SENATE BILL REPORT

SB 5090

BYSenators Halsan, Newhouse, Talmadge and Hayner

Revising the Administrative Procedure Act.

Senate Committee on Judiciary

Senate Hearing Date(s):January 28, 1987; February 10, 1987; February 20, 1987; February 26, 1987; March 3, 1987

Majority Report:  That Substitute Senate Bill No. 5090 be substituted therefor, and the substitute bill do pass.

      Signed by Senators Talmadge, Chairman; Halsan, Vice Chairman; McCaslin, Moore, Nelson, Newhouse.

Senate Staff:Dick Armstrong (786-7460)

                  March 4, 1987

AS REPORTED BY COMMITTEE ON JUDICIARY, MARCH 3, 1987

BACKGROUND:

The purpose of an Administrative Procedure Act (APA) is to govern the procedure by which agencies make decisions and by which agency decisions are subject to review by other branches of government.  Nearly 25 years ago, the Legislature adopted a version of the first Model APA promulgated by the Commission on Uniform State Laws.  In 1981, the Commissioners promulgated a second model act because of changes that had occurred in the activities of state government.

In 1982, the Washington State Bar Association formed a Task Force to evaluate and prepare changes to the state's APA.  Legislation was introduced during the 1986 session, but it was decided that additional input was necessary from the various state agencies.

During the interim, the Task Force has met with representatives of state agencies appointed by the Governor to address the concerns of the agencies.

SUMMARY:

A new Administrative Procedure Act (APA) is established, using the framework of the Model APA.  The act governs most state agencies, not just those which engage in formal rule making and adjudication.  Institutions of higher education are covered by the act.  The act does not include the Legislature, the Governor, the Attorney General, the courts, or local government.

DEFINITIONS

"Agency action" includes the failure to perform any duty that is required by law.  Under certain circumstances, the failure of an agency to comply with a statutory requirement can be reviewed by a court.

"Interpretative statements," which are expressions of agency opinion about the meaning of legal terms and "policy statements," which are descriptions of agency approaches to implementing law, must be published and made available to the public.  Such statements are not binding on the agencies.

PUBLIC ACCESS TO AGENCY RULES

The text of rules, including interpretative and policy statement, must be published and made available to the public.  Declaratory rulings (applicability of a specified circumstance to a statute or rule) must be made by an agency or the reasons for the refusal stated.

RULE-MAKING PROCEDURES

Proposed rules must be published and the public must be given an opportunity to comment on the rules before their adoption. Explanatory comments explaining the rule's purpose must accompany the publication of the rule.

ADJUDICATIVE PROCEEDINGS

An agency must follow the adjudicative process when an issue has arisen which can only be resolved by an agency order determining the legal rights of a person.  Adjudicative procedures must be used to determine contested license cases.

The sections cover such issues as pre-hearing conferences, hearing notice, intervention, broadened discovery, hearsay evidence, official notice, limits on ex parte communication and final orders.  The head of an agency may preside over an adjudication or an administrative law judge must be assigned to the case. Significant authority is given to the presiding officer to control the shape and the manner of the hearing.

Provisions are established for internal agency review of adjudications and the details for adjudication for emergency cases are set forth.

Where full, formal adjudications are inappropriate, provisions are made for a summary adjudication process.  This process is intended to provide a relatively informal procedure for smaller cases -- cases which do not warrant a formal process or are presently decided with no systematic process at all.

JUDICIAL REVIEW AND CIVIL ENFORCEMENT

The bill collects in one place a variety of provisions dealing with the relationship between the courts and the agencies.  In addition, a number of judicial doctrines (case law) that have developed in connection with judicial review are codified for purposes of clarity and consistency.

Provisions are made to address the issue of availability of judicial review of an agency order, i.e., who can get judicial review, what actions are reviewable, where can review be sought, and when is review available.  In general, the draft adjusts the contours of judicial review, not necessarily the quantity of judicial review.

The major doctrinal change is the shift from the standard for reviewing agency determinations of fact from the "clearly erroneous" test back to the "substantial evidence" standard which was in the original Washington act and which is in the federal APA.

Fiscal Note:      requested

Effective Date:July 1, 1989

EFFECT OF PROPOSED SUBSTITUTE:

The bill remains the same as introduced, but certain limited exceptions from the provisions of the act have been made for the following agencies:  Judicial Qualifications Commission, Department of Corrections, Department of Transportation, Department of Natural Resources, Centennial Commission, Institutions of Higher Education, Board of Industrial Insurance Appeals and Department of Labor and Industries, State Personnel Boards, and the National Guard.

The existing APA statute is amended to require an agency prior to adopting a rule to give notice of the time and place of adoption of the rule, a written analysis of the effects of the rule, and any changes in state revenues and expenditures.  In addition, all rules adopted after July 1, 1987 must be reviewed and evaluated after five years from their date of adoption.

Senate Committee - Testified: William Anderson, Washington State Bar Association Task Force; Sharon Nelson, Dean Little, Washington State Bar Association Task Force; Frank Fennery, Board of Industrial Insurance Appeals; Larry Keaney, State Labor Council; Mark Brown, WFSE; Ann Sandstrom, Washington State Bar Association Task Force; Marvin Schurke, PERC; Ted Torve, Attorney General; Stephen D. Lundstron, Washington Administrative Law Judges Association; Dorothy Gerard, Higher Education Personnel Board; Gary Smith, IBA; Brett Buckley, L&I; Patricia McIntyre