SD3 - Establishment of an Administrative Conference of Virginia

  • Published: 1995
  • Author: Virginia Bar Association
  • Enabling Authority: Senate Joint Resolution 236 (Regular Session, 1993)

Executive Summary:
I. INTRODUCTION

There are a number of organizations and individuals in Virginia currently involved in reviewing, formally or informally, various aspects of the policies and procedures governing our state administrative process. These include: the various General Assembly committees, and in particular the General Laws Committees of both the House of Delegates and the State Senate, the Virginia Code Commission, the Registrar of Regulations, the Joint Legislative Audit and Review Commission, the Division of Legislative Services, the Governor and his various Cabinet Secretaries, the Attorney General and his internal Administrative Process Act Committee, the Department of Planning and Budget and other state agencies, the Administrative Law Sections of the Virginia State Bar and the Virginia Bar Association, segments of the Women Attorneys Association and the Old Dominion Bar Association, administrative law committees of some local bar associations, members of the various regulated communities, consumer and other public interest groups and individual citizens. See Appendix E at 12, and Appendix F at 1-8.

No mechanism currently is in place, however, to bring together these various organizations and individuals to consider issues affecting Virginia's administrative process, and there is no single entity which has as its primary responsibility overseeing and monitoring the effectiveness and fairness of that process on a regular and ongoing basis and reporting problems and suggestions for improvements to the Governor and the General Assembly.

II. FORMATION AND COMPOSITION OF STUDY COMMITTEE

A. General Assembly:

Pursuant to Senate Joint Resolution No. 236 (Appendix A), the 1993 General Assembly requested the Virginia Bar Association to study the need for the establishment of an Administrative Conference of Virginia to perform the above functions and assist in determining whether "state administrative procedures ensure maximum efficiency and fairness in the performance of . . . governmental" "regulatory functions and related responsibilities for the determination of private rights and obligations."

B. Virginia Bar Association:

At the request of Whittington W. Clement, President of the Virginia Bar Association, President-elect M. Langhorne Keith formed a 20-person committee to undertake the study. That committee was composed of five members of the General Assembly, representatives from the Virginia Bar Association, the Virginia State Bar, the Women Attorneys Association, the Office of the Attorney General, the Joint Legislative Audit and Review Commission and the Division of Legislative Services, a member of the Virginia Court of Appeals, a member of the State Corporation Commission, an administrative hearing officer and two law professors. See Appendix B. The study committee received staff assistance from lawyers and summer interns at Hazel & Thomas and Hunton & Williams, and from the staff of the Joint Legislative Audit and Review Commission, the Division of Legislative Services and the Office of the Attorney General.

Ill. STUDY COMMITTEE DELIBERATIONS

A. General:

The study committee met on three occasions -- June 1, September 10 and November 12, 1993 -- and reviewed research on the work of the Administrative Conference of the United States and on the administrative process in Virginia, reviewed a 1991-92 study of the Virginia Administrative Process Act by the Joint Legislative Audit and Review Commission, surveyed selected state agencies for their thoughts and suggestions on the need for, and the potential organizational structure and functions of, an Administrative Conference of Virginia, and surveyed other states to determine how those states monitored the effectiveness and fairness of their state administrative processes.

B. Administrative Conference of the United States:

The Administrative Conference of the United States ("ACUS") was created as an independent federal agency in the mid-1960s "to identify problems and places where there is room for improvement in [federal] agency processes, and also in judicial review of [federal] agency actions -- and then to study and deliberate those issues and generate recommendations for improvement." Appendix C at 3. See also Marshall J. Breger, "The Administrative Conference of the United States: A Quarter Century Perspective," 53 U. Pitt. L. Rev. 813 (Summer 1992) for an excellent overview of the work of the ACUS. Professor Robert A. Anthony of the George Mason University School of Law, a former Chairman of the ACUS, and Professor Richard A. Merrill of the University of Virginia School of Law, a former member of the ACUS, were members of the study committee. See Appendix C for a presentation to the study committee by Professor Anthony on the organization and work of the ACUS.

The ACUS consists of 100 part-time, unpaid members and a Chairman who is a full-time federal official appointed by the President. The President also appoints 10 of the members as the Council of the ACUS, which is in effect a board of directors for the Conference. The majority of members of the ACUS are government officials; the remainder are private individuals, mainly practicing lawyers and academic lawyers. The ACUS operates in a "conference" format, meeting twice each year in an "Assembly" to consider recommendations and proposals. Most of the work of the ACUS is done through its committees, with the help of outside consultants (mostly academics). Committee recommendations and proposals generally are reviewed and acted upon by the Council before they-are presented to the full ACUS membership at one of the biannual conferences.

The size, structure and operational format of the ACUS are both its strength and its weakness. They ensure that the review process by the ACUS will be deliberative and thoughtful and that any recommendations or proposals will have been reviewed by a representative cross-section of the agencies, entities and individuals likely to be affected by those recommendations and proposals. On the other hand, any process involving such a Iarge number of participants can become unwieldy, time-consuming and arguably overly deliberative.

In general, the work of the ACUS has been highly regarded, and it certainly is fair to say that the ACUS has had a significant impact on the federal administrative process - and indirectly on state administrative processes -- over the quarter century of its existence. See Appendices C and D; see also Preger, supra. Recently, however, the ACUS has been the subject of considerable controversy and the continuation of its funding has been threatened. Some would say this controversy has arisen because of the ACUS's review of the monitoring of federal administrative law judges, the recommendations from that review having upset some of those judges; others would say that the ACUS simply has outlived its usefulness and that the controversy has arisen because of a failure on the part of ACUS and others to recognize that fact. See Appendix D at 4-6.

After much discussion, there was a consensus among study committee members that the ACUS was not a model that was appropriate for an "administrative conference" in Virginia, mainly because of the size and potentially unwieldy nature of the "conference" format of the ACUS and because of a belief among study committee members that the goals of the ACUS could be achieved in Virginia by a much smaller group.

C. 1991-92 Study of the Virginia Administrative Process Act:

During 1991 and 1992, the Joint Legislative Audit and Review Commission ("JLARC") conducted a study of Virginia's Administrative Process Act. JLARC, "Review of Virginia's Administrative Process Act," Va. Gen. Assembly, H. Doc. 51 (1993). Appendix E contains a summary of that JLARC study. The key findings of the study were that:

• There were VAPA [Virginia Administrative Process Act] compliance problems which until recently included the lack of an executive order for regulatory review

• VAPA's effectiveness has been limited for other reasons as well:

- it frequently does not apply

- its requirements are limited

- more could be done by agencies to facilitate meaningful public participation

• There were accountability concerns:

- public commentators lacked confidence that agencies consider comments

- elected officials have lacked a formal mechanism to halt a regulation except by statute

- there is a lack of adequate mechanisms to ensure agency compliance

- agencies have substantial power in case decisions that can be abused

- judicial review tends to be deferential to agencies

Appendix E at 6. With regard to the need for ongoing oversight and accountability of our state administrative process, the 1991 JLARC study noted that while there were a number of entities that have varying levels of responsibility for promoting compliance with the Administrative Process Act,

• Yet for a variety of reasons (lack of awareness of rules, the desire to act quickly, lack of resources or unwillingness to do the work required, disinterest in public participation), agencies continued to ignore or implement poorly some provisions of the [Administrative Process] Act.

• Also for a variety of reasons (lack of time, resources, or attention due to competing priorities), entities that help promote compliance are still not able to secure compliance in many cases.
Id. at 12.

The JLARC staff member who assisted the study committee concluded in his presentation to the study committee that an "administrative conference" could perform a number of activities to promote compliance with, and accountability under, the Administrative Process Act, including periodic surveys of state agencies, local governments, the regulated communities, administrative law attorneys and others to determine problem areas and potential solutions, assessments of agency case decision practices, the collection and analysis of information to determine if regulatory time frames are being met, and working 'with the Code Commission and the Registrar of Regulations on various administrative law matters. See id. at 13.

D. Survey of Selected State Agencies:

During the Summer of 1993, the study committee conducted a survey of 22 selected state agencies to determine their initial reaction to, and obtain their input on, the establishment of an "administrative conference" in Virginia. Nineteen agencies, representing a broad spectrum of size and complexity, responded to the survey. See Appendix F at 9-17. Although 72% (13) of those responding indicated that an administrative conference could perform a beneficial role, 79% (15) thought there were areas in which the establishment of an administrative conference could be detrimental. Balancing the potential benefits and concerns, 50% (9) favored the establishment of an administrative conference, 17% (3) were opposed to an administrative conference and 33% (6) were undecided.

Respondents were given an opportunity to provide comments on the perceived advantages and disadvantages of an administrative conference. Their comments reflected many of the comments and suggestions later offered by study committee members during the study committee's deliberations. Among its potential advantages, for example, some respondents noted that an administrative conference could provide a forum for greater input from both the public and state agencies on public policy questions concerning the state administrative process, could serve as a vehicle to educate the public and state agencies on that process and its problems and could provide the basis for a partnership, and a better line of communication, between the private and public sectors to resolve those problems. Still other respondents noted that an administrative conference could serve as a regular focal point for communication with other states about what they are doing to monitor their administrative processes. Other respondents noted that a broadly-constituted group could provide an outside, constructively critical, systematic review of the state administrative process that could improve the quality and responsiveness of that process. Several respondents noted the possibility that an administrative conference could lead to a more "standardized" administrative process for all state agencies. Some of these respondents thought standardization would lead to greater consistency in dealing with the various regulated communities and, therefore, was a good idea; others thought that standardization would ignore the specific needs of particular state agencies and, therefore, was a bad idea. One respondent noted that an administrative conference could help provide training and technical assistance to state agencies and the regulated communities on how to use the current administrative process more efficiently, how to write simple, clear regulations, etc. Finally, several respondents noted that an administrative conference could help balance various competing interests in the process -- e.g., the need for public participation and input versus the need for an efficient and reasonably expeditious administrative process.

On the negative side, the major concerns were that an administrative conference could become "just another layer of bureaucracy," thereby making the administrative process more cumbersome and time-consuming rather than streamlining it, that an administrative conference might focus on issues involving the operations of specific agencies, rather than "big picture" public policy issues affecting the administrative process in general, thereby adversely affecting the needs of individual state agencies, and that it could be dominated by "special interests" representing the regulated communities. One respondent expressed a concern that an administrative conference could become dominated by attorneys and that the focus of the conference would then be on complicated legal issues rather than on more mundane, practical issues of relevance to the regulated communities and state agencies. Finally, one respondent expressed concern that an administrative conference would not have any real authority to effect change.

E. Survey of Other States:

During the Summer of 1993, the study committee researched what has been done about administrative law reform in the 49 other states, including a written questionnaire that was mailed to 35 chairpersons of administrative law sections of state or local bars, a computer search, and telephone calls to practitioners, law professors, state bars, legislative libraries and administrative law judges in other states. See Appendix G. The two issues researched were whether other states have administrative conferences or committees that make recommendations for improving state administrative law, and, if not, why not? The survey revealed that no state has an "administrative conference" established by statute but that virtually all states have some mechanism in place to review their state administrative process, such as a periodic "conference" of the regulated communities, state agencies, practitioners, and other interested persons, legislative studies on particular issues or agencies, studies by administrative law judges, ongoing law review commissions, bar association committees, judicial councils, and law school institutes. Two states, Ohio and New York, apparently are considering the establishment of an administrative conference similar to the one being considered by this study committee, and a bill establishing an administrative conference in Illinois apparently was introduced but subsequently was defeated.

It is not clear why these other states have not established, or have rejected the idea of, an "administrative conference" to help monitor and oversee their state administrative process. The most likely reason, however, is a belief that there is no need for an administrative conference, either because there are other state agencies or private groups already overseeing or monitoring the state's administrative process, or the administrative process in that state has not yet matured to the point where an administrative conference is necessary.

Finally, as part of the written questionnaire to chairpersons of administrative law committees of other state bar associations, the study committee asked whether they thought there was a need in their states for a state agency to recommend improvements in state administrative law. Of the 17 state bar associations responding, 13 replied yes, 2 replied categorically that there was no need for such an entity, and 2 thought that their state bar association, judicial councilor legislature currently was meeting the need. See Appendix G at 10-11.

IV. RECOMMENDATION

After considerable discussion about the need for, and potential functions and organizational structure of, an administrative conference of Virginia, the study committee voted unanimously to recommend that the Virginia Code Commission exercise its authority (or if it did not clearly have the authority, that it be granted the authority) to appoint a standing "Administrative Law Advisory Committee" to assist in the research and review of administrative law reform and law development issues in order to assist the Code Commission in fulfilling its statutory duty to "continually monitor the operation" of Virginia's administrative process. See Va. Code § 9-77.12.

The study committee's recommendation was endorsed unanimously by the Executive Committee of the Virginia Bar Association at its meeting on January 15, 1994.