, defined in Section 102 as a Acontesteddisputed
case.@ ContestedDisputed
case is the definition of the subset of adjudications that fall within this
section because law as defined in Section 102(14) requires an evidentiary
hearing to resolve particular facts or the application of law to facts. This section is subject to the exceptions in
Sections 405 and 406 for informal hearing and Section 408 for emergency hearing
if the requirements for those exceptions under this Article apply. All contesteddisputed
cases are also subject to Section 402 of this article.
For
a statute to create a right to an evidentiary hearing, express use of the term Aevidentiary
hearing@
is not necessary in the statute. Statutes often use terms like Aappeal@
or Aproceeding@
or Ahearing@,
but in context it is clear that they mean an evidentiary hearing. An
evidentiary hearing is one in which the resolution of the dispute involves
particular facts and the presiding officer is limited to material in the record
in making his decision.
Hearings
that are required by procedural due process guarantees include life, liberty
and property interests,
which arise where a statute creates a justified expectation or legitimate
entitlement. This section includes more than what were described as Arights@
under older common law. In cases where
the right to an evidentiary hearing is created by due process, attention is
directed to Section 405(2)D infra,
which may permit an informal hearing.
This
section does not apply to an investigatory hearing, or a hearing that merely
seeks public input or comment. Also, this section is not applicable to the
situation where a party is entitled to a de novo administrative or judicial
hearing. An agency may by rule make all or part of this article applicable to
adjudication that does not fall within requirements of this section.
This
section draws upon the California, (see Cal. Cal.Gov.Code Section 11410.10);
Minnesota, (see Minnesota Statutes Annotated, Section 14.02, subd. 3;
Washington (see Revised Code of Washington, 34.05.413(2) and Kansas (see Kansas
Stat. Ann., KS ST Section 77-502(d) & Kansas Stat. Ann., KS ST Section
77-503). The definition of disputed case
used in this Act is similar to, but broader than, the definition of contested
case in the 1961 MSAPA, Section 1(2).
SECTION
402. PRESIDING OFFICERS.
(a) In a disputed case, the presiding officer
shall regulate the hearing in a manner that will promote an orderly and prompt
resolution.
(b) The
presiding officer shall be the agency head, one or more members of the agency
head that is a body of individuals, or
in the discretion of the agency head,
The agency head, or [one or more members of the agency head,]
[one or more administrative law judges assigned by the office in accordance
with Section 602] [or, unless prohibited by law, one or more persons designated
by the agency head], in the discretion of
the agency head, may serve as the
presiding officer.
(c) An individual who has served as investigator,
prosecutor, or advocate at any stage in a disputed case may not serve as a
presiding officer or assist or advise any presiding officer in the same
proceeding.
(d) An individual who is subject to the
authority, direction, or discretion of an individual who has served as
[investigator,] prosecutor [,] or advocate at any stage in a disputed case,
including investigation, may not serve as presiding officer or assist or advise
a presiding officer in the same proceeding.
(e) A presiding officer is subject to
disqualification for bias, prejudice, financial interest, or any other cause
for which a judge is or may be disqualified. A presiding officer,
after making a reasonable inquiry, shall disclose to
all parties any known facts that a reasonable person would
consider likely to affect the impartiality of the presiding officer in the contested
case proceeding, including:
(1) a financial or
personal interest in the outcome of the contested
case proceeding; and
(2) an existing or
past relationship with any of the parties to the contested
case proceeding, their counsel or representatives, or a
witness.
(f) Any party may
petition for the disqualification of a presiding officer promptly after receipt
of notice indicating that the person will
preside, or promptly upon discovering facts establishing
grounds for disqualification, whichever is later. The
party requesting Before the taking of
evidence at an evidentiary hearing, a party may request
the disqualification of the presiding officer mustby
fileing
a petition that states with particularity the grounds upon which it is claimed
that a fair and impartial hearing cannot be accorded, or the applicable rule or
canon of practice or ethics that requires disqualification. If grounds for disqualification are discovered
at a time later than the beginning of the taking of evidence, a party must
request disqualification promptly after discovery.
The petition may be denied if the party fails to exercise due diligence in
requesting disqualification after discovering
grounds for disqualification.
(g) A presiding officer whose disqualification is
requested shall determine
[or the appointing authority, or the Chief Administrative Law Judge]
determine whether
to grant the petition and state facts and reasons for the determination in
writing, except as otherwise provided by
law, or by determination of the appointing authority if
provided by rule. Determinations
to disqualify or to not disqualify a presiding officer are not immediately subject
to judicial review.
(h) If a substitute presiding officer is required,
the substitute must be appointed [as required by law, or
if no law governs then] by:
(1) the Governor, if the original presiding
officer is an elected official; or
(2) the appointing authority, if the original
presiding officer is an appointed official.
(i) The provisions of
this section governing disqualification of the presiding officer also govern
disqualification of the agency head or other person or
body to which the power
to hear or decide in the proceeding is delegated.
(j)
Agency heads may continue to participate in
the hearing or decision of a contested case notwithstanding grounds for
disqualification if required by law
Comment
Subsection
(b) governs who may be appointed to serve as a presiding officer in a disputed
case. If the case is heard by more than
one presiding officer, as when the agency head hears a disputed case en banc,
one member of the agency head may serve as chair, but all of the persons
sitting as judge in the case are collectively the presiding officer.
Subsection
(b) confers a limited amount of discretion upon the agency head to determine
who will preside. The presiding officer
may be either the agency head, or one or more members of the agency head, or
one or more administrative law judges assigned by the Office of Administrative
Hearings in accordance with Section 603. Without the bracketed language,
subsection (b) resembles the law in a group of states that have created a
central panel of administrative law judges, and have made the use of
administrative law judges from the central panel mandatory unless the agency
head or one or more members of the agency head presides. In some states,
however, the use of central panel administrative law judges is mandatory only
in certain enumerated agencies or types of proceedings. If the bracketed
language is adopted, the agency head, in addition to the preceding options for
appointment and unless prohibited by law, may designate any one or more Aother
persons@
to serve as presiding officer. This
discretion is subject to subsections (c) & (d) on separation of
functions. This discretion is also
limited by the phrase Aunless
prohibited by law,@
included in the bracketed language, which prevents the use of Aother
persons@
as presiding officers to the extent that the other state law prohibits their
use. Thus, if this language is adopted by a state that has an existing central
panel of administrative law judges whose use is mandatory in enumerated types
of proceedings, the agencies must continue to use the central panel for those
proceedings, but may exercise their option to use Aother
persons@
for other types of proceedings.
Subsection
(e) is based upon 1981 MSAPA Section 4-202(b).
See also California Government Code Section 11425.40(a).
Disclosure duties under subsection (e) are based on state ethics
codes governing ethical standards for judges in the
judicial branch of the government, Section
12 of the 2000 Uniform Arbitration Act , and on state law
governing the ethical responsibilities of government
officials and employees. See Section 410.
Subsection
(f) is based on 1981 MSAPA Section 4-202(c).
Subsection
(i) is based on California Government Code
Section 11425.40(c).
Subsection
(j) adopts the rule of necessity for decision makers. See
California Government Code Section 11512(c) (agency
member not disqualified if loss of a quorum would result);
SECTION 403. CONTESTEDDISPUTED
CASE PROCEDURE.
(a) Except for emergency adjudications and except
as otherwise provided in Section 406, this section applies to contesteddisputed
cases.
(b) Except as otherwise provided in Section
408(c), an agency shall give to the person to which an agency action is
directed notice that is consistent with Section 404.
(c) An agency shall make available to the person
to which an agency action is directed a copy of the agency
procgoverning procedure.
(d) The following rules apply in a disputed case:
(1) Upon proper objection, the presiding officer
must [or may]exclude evidence that is
immaterial, irrelevant, unduly repetitious, or excludable on constitutional, or or
statutory grounds or on the basis of an evidentiary privilege recognized in the
courts of this state. In
the absence of proper objection,
Tthe
presiding officer may exclude evidence that is objectionable
under the applicable rules of evidence. Evidence may not be excluded solely because
it is hearsay. [Hearsay
evidence may be used for the purpose of supplementing or explaining other
evidence except that on timely objection shall not be sufficient in itself to
support a finding unless it would be admissible over objection in a civil
action.]
Or [Hearsay
evidence can be sufficient to support fact findings
if that evidence constitutes reliable probative
and substantial evidence].
(2) An objection is timely
if made at
the time the evidence is offeredbefore conclusion of
the hearing. In
the absence of objection, the presiding officer may
exclude evidence at the time it is offered.
(3) Any part of the evidence may be received in
written form, if doing so will expedite the hearing without substantial
prejudice to the interests of a party.
Documentary evidence may be received in the form of copies or excerpts
or by incorporation by reference.
(4) All evidence must be made part of the hearing
record of the case including, if the agency desires to avail itself of
information or if it is offered into evidence by a party, records in the
possession of the agency which contain information that
is not a public recordclassified by law as
not public. No factual information or evidence may be
considered in the determination of the case unless it is part of the agency hearing
record. If the agency hearing
record contains information that is not public,
the presiding officer may conduct a closed hearing to discuss the information,
issue necessary protective orders, and seal all or part of the hearing record.
(5) The presiding officer may take official
notice of all facts of which judicial notice may be taken and of other
scientific and technical facts within the specialized knowledge of the agency. Parties must be notified at the earliest
practicable time, either before or during the hearing, or by reference in
preliminary reports, preliminary decisions or otherwise, of the facts proposed
to be noticed and their source, including any staff memoranda or data. The parties must be afforded an opportunity
to contest any officially judicially
noticed facts before the decision is announced,
unless the presiding
officer determines as part of the record or decision that fairness to the
parties does not require an opportunity to contest such facts.
(6) The experience, technical competence, and
specialized knowledge of the presiding officer may be used in the evaluation of
the evidence in the agency hearing record.
(e) Except for informal hearings under Sections
405 and 406 and emergency hearings under Section 408, in a disputed case, the
presiding officer, at appropriate stages of the proceedings, shall give all
parties the opportunity to file pleadings, motions, and
objections,
and offers of settlement in
a timely manner. The presiding officer, at appropriate stages of the
proceeding, may give all parties full opportunity to file briefs, proposed
findings of fact and conclusions of law, and proposed, recommended, or final
orders. If written records are submitted, the original record available,
the original of all records
must be filed with the agency and copies of all filings shall be sent to all
parties.
(f) Except for informal hearings under Sections
405 and 406 and emergency hearings under
Section 408, in a disputed case, to the extent necessary for full disclosure of
all relevant facts and issues, the presiding officer shall afford to all
parties the opportunity to respond, present evidence and argument, conduct
cross-examination, and submit rebuttal evidence.
(g) [If no party objects or if
all parties consent] or Unless
prohibited by law, if each party to a hearing has an opportunity too hear,
speak, and be heard in the proceeding as it occurs, the presiding officer may
conduct all, or part of, an evidentiary hearing, or a prehearing conference, by
telephone, television, video conference, or
other electronic means;
(h) All testimony of parties and witnesses must
be given under oath or affirmation and the presiding officer may administer an
oath or affirmation for that purpose.
(i) A hearing in a contesteddisputed
case is open to the public, except for a hearing or part of a hearing that the
presiding officer closes on the same basis and for the same reasons that a
court of this state may close a hearing or closes pursuant to a statutory
provision other than this [act] that authorizes closure. To the extent that a
hearing is conducted by telephone, television, or other electronic means, and
is not closed, a hearing is open if members of the public have an opportunity,
at reasonable times, to hear or inspect the agency's record, and to inspect any
transcript obtained by the agency.
(j) Unless prohibited by law other than this
[act], at the party=s
expense, any party may be represented by counsel or may be advised,
accompanied, or represented by another individual.
(k)
Any party may represent themselves in
a contested case, and the presiding officer may accommodate
pro se parties unfamiliarity with agency contested case procedures by
explaining those procedures to the pro se party to the extent
consistent with fair hearing [impartial decision maker]
requirements
(l)(k) The decision in a contesteddisputed
case must be writtenin writing,
based on the agency hearing record,
and include a statement of the factual and legal bases of the decision.
(m)(l) This section applies to agency procdisputed
cases without further action by the agency, and prevails over a conflicting or
inconsistent provision of the agency=s
rules.
(n)(m) The rules by which an agency conducts a contesteddisputed
case may include provisions equivalent to, or
more protective of, the rights of the person to which the agency action is
directed than the requirements of this section.
(o)
Agencies must train new presiding officers [including non lawyer
presiding officers] in contested case
procedures and in the rules of evidence
applicable to contested case proceedings.
Comment
This
section specifies the minimum hearing requirements that must be met in disputed
cases under this act. This section applies to all agencies whether or not an
agency rule provides for a different procedure; this procedure is excused only
if a statute expressly provides otherwise. This section does not prevent an
agency from adopting more stringent procedures than those in this section. This section does not supersede conflicting
state or federal statutes.
There
are several interrelated purposes for this procedural provision: 1) to create a
minimum fair hearing procedure; and 2) to attempt to make that minimum
procedure applicable to all agencies. In many states, individual agencies have
lobbied the legislature to remove various requirements of the state
Administrative Procedure Act from them. The result in a considerable number of
states is a multitude of divergent agency procedures. This lack of procedural
uniformity creates problems for litigants, the bar and the reviewing courts.
This section attempts to provide a minimum, universally applicable procedure in
all disputed cases. The important goal of this section is to protect citizens
by a guarantee of minimum fair procedural protections. The procedures required
here are only for actions that fit the definition of a disputed case and fall
within the provisions of Section 401.
Thus, they do not spread quasi judicial procedures widely, and do not
create any significant agency loss of efficiency or increased cost.
This
section is modeled in part on the Arizona Regulatory Bill of Rights, see A.R.S.
Section 41-1001.01 and the California Administrative Adjudication Bill of
Rights, see West Ann.Cal.Gov.Code Section 11425.10.
Under subsection (c), agency
proc
Under
subsection (d)(1) evidence is unduly repetitious if its probative value is
substantially outweighed by the probability that its admission will necessitate
undue consumption of time. In most
states a presiding officer=s
determination that evidence is unduly repetitious may be overturned only for
abuse of discretion. Under subsection
(d)(1), the legal residuum rule is not adopted and hearsay
evidence can be sufficient to support fact findings if
the hearsay evidence is sufficiently reliable. This
provision is based on the federal A.P.A.
provision, 5 U.S.C. Section 556 (d),
Subsection (d)(4)
information that is not a public record means information not subject to
disclosure under the applicable public records act in the jurisdiction.
Subsection (d)(5) is
basedon 1981 MSAPA Section 4-212(f). See also California Government
Code Section 11515,
and 1961 MSAPA Section 10(4).
Subsection (d)(6) is based on 1981
MSAPA Section 4-215(d). See
also California Government Code
Section 11425.50(c) which contains the same language.
Under subsection (g)
hearings in contested cases can be conducted using the telephone, television,
video conferences, or other
electronic means. Subsection
(g) is based in part on California Government Code Section 11440.30. Due
process of law may require live in person hearings. See Whiteside
v. State, (2001) 20 P. 3d 1130 (Supreme Court of Alaska)
(due process of law violated with telephone hearing in driver’s license
revocation hearing when driver’s credibility was material to the
hearing, and the driver was not offered an in person
hearing); But see Bancock v. Employment Division (1985) 72 Or. App. 486, 696
P. 2d 19, 21 (telephone hearings do not violate due process of law in
hearings in which the credibility of
a party is at issue because audible indicia of a witness’s demeanor are sufficient
for credibility).
Subsection (k)
provides for a right of self representation for parties in contested case
proceedings. Subsection (k) also allows presiding officers to accomdate pro se
litigant’s unfamiliarity with
agency procedures in contested
cases by explaining
those procedures to the pro se litigant to
the extent consistent with fair hearing and impartial
decision maker requirements. Goldberg v. Kelley (1970) 397
The
subsection (l)
written decision requirement is based in part on 1961 MSAPA
Section 12, and on1981 MSAPA Section 4-215(g).
See also California Government Code Section 11425.50. See
also sections 801, and 802, electronic publication of written decisions, and
the provisions of 15 U.S.C. Section
7004.
Section
10 of the 1961 MSAPA contained many similar provisions.
SECTION 404. NOTICE.
(a) Except for an emergency adjudication under
Section 408, an agency shall give reasonable notice of the right to an
evidentiary hearing in a contesteddisputed
case.
(b) In case of applications or petitions submitted
by persons other than the agency, within a reasonable time after filing, the
agency shall give notice to all parties that an action has been commenced. The notice must include:
(1) the official file or other reference number,
the name of the proceeding, and a general description of the subject matter;
(2) the name, official title, mailing address
[e-mail address] [facsimile address] and telephone number of the presiding
officer;
(3) a statement of the time, place, and nature of
the prehearing conference or hearing, if any;
(4) [the name, official title, mailing address,
and telephone number of any attorney or employee who has been designated to
represent the agency]; and
[(5)] any other matter that the presiding officer
considers desirable to expedite the proceedings.
(c) In case of actions initiated by the agency
that may or will result in an order, the agency shall give an initial notice to
the party or parties against which the action is brought by personal service in
a manner appropriate under the rules of civil procedure for the service of
process in a civil action in this state which includes:
(1) notification that an action that may result
in an order has been commenced against them;
(2) a short and plain statement of the matters
asserted, including the issues involved;
(3) a statement of the legal authority and
jurisdiction under which the hearing is held that includes identification of
the statutory sections involved;
(4) the official file or other reference number,
the name of the proceeding, and a general description of the subject matter;
(5) the name, official title, mailing address,
[e-mail address,] [facsimile address,] and telephone number of the presiding
officer or, if no officer has been appointed at the time the notice is given,
the name, official title, mailing address, [e-mail address,] [facsimile
address,] and telephone number of any attorney or employee designated to
represent the agency;
(6) a statement that a party who fails to attend
any subsequent proceeding in a contesteddisputed
case may be held in default;
(7) a statement that the party served may request
a hearing and instructions in plain language about how to request a hearing;
and
(8) the names and last known addresses of all
parties and other persons to which notice is being given by the agency.
(d) When a prehearing meeting or conference is
scheduled, the agency shall give parties notice at least 14 days before the
hearing that contains the information contained in subsection (c).
(e) Notice may include other matters that the
presiding officer considers desirable to expedite the proceedings.
Comment
This
section is taken from: the 1961 Model State Administrative Procedure Act,
section 9 and the 1981 Model State Administrative
Procedure Act, Section 4-206. See also;
Oregon, O.R.S. Section 183.415; Kansas, K.S.A. Section 77-518; Iowa, I.C.A.
Section 17A.12; Montana, MCA 2-4-601; and Michigan, M.C.L.A. 24.271.
SECTION 405. INFORMAL ADJUDICATION IN CONTESTEDDISPUTED
CCASES. Unless prohibited by law other than this
[act], an agency may use an informal hearing procdisputed
case if:
(1) there is no disputed issue of material fact; or
(2) the matter at issue is limited to any of the
following:
(A) a monetary amount of not more than [one
thousand dollars ($1,000)] whether liquidated in a sum certain or as periodic
payments over no more than [12] months;
(B) a disciplinary sanction against a student
that does not involve expulsion from an academic institution or suspension for
more than 10 days or an employee that does not involve discharge from
employment, demotion, or suspension for more than five days;
(C) a disciplinary sanction against a licensee
that does not involve an actual revocation of a license or an actual suspension
of a license for more than five days;
(D) a proceeding where the federal or state
constitution requires an evidentiary hearing, but the federal or state
constitution does not require an agency to follow the adjudication procedures
of Section 403; or
(E) the parties by written agreement consent to
an informal hearing.
Comment
The
informal hearing procedure is intended to satisfy due process and public policy
requirements in a manner that is simpler and more expeditious than formal
adjudication. The informal hearing
procedure provides a forum in the nature of a conference in which a party has
an opportunity to be heard by the presiding officer. The informal hearing procedure provides a
forum that may accommodate a hearing where by rule or statute a member of the
public may participate without appearing or intervening as a party.
This
section adopts a single category of informal procedure that an agency may use
to perform the same functions, and the following section leaves to the
discretion of the presiding officer the exact hearing procedure to be followed.
This section also draws upon the
Subsection
2(D) is intended to deal with the situation that arises in federal
constitutional law where the constitution protects a life, liberty or property
interest, but, under the holding of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct.
893 (1976) do not require all the protections of a formal hearing.
See Goss v. Lopez, (1975) 419
SECTION 406. INFORMAL ADJUDICATION PROCEDURE.
(a)
Except as otherwise provided in subsection (b), the adjudication
procedures required under Section 403 apply to an informal adjudication.
(b) In an informal adjudication, the presiding
officer shall regulate the course of the proceeding consistent with the due
process requirement of meaningful opportunity to be heard. The presiding
officer shall permit the parties and their representatives, and may permit
others, to offer written or oral comments on the issues. The presiding officer
may limit the use of witnesses, testimony, evidence, cross-examination, and
argument and may limit or eliminate the use of pleadings, intervention,
discovery, prehearing conferences, and rebuttal. Where appropriate in the
discretion of the presiding officer, an informal adjudication may be in the
nature of a conference.
(c) In regulating the course of the informal
adjudication proceedings, the presiding officer shall recognize the rights of
the parties:
(1) to notice that includes the decision to
proceed by informal adjudication;
(2) to protest the choice of informal procedure,
and that protest must be promptly decided by the presiding officer;
(3) to participate in person or by a
representative;
(4) to have notice of any contrary factual
material in the possession of the agency that can be relied on as the basis for
adverse decision; and
(5) to be informed briefly, in writing, of the
basis for an adverse decision in the case.
(d) The agency record for review of informal
adjudication consists of the official transcript of oral testimony and any
records that were considered by, prepared by, or submitted to, the presiding
officer for use in the informal adjudication or by or to the agency on
review. The agency shall maintain these
records as its record of the informal adjudication.
Comment
This
section draws on the informal adjudication provisions of several state
Administrative Proc
SECTION 407. AGENCY HEARING
RECORD IN CONTESTEDDISPUTED
CASE.
(a) An agency shall maintain an official hearing
record inof
each contesteddisputed
case.
(b) The agency hearing record
consists of:
(1) notices of all proceedings;
(2) any pre-hearing order;
(3) any motions, pleadings, briefs, petitions,
requests, and intermediate rulings;
(4) evidence received or considered;
(5) a statement of matters judicially noticed;
(6) proffers of proof and objections and rulings
thereon;
(7) proposed findings, requested orders, and
exceptions;
(8) the record prepared for the presiding officer
at the hearing, and any transcript of all or part of the hearing considered
before final disposition of the proceeding;
(9) any final order, recommended decision, or
order on reconsideration;
(10) all memoranda, data, or testimony prepared
under Section 409; and
(11) matters placed on the record after an ex
parte communication.
(c) Except to the extent that law other than this
[act] provides otherwise, the agency hearing record
constitutes the exclusive basis for agency action in a disputed case and for
judicial review of the case.
SECTION 408. EMERGENCY ADJUDICATION
PROCEDURE.
(a) Unless prohibited by law other than this
[act], an agency may conduct an emergency adjudication in a contesteddisputed
case under the proc
(b) An agency may issue an order under this
section only to deal with an immediate danger to the public health, safety, or
welfare. The agency may take only action
that is necessary to deal with the immediate danger to the public health,
safety, or welfare. The emergency action
must be limited to interim relief.
(c) Before issuing an order under this section,
the agency, if practicable, shall give notice and an opportunity to be heard to
the person to which the agency action is directed. The notice and hearing may be oral or
written and may be communicated by telephone, facsimile, or other electronic
means. The hearing may be conducted in
the same manner as an informal hearing under this [article].
(d) Any order issued under this section must
contain an explanation that briefly explains the factual and legal basis for
the emergency decision.
(e) An agency shall give notice of an order to
the extent practicable to the person to which the agency action is
directed. The order is effective when
issued.
(f) After issuing an order pursuant to this
section, an agency shall proceed as soon as feasible to conduct an adjudication
following contesteddisputed
case proc
(g) The agency record in an emergency
adjudication consists of any testimony or records concerning the matter that
were considered or prepared by the agency.
The agency shall maintain those records as its official record.
(h) On issuance of an order under this section,
the person against which the agency action is directed may obtain judicial
review without exhausting administrative remedies.
Comment
The
procedure of this section is intended permit immediate agency emergency
adjudication, but also to provide minimal protections to parties against whom
such action is taken. Emergencies
regularly occur that immediately threaten public health, safety or welfare:
licensed health professionals may endanger the public; developers may act
rapidly in violation of law; or restaurants may create a public health hazard. In such cases the agencies must possess the
power to act rapidly to curb the threat to the public. On the other hand, when the agency acts in
such a situation, there should be some modicum of fairness, and the standards
for invoking such remedy must be clear, so that the emergency label may be used
only in situations where it fairly can be asserted that rapid action is
necessary to protect the public.
Federal
and state case law have held that in an emergency situation an agency may act
rapidly and postpone any formal hearing without violation, respectively, of
federal or state constitutional law.
FDIC v. Mallen, 486
The
generic provision in this section has several advantages over the present
divergent approaches to emergency agency action. First, all agencies have the needed power to
act without delay, but there is provision for some type of brief hearing, if
feasible. Second, this article limits
the agency to action of this type only in a genuine, defined emergency. Third, there are pre and post deprivation
protections. This section seeks to
strike an appropriate balance between public need and private fairness.
This
section does not apply to an emergency adjudication, cease and desist order, or
other action in the nature of emergency relief issued pursuant to express
statutory authority arising outside of this act.
SECTION 409. EX PARTE COMMUNICATIONS.
(a) Except as provided in
subsections (b) and (c), while a contesteddisputed
case is pending, the presiding officer may not make
or receive any communication from any person
regarding any issue in the proceeding [or
relevant to the merits of the proceeding] without notice and opportunity for all parties
to participate in the communication. For the purpose of
this section, a proceeding is
pending from the issuance of the agency’s pleading, or from
an application for an agency decision, whichever is earlier.
(b)
The presiding officer may make or receive communicationse
fromwith
a law clerk or a person authorized by law to provide legal advice to the
agency, or, on ministerial matters, communicate with a person who serves on the
personal staff of the presiding officer if the person providing legal advice or
ministerial information has not served as investigator, prosecutor, or advocate
at any stage of the proceeding;
(c) An employee or
representative may make or receive communications
from e with
an agency head sitting as presiding officer if the communication consists of an
explanation of the technical or scientific basis of, or technical or scientific
terms in, the evidence in the agency hearing record,
and if:
(A) the employee or representative giving the
technical explanation has not served as investigator, prosecutor, or advocate
at any stage of the proceeding;
(B) the employee or representative giving the
technical explanation does not receive communications that the agency head is
prohibited from receiving; and
(C) the technical or scientific term on which
explanation is sought is not a contested issue or an issue whose application is
central to the decision in the case.
(d) If the presiding officer receives advice
under subsection (c), the advice, if written, must be made part of the agency
hearing record.
If the advice is verbal, a memorandum containing the substance of the
advice must be made part of the record and the parties must be notified of the
communication. The parties may respond
to the advice of an employee or representative of the agency in a record that
is made part of the hearing record.
(e) If a presiding
officer makes or receives
a communication in violation of this section:
(1) if it is a written communication, the
presiding officer shall make the communication a part of the hearing record and
prepare and make part of the record a memorandum that contains the response of
the presiding officer to the communication and the identity of the parties who
communicated; or
(2) if it is a verbal communication, the
presiding officer must prepare a memorandum that contains the substance of the
verbal communication, the response of the presiding officer, and the identity
of the parties who communicated.
(f) If a communication prohibited by this section
is made, the presiding officer shall notify all parties of the prohibited
communication and permit parties to respond in writing within 15 days. Upon good cause shown, the presiding officer
may permit additional testimony in response to the prohibited communication.
(g) While a proceeding is pending, there shall be
no communication, direct or indirect, regarding the merits of any issue in the
proceeding between the presiding officer and the agency head or other person or
body to which the power to hear or decide in the proceeding is delegated. However, where the presiding officer is a
member of an agency head that is a body of persons, the presiding officer may
communicate with the other members of the agency head without violation of this
subsection.
(h) If necessary to eliminate the effect of a
communication received in violation of this section, a presiding officer may be
disqualified and the portions of the record pertaining to the communication may
be sealed by protective order or other relief may be granted as appropriate.
Comment
This
section is not intended to be applied to communications made by or to a
presiding officer or personal staff assistant regarding noncontroversial
practice and procedure matters such as number of pleadings, number of copies or
type of service. Communications
related to contested procedural
issues or motions are covered by Section
409(a). Other communications
not on the merits but related to security or to the credibility of
a party or witness are covered by
Section 409(a). See Matthew Zaheri Corp.,
Inc. v. New Motor Vehicle
Board (1997) 55
This
section also provides another remedy besides disclosure and party reply. In a case where disclosure and rely are
inadequate to cure or eliminate the effect of the ex parte contact, a
protective order may be issued. The
intent of authorizing the protective order is to keep the ex parte material
from the successor presiding officer.
This
section draws in part from the systematic
SECTION
410 Administrative
Adjudication Code of Ethics
(a) Except as
otherwise provided in subsection (b), the Code of Judicial Ethics applicable to
the conduct of judges in the
judicial branch in this state governs the hearing
and non hearing conduct of an administrative law judge or other presiding
officer adjudicating contested cases.
(b) Section 409 governs
the standards for ex parte communication. Section 402 governs
disqualification of presiding officers. Restrictions on
financial interests, political activity or
on accepting honoraria, gifts, or travel are governed by state law other than
the judicial code of ethics.
Comment
Section 410 is based on the
provisions of the
SECTION 411
[410]. INTERVENTION.
(a) A presiding officer shall grant a petition
for intervention in a contesteddisputed
case if the petitioner has a statutory right to initiate the proceeding in
which intervention is sought.
(b) A presiding officer shall grant a petition
for intervention if the petitioner has an interest that will or may be
adversely affected by the outcome of the proceeding and that interest is not
adequately represented.
(c)
A presiding office may grant a petition for intervention when the petitioner
has a conditional
statutory right to intervene,
or the petitioner’s claim or defense is
based on the same transaction or occurrence as `the
contested case.
(d)[(c)]
When
intervention is granted or at any subsequent time, the presiding officer may
impose conditions upon the intervener=s
participation in the proceedings.
(e) [(d)] A presiding officer may permit intervention
conditionally and, at any time later in the proceedings or at the end of the
proceedings, may revoke the conditional intervention.
(f) [(e)] The presiding officer, at least [24 hours]
before the hearing, shall issue an order granting or denying each pending
petition for intervention, specifying any conditions, and briefly stating the
reasons for the order. The presiding officer shall promptly give notice to the
petitioner for intervention and to all parties of an order granting, denying,
or modifying intervention.
Comment
Section
411 is based in part of 1981 MSAPA Section 4-209. See
also Fedreal Rule of civil Proc
Subsection
(dc)
recognizes the normal judicial practice of limiting the participation of
intervenors, especially on cross examination, to their particular interest and
taking any other procSubsection
(b) intervention will also be granted when the presiding officer determines
that a petitioning intervenor has a substantial interest created by a statute
or determines that as a practical matter the effect on the petitioner justifies
petitioner=s
presence as a party. Subsection (ed)
recognizes the power of the presiding officer to dismiss a party who has
intervened at any time after intervention has occurred when it appears that the
conditions of this section or the requirements for the intervening party=s
standing have not been satisfied.
Subsection (fe)
provides for notice suitable under the circumstances to enable parties to
anticipate and prepare for changes that may be caused by the intervention.
SECTION 412
[411]. SUBPOENAS.
(a) In a contesteddisputed
case, upon tender of the proper fees for witnesses calculated in the same
manner as under the rules of civil proc
(b) After the commencement of a contesteddisputed
case, when a written request for a subpoena to compel attendance by a witness
at the hearing of the case or to produce books, papers, records, or records
that are relevant and reasonable is made by a party, the presiding officer
shall issue subpoenas.
(c) Subpoenas, protective orders, and other
orders issued under this section may be enforced pursuant to the rules of civil
proc
Comment
Section
412 is based in part on 1981 MSAPA Section 4-210. See
also California Government Code
sections 11450.05 to 11450.50 (subpoenas in
administrative adjudication)..
[SECTION
413 [412]. DISCOVERY.
(a) As used in this section, Astatement@
includes records signed by a person of his or her oral statements and records
that summarize these oral utterances.
(b) Except in an emergency hearing under Section
407, a party, upon written notice to another party at least [ ] days before an evidentiary hearing, is
entitled to:
(1) obtain the names and addresses of witnesses
to the extent known to the other party; and
(2) inspect and make a copy of any of the
following material in the possession, custody, or control of the other party:
(A) a statement of a person named in the initial
pleading or any subsequent pleading if it is claimed that respondent=s
act or omission as to that person is the basis for the adjudication;
(B) a statement relating to the subject matter of
the adjudication made by any party to another
party or person;
(C) statements of witnesses then proposed to be
called and of other persons having knowledge of facts that are the basis for
the proceeding;
(D) all writings, including reports of mental,
physical, and blood examinations and things which the party then proposes to
offer in evidence;
(E) investigative reports made by or on behalf of
the agency or other party pertaining to the subject matter of the adjudication,
to the extent that these reports contain
the names and addresses of witnesses or of persons having personal knowledge of
the acts, omissions, or events that are the basis for the adjudication or reflect
matters perceived by the investigator in the course of the investigation, or
contain or include by attachment any statement or writing described in this
section;
(F) any exculpatory material in the possession of
the agency; or
(G) any other material for good cause shown.
(3) Upon petition, a presiding officer may issue
a protective order for any material for which discovery is sought under this
section that is exempt, privileged, or otherwise made confidential or protected
from disclosure by law.
(4) Upon petition, the
presiding officer may issue an order compelling
discovery for refusal to comply with a discovery request
unless good cause exists for refusal.
(4) For refusal to comply with discovery
requests, a presiding officer may issue a discovery order. Failure to comply with the discovery order
shall be enforced according to the rules of civil proc
Comment
Discovery in
administrative adjudication is more limited than in civil court proceedings.
Nevertheless discovery is available for the items listed
in subsection (b). See California Government
Code Section 11507.6
to 11507.7 (discovery in administrative adjudication).
SECTION 414
[413]. CONVERSION.
(a) An adjudication in a disputed case of one type
may be converted to an adjudication of another type under this [article] if:
(1) the adjudication at the time of conversion no
longer meets the requirements under this [article] for adjudication of the type
for which it was originally commenced; and
(2) at the time it is converted it meets the
requirements under this [article] for the type of adjudication to which it is
being converted.
(b) To the extent practicable and consistent with
the rights of the parties and the requirements of this [article] relative to
the new proceeding, the record of the original proceeding must be used in the
new proceeding.
(c) The agency may adopt rules to govern the
conversion of one type of proceeding under this [article] to another. The rules may include an enumeration of the
factors to be considered in determining whether and under which circumstances
one type of proceeding will be converted to another.
Comment
Section
414 is based in part on 1981 MSAPA Section
1-107. See also California Government Code Sections
11470.10 to 11470.50. Under
this section the presiding officer is empowered to convert from one type of
disputed case adjudication to another in appropriate circumstances. Conversion may only occur if two requirements
are satisfied: the situation that met the requirements under this article for
the original proceeding must no longer exist, and the requirements for the new
type of proceeding under this article are now satisfied. Meeting both
requirements is mandatory in order to prevent a presiding officer from
converting an adjudication under Section 402 to an informal adjudication in a
situation where the proc
SECTION 415
[414]. DEFAULT.
(a) Unless displaced or modified by law other
than this [act], if a party without good cause fails to attend or participate
in a pre-hearing conference, hearing, or other stage of a disputed case, the
presiding officer at his discretion may issue a default order or proceed with a
hearing in the absence of the party.
(b) Under subsection (a), a default judgement
must be based on the absent party=s
admissions or other evidence and affidavits, which can be used without notice
to the absent party. This subsection
does not apply where the burden is on the absent party to establish that he or
she is entitled to the agency action
sought.
(c) Within [ ] days of a decision is rendered
against a party who failed to appear, that party may petition the presiding
officer to vacate the recommended or final order. If adequate reasons are provided showing good
cause for the party's failure to appear, the presiding officer shall vacate the
decision and, after proper service of notice, conduct another evidentiary
hearing. If adequate reasons are not provided showing good cause for the
party's failure to appear, the presiding officer shall deny the motion to
vacate.
Comment
Under
this section the presiding officer the power to impose a default judgement.
However, the default decision must be based upon prima facie evidence. Among the other laws that modify the
presiding officer=s
discretion are the {state] rules of civil procement
for the same reasons as contained in the state rules of civil proc
Subsection
(b) is adapted from the Alaska Administrative Procedure Act, AS 44.62.530 and
the California Administrative Procedure Act, West's Ann.Cal.Gov.Code '
11520.
SECTION 416
[415]. LICENSES.
(a) If an opportunity for an evidentiary hearing
is not required by law for agency action on an application for a license, the
agency shall give prompt notice of its action in response to an application. If the agency denies an application under
this section, the agency shall include an explanation of the reasons for
denial.
(b) When a licensee has made timely and
sufficient application for the renewal of a license, the existing license does
not expire until the application has been finally acted upon by the agency and,
if the application is denied or the terms of the new license are limited, the
last day for seeking review of the agency decision or a later date fixed by
order of the reviewing court.
(c) If the agency finds that emergency action
against a license is required, the action shall be conducted under Section 408.
Comment
Subsection
(b) was taken from the 1961 Model State Administrative Procedure Act, section
14(b), which has been adopted by many states. See, for example:
SECTION 417
[416]. ORDERS: RECOMMENDED AND FINAL.
(a) If the presiding officer is the agency head,
the presiding officer shall render a final order.
(b) If the presiding officer is not the agency
head, the presiding officer shall render a recommended decision, which becomes
a final order in [30]days, unless reviewed by the agency head on its own motion
or on petition of a party.
(c) Unless the time is extended by stipulation,
waiver, or upon a showing of good cause, a recommended or final order must be
served in writing within 90 days after conclusion of the hearing or after
submission of memos, briefs, or proposed findings, whichever is later.
(d) A recommended or final order must include
separately stated findings of fact and conclusions of law on all material
issues of fact, law, or discretion, the remedy prescribed, and, if applicable,
the action taken on a petition for stay.
A party may submit proposed findings of fact. If a party has submitted proposed findings of
fact, the order must include a ruling on the proposed findings. The order must also include a statement of
the available procedures and time limits for seeking reconsideration or other
administrative relief. A recommended decision must include a statement of any
circumstances under which the recommended decision, without further notice, may
become a final order.
(e) Findings of fact must be based exclusively
upon the evidence of the agency hearing record
in the contesteddisputed
case and on matters officially matters
judicially noticed.
(f) A presiding officer shall cause copies of the
recommended or final order to be delivered to each party and to the agency head
within the time limits set in subsection (c).
Comment
See
section 102(24) of this act for the definition of Arecommended
decision@. This section draws upon useful provisions
from several states. E.g. see: Alabama, Ala.Code 1975 Section 41-22-16; Iowa,
I.C.A. Section 17A.15; Kansas, K.S.A. Section 77-526; Michigan, M.C.L.A.
24.281; Montana, MCA 2-4-623; Washington, RCWA 34.05.461.
The
third sentence of subsection (d) is taken from the 1961 MSAPA.
SECTION 418
[417]. AGENCY REVIEW OF RECOMMENDED DECISIONS..
(a) An agency head may review a recommended
decision on its own motion.
(b) A party may petition for agency review a recommended
decision. Upon petition by any party, the agency head shall review an agency
order, except to the extent that:
(1) a provision of law precludes or limits agency
review of the recommended decision; or
(2) the agency head, in the exercise of discretion
conferred by law other than this [act], declines to review the recommended
decision.
(c) A petition for review of a recommended decision must be filed with the
agency head, or with any person designated for this purpose by rule of the
agency within [10] days after the recommended decision is rendered. If the agency head decides to review a
recommended decision on its own motion , the agency head shall give written
notice of its intention to review the recommended decision within [10] days
after it is rendered.
(d) The [10]-day period for a party to file an
petition or for the agency head to give notice of its intention to review a
recommended decision in subsection (b) is tolled by the submission of a timely
petition for reconsideration of the recommended decision pursuant to Section
418. A new [10]-day period starts to run upon disposition of any petition for
reconsideration or agency head review under subsection (b). If a recommended decision is subject both to
a timely petition for reconsideration and to a petition for appeal or to review
by the agency head on its own motion, the petition for reconsideration must be
disposed of first, unless the agency head determines that action on the
petition for reconsideration has been unreasonably delayed.
(e) An agency head that reviews a recommended
decision shall exercise all the decision-making power that the agency head
would have had if the agency head had conducted the hearing that produced the
recommended decision, except to the extent that the issues subject to review
are limited by a provision of law other than this [act] or by the agency head upon notice to all the
parties. In reviewing findings of fact
in recommended decisions by presiding officers, the agency head shall give due
regard to the presiding officer's opportunity to observe the witnesses. The agency head shall consider the agency
record or such portions of it as have been designated by the parties.
(f) An agency head may render a final order
disposing of the proceeding or may remand the matter for further proceedings
with instructions to the presiding officer who rendered the recommended
decision. Upon remanding a matter, the agency head may order such temporary
relief as is authorized and appropriate.
(g) A final order or an order remanding the
matter for further proceedings under this section must identify any difference
between the order and the recommended decision and shall state the facts of
record which support any difference in findings of fact, state the source of
law which supports any difference in legal conclusions, and state the policy
reasons which support any difference in the exercise of discretion. A final order under this section must
include, or incorporate by express reference to the recommended decision, all
the matters required by Section 416(d).
The agency head shall cause an order issued under this section to be
delivered to the presiding officer and to all parties.
Comment
This section draws upon 1981 MSAPA, which
reflects current practice in regard to recommended decisions, final orders and
review of final orders more accurately than the 1961 MSAPA. Subsections (b) and (e) draw upon the
Washington APA, West's RCWA 34.05.464, and the Kansas APA, K.S.A. '
77-527. The object of subsection (e) is
to assure agency head consideration of the issues tendered in the case.
SECTION 419
[418]. RECONSIDERATION.
(a) Any party, within [ ] days after notice of a recommended or final
order is rendered, may file a petition for reconsideration that states the
specific grounds upon which relief is requested. The place of filing and other procedures, if
any, shall be specified by agency rule.
(b) If a petition for reconsideration is timely
filed, and the petitioner has complied with the agency's procedural rules for
reconsideration, if any, the time for filing a petition for judicial review
does not commence until the agency disposes of the petition for reconsideration
as provided in Section 504(d).
(c) If a petition is filed under subsection (a),
the presiding officer shall render a written order within [20] days denying the
petition, granting the petition and dissolving or modifying the recommended or
final order, or granting the petition and setting the matter for further proceedings. The petition may be granted only if the
presiding officer states findings of facts, conclusions of law, and the reasons
for granting the petition.
Comment
This section is based in part on the Washington APA, West's RCWA
34.05.470. This section creates a
general right to seek reconsideration of a recommended or final order. Subsection (b) must be read concurrently with
Section 507(d), which excuses exhaustion to the extent that a provision of this
[act] provides for excuse.
SECTION 420
[419]. STAY. Except as otherwise provided by law other
than this [act], a party may request an agency to stay a recommended or final
order within [five] days after it is rendered.
Comment
The
1961 MSAPA '
15 contained a provision for a stay. Stays are sometimes necessary to preserve
the status quo pending agency review or judicial review.
SECTION 421
[420]. AVAILABILITY OF ORDERS; INDEX.
(a) Except as otherwise provided in subsection
(b), an agency shall index, by caption and subject, all final orders
and final written decisions in contested disputed
cases and make the index and all final orders and decisions available
for public inspection and copying, at cost in its principal offices. [The
agency must also furnish the index and all final orders and
decisions in contested disputed
cases online through the
[publisher] via the [publisher=s]
Internet website without charge, or in writing upon request at a cost to be
determined by the agency.]
(b) Final orders and
decisions that are exempt, privileged or
otherwise made confidential or protected from disclosure by law, [the
disclosure of which would constitute an unwarranted invasion of privacy or
release of trade secrets],
are not public records and may not be indexed.
(A) A final order and
decision under this subsection may
be excluded from disclosure only by order of the presiding officer. The justification for the exclusion must be
explained in writing and attached to the order.
(B) Where, in the judgement
of the presiding officer, it is possible to redact a final order and decision that is exempt,
privileged or otherwise made confidential or protected from disclosure by law
so that it complies with the requirements of law, the redacted document may be
indexed and published.
(c) An agency may not rely on a final order
and a written final decision as precedent in future adjudications unless
the order and decisions have has
been designated as a precedent by the agency, and the
order and decision have
been published, indexed,
and made available for public inspection.
Comment
This section is entirely new. This section continues the concept, seen
earlier in connection with rules, of preventing earlier decisional law known
only to agency personnel from constituting the basis for decision in a disputed
case. Subsection (c)
is based in part on the provisions of California Government
Code Section
11425.60. If the agency wishes to
use a case as precedent in the future, it must make the order and decision in
that case available to the public. The only situations in which an agency may
rely on a contesteddisputed
case as precedent without indexing and making that decision and order available
to the public are described in subsection b of this section.
In some states there have been attacks on
agency adjudications on the basis that the proceeding should be conducted under
the provisions for rulemaking. In the
case of SEC v. Chenery Corp., 332 U.S. 194 (1947) the United States Supreme
Court held that the choice of whether to proceed by rulemaking or adjudication
is left entirely to the discretion of the agency, because not every principle
can be immediately promulgated in the form of a rule. In the words of the Supreme Court A
Some principles must await their own development, while others must be adjusted
to meet particular, unforeseeable situations.@ Most states follow Chenery. See Illuminating a Bureaucratic Shadow World:
Precedent Decisions under
This section makes clear that the choice
between rulemaking and adjudication is entirely in the discretion of the
agency. However, in order to prevent law
to which the public does not have access from constituting the basis for
decision, final orders must be indexed and available to the public. See also
the
[ARTICLE
5]
JUDICIAL
REVIEW
SECTION 501. RIGHT TO JUDICIAL REVIEW; FINAL AGENCY ACTION
REVIEWABLE.
(a) As used in this article, final agency action
means agency action that imposes an obligation, denies a right, or fixes some
legal relationship as a consummation to the administrative process. Agency failure to act
is not judicially reviewable except
that a reviewing court shall compel agency action that
is unlawfully withheld or unreasonably delayed.
(b) A person otherwise qualified under this
[article] is entitled to judicial review of a final agency action.
(c) A person is entitled to judicial review of
agency action not subject to review under subsection (a) if postponement of
judicial review would result in an inadequate remedy or substantial and
irreparable harm that outweighs the public benefit derived from
postponement.
Comment
Subsection
(a) of this section provides a right of judicial review of final agency action
by appropriate parties. Under this
section, the person seeking review must meet all of the requirements of this
article, which include standing, exhaustion of remedies, and time for filing .
The definition of Aagency
action@
is found in Section 102. This section is
similar to the judicial review provisions of
Subsection
(a) also defines final agency action.
The definition used here is found in state and federal cases. See State Bd. Of Tax Comm=rs
v. Ispat Inland, 784 N.E.2D 477 (
Subsection
(b)creates a limited right to review of non-final agency action.
SECTION 502. REVIEW
OF AGENCY ACTION OTHER THAN ORDER. A person otherwise qualified under this
[article] is entitled to judicial review of agency rules and final agency action other than an order if
the action is ripe. Factors to be
considered in making the determination are whether the agency has taken final
action that involves a concrete, specific legal issue and whether postponement
of judicial review will subject the person to immediate, substantial harm.
Comment
This
section seeks to recognize the prudential exception to finality and ripeness
sometimes recognized for rules and other types of agency action by agencies
such as rules, advisory letters and
guidance documents. It seeks to
incorporate the general tests for finality and ripeness taken from the cases of
Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149, 87 S.Ct. 1507, 18
L.Ed.2d 681 (1967); FTC v. Standard Oil Co.,449 U.S. 232, 101 S.Ct. 488 (1980)
and Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154 (1997), which have been
cited with approval and followed in many states. Under this subsection, some appellant
challenges or bases for challenge will be ripe for review, but many will not. The subsection seeks to furnish guidance to
state courts attempting to apply the doctrines of finality and ripeness.
The
finality determination is to be made case by case in a pragmatic, flexible
fashion. Fitness for review is present
where issues to be considered are purely legal ones, so that further factual
development of the issues is not necessary. Hardship involves imposition of
significant practical harm. Some cases
have equated that harm with impact that would justify equitable intervention. The harm element has also been approached by
asking the question: does the agency action pose a difficult dilemma for the
party, so that he or she must immediately take action that will be very
expensive and cannot be recovered or face expensive prosecution in the
future.
SECTION 503. RELATION TO OTHER
JUDICIAL REVIEW LAW AND RULES. Unless otherwise provided by a statute of
this state other than this [act], judicial review of final agency action may be
taken only by proceeding as provided by [state] [rules of appellate procedure]
[rules of civil procedure]. An appeal
from final agency action may be taken regardless of the amount involved. The court may grant any type of relief that
is available and appropriate.
Comment
This
section places appeals from final agency action within the existing state rules
of appellate procedure. Such action may
be preferred by some states because of constitutional provisions or because of
the existence of rules of appellate procedure that the legislature may not wish
to change. This practice was followed
under the 1961 MSAPA, and is followed in a number of states today. See e.g.:
SECTION 504. TIME FOR SEEKING
JUDICIAL REVIEW OF AGENCY ACTION, LIMITATIONS.
(a) Except as otherwise provided in Section 314,
and subject to Section 502, judicial review of a rule may be sought at any
time.
(b) Judicial review of an order or other final
agency action other than a rule must be commenced within 30 days after issuance
of the order or other agency action.
(c) A time for seeking judicial review under this
section is tolled during any time a party is pursuing an administrative remedy
before the agency which must be exhausted as a condition of judicial review.
(d) A party may not file or petition for judicial
review while seeking reconsideration under Section 418. During the time that a petition for
reconsideration is pending before an agency, the time for seeking judicial
review in subsection (b) is tolled.
SECTION 505. STAYS PENDING APPEAL. The initiation of judicial review does not
automatically stay an agency decision.
An appellant may petition the reviewing court for a stay upon the same
basis as stays are granted under the [state] rules of [appellate] [civil]
procedure, and the reviewing court may grant a stay whether or not the
appellant first sought a stay from the agency.
Comment
This
provision for stay permits a party appealing agency final action to seek a stay
of the agency decision the court. This
is similar to the 1961 MSAPA.
SECTION 506. STANDING. The following persons have standing to obtain
judicial review of a final agency action:
(1) a person eligible for standing under law of
this state other than this [act]; and
(2) a person otherwise aggrieved or adversely
affected by the agency action.
Comment
Subsection (1) confers standing that arises
under any other provision of law.
Examples of this type of standing are statutes that expressly confer
standing in general language such as, for example, Aany
person may commence a civil suit in his own behalf... to enjoin... an
agency...alleged to be in violation of this chapter. . . . 16 U.S.C.A. '
1540, explained in Bennett v. Spear, 520
Subsection
(2) uses the term person Aaggrieved
or adversely affected@.
This term is based in part on the provisions of the
federal A.P.A., 5 U.S.C. Section 702.
These words have become terms of art used to describe types of injury that were
not recognized at common law. An example
of a person entitled to standing who is intended to be included under
subsection (2) is a competitor. These
terms have also been used to recognize standing based on non-economic values,
such as aesthetic or environmental injuries.
SECTION 507. EXHAUSTION OF ADMINISTRATIVE REMEDIES.
(a) Subject to
subsection (e) or a statute other than this [act] that a person need not
exhaust their administrative remedies, a person may file a petition for
judicial review under this [act] only after exhausting all administrative
remedies available within the agency whose action is being challenged and
within any other agency authorized to exercise administrative review.
(b) Filing a petition for reconsideration or a
stay of proceedings is not a prerequisite for seeking administrative or
judicial review.
(c) A petitioner for judicial review of a rule
need not have participated in the rulemaking proceeding upon which that rule is
based.
(d) If the issue that a petitioner for judicial
review of a rule under this section was not raised and considered in a
rulemaking proceeding, before bringing a petition for judicial review, the
petitioner must petition the agency to initiate rulemaking under Section
317 to take action to resolve or cure
the issue or issues that the petitioner is challenging; and in the petition for judicial review the
petitioner must disclose the petition for rulemaking and the agency action on
that petition to the court.
(e) The court may relieve a petitioner of the
requirement to exhaust any or all administrative remedies to the extent that
the administrative remedies are inadequate or would result in irreparable harm.
Comment
This
section creates a default requirement of exhaustion, which is generally
followed in the states. However, the
section creates several exceptions to the default rule. Subsection (b) requires issue exhaustion in
appeals from rulemaking for persons who did not participate in the challenged
rulemaking. It excuses persons seeking
judicial review of a rule who were not parties before the agency from the
exhaustion requirement; but, if the issue that they seek to raise was not
raised and considered in the rulemaking proceeding that they challenge, then
they must first petition the agency to conduct another rulemaking to consider
the issue. If the agency refuses to do so or if the agency conducts a second
rulemaking that is adverse to the petitioner on the issue or issues raised in his
petition for rulemaking, then the petitioner may seek judicial review.
Subsection (d) recognizes the judicially created exception to the exhaustion
requirement where agency relief would be inadequate or would result in
irreparable harm. In some states courts
have held that irreparable harm that is a sufficient condition to excuse
exhaustion exists only if it outweighs the public interest in exhaustion. State courts are free under this section to
engage in that weighing test.
SECTION 508. AGENCY RECORD
ON JUDICIAL REVIEW; EXCEPTION. Judicial review of adjudication and
rulemaking is confined to the agency record or arising from the record except
when the petitioner alleges procedural error arising from matters outside the
agency record or matters that are not evident from the record that involve new
evidence or wholly changed circumstances.
The record may be opened only to avoid manifest injustice.
Comment
This
section establishes a default closed record for judicial review of adjudication
and rulemaking. It is well established
in most states and in federal administrative procedure that, in case of
adjudication, judicial review is based upon that evidence which was before the
agency on the record. Otherwise, the
standards of judicial review could be subverted by the introduction of
additional evidence to the court that was not before the agency. See
Western States Petroleum Ass=n
v. Superior Court, 888 P.2d 1268 (
The
section contains an exception to the closed record on review where petitioner
alleges error, such as ex parte contacts, that does not appear in or is not
evident from the record. Other examples
of error that do not appear or are not evident from the record are: improper
constitution of the decision making body, grounds for disqualification of a
decision maker, or unlawful procedure.
However, the standard for opening the record on appeal is high.
SECTION 509. SCOPE OF REVIEW.
(a) In judicial review of an agency action, the
following rules apply:
(1) Except as provided by law of this state other
than this [act], the burden of demonstrating the invalidity of agency action is
on the party asserting invalidity.
(2) The court shall make a separate and distinct
ruling on each material issue on which the court=s
decision is based.
Alternative
1
[(3) The court may grant relief only if it determines
that a person seeking judicial review has been prejudiced by one or more of the
following:
(A) the agency erroneously interpreted or applied
the law, or acted in excess of its authority under the law;
(B) the agency committed an error of procedure;
(C) the agency action is arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law;
(D) an agency determination of fact is not
supported by substantial evidence considered in light of the entire record; or
(E) to the extent that the facts are subject to
trial de novo by the reviewing court, the action was unwarranted by the facts.]
Alternative
2
[(3) The court may grant relief only if it
determines that a person seeking judicial review has been prejudiced by one or
more of the following:
(A) unconstitutional on its face or as applied or
is based upon a provision of law that is unconstitutional on its face or as
applied;
(B) beyond the
authority delegated to the agency by any provision of law or in violation of
any provision of law;
(C) based upon
an erroneous interpretation of a provision of law whose interpretation has not
clearly been vested by a provision of law in the discretion of the agency;
(D) based upon
a procedure or decision-making process prohibited by law or was taken without
following the prescribed procedure or decision-making process;
(E) the product of
decision making undertaken by persons who were improperly constituted as a
decision-making body, were motivated by an improper purpose, or were subject to
disqualification;
(F) based upon
a determination of fact clearly vested by a provision of law in the discretion
of the agency that is not supported by substantial evidence in the agency
record before the court when that record is viewed as a whole. For purposes of
this subparagraph, the following terms have the following meanings:
(i) ASubstantial
evidence@
means the quantity and quality of evidence that would be deemed sufficient by a
neutral, detached, and reasonable person, to establish the fact at issue when
the consequences resulting from the establishment of that fact are understood
to be serious and of great importance.
(ii) AWhen
that record is viewed as a whole@
means that the adequacy of the evidence in the record before the court to support
a particular finding of fact must be judged in light of all the relevant
evidence in the record cited by any party that detracts from that finding as
well as all of the relevant evidence in the record cited by any party that
supports it, including any determinations of veracity by the presiding officer
who personally observed the demeanor of the witnesses and the agency=s
explanation of why the relevant evidence in the record supports its material
findings of fact.
(G) action
other than a rule that is inconsistent with a rule of the agency;
(H) action other
than a rule that is inconsistent with the agency=s
prior practice or precedents, unless the agency has justified that
inconsistency by stating credible reasons sufficient to indicate a fair and
rational basis for the inconsistency;
(I) the product of
reasoning that is so illogical as to render it wholly irrational;
(J) the product of
a decision-making process in which the agency did not consider a relevant and
important matter relating to the propriety or desirability of the action in
question that a rational decision maker in similar circumstances would have
considered prior to taking that action;
(K) not required by law and its negative impact
on the private rights affected is so grossly disproportionate to the benefits
accruing to the public interest from that action that it must necessarily be
deemed to lack any foundation in rational agency policy;
(L) based upon an irrational, illogical, or
wholly unjustifiable interpretation of a provision of law whose interpretation
has clearly been vested by a provision of law in the discretion of the agency;
(M) based upon an irrational, illogical, or
wholly unjustifiable application of law to fact that has clearly been vested by
a provision of law in the discretion of the agency; or
(N) otherwise
unreasonable, arbitrary, capricious, or an abuse of discretion.]
End
of Alternatives
(b) In making the determinations under this
section, the court shall review the whole agency record or those parts designated
by the parties, and shall take due account of the rule of harmless error.
NOTE: The drafting committee is divided on the
scope of review provisions and seeks guidance from the committee of the
whole. There are two schools of thought
on the drafting committee.
One
view is that scope of review is notoriously difficult to capture in verbal
formulas, and its application varies depending on context. For that reason, some members urge return to
shorter, skeletal formulations of the scope of review, similar to the 1961
MSAPA. See Ronald M. Levin, Scope of
Review Legislation, 31
The
other view is that judicial review is sometimes almost perfunctory, and more
detailed standards will result in closer judicial scrutiny. A related view strongly argued in drafting
committee meetings was that scope of review is a device by which the judiciary
assists the legislature to keep the agencies within the bounds set by the
legislature, helps to assure agency action consistent with the intent of the
legislature, and protects citizens from agency error. More detailed scope of review provisions also
make the task of the judiciary easier because they provide clearer instructions
from the legislature about how to review agency decisions. More detailed scope of review provisions lead
to more intense judicial review, and that is an approach that legislatures
welcome for the same reason that they have embraced regulatory review: it
controls agency action. Alternative 2,
which draws heavily on the
Comment
Judicial
review is essential and exists in all states.
Subsections (a) (1) & (2) describe the general burdens on the
appellant and the approach under this Act.
They are substantially similar to the general scope of review provisions
of the Federal APA, 5 U.S.C. Section 706.
Subsections
(a)[(3) alternative 1](A) & (B) identify the courts=
power to decide questions of law and procedure.
Subsection (a)[(3) alternative 1](A) includes, but is not limited to,
violations of constitutional or statutory provisions and actions that are in
excess of statutory authority from Section 15(g) of the 1961 MSAPA, and
includes subsections (c) (1), (2) and (4) of the 1981 MSAPA. The section thus includes challenges to the
facial or applied constitutionality of a statute, challenges to the
jurisdiction of the agency, erroneous interpretation of the law, and may
include erroneous application of the law.
This section is not intended to preclude courts from according deference
to agency interpretations of law, where such deference is appropriate.
[ARTICLE
6]
OFFICE
OF ADMINISTRATIVE HEARINGS
SECTION 601. CREATION OF OFFICE OF ADMINISTRATIVE HEARINGS.
(a) As used in this [article], office means the
[Office of Administrative Hearings].
(b) The Office of Administrative Hearings is
created as an independent agency for the purpose of separating the adjudicatory
function from the investigatory, prosecutorial, and policy-making functions of
agencies.
(c) Administrative law judges shall be selected
and appointed to the office [by the Governor upon screening and recommendation
of a judicial nominating commission] [through competitive examination in the
classified service of state employment] [by the chief administrative law
judge].
(d) The hearing officers and administrative law
judges of the agencies to which this [act] applies shall become employees of
the office.
SECTION 602. DUTIES OF OFFICE.
(a) The office shall
employ administrative law judges as necessary to conduct proceedings required
by this [act] or provisions of law other than this [act].
(b) Except as provided in
this [article], the office shall provide an administrative law judge to serve
as presiding officer unless the agency head hears the case without delegation
or assignment to presiding officer.
SECTION 603. APPOINTMENT AND DUTIES OF CHIEF
ADMINISTRATIVE LAW JUDGE.
(a) The office is headed by a chief
administrative law judge [appointed by the Governor with advice and consent of
the [Senate] [House of Representatives]
for a term of [6] years], and until a successor is appointed. A chief administrative law judge may be
removed only for good cause following notice and an opportunity for a disputed
case hearing.
(b) The chief administrative law judge:
(1) must take an oath of office as required by
law prior to the commencement of duties;
(2) must have substantial experience in
administrative law;
(3) must devote full time to the duties of the
office and may not engage in the practice of law;
(4) is eligible for reappointment;
(5) shall receive the salary provided by law;
(6) must be licensed to practice law in the state
and admitted to practice for a minimum of five years;
(7) has the powers and duties specified in this
[article]; and
(8) is subject to the code of conduct for
administrative law judges.
(c) The chief administrative law judge may employ
a staff in accordance with law.
SECTION 604. POWERS OF CHIEF ADMINISTRATIVE LAW JUDGE. The chief administrative law judge shall:
(1) supervise the office;
(2) appoint and remove administrative law judges
in accordance with this [article];
(3) randomly, taking into account administrative
law judge expertise, assign administrative law judges in any case referred to
the office;
(4) protect and ensure the decisional
independence of each administrative law judge;
(5) establish and implement standards for
equipment, supplies, and technology for administrative law judges;
(6) provide and coordinate continuing education
programs and services for administrative law judges, including research,
technical assistance, and technical and professional publications; compile and
disseminate information; and advise administrative law judges of changes in the
law relative to their duties;
(7) adopt rules to implement this [article]
through rulemaking proceedings in accordance with this [act];
(8) adopt a code of conduct for administrative
law judges; and
(9) monitor the quality of adjudications in
disputed cases through training, observation, feedback and, when necessary,
discipline of administrative law judges who do not meet appropriate standards
of conduct and competence.
SECTION 605. ADMINISTRATIVE LAW JUDGES.
(a) An administrative law judge:
(1) must take an oath of office as required by
law prior to the commencement of duties;
(2) must be admitted to practice law [in the
state];
(3) is subject to the requirements and
protections of [ classified service of state employment and the state ethics
code];
(4) is subject to the code of conduct for
administrative law judges;
(5) may be removed, suspended, demoted, or
subject to disciplinary or adverse actions only for good cause, after notice
and an opportunity to be heard and a finding of good cause by an impartial
presiding officer;
(6) receive compensation provided by law;
(7) be subject to a reduction in force only in
accordance with established [civil service][ merit system] procedure;
(8) [must devote full time to the duties of the
position] [may not engage in the practice of law unless serving as a part-time
administrative law judge];
(9) may not perform duties inconsistent with the
duties and responsibilities of an administrative law judge; and
(10) is subject to administrative supervision by
the chief administrative law judge.
(b) An administrative law judge is not
responsible to or subject to the supervision, direction, or direct or indirect
influence of an officer, employee, or agent engaged in the performance of
investigatory, prosecutorial, or advisory functions for an agency.
SECTION 606. COOPERATION
OF STATE AGENCIES.
(a) All agencies must cooperate with the chief
administrative law judge in the discharge of the duties of the office,
including, but not limited to, provision of information and coordination of
schedules.
(b) An agency may not select or reject a
particular administrative law judge for a particular proceeding.
SECTION 607. POWERS OF ADMINISTRATIVE LAW JUDGES. An administrative law judge shall exercise
all the powers of a presiding officer under this [act].
SECTION 608. DECISION-MAKING AUTHORITY OF ADMINISTRATIVE
LAW JUDGES.
(a) Unless the agency head elects to conduct the
hearing, in which case the agency head shall render a final decision under
Section 412(a), in a disputed case, an administrative law judge shall be
assigned to serve as the presiding officer.
The administrative law judge shall render the recommended decision of
the agency in all adjudications in a disputed case except for disputed cases
involving the following agencies:
(1) [List name of agency].
(b) Except as otherwise provided by law, an
administrative law judge shall issue a recommended decision unless the agency
authorizes the issuance of a final decision.
This section shall not be construed to prevent an administrative law
judge from issuing an order as a result of an emergency adjudication under
Section 408.
(c) If a matter is referred to the office by an
agency, the agency may take no further adjudicatory action with respect to the
proceeding, except as a party litigant, as long as the office has jurisdiction
over the proceeding. [This subsection may not be construed to prevent an
appropriate interlocutory review by the agency or an appropriate termination or
modification of the proceeding by the agency.]
[ARTICLE
7]
RULE
REVIEW
NOTE:
A state may choose one,
two or all of the alternative forms of rule review in this article.
[SECTION
701. GOVERNOR=S
VETO.
(a) Upon receiving notice from the agency under
Section 304(c), the Governor shall review a rule proposed to be adopted by an
agency. The Governor shall inform the
agency of his or her intention to veto the proposed rule within [ ] days after
receiving notice, and shall concisely state the grounds for the veto. If the agency does not remedy the Governor=s
grounds for veto by changes to the rule and give notice to the Governor of the
remedial action taken within [ ] days after receiving notice from the Governor,
the Governor by executive order may veto the rule.
(b) Upon issuance of the executive veto order,
the Governor shall transmit copies to the agency [Rules Review Committee]
[Attorney General] [Speaker of the House of Representatives and President of
the Se] and the [publisher], which shall publish the veto in the
[administrative bulletin].
(c) A rule vetoed by the Governor is void and may
not be published in the [administrative bulletin]
[SECTION 702. GOVERNOR=S OBJECTION.
(a) Upon receiving notice from the agency under
Section 304(c), the Governor shall review a rule proposed to be adopted by an
agency. The Governor shall inform the
agency of his or her intention to object to the proposed rule within [ ] days
after receiving notice, and shall concisely state the grounds for the objection. If the agency does not remedy the Governor=s
grounds for objection by changes to the rule and give notice to the Governor of
the remedial action taken within [ ] days after receiving notice of objection
from the Governor, the Governor by executive order may object to the rule.
(b)
Upon issuance of the executive order of objection, the Governor shall
transmit copies to the agency [Rules Review Committee ] [Attorney General]
Speaker of the House of Representatives and President of the Senate] and the
[publisher], which shall publish the objection in the [administrative bulletin]
together with the rule to which it pertains.
(c) If the Governor publishes objection to a rule
or any part of a rule under this section, then the agency bears the burden of
proving, in any action challenging the legality of the rule or portion of a
rule objected to by the Governor, that the rule or portion of the rule objected
to was not unreasonable, arbitrary, capricious, not adopted in compliance with
Article [3], or otherwise beyond the authority delegated to the agency.]
Comment
An
agency may adopt Section 701 or 702, which provide for two different types of
gubernatorial checks on agency rulemaking.
Section 701creates a pure gubernatorial veto that invalidates a rule in
the same fashion as a gubernatorial veto invalidates bills enacted by the
legislature. Section 702 creates a
gubernatorial Aobjection@
to a rule, which shifts the burden of proof to the agency to demonstrate that
the rule meets the procedural and substantive requirements of Article 3 in
subsequent litigation involving the rule.
This is a device that is used in several states, and may avoid the
problems of unconstitutionality of the pure gubernatorial veto. The highest court of Alaska has held that the
pure executive veto is unconstitutional. State v. A.L.I.V.E., 606 P.2d 769679
(
The
gubernatorial veto is an important potential check on agency rulemaking.. Several states have adopted the gubernatorial
veto in order to exercise a check on agency action by a single elected
official. A gubernatorial veto creates a
potentially efficient, unitary executive who is politically accountable. That executive check on agency action is
likely to reflect the wishes of the
electorate.
Section
701 creates an executive veto in its purest form. It is drawn from the Hawaii APA, HRS '
91-3 and the Louisiana APA, LSABRS
49:970. In
[SECTION 703. LEGISLATIVE [RULES REVIEW COMMITTEE.]
(a) There is created a joint standing [Rules Review Committee] of the Legislature
designated the [ Rules Review Committee].
(b) The [Rules Review Committee] shall consist of
six members, appointed as follows: Three
members of the House of Representatives, at least one of whom shall be a member
of the minority party appointed by the Speaker of the House; and three members
of the Senate, at least one of whom shall be a member of the minority party,
appointed by the President of the Senate.
The [Rules Review Committee] shall elect a chair and vice chair from
among its members.
(c) Members shall serve for [ ] year terms or until their successor is
appointed. A vacancy shall occur when a
member of the [Rules Review Committee] ceases to be a member of the Legislature
or when a member resigns from the committee. Vacancies shall be filled by the appointing
authority and the replacement shall fill out the unexpired term.
(d) The [Rules Review Committee]:
(1) Shall maintain continuous oversight over
agency rulemaking; and
(2) Shall exercise other duties assigned to it
under this [article].
(e) The [Rules Review Committee] may hire staff
to carry out the duties and powers assigned to it.
(f) The [Rules Review Committee] shall have the
power to adopt rules necessary for its organization and that of its staff,
consistent with general law and the rules of the Legislature.
[SECTION 704. [RULES REVIEW COMMITTEE] DUTIES.
(a) The [Rules Review Committee] shall examine
proposed agency rules and shall review existing rules on an ongoing basis to
determine whether:
(1) The rule is an invalid exercise of delegated
legislative authority.
(2) The statutory authority for the rule has
expired or been repealed.
(3) The rule is in proper form.
(4) The notice given prior to adoption was
adequate.
(5) The rule is necessary to accomplish the
apparent or expressed intent of the specific statute that the rule implements.
(6) The rule is a reasonable implementation of
the law as it affects persons particularly affected by the rule.
(7) The rule does not impose cost on the
regulated person which could be reduced by the adoption of less costly methods
that substantially accomplish the statutory objective.
(b) The [Rules Review Committee] may request from
an agency such information as is necessary to carry out the duties of
subsection (a). The [Rules Review
Committee] shall consult with standing committees of the Legislature with
subject matter jurisdiction over the subjects of the rule under examination.]
[SECTION 705. [RULES REVIEW COMMITTEE] PROCEDURE AND POWERS.
(a) Within [
] days of receiving notice of a proposed rule from an agency under
Section 304(c), the [Rules Review Committee] may object to a rule by giving
notice of objection in writing to the agency with a concise statement of the
reasons for the objection. The [Rules
Review Committee] shall also send notice of objection and reasons for the
objection to the [Speaker of the House of Representatives and President of the
Senate] [Governor] [Attorney General][standing committees of the legislature
with subject matter jurisdiction] and publisher.
(b) In case of receipt of notice of objection
from the [Rules Review Committee], an agency within [ ] days in writing shall notify the [Rules
Review Committee] and publisher that the agency:
(1) withdraws the rule;
(2) amends the rule; or
(3) refuses to amend or withdraw the rule.
(c) If the agency withdraws the rule, it shall
give notice of withdrawal to the publisher for publication in the
[administrative bulletin] and shall notify the [Rules Review Committee] of
withdrawal in writing at the same time.
The rule shall be withdrawn without public hearing. Withdrawal is effective on the date of
publication of the notice of withdrawal in the [administrative bulletin].
(d) If the agency amends the rule to comply with
the [Rules Review Committee] objections, it shall make only the changes
necessary to meet the objections, and shall resubmit the rule, as amended, to
the [Rules Review Committee]. The agency
shall also give notice to the publisher for publication in the [administrative
bulletin] of the change made to comply with the [Rules Review Committee]
objection that shall include the text of the rule as changed and the objection
to which it is directed. The agency is
not required to hold a public hearing on an amendment made under this
subsection.
(e) If the agency refuses to withdraw or amend
the rule in response to the objection of the [Rules Review Committee], the
agency shall give notice of the refusal to the [Rules Review Committee] and the
publisher within [ ] days of receiving the [Rules Review Committee]
objection. If the agency fails to
respond to the objection within [ ] days, or if an amendment that an agency
makes in response to [Rules Review Committee] objections in the opinion of the
[Rules Review Committee] does not correct the objection, the [Rules Review
Committee]:
(1) may post notice of the detailed objections of
the [Rules Review Committee] to the rule in the [administrative bulletin] together
with a reference to the location in the [administrative bulletin] where the
full text of the rule can be found.
Posting notice of the detailed objections shall place upon the agency
the burden of proving, in any later action challenging the legality of the rule
or portion of the rule objected to by the [Rules Review Committee], that the
rule or portion of the rule objected to was not unreasonable, arbitrary,
capricious, not adopted in compliance with [Article] 3, or otherwise beyond the
authority delegated to the agency; and
(2) may submit a recommendation to the Speaker of
the House of Representatives and the President of the Senate that legislation
be enacted to annul or modify the rule together with proposed legislation to
accomplish it.
(3) Within [ ] days of recommending annulling or
modifying legislation under this subsection the [Rules Review Committee] shall
notify the agency of the recommendation and request that the agency temporarily
suspend the operation of the rule.
(f) Within [ ] days of receiving request for
temporary suspension, the agency shall reply in writing to the [Rules Review
Committee] either agreeing to temporarily suspend the rule or refusing to do
so.
(1) If the agency agrees to temporarily suspend
the rule, then it shall cause notice of the suspension to be published in the
[administrative bulletin].
(2) If the agency refuses to temporarily suspend
the rule, then the [Rules Review Committee] shall cause notice of the refusal
to suspend operation of the rule in the [administrative bulletin]. Posting notice under this subparagraph shall
suspend the operation of the rule for [[
] days] [until the end of the next regular session of the Legislature].
Comment
This
is a type of veto that provides for cooperation between the Legislature and the
Governor, and attempts to avoid the Chadha v. I.NS problem of unconstitutionality by delaying
the effective date of the rule until the legislature has the opportunity to
enact legislation to annul or modify it.
The governor may veto the act by which the legislature seeks to annul or
modify the rule. This type of veto
provision is widely used in the states.
[SECTION 706. ATTORNEY GENERAL REVIEW.
(a) Upon receiving notice from the agency under
Section 304(c), the Attorney General
shall review a rule proposed to be adopted by an agency.
(b) The Attorney General may not approve any rule
as to legality when the rule exceeds the statutory authority of the agency, or
when the procedural requirements for adoption of the rule in this [act] are not
substantially met.
(c) The Attorney General shall advise an agency
of any revision or rewording of a rule necessary to correct objections as to
legality.]
[ARTICLE
8]
[ELECTRONIC
PUBLICATION AND NOTICE]
[SECTION 801. ELECTRONIC PUBLICATION.
(a) In order to provide the greatest possible
access to agency documents to the largest number of citizens, agencies are
encouraged to make their rules, guidance
documents, and orders in disputed cases available through electronic
distribution as well as through the regular mail. Agencies that have the
capacity to transmit electronically may ask persons who are on mailing lists or
rosters for copies of proposed rulemaking, rules, guidance documents and other
similar notices whether they would like to receive the notices electronically.
(b) Electronic distribution to persons who
request it may substitute for mailed copies related to rulemaking or guidance
documents. If a notice is distributed electronically, the agency is not
required to transmit the actual notice form but must send all the information
contained in the notice.
(c) Agencies which maintain mailing lists or
rosters for any notices relating to rule making or
guidance documents may establish different rosters or lists by general subject
area.]
Comment
This
section encourages, but does not require operation of a website. It can be used as a more limited substitute
for the centralized website of Section 201 [(c)] and the publication
requirement of Section 802. It is drawn
from the Washington Administrative Procedure Act. See
[SECTION 802. PUBLICATION
IN ELECTRONIC FORMAT.
(a) All state agencies, through the office of
[publisher], shall make available on the Internet website of the [publisher]:
(1) notice of each proposed rule adoption,
amendment or repeal;
(2) the summary of regulatory analysis of each
proposed rule;
(3) each adopted rule, rule amendment or rule
repeal;
(4) each guidance document;
(5) each notice; and
(6) each order in a disputed case.
[(7) any other notice or matter that an agency is
required to publish under this act.]
(b) No fee shall be charged for public access to
the [publisher]=s
Internet website.
(c) No information concerning a person who
accesses the information identified in subsection (a) of this section may be
used or released for any purpose.]
[ARTICLE
9]
SECTION 901. EFFECTIVE DATE. This
[act] takes effect on [date] and governs all agency proceedings, and all
proceedings for judicial review or civil enforcement of agency action,
commenced after that date. This [act]
also governs agency proceedings conducted on a remand from
a court or another agency after the effective date of the [act] .
The [act] does not govern adjudications for which notice was given prior to that
date under Section 403 and all rulemaking proceedings for which notice was
given or a petition filed before that date.
Comment
Section
901 is based on Section 1-108 of the 1981 MSAPA. See Also
[1]
1946 Model State
Administrative Proc
[2]
[3] Those states, as identified in the
preface to the 1961 Model State Administrative Proc
[4] Preface to 1961
[5]
Uniform Laws Annotated at 357
(1980 Master Edition) catalogued numerous states that used the 1961 Model State
Administrative Proc
[6]
Preface, 1981
In addition, the drafters of this effort have produced
an act that is more detailed than the earlier Model Act. There are several
reasons for this. First, virtually all state administrative proc
[7]
For example, the 1961 Model
State Administrative Proc
[8]
Some of those states are: