McGraw-Hill/Irwin Copyright © 2013 by The McGraw-Hill Companies, Inc. All rights reserved. Chapter 3 Administrative Law

3-2 Chapter 3 Case Hypothetical George Wolfowitz, personnel director at Dark Aqua Security Services, Inc., is considering Richard “Dick” Rumsfeld for employment. Dick’s employment application and resume look suitable in terms of Dark Aqua’s hiring needs, but George is having a difficult time confirming Dick’s previous work responsibilities. Dick worked at the United States Department of Homeland Security (DHS) from September 2004 through January 2009, but despite George’s request to the DHS to disclose Dick’s personnel file, the agency refuses to provide the pertinent documents. In fact, the only facts that DHS has revealed to George are his first and last dates of employment. George plans to submit a Freedom of Information Act (FOIA) request on DHS, requiring the agency to divulge Dick’s employment records. If George Wolfowitz submits such a request, is the United States Department of Homeland Security legally obligated to divulge Richard Rumsfeld’s employment records?

3-3 Chapter 3 Ethical Dilemma This chapter discusses the “executive” and the “independent” administrative agencies. The primary distinction between the two types of agencies is that the heads of executive administrative agencies are appointed by the president and serve “at the president’s pleasure” (meaning that executive agency heads can be discharged by the president at any time, for any reason,) while the commissioners of independent administrative agencies serve fixed terms (they are initially appointed by the president, with the “advice and consent” of the United States Senate,) and cannot be removed except for cause. Serving fixed terms is said to make commissioners of independent administrative agencies less accountable to the will of the executive. Examples of independent administrative agencies include the Consumer Product Safety Commission, the Equal Employment Opportunity Commission, and the Nuclear Regulatory Commission. Examples of executive administrative agencies include the Occupational Safety and Health Administration, the Small Business Administration, and the Veteran’s Administration. Should those administrative agencies currently classified as executive agencies be transformed into independent agencies? What advantages/disadvantages would result from such a change? Do executive agency heads owe allegiance to the president?

3-4 Introduction to Administrative Law Administrative Law: Consists of substantive and procedural rules created by administrative agencies Administrative Agency: Any governmental body of the city, county, state or federal government -Referred to as the unofficial “fourth branch of government” -First federal administrative agency: Interstate Commerce Commission (ICC) -Created by Congress through “enabling legislation”, a statute that specifies names, functions and specific powers of agency -Investigative powers include power to issue subpoena/subpoena duces tecum Administrative Law Judge: Presides over administrative hearing; may attempt to encourage parties to settle, but has power to enter binding decision

3-5 Types of Administrative Agencies Executive Agency: Generally within executive branch of government, under a “cabinet-level” department; also referred to as “cabinet-level” agency -Examples include Federal Aviation Agency (FAA) and Food and Drug Administration (FDA) Independent Agency: Governed by board of commissioners appointed by president, with “advice and consent” of U.S. Senate -Examples include Consumer Product Safety Commission (CPSC) and Equal Employment Opportunity Commission (EEOC) Hybrid Agency: Characteristics of an executive and independent agency -Example: Environmental Protection Agency (EPA)

3-6 Administrative Procedures Act (APA) Imposes specific guidelines on agency rule-making: Informal Rule-Making (“Notice-and-Comment” Rule-Making): Proposed rule published in Federal Register, with opportunity for public comment Formal Rule-Making: Publication of proposed rule in Federal Register, then formal public hearing (including complete transcript) Hybrid Rule-Making: Combines best features of formal and informal rule-making; proposed rule published in Federal Register, with opportunity for public submission of written comments, then informal public hearing Exempted Rule-Making: Agency decides whether public participation allowed; includes rule-making proceedings with regard to “military or foreign affairs”, “agency management or personnel”, and “public property, loans, grants, benefits, or contracts” of an agency

3-7 Stages of Informal Rule-Making Agency drafts rule in consultation with interested parties Proposed rule published in Federal Register Interested parties can file written comments on written draft within 30-day period from publication in Federal Register Final draft of rule published in Federal Register 30 days before it takes effect; statement of its purpose and cost- benefit analysis must accompany its publication Agency receives feedback from interested parties during 30-day period and makes decision on whether final draft should be rewritten. If not, it becomes law

3-8 Administrative Procedures Act (APA) (Continued) Interpretive Rules: Rules that do not create any new rights/duties; instead, a detailed statement of agency’s interpretation of existing law, and the steps a party must take to comply with existing law Policy Statements: General statements about directions of agency regarding rule-making or enforcement activities; no binding impact; do not directly affect legal rights/responsibilities Regulated Negotiation (“Reg-neg”): Mediated agreement (involving competing interest groups) on agency rule- making

3-9 Limitations on Agency Powers Political Statutory Judicial Informational

3-10 Freedom of Information Act (FOIA) Requires that federal agencies publish in Federal Register places where public can access agency information Any individual or business may make a FOIA request Information may be obtained regarding how agency acquires and spends its money

3-11 Freedom of Information Act (FOIA) (Continued) Statistics and other information collected by agency on particular topics available Citizens entitled to any records government has about them Exemptions: -National Security -Internal Agency Matters (Example: Personnel Issues) -Criminal Investigations -Financial Institutions -Individual’s private life

3-12 Government in Sunshine Act Requires that agency meetings be open to public if agency headed by collegiate body (i.e., two or more persons, with majority appointed by president upon “advice and consent” of Senate) Such agencies must keep records of closed meetings

3-13 Privacy Act Federal agency may not disclose information about an individual to other agencies/organizations without that individual’s written consent