Legislature(2003 - 2004)
02/05/2003 08:38 AM House ARR
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
JOINT COMMITTEE ON ADMINISTRATIVE REGULATION REVIEW
February 5, 2003
8:38 a.m.
TAPE(S) 03-1
MEMBERS PRESENT
Senator Gene Therriault, Chair
Senator Lyda Green
Senator Hollis French
Representative Bruce Weyhrauch, Vice Chair
Representative Tom Anderson
Representative Les Gara
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
^Introductory Organizational Meeting
WITNESS REGISTER
Ms. Deborah Behr
Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Reviewed the procedure for adopting
regulations under the Administrative Procedures Act
Mr. Robert Pearson
Office of the Lieutenant Governor
PO Box 110015
Juneau, AK 99811-0015
POSITION STATEMENT: Discussed the role of the Lt. Governor's
Office in adopting regulations
ACTION NARRATIVE
TAPE 03-1, SIDE A
CHAIR GENE THERRIAULT called the Administrative Regulation
Review Committee (ARRC) meeting to order at 8:38 a.m. Senators
Green, French, Representative Gara, and Chair Therriault were
present. Chair Therriault welcomed members and informed them
that the committee would be meeting on an as-needed basis. He
noted that Deborah Behr and Steve Weaver from the Department of
Law and Robert Pearson from the Office of the Lt. Governor would
explain the regulation process to members today.
MS. DEBORAH BEHR, regulations attorney for the State of Alaska,
told members she has worked in her current position for about 11
years. She introduced Dave Marcus, the legislation and
regulations coordinator for the Department of Law, Steven
Weaver, assistant regulations attorney, and Robert Pearson, the
new administrative coordinator in the Office of the Lt.
Governor. Ms. Behr said she would begin her presentation by
giving an overview of the Department of Law's statutory
obligations on regulations.
MS. BEHR said Alaska is unique in that the Department of Law
reviews regulations for legal sufficiency before they impact the
public. Regulation standards are contained in statute, the
Constitution and case law. The department must sign a memo
verifying that each regulation meets legal standards. She
provides regulation training to state agency personnel and is in
charge of preparing the drafting manual for administrative
regulations. Ms. Behr said she has tried to parallel the
regulation manual to the legal drafting manual used by the
Legislature so that the court has to look at one standard only.
MS. BEHR reviewed a flow chart detailing the steps used in the
regulation adoption process. She noted that agencies draft the
regulations, public notices and fiscal notes in consultation
with an attorney at the Department of Law. She pointed out that
the Board of Barbers and Hairdressers might not have ready
access to an attorney, while the Division of Oil and Gas in the
Department of Revenue would. Each proposed regulation is given a
file number by the Department of Law. She asked that any
legislative inquiries about a proposed regulation contain its
file number.
MS. BEHR explained that agencies publish and distribute public
notices, additional notice information and proposed regulations
via e-mail. All e-mail notices contain the name of a contact
person for further information. When a public notice is
published, the public comment period begins. The public is given
a chance to comment on all proposed regulations. Ms. Behr said
some regulations, such as minor technical changes to the
insurance code, lend themselves better to written, rather than
oral, comments. After the public comments are considered, the
agency adopts the regulation. A board or commission must adopt
regulations in a publicly noticed meeting. If a commissioner
adopts regulations, the commissioner gives notice that he or she
adopted them after the fact.
The final regulations are submitted to the Department of Law at
adoption. They go through a thorough Department of Law review,
based on statutory and constitutional obligations and state law.
Simultaneously, the Governor's Office conducts its "HB 130
review." HB 130 gave the governor or lieutenant governor
limited review power over non-board regulations to determine if
there was faithful execution of the law or if comments of the
ARRC were followed. The department has the authority to
disapprove regulations. That is usually done when little counsel
was available early on and a regulation is clearly in conflict
with case law. In such a situation, the department tries to work
with agency personnel to find appropriate language. Often,
changing one or two words solves the problem. The Lieutenant
Governor's Office then files the regulations, which can take
effect in a minimum of 30 days. The 30-day delay period was
designed to allow the public time to challenge the regulation in
court.
MS. BEHR said the Lieutenant Governor's Office then sends copies
to the ARRC and the regulations are published in the
Administrative Code. In addition, the agency is obligated to
post notice on the online public information system.
MS. BEHR then asked to address the following questions she is
frequently asked by legislators on behalf of constituents:
· How can the public get involved in the regulations process?
· What do I do if my comments were not fairly considered?
· Why don't state agencies implement the intent of the
statute?
MS. BEHR explained that people can have their names put on an
interested person list. Statute requires agencies to keep an
interested person list on all regulations. If an e-mail address
is provided, a person will receive all notices about particular
regulations.
Regarding the second question, MS. BEHR said she has found the
problem is usually that the public needs to be more precise. She
gave an analogy of the legislative committee process and said it
is not very helpful for a testifier to say a bill is bad; it is
helpful when the person suggests specific amendments. She
advised legislators to let their constituents know that public
comments are public record in the State of Alaska, therefore
people should be comfortable that the information they provide
will become public.
MS. BEHR suggested that the statutes be written as clearly as
possible so that their intent can be followed. She said if a
statute says "X" and she reviews a proposed regulation that says
"Y," it will not leave the department.
MS. BEHR said she has received calls from people saying they
were surprised that a regulation took effect. She suggested that
people be told to look at the State of Alaska Online Public
Notice system [http://state.ak.us/pn/pubnotic.nsf]. Another
question she is often asked is how to change a regulation. A
regulation can be changed with a statutory change or by
petitioning under the Administrative Procedures Act. She said
she sees two or three petitions per year.
MS. BEHR updated the committee on changes in regulations in the
last year. Two successful ventures with negotiated regulations
making have occurred. She noted that former Representative James
put a tremendous amount of effort into legislation [to allow
negotiated regulations making]. Negotiated regulation making
involves a committee made up of stakeholders, state agencies and
the public. The two successes involved the cruise ship
regulations for the Department of Environmental Conservation
(DEC) and the charitable gaming regulations on accountability.
Agencies are also moving forward in the electronic area and are
accepting comments and sending notices via e-mail, as well as
posting information on the Internet.
8:43 a.m.
CHAIR THERRIAULT referred to the flow chart and told committee
members that they have two opportunities for input. In step 6,
during the public comment period, the committee can provide
input. Later on, the Lieutenant Governor will make sure that
input was adequately considered. He asked Ms. Behr if a copy of
the regulation is sent to the ARRC after the regulation has been
put in place.
MS. BEHR said that occurs after she has signed off on it but
before it becomes effective. She added that this committee has
held oversight hearings in the past. She suggested that Tam
Cook, Director of the Division of Legal and Research Services,
brief the committee on the parameters of its authority.
CHAIR THERRIAULT cited a statutory reference and read:
...standing committee of the legislature shall furnish
a notice of a proposed action under AS 44.62.190 shall
review the proposed regulation, amendment, or a
regulation on appeal [indisc.] before the date the
regulation is scheduled by the department to be
adopted. A standing committee conducting the review
shall determine whether the regulation properly
implements the legislative intent.
He noted if the legislature wanted to encourage a standing
committee to look at a proposed regulation and determine whether
the legislative intent was followed, it should be done early on
in the process.
MS. BEHR said it should be done early on if the legislature
wants to influence the shaping of regulations. She said she has
seen that happen infrequently. It makes sense to do that with
complicated regulations, such as those designed to implement the
Forest Practices Act.
CHAIR THERRIAULT pointed out that the Administrative Regulation
Review Committee can ask that a proposed regulation be frozen
during the interim until the legislature is in session.
MS. BEHR suggested asking Ms. Cook for an opinion on that matter
because of constitutional problems.
CHAIR THERRIAULT referred to the State of Alaska v. ALIVE court
case, in which the court ruled that activity to be
unconstitutional.
MS. BEHR said that in her experience, a letter from ARRC has a
tremendous amount of influence. She felt the timing of that
influence is important.
CHAIR THERRIAULT asked Ms. Behr to review the timeline for
petitioning a proposed regulation.
MS. BEHR told members that anyone can petition a state agency
for a regulation change at any time. The petitioner must follow
the Administrative Procedures Act (APA) standards and the agency
has a responsibility to respond. She noted it is an area of the
statutes that could benefit from some fine tuning because, for
example, a petition must be acted on within 30 days yet some of
the boards meet only once per year. In such a case, the
Department of Law has applied that to mean the board must
address the petition at its first meeting of the year.
REPRESENTATIVE BRUCE WEYHRAUCH noted that action on a petition
by an agency is discretionary.
MS. BEHR agreed that an agency is not bound to act.
REPRESENTATIVE WEYHRAUCH asked if she has any data on how often
agencies respond to petitions.
MS. BEHR said that petitions are rare. She said two petitions
were filed recently, one in the Department of Transportation and
Public Facilities (DOTPF). She believes that DOTPF plans to
respond positively to that petition. She noted that she receives
about two per year and that the procedure does not work as well
when a commissioner makes the decision.
REPRESENTATIVE WEYHRAUCH asked if an agency is petitioned under
the APA, and the agency chooses not to address the petition, the
petitioner is left with two options - to bring the matter to the
legislature or sue the agency in court.
MS. BEHR said that is correct but she has never seen a lawsuit
and she doubts one would be successful because it is difficult
to compel someone to take an action. She felt the more
convincing route is to make a case before the legislature.
REPRESENTATIVE LES GARA asked if legislators receive notice of
all proposed regulations via e-mail or only the regulations that
have been adopted.
MS. BEHR said that because state agencies did not have public e-
mail addresses for new legislators during the interim, notices
of proposed regulations were mailed. Legislators should now
receive them via e-mail.
REPRESENTATIVE GARA noted the public notice rules are effective
but, as an attorney, he feels that most regulations are written
so that a person has to analyze the text to know what they mean.
He felt a brief summary would be useful and asked if it is
possible to receive a lay, non-binding summary with each notice.
MS. BEHR said she wishes a non-binding summary could exist. She
said that most of the agencies write "Dear Alaskan" letters that
contain an explanation. They also have web pages that contain
information. She pointed out that agencies, because of budget
constraints, have asked her what the minimum notice requirements
are. She said that a lot of material is made available but it is
a balancing act for the agencies. She noted she can provide
legislators with additional materials when requested.
REPRESENTATIVE GARA asked if legislators receive notice of
proposed regulations through Ms. Behr's office.
MS. BEHR said each department is obligated to send notice to
legislators. Her office acts like the "traffic cop." If the
information is not there, she will make the department send it.
REPRESENTATIVE GARA expressed concern that legally, agencies do
not have to send out a summary explaining the regulatory action,
but the result is that for most people, notice of a regulatory
change is not readily ascertainable. He requested that the
agencies be advised that at no additional expense, they can
attach a cover letter in the e-mail message.
MS. BEHR thanked Representative Gara for the suggestion and
informed members that Administrative Order 157 contains training
information and standards on how notices are to be drafted. She
said she cannot verify that all agencies follow those standards
to the letter.
REPRESENTATIVE WEYHRAUCH asked if a superior court declares a
regulation to be unconstitutional, and that decision is not
appealed by the state, at what point in the regulation adoption
process the Department of Law would give notice and revisit the
regulation.
MS. BEHR said that when a regulation is challenged, the
Department of Law is usually a party to the case in some way.
The agency attorney assigned to that area of law will talk to
the commissioner of that department about a possible remedy. Her
office cannot take a regulation off of the books like the
revisor of statutes can do with statutes because she does not
know how [the legislature] wants it to be repaired. Instead, a
note is attached citing the court decision that declared it to
be unconstitutional. It is possible, however, that the
commissioner can change one word and make the regulation
constitutional so that approach is taken first.
9:07 a.m.
CHAIR THERRIAULT asked if a person would challenge the
underlying statutory authority for a regulation through the
petition process.
MS. BEHR said that must be challenged in court. She said the
Department of Law assumes the statutes are constitutional until
successfully challenged in court.
CHAIR THERRIAULT said he was talking about a case in which a
challenge occurs because there is no statutory basis for the
regulation, not because the constitutionality of a statute is
questioned.
MS. BEHR said the APA requires her to determine whether there is
statutory authority for the regulation. She repeated that if the
statute is clear and says "X," the regulation cannot do "Y."
However, what usually happens is the statute is unclear so she
looks at the legislative history and other considerations. If a
gray area exists, a person may decide to test the matter in
court. If the statute is broadly written, it is often difficult
for the court to determine whether the regulation follows the
intent of the statute. Alaska does not have the same amount of
documentation that Congress has regarding the history of
legislation.
CHAIR THERRIAULT asked Ms. Behr if she is the sole person to
make that determination or whether it gets farmed out to other
people in the agency.
MS. BEHR said she makes the determination for the Department of
Law. She noted that she has sat down with the Attorney General
who has made the call on some very close issues. She told
members:
At the lower levels, for example, Barber and
Hairdresser regs, an agency attorney assigned to that
committee can look at it and say you can't restrict
selling barber licenses to only people who are
residents of the State of Alaska - you can't do that
and they'll advise them of that and that's
appropriate. And then they'll check in with me if it's
something that maybe they haven't seen before because
the Department of Law has frankly a lot of young
attorneys and we turn over pretty fast in the lower
levels. So yes, people check in with me and I check in
with the attorney general and get guidance if there
isn't a clear case decision here.
CHAIR THERRIAULT asked if Attorney General Botelho made the
determination on the soft money regulations.
MS. BEHR said that is correct.
CHAIR THERRIAULT asked if she agreed with Attorney General
Botelho's determination.
MS. BEHR said the Attorney General signed the document and he
speaks for the Department of Law.
CHAIR THERRIAULT said that legislative counsel believe those
regulations have absolutely no statutory authority but
unfortunately the state now has to expend funds in the court
system over regulations that will probably be thrown out. He
asked if the Department of Law can re-examine that issue and
save the state that expense.
MS. BEHR said at this point, the Alaska Public Offices
Commission (APOC) would have to review the regulation and repeal
it.
CHAIR THERRIAULT asked how APOC would begin the repeal process.
MS. BEHR said APOC could hold a meeting to give public notice.
She explained that the same process used to put a regulation on
the books would be used to take one off of the books.
REPRESENTATIVE TOM ANDERSON asked if the online public notice
system contains a database of all proposed regulations or
whether the regulations are posted at the end of the process.
MS. BEHR referred to Exhibit 3 and replied that state agencies
should be giving notice of all proposed regulations on that
system. She deferred to Mr. Pearson for further information on
the technical aspects of that system.
REPRESENTATIVE ANDERSON asked if the proposed regulations are
categorized by industry so that a constituent could keep up with
the ones that might affect his or her business.
MS. BEHR said if a person was starting a small business and
wanted to know the regulations that might have an effect, that
person should go to the Department of Law's home page where all
of its regulations are listed. A person should also go to the
other state department home pages. She explained that the online
web page contains regulations that are in the process of being
adopted. It is not an effective place to research the statutes
and regulations that might affect a business.
There being no further questions for Ms. Behr, CHAIR THERRIAULT
called Mr. Pearson to testify.
9:12 a.m.
MR. ROBERT PEARSON, Special Assistant to the Lieutenant Governor
for Regulations, distributed copies of adopted regulations that
were submitted to the Department of Law for review and approval
and a checklist of procedures for members' information. He told
members when the Lieutenant Governor signs and date stamps a
regulation, it is considered filed. The Lieutenant Governor's
chief of staff is delegated to sign regulations but the
Lieutenant Governor is considering appointing more delegates to
sign emergency regulations in his absence.
MR. PEARSON reviewed a handout he referred to as the HB 130
review packet. HB 130 was enacted in 1995 to grant the ARRC
more authority to review regulations and to give the executive
branch more power to independently evaluate regulations and to
return a regulation unfiled in the rare chance a problem is
found. He pointed out that HB 130 requires regulations be
evaluated for their impact on private citizens and to have a
fiscal note. He told members the vast majority of regulations do
not have a fiscal impact. Most regulation packets come to the
Lieutenant Governor about one to two weeks before filing.
SENATOR HOLLIS FRENCH referred to the example provided by Mr.
Pearson and noted it was signed by Commissioner Flanagan in
April of 2002. He asked why it was transmitted to the Lieutenant
Governor's office on February 4, 2003 and asked if that is a
normal timeframe.
MR. PEARSON said the timeframe varies a great deal. He thought
that particular timeframe was slower than average. He said some
regulations take more time than others depending on the
complexity of the regulation and other factors.
CHAIR THERRIAULT thanked Mr. Pearson and informed members that
he would like to take up the concept of a central panel of
hearing officers. He told members that Mr. Stancliff wrote a
report on this issue for Senator Ogan several years ago. He
asked Mr. Stancliff to address the committee.
MR. DAVE STANCLIFF, ARRC aide, provided members with copies of a
brief he prepared entitled "Independent Administrative Hearings
Through A Central Panel." The options contained in the brief are
based on what other states have already accomplished. To date,
26 states and several municipal governments have established
central panels. Mr. Stancliff gave the following overview:
The origin and evolution of central panels follows the
origin and evolution of high volumes of administrative
law and the administrative procedures acts put into
place to direct bureaucracies.
As administrative law became more and more prevalent,
there arose objections by the public to how it was
being conducted.
Legislatures including Alaska's have become concerned
with agencies and Boards and Commissions pursuing
agendas of regulation beyond either the intent or
authority for such action in statute.
Our state constitution, like most others, prohibits
legislative manipulation of administrative or
executive functions. Framers obviously envisioned the
need for those who carry out the day-to-day
administrative duties under statute to be free of the
extended influence of legislators in the normal
performance of those duties.
Our courts have also ruled that the legislature may
not annul regulations.
That has left lawmakers here in Alaska and throughout
the country searching for ways to balance the long arm
of the executive with some action by the legislature.
One of the most profound and effective tools employed
to some degree or another by these 26 states and other
municipal governments is the creation of a central
panel.
Legislatures have found that when they require higher
standards of adjudication of regulations, fueled by
the goal of serving public due process, and removed
from the influence and pressure of state agencies, the
writing of regulations improves, the promulgation of
regulations improved, and the enforcement of
regulations improved.
The reason is as old as the Constitution itself. When
an arm of government is held accountable in a fair and
impartial way, the temptation to abuse power is
diminished.
In Alaska, most hearing officers work for various
agencies throughout the state and they work for the
agencies that are actually being challenged through
appeals. No person being brought before a tribunal
where the judge works for the entity being challenged
is going to believe they will... [end of tape].
TAPE 03-1, SIDE B
MR. STANCLIFF continued:
...just don't feel like they are going to get a fair
shot. That is why our judges are held to strict
standards of conduct called canon.
Traditionally government agencies have enjoyed the
confidence and the protection that in-house hearing
officers have provided. Their employees, grounded in
their agenda and filled with their expertise, have
loomed as serious barriers to the citizen who feels he
has been wronged by an agency through a regulation or
action.
Added to the possibility of real agency bias and the
reality of perceived bias by citizen complainants is
the lack of professional qualifications of hearing
officers, standards, oversight, and training. With
each arm of government in many locations using hearing
officers of many varieties and qualifications, it is
no wonder that inefficiencies and questions of
fairness have arisen.
These challenges of in-house institutionalized hearing
officers are not unique to Alaska. The solutions
contained in the materials the committee will be
receiving based on the reform measures of other states
is not unique either.
The current administration is looking for efficiencies
and a government more customer friendly and sensitive
to the rights of its citizens. The legislature is
looking for ways to reduce spending and increase
efficiencies. Citizens are expecting and deserve the
highest levels of due process when they ask for
adjudication.
All these goals and more are achieved through the
establishment of central panels. Logjams impeding
entrepreneurial ventures and survivability of projects
in vulnerable phases of development hinge on fair,
timely, and professionally conducted adjudication.
Even so, such sweeping changes should be accomplished
with smooth transitions and with a sensitivity to
those hearing officers currently working for agencies.
This can be done as it has in other states by allowing
time for transition while steadily working toward an
overall goal of truly independent hearings, well
trained, cross trained hearing officers, protected and
held to high standards of performance through two
things: administrative oversight and incremental
budgeting.
At this point, the legislature has no idea what is
spent on hearing officers in the State. They have no
way of knowing the performance because it is not
quantified. And they have no way of controlling the
cost.
There is no way to calculate the cost that in-house
hearings have placed on citizens and businesses. When
we have regulations that continue to stand because
adjudications are not fair, it is costly to Alaska.
No Commissioner or Attorney General would want to
plead their case in Superior Court before a judge that
works for their adversary and yet many in the past
have vigorously defended the rights of their employees
to hear and adjudicate matters of public interest in
their own house, among their own employees, and in
less than a judicial setting.
Ironically, in other states the very administrations
that oppose losing their in-house hearing officer
functions later reverse their opinions and come to
appreciate central panels very highly. High public
confidence and satisfaction, better regulations, and
being able to administrate clear of shadows of biased
appearances actually improves the atmosphere of
commissioners and central regulators.
To close, legislatures can expect special interests
well served by government to oppose independent
hearings. They can also expect the executive to want
to move carefully and have the option of reforming
through success and positive motivation. To that end,
some legislatures have allowed the Governor to exempt
certain hearing functions from being centralized, or
have given generous time limits in which to achieve
the transition.
This legislature and this administration will have to
determine how to proceed with this reform if they
choose to undertake it. The legal premise supporting
it is sound. The public interest to be served is
substantial. It has proven to be a non-partisan good
government reform in other states and none have gone
back once the independent system is in place.
I think the research will bear out that
administrations of both political party persuasions
and legislatures of both political party persuasions
find good reasons and have enacted central panels.
It is rare when a House, a Senate and an executive are
afforded an opportunity to reform and correct a major
source of public and administrative frustration. The
time and ability may indeed exist now in Alaska.
The information available on this issue is voluminous
and convincing in both theory and result, but the
deciding factor will ultimately be based on the
efforts of you, the policy makers, and the visionaries
if Alaska is independent and centralized hearing
functions are to take place.
Contained, Mr. Chairman, in the packet is a very fine
example from the State of Maryland. This system was
instituted and the results are in, both here and in
Colorado, on how much money the states have saved in
administrative hearings, how much more quickly
workers' comp and some of the more difficult decisions
are made, how fewer employees are eventually needed to
perform and, what's most outstanding about this
particular piece of information and the information
that Colorado provides, is that these states have
decided that the public should rate what their hearing
officers are doing. They actually ask for public
comment and surveys to see how satisfied people are in
terms of getting a fair hearing, a fast hearing, and
good justice in terms of the ultimate resolution.
MR. STANCLIFF encouraged members to contact Judge Edwin Felter
from Colorado for more information as he is an expert in this
field. In addition, he has asked Mr. Bob Boener of the National
Council of State Legislatures to brief the committee in two
weeks at the request of the Chair. Mr. Ed Hein, a former legal
drafter for the Alaska Legislature, is now an independent
hearing officer for the National Marine Fisheries and has also
offered to discuss this topic with members.
9:32 a.m.
CHAIR THERRIAULT said the ARRC has specific statutory
obligations regarding reviewing regulations and bringing the
legislature into the process. The central panel concept is one
that he would like to committee to take a look at. He said that
because the ARRC is a joint House and Senate committee, he
believes it is the proper forum to look at what other states
have done to deliver better service to constituents and realize
cost savings. He noted that when this topic was considered in
the past, there was a lot of suspicion that the costs put
forward by the Administration were not credible. He told members
he is not asking members to take such a proposal back to their
caucuses at this point, he would merely like members to consider
whether they feel it is worth going in this direction.
CHAIR THERRIAULT then asked members to let him know about any
other ideas they would like to address in the realm of
regulations.
REPRESENTATIVE ANDERSON asked if committee members agreed to go
with a central panel system, whether the changes would have to
be made in statute.
CHAIR THERRIAULT said they would. He pointed out that the
existing hearing officer positions would have to be removed from
the individual departments and placed in a new, central entity.
REPRESENTATIVE GARA said he had a series of questions to ask to
better understand the motivation behind this change. He noted
Mr. Stancliff mentioned that the central panel system will solve
several problems, one being that lawmakers cannot annul
regulations. He questioned what Mr. Stancliff meant since
lawmakers can annul a regulation by passing a law to supersede
it.
MR. STANCLIFF said a court decision says the separation of
powers prevents the legislature from simply saying it does not
like a regulation and annulling it. The legislature has always
had the authority through statute and policy to change and
affect a regulation. He pointed out that some states have given
emergency regulation appeal and promulgation authority to their
legislatures. Alaska law has granted emergency regulation
promulgation authority but not repeal authority.
REPRESENTATIVE GARA noted that Mr. Stancliff's report says that
one problem is that many regulations are poorly written. He said
this proposal would change the hearing officer system after
regulations are adopted. He asked how that will effect poorly
written regulations.
MR. STANCLIFF said that an interesting aside that has been
discovered in the establishment of central panels is that when
people are held to high standards at the end of the process,
they develop high standards early in the process in the
development of regulations. The quality of the entire system
tends to improve, including enforcement of the regulation.
REPRESENTATIVE GARA asked if the hearing officers would review
the application of regulations after they have been adopted.
MR. STANCLIFF said the central panel concept is one that
establishes central oversight, better training, and insists on
due process of the standard for adjudication of regulations. He
felt Representative Gara's question brings up a good point and
said that usually, soon after central panels are established,
the legislature starts to get suggestions from the central panel
and amendments to the Administrative Procedures Act that
facilitate the promulgation of better administrative law.
REPRESENTATIVE GARA asked if a hearing officer can toss out a
regulation.
MR. STANCLIFF said a hearing officer cannot.
REPRESENTATIVE GARA said if the agencies are no longer
responsible for appointing hearing officers who administer
regulations from the executive branch, someone within the
executive branch would have to do the appointments. He asked if
the governor would appoint the central panel hearing officers.
MR. STANCLIFF said that is the central focus of most policy
debate as central panels are put into place. Normally, the
department of administration in other states houses the central
office. A chief administrator oversees the adjudicators. They
are protected from any negative consequences of their decisions
but they still operate on behalf of the administration. Some
legislatures have chosen to give these adjudicators final
decision making authority. Others have given it to
commissioners, but they must seriously consider the opinions of
the hearing officers. Other states have added one more layer by
requiring the court to consider the hearing officers' input.
CHAIR THERRIAULT repeated that the appeal of this issue is
looking at different methods of service delivery at a lower cost
but he is not sure this is the best method.
REPRESENTATIVE WEYHRAUCH felt this is a reasonable approach to
an old problem.
CHAIR THERRIAULT told members that Mr. Stancliff will be
reviewing the proposed regulations. He asked members to contact
him about any proposed regulations they feel the committee
should look into.
MR. STANCLIFF asked each member to assign a staff person to look
at the proposed regulations because he cannot possibly know
which regulations are of interest to each member.
There being no further business to come before the committee,
CHAIR THERRIAULT announced the next ARRC meeting would be held
on February 19 at 8:30 a.m. in the Fahrenkamp Room and adjourned
the meeting.
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