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Chapter6PP.2019.ppt

ACC 150
THE LEGAL ENVIRONMENT OF BUSINESS

With Doreen Smith, Esquire

Chapter 6

ADMINISTRATIVE AGENCIES
PROCEDURAL RULES

Open Operation of Administrative Agencies

  • Open Records: Freedom of Information Act (Federal Law)(FOIA)
  • Pennsylvania has the Right to Know Law
  • Open Meetings: Sunshine Act (Federal Law)
  • Pennsylvania also has a Sunshine Act
  • Public Announcement of Agency Guidelines.
  • Administrative Procedure Act –sets forth operating rules for agencies.

LEGISLATIVE POWER OF THE AGENCY

Agency Adoption of Regulations.

  • Regulation must be within the scope of the authority of the statute creating agency (Enabling Act)
  • Agency must study the issue to be resolved
  • Regulation then must be published
  • Public Comment Period: at least 30 days after proposed rule.
  • Rule can then be adopted, modified and republished or withdrawn.

STEPS IN AGENCY RULEMAKING

Enabling act

Study

Draft of Rules

Publication of Proposed Rules

Public Comment, then…


Rules Modified and Republished
OR


Rules Adopted
OR

Rules Modified, then Adopted

EXECUTIVE POWER OF THE AGENCY

Enforcement or Execution of the Law

  • The power to investigate

Constitutional Limitations

  • Protections such as unreasonable search and seizures (under the 4th Amendment) apply to agencies.

Administrative Investigation

  • An agency can request an inspection of a premises or production of papers in conjunction with an investigation.

ADMINISTRATIVE AGENCIES

What is an administrative agency?

  • Government body charged with administering and implementing legislation.

What are regulations?

  • Rules created by state and federal administrative agencies (same force as statutes).

Administrative Law

  • Procedural rules governing administrative agencies.

Uniqueness of Administrative Agencies

  • Agencies combine legislative, executive and judicial powers

JUDICIAL POWER OF THE AGENCY

Agency as a Specialized Court

The Administrative Hearing

  • This hearing satisfies the requirements of due process under the US Constitution.
  • Before an Administrative Law Judge (ALJ)
  • There is no jury for an administrative proceeding

ALJ acts like judge and jury

JUDICIAL POWER OF THE AGENCY

Administrative Dispute Resolution Act

  • Streamlined Procedure: Consent Decrees. Informal Settlements or Consent Decrees.
  • Procedures such as ADR

Hearing Procedure

  • If alternative procedures do not result in a settlement, then the agency will begin the hearing process.
  • Either private individual or agency may file complaint.
  • Administrative Hearing: Due Process (Notice and Hearing).

JUDICIAL POWER OF THE AGENCY

Punishment and Enforcement Powers of Agencies.

  • A party who have been found to have violated a regulation would be assessed a monetary penalty
  • Agencies can also grant cease and desist orders
  • An order that makes violator stop the practice that violates a regulation.

JUDICIAL POWER OF THE AGENCY

  • Exhaustion of Administrative Procedures
  • No appeal is allowed until the agency has acted on the matter.
  • Grounds for Appeals
  • Procedural Issues
  • Agency is more likely to be overturned on procedural issues that on issues of facts or law.
  • Substantive Law or Fact Issues
  • Beyond the Jurisdiction of the Agency (Ultra Vires)
  • Arbitrary and Capricious
  • Failure to Give Constitutional Rights to Parties.