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MINUTES

IOWA ADMINISTRATIVE PROCEDURES STUDY COMMITTEE

November 22, 1996 - First of Two Meetings

MEMBERS PRESENT

MEETING IN BRIEF

Minutes prepared by Doug Adkisson, Legal Counsel
Organizational staffing by Ed Cook, Legal Counsel

  1. Procedural Business.
  2. Overview of the Proposed New Iowa Administrative Procedure Act.
  3. Comments From the Attorney General's Office.
  4. Comments From Presenters - Rulemaking Issues.
  5. Committee Action.
  6. Written Materials Provided at Meeting.

COMMITTEE BUSINESS

1. Procedural Business.
Meeting Time and Place. The first meeting of the Iowa Administrative Procedures Study Committee was held in the State Capitol, Des Moines Iowa on Friday, November 22, 1996.
Call to Order. The morning session of the meeting of the Iowa Administrative Procedures Study Committee was called to order at 10:00 a.m. in Committee Room 24. The afternoon session of the meeting was called to order at 1:00 p.m. in Committee Room 116.
Preliminary Business. Upon motion and unanimous vote, Senator Tom Vilsack and Representative Janet Metcalf were elected co-chairpersons of the Committee. The proposed rules were also adopted by the Committee.
Adjournment. The meeting adjourned at 4:00 p.m.
2. Overview of the Proposed New Iowa Administrative Procedure Act.
Mr. Roger Stetson, President, Iowa State Bar Association, and Professor Arthur Bonfield of the University Iowa College of Law described proposed legislation which would replace Iowa's current Iowa Administrative Procedure Act contained in Iowa Code chapter 17A. The proposed legislation was developed and approved by the Iowa State Bar Association. Mr. Stetson briefly described the process of drafting the proposed legislation and expressed the Iowa Bar Association's support for the approach contained in the draft proposal. According to Mr. Stetson and Professor Bonfield, the proposed legislation was originally introduced in the 1996 Legislative Session as Senate File 2404 but has been amended to address concerns expressed by interested persons. Professor Bonfield described a number of reasons for enacting the proposed legislation, including all of the following:
  1. Coping with the Growth of Administrative Law. The current statute is inadequate given the enormous growth of administrative law since the enactment of Iowa Code chapter 17A.
  2. Balancing Competing Interests. The proposed legislation strikes a better balance between efficient and economical government and the rights of citizens.
  3. Creating Proportional Adjudicatory Procedures. The proposed legislation provides proportion to adjudicatory procedures based on the importance of the matters at stake.
  4. Providing Greater Political Control. The proposed legislation provides more effective political control over agency action.
  5. Discouraging Over-Regulation. The proposed legislation provides mechanisms to discourage agency over-regulation.
  6. Enhancing Public Access to Agency Law and Policy. The proposed legislation enhances the opportunity for citizens to access laws and policies adopted by agencies.
  7. Enhancing Judicial Review. The proposed legislation provides courts with greater authority in order to provide effective judicial review of agency actions.
Professor Bonfield noted that a proposal to simply amend Iowa Code chapter 17A was rejected because too many changes in the law are required. He stressed the importance of fashioning a coherent solution in which all provisions are harmonized. He stated that case law interpreting provisions of the current law would remain applicable to the extent that the language of the provisions remained the same. Professor Bonfield stated that many objections to the proposed legislation would apply to the current law. He defended provisions in the proposed legislation allowing for agencies to waive the applicability of the rules under specific circumstances. He noted that the enactment of the proposed legislation would require additional expenses. He stated that estimates of increased expenditures have been exaggerated.
3. Comments From the Attorney General's Office.
Mr. Tom Miller, Attorney General, and Ms. Elizabeth Osenbaugh, Solicitor General, expressed concerns regarding a number of provisions contained in the proposed legislation, including all of the following:
  1. Exclusion from Developing the Proposed Legislation. The Attorney General's Office was excluded from developing the proposed legislation.
  2. Breadth of the Proposed Legislation. Although acknowledging that the current law may provide the state with too many advantages, the proposed legislation goes far beyond any real or perceived problems with the current Iowa Administrative Procedure Act.
  3. Complexity. The proposed legislation is too complex. Merely increasing the extent of legal processes does not necessarily lead to greater public fairness or access. In addition, increasing the complexity of process will decrease agency flexibility and may result in additional court action. Concerns were expressed that the law would result in a few attorneys becoming procedural experts.
  4. Accountability. The proposed legislation weakens accountability by providing for waivers of rules and for an enhanced gubernatorial veto power over rules.
  5. Greater Regulation. The proposed legislation encourages more regulation by agencies required to adopt more rules. This would result in additional costs both by agencies and by citizens required to depend upon attorneys.
  6. The Proposed Law is Untested. No state has adopted the new model Act upon which the proposed legislation is based.
4. Comments From Presenters - Rulemaking Issues.
The following individuals addressed the Committee concerning the rulemaking provisions of the proposed legislation: Professor Arthur Bonfield; Ms. Elizabeth Osenbaugh; Mr. Paul Tanaka, Director, University Legal Services, Iowa State University; Ms. Kay Williams, Executive Director, Ethics and Campaign Finance Disclosure Board; Ms. Suzan Stewart, Managing Attorney, Mid-American Energy Company; Mr. Carl Castelda, Department of Revenue and Finance; Ms. Julie Fitzgerald, Iowa Department of Transportation; Ms. Mary Ann Walker, Department of Human Services; and Mr. Clair Cramer, Iowa Department of Workforce Development.
  1. Preference for Rulemaking Over Case-By-Case Adjudication. Professor Bonfield indicated that the proposed legislation attempts to encourage agencies to adopt law and policy through rulemaking, thereby making it subject to public comment and legislative and gubernatorial oversight, rather than through case-by-case adjudication. According to Professor Bonfield, the goal of the proposed legislation is not increased regulation, but rather increased use of the rulemaking process.
    Mr. Tanaka, formerly an attorney in the State of Washington, indicated that the State of Washington recently adopted similar provisions concerning rulemaking and that the resultant increase in agency rulemaking was not beneficial. He noted that a moratorium on rules was requested by the Governor after numerous complaints from business and the Washington legislature later acknowledged that the attempt to increase the use of rulemaking by agencies was not a success.
  2. Cost/Benefit Analysis. Many agency presenters indicated the rulemaking provisions of the proposal will increase their costs through increased recordkeeping requirements and through the need for additional staff time to comply with the additional rulemaking requirements. Specific concerns were expressed that requirements for indexing information and docketing files during the rulemaking process imposes too great a burden upon agencies with little benefit to the public. The presenters indicated that these additional functions are not likely to be used by the public and will not increase public access to the process. Ms. Stewart indicated that the proposed legislation would require more work for Mid-American Energy that could better be used in adapting to the rapidly changing nature of the utility industry.
    Professor Bonfield indicated that the proposed legislation does entail some additional cost, as did the enactment of Iowa's current administrative procedure Act in the 1970s, but that the agencies concerns are likely exaggerated.
  3. Concise Explanatory Statement. It was explained that the proposed legislation requires agencies to provide a statement of reasons for any particular rule and also requires agencies to rely only on the reasons provided when attempting to later defend the validity of the rule in subsequent litigation. Several presenters indicated that this proposal will require a substantial increase in resources for agencies for little benefit. According to the presenters, persons can request a concise statement, but very few do. Presenters stated that given the legal significance of the statement, the reasons are likely to be so detailed or so general so as not to be useful for the general public.
    Professor Bonfield indicated that this requirement is based on notions of fairness and enhances the ability of the public to understand rules.
  4. Waiver of Rules. The proposed legislation provides for the waiver of rules under certain situations. Ms. Walker indicated that the Department of Human Services already provides for the ability of persons to request an exception to the rule. Other presenters indicated concern that the public expects an even-handed application of the rules and that this provision could lead to special privileges for a few.
    Professor Bonfield indicated that this provision is designed to reduce agency over-regulation and to provide agencies some flexibility in applying their rules. He emphasized the narrow nature of this provision, noting that there are situations where a rule serves no public good but imposes a burden upon persons against whom the rule is applied. He also stated that it is best for the General Assembly and not individual agencies to set the guidelines for requesting a waiver.
  5. Public Access to Rulemaking. Several agency presenters indicated their concern that under current law, the general public does not become involved in the rulemaking process. However, most of these presenters indicated that the increased procedural hurdles contemplated by the proposal would not solve the problem of public input in the rulemaking process.
5. Committee Action.
The Committee requested that the various parties concerned with the Bar Association proposal meet in order to resolve as many of their differences as possible. The Committee agreed that the next meeting date would be delayed until just before the start of the next legislative session.
6. Written Materials Filed with the Legislative Service Bureau:
a. Committee Rules.
b. Iowa Administrative Procedure Act (Iowa Code Chapter 17A), distributed by the Legislative Service Bureau.
c. November 21, 1996, Iowa State Bar Association draft of the proposed legislation revising the Iowa Administrative Procedure Act.
d. Washington Administrative Procedure Act (Chapter 34.05 Revised Code of Washington), distributed by Mr. Paul Tanaka, Iowa State University.
e. Agency comments concerning the proposed new Iowa Administrative Procedure Act.

OTHER INFORMATION FOR THIS COMMITTEE:

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