The Nuts and Bolts of Administrative Law
May 7, 2010
A.First, what is administrative law? -- It is law concerning the actions of government agencies in making decisions and promulgating rules and regulations.
B.How would you find yourself involved is an “admin law" case?
· You receive notice that the government agency has taken some affirmative action:
· You had a state-issued professional license suspended
· You are notified that his property is in violation of state environmental laws
· A county agency sends a notice of violation of the applicable housing code
· Sometimes, the “government action" taken is not as clear, for example:
You receive an incorrect property tax bill
Your business has a dispute regarding sales and use tax payments
· Or, you want to request a government agency to take some action:
· You want to put an addition on your home and want a permit and a variance from the zoning regulations to do so
· You want the health department to approve your restaurant
C.Agency decisions and the contested case
In any of these types of situations, one must follow the rules and regulations of the applicable government agency to obtain what he or she wants.
· Determine what agency you are dealing with – not always clear – could be Federal, state or local
o Ex: property tax assessment could be state or local
· Obtain the applicable rules of the agency, and follow the rules
o If a state agency – go to the State Code for the code provisions and then to the regulations
o If a local agency – go to local code or ordinance and then obtain rules and regulations of the local government office.
§ Local statutes – Municode
§ Local jurisdiction websites – codes and rules
§ Call the agency directly for rules
o Many times, the rules are inconsistent with the code or charter of the local jurisdiction, or the “rule" was not properly promulgated or is simply a practice set forth in writing.
§ Example – certain zoning applications require a community meeting. Those requirements are set forth in the Code, the Rules of the various agencies, and the zoning regulations, and they are inconsistent as to what type of notice is necessary and whether the meeting is required at all.
Practical advice – choose your battles and try to comply.
o The hope is that by following the rules, you will get what you want. But, what if an agency makes a decision against you? At that point, you may be dealing with a “Contested Case" (State) or with an appealable agency decision (Local).
Generally, if the action is by State agency, you will receive a formal “Notice of Action" from agency and your rights will be outlined as per that state’s administrative procedures act (“APA"). Hearing will be held by agency head, hearing examiner, or administrative law judge.
However, if you are dealing with a local government department or agency, the “action" and whether or not it is appealable is not so clear. The applicable local code will typically just state that a “final agency decision" may be appealed. There is an entire body of law as to what constitutes final agency action. When in doubt – appeal.
D.Pre-hearing procedure and “discovery" in an administrative case -- how to get the information you need to make your case.
· State APA – governs procedures of contested case hearings and rulemaking -- some discovery in form of document requests
· Local gov’t-- My experience with local gov’t is that there is generally no discovery
· Both State and local hearing authorities sometimes have subpoena power and you can request that witnesses and documents be subpoenaed, but you do not necessarily get the information in advance of hearing.
· There are other ways, however, to get a wealth of information:
· Written Public Information act requests
· Go to agency and ask to review file
· Call personnel who handled the matter – no bar against doing so
· Call the gov’t atty
E.The “quasi-judicial hearing"
i. Order generally similar to court hearing (opening statements, witnesses, etc.)
ii. Evidentiary rules “relaxed" – basically this means that anything comes in (unless board members are tired); be prepared for evidentiary rulings that are inconsistent and plain wrong. Don’t expect to win on Judicial Review on the basis of evidentiary rulings.
iii. Making your case for the record – be persistent – if evidence is not allowed in, ask to make a proffer.
iv. Make sure all factual findings that need to be made are supported by the evidence
v. Watch out for Board members and hearing officers providing “testimony"
vi. Findings of fact and conclusions of law -- Administrative decisions usually must be written and must include findings of fact and conclusions of law. If you are on the losing side of a case, look at the decision and order to see where you can attack it from that standpoint.
IMPORTANT: This Legal Guide is made available for general informational purposes only. There is no attorney client privilege between you and the attorney author. This Legal Guide is not a substitute for competent legal advice. Only a licensed attorney that specializes in this area in your home state and with whom you have an attorney client relationship can provide legal advice to you. Further, law changes frequently and varies from jurisdiction to jurisdiction, and any advice depends on the particular factual circumstances of a matter. The information and materials provided are general in nature, and do not apply to a specific factual or legal circumstance described in the question. Copyright 2010 by Katherine L. Taylor.
Land Use / Zoning Attorney