Chapter 6 Administrative Agencies Twomey, Business Law and the Regulatory Environment (14th Ed.)

Chapter 62 (c) 2000 West Legal Studies The Roles of Administrative Agencies [6-1] Legislative Rule promulgation Public input and scrutiny Research Input Refinement Investigation Charges Enforcement Hearings Interpretation Penalties Executive Judicial

Chapter 63 (c) 2000 West Legal Studies Laws Governing Administrative Agencies [6-2] Laws Governing Administrative Agencies [6-2] Administrative Procedure Act (APA) Freedom of Information Act (FOIA) Sunshine Act (open meeting law) public announcement of agency actions open records open meetings procedural rights in hearings and enforcement requests for documents copying and disclosure of documents advance notice of meeting open to public advance disclosure of agenda items

Chapter 64 (c) 2000 West Legal Studies Publication of Proposed Rules Steps in Agency Rulemaking [6-3] Enabling act Study Draft of Rules Public Comment Rules Adopted Rules Modified and Adopted Rules Modified

Chapter 65 (c) 2000 West Legal Studies Chapter 6 Summary The administrative agency is unique because it combines the three functions that are kept separate under our traditional governmental system: legislative, executive, and judicial. By virtue of legislative power, an agency adopts regulations that have the force of law, although the members of the agency were not elected by those subject to the regulations. By virtue of the executive power, an agency carries out and enforces the regulations, makes investigations, and requires the production of documents.

Chapter 66 (c) 2000 West Legal Studies By virtue of the judicial power, an agency acts as a court to determine whether there has been a violation of any regulation. To some extent, an agency is restricted by constitutional limitations in inspecting premises and requiring the production of papers. Chapter 6 Summary [2]

Chapter 67 (c) 2000 West Legal Studies These limitations, however, have a very narrow application. The protection against unreasonable search and seizure and the protection against self-incrimination have been so narrowed by judicial construction as to have little protective value. Chapter 6 Summary [3]

Chapter 68 (c) 2000 West Legal Studies When an agency acts as a judge, a jury trial is not required, nor must ordinary courtroom procedures be followed. Typically, an agency will give notice to the person claimed to be acting improperly, and a hearing will then be held before the agency. When the agency has determined that there has been a violation, it may order that the violation stop. Under some statutes, the agency may go further and impose a penalty on the violator. Chapter 6 Summary [4]

Chapter 69 (c) 2000 West Legal Studies An appeal to a court may be taken from any decision of the agency by a person harmed by the decision. Only a person with a legally recognized interest can appeal from the agency ruling. No appeal can be taken until every step available before the agency has been taken; that is, the administrative remedy must first be exhausted. Chapter 6 Summary [5]

Chapter 610 (c) 2000 West Legal Studies As a practical matter, an appeal from administrative action will ordinarily have little value. When a controversy turns on a determination of facts, a court will not reverse the decision of an agency because it disagrees with the conclusion that the agency drew from those facts. Chapter 6 Summary [6]

Chapter 611 (c) 2000 West Legal Studies When an agency is given discretion to act, a court will never reverse the agency just because it disagrees with the choice the agency made. In contrast, if an agency makes a wrong decision on a question of law, a court will generally reverse the agency if the court disagrees with the decision. In the absence of an error of law, an agency’s decision will be reversed only if the court decides that the administrative action was arbitrary and capricious. Chapter 6 Summary [7]

Chapter 612 (c) 2000 West Legal Studies Protection from secret government is provided by the right to know what most administrative agency records contain, by the requirement that most agency meetings be open to the public, by the invitation to the public to take part in rule making, and by publicity given, through publication in the Federal Register, to the guidelines followed by the agency and the regulations it has adopted. Chapter 6 Summary [8]