SD14 - The Ex Parte Communications Subcommittee


Executive Summary:
The federal Administrative Procedure Act § 551(14) defines "ex parte communication" as "an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given." The definition makes an exception for requests to know the status of a proceeding. In Virginia, an ex parte communication has been defined as "one in which an advocate for but one of two or more parties presents his views upon the controversy to the decision maker."

The purpose of restrictions on ex parte communications in administrative hearings and appeals are:

1. preserving the integrity of the process through preventing impropriety (by using "secret" off-the-record information) or the appearance of impropriety in decision making; and

2. ensuring all parties have a fair opportunity to address the issues and comments made by their adversaries.

An additional consideration sometimes offered for prohibiting ex part communications is that judicial review cannot be properly performed if the decision is based on "off the record" considerations.

Since 1994, legislation has been introduced in each session of the General Assembly to prohibit or limit ex parte communications. The Administrative Law Advisory Committee, after studying the issues involved, recommended to the 1996 General Assembly that independent and executive agencies be required to develop, adopt, and implement policies regarding ex parte communications made or attempted to be made to decisions makers during administrative hearings and appeals. This approach recognizes the variety in function and format of agencies' administrative processes by allowing each agency to tailor its policies to its unique needs. This approach also ensures pubic participation in the development of ex parte policies by requiring that the policies be promulgated as regulations subject to notice and comment.

The subcommittee reviewed Senate Bill 479 in light of issues arising during the 1996 Genera Assembly Session and held a hearing to receive public comment. After consideration of the issues and comment, the subcommittee developed draft legislation, which is included as Appendix A of this report.