tab 1 - american bar...

TAB 1

AMERICAN BAR ASSOCIATIONSECTION OF ADMINISTRATIVE LAW AND REGULATORY PRACTICE

COUNCIL MINUTESTHE WESTIN HOTEL

GRAND BALLROOM III, 4th FLOORSEATTLE, WASHINGTON

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FEBRUARY 8, 20038:20 a.m. - 10:15 a.m.

Call to Order. Section Chair Neil Eisner called the meeting to order. In addition to the Chair, Chair-Elect William Funk, and Representatives to the House of Delegates Ernest Gellhorn and Judith Kaleta, all members of the Council were present except C. Boyden Gray (excused), Jonathan Rusch (excused), David Frederick (excused), John Duffy (excused), Loren Smith (excused), Lisa Whitney, Jim Rossi and Viet Dinh. After the welcome and introduction of persons present, the minutes of the Fall 2002 Council meeting were approved, with technical corrections.1

Statement by ABA President-Elect nominee candidate Earle Lassiter. Mr. Lassiter has been Treasurer of the American Bar Association and has served on its Board of Governors. He said that he would like to see more equitable distribution of resources within the ABA. He noted that only 289,000 of ABA members pay full dues - the rest pay no dues, are eligible for the dues waiver or are law students and graduates. Mr. Lassiter would like to see the ABA host a National Lawyers Day in Washington and would offer “Internet” memberships which would allow members electronic benefit for those too busy to be more active. Chair Report. Chairman Eisner began by thanking Kathy Braeman for overseeing the conduct of the Midyear Meeting programs, which were of exceptional quality and well-attended. He reminded members about the Spring Meeting in San Juan May 2-4, 2003. He noted that OMB published its Draft 2003 Report to Congress on the Costs and Benefits of Federal Regulation. They have asked for public comment by April 3, 2003. Chairman Eisner said that he had asked Richard Parker to take the lead on preparing comments and that Mr. Parker would be working with the Regulatory Initiatives and Rulemaking Committees. Chairman Eisner also noted that Ron Levin was drafting comments on behalf of the Section to be submitted to the ABA Task Force on Blanket Authority. He reported that there had been a planning meeting for the EU administrative law project with interest expressed by several other sections. Finally, the Chair reported that the APA project “prescriptive stage” is proceeding with adjudication recommendations on the Council agenda at this meeting.

1 ? Council Member Merrick Garland abstained from all votes during the Council meeting.

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Chair-Elect Report. Chair-Elect Funk said that he is beginning work on appointments for next fiscal year and encouraged anyone interested in ABA appointments to talk with him before the end of the month.Nominating Committee. Ronald Levin, Past Section Chair and Chair of the Nominating Committee, reported that the Committee had a two part report: (1) to fill a vacancy in the Vice Chair position for which Randy May has been nominated; and (2) continuing its work on bringing a slate of candidates forward at the Spring Meeting to include a Vice Chair (outside the beltway), four Council seats and a Delegate. He encouraged members to let theCommittee know about any recommendations they might have for vacant positions.The Chair then conducted the Section election for the vacant Vice Chair position. Randolph May’s name was moved, seconded and unanimously approved. Delegates Report. Delegate Judith Kaleta reported on the status of the Section’s recommendation on Veterans Affairs. She said that the Judicial Division was offering an amendment on provision 2(c). The ALJs are suggesting the following language “through procedures modeled on those used for selection of ALJs.” Delegate Kaleta noted that the Council rejected that language in the Fall. Therefore, she proposed instead “require Secretary to select members through procedures based on merit selection and decisional independence.” Delegate Kaleta noted that the Commission on Law and Aging had agreed to co-sponsor and that the Senior Lawyers may join as a co-sponsor as well. Several other ABA entities are considering co-sponsorship. After some discussion, Delegate Gellhorn moved approval of Delegate Kaleta’s amended language. The motion was seconded and unanimously approved.Statement by ABA President-Elect nominee candidate Thomas Hayward. Mr. Hayward said that he has been active in the ABA for the past thirty-two years, and has been a member of the House of Delegates since 1984. He said that as the national legal association, the ABA needs to do a better job of representing the profession and raising the image of lawyers. He noted that tough decisions need to be made as traditional funding methods are going down. He said that the ABA needs to ensure revenue flow by convincing more lawyers the ABA is a relevant association.Delegates Report continued. Delegate Gellhorn briefed the Council on recommendation 109. He suggested borrowing language from the report to amend the recommendation by adding “according proper deference to Presidential decisions.” He wondered whether in connection with access to lawyers there could be circumstances where access to an attorney should be constrained. Council Member Leo commended Delegate Gellhorn on trying to fix the language but noted that there is no right to counsel in the habeas context. He said that detainees during periods of hostility are entitled to assistance but the Supreme Court has never said “legal assistance.” Delegate Gellhorn urged the Council to consider three positions: (1) resolution as is (access not denied); (2) introduce amendment (“subject to national security”); or (3) reduce requirement down to “assistance.” Delegate Gellhorn began discussion on Recommendation 118. He opined that the recommendation is not as balanced as it should be. He suggested that language should be added as follows: “except where national security would make open meetings inappropriate.” He also opined that to better balance the resolution, “only for bonafide..”

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should instead be “significant (measurable and substantial). Representatives from the Section of Individual Rights and Responsibilities Section (Mark Agrast, Chair; Elisia Frazier, Delegate; and Glen Stover) and the ABA Standing Committee on Law and National Security (Suzanne Spaulding, Chair) spoke to the Council. They accepted the Council’s draft language change to the recommendation – “bonafide” amended to “not insubstantial.” Suzanne Spaulding requested that the “only” reference be removed because she and the Committee are comfortable with where Congress has drawn the line. She noted that the Task Force didn’t address the issue beyond U.S. citizens and referred specifically to paragraph 3 limited to “other persons.” Council Member Vladeck said that he doesn’t believe that access to counsel should be determined by the Executive Branch. Council Member Asimow suggested that “U.S. citizens” be changed to “permanent residents.” Council Member Leo asked the Council to note page thirty-two of the Federalist Society report distributed to the Council and asked the Council not to put the ABA on record that an attorney has to be involved in these proceedings. Council Member Asimow moved to support the recommendation, taking into account the Delegates draft language changes. The motion was seconded and approved.Statement by ABA President-Elect nominee candidate Michael Greco. Mr. Greco stated that his active tenure in the ABA extended back to 1975. He has been in the House of Delegates for seventeen years, State Delegate and member of the Nominating Committee since 1993, and Chair of the Steering Committee of the Nominating Committee the past two years. He noted several issues of concern: (1) acrimony at federal level and independence of the judiciary; (2) too many attorneys have lost sight of why they went into practice (he would like to see a return to idealism); (3) pushing Senate and House to do their work; and (4) the problem with public perception of attorneys - advertising alone won’t change perceptions but what we do and how well we do it will. In response to a question from Council Member Asimow regarding whether the pro bono requirements in the model rules should be changed from aspirational to mandatory, Mr. Greco said he would recommend a reporting rule but doesn’t believe pro bono can be mandatedThe Chair adjourned the Council Meeting at 10:20 a.m.

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AMERICAN BAR ASSOCIATIONSECTION OF ADMINISTRATIVE LAW AND REGULATORY PRACTICE

COUNCIL MINUTESTHE WESTIN HOTEL

GRAND BALLROOM III, 4th FLOORSEATTLE, WASHINGTON

* * *

FEBRUARY 9, 20038:30 a.m. - 11:25 a.m.

Call to Order. Section Chair Neil Eisner called the meeting to order. In addition to the Chair, Chair-Elect William Funk, Vice Chair Randolph May and Representatives to the House of Delegates Ernest Gellhorn and Judith Kaleta, all members of the Council were present except C. Boyden Gray (excused), David Frederick (excused), John Duffy (excused), Loren Smith (excused), Lisa Whitney, Jim Rossi and Viet Dinh.2

The Chair expressed his thanks once again to Kathy Braemen, Midyear Meeting Program Chair, and staff for their work in making the meeting a success. New Homeland Security Committee. Chair Eisner said that a new committee on homeland security has been created. Lynne Zusman is the Chair and several Vice Chairs have been appointed. Over one hundred section members have signed up for this new committee. A program is being planned for this spring.Ombuds Committee Report. Section Fellow Committee Chair Philip Harter reported on the Committee’s revised notice language in the ombuds standards. He said that the Committee was seeking Council reaction before moving forward and talking with other ABA entities for support. Mr. Harter said that the Committee would present the Council with a draft recommendation and report at the spring meeting in San Juan. A recommendation to add “work to” in Section G2 was offered.Federal Register Online. Michael White reported that there are 4-5,000 subscribers to the online edition of the Federal Register. He said that GPO leadership changed recently so the strategic plan with regard to this initiative is unclear at this point. He said that electronic access opens up process to general citizenry. It was suggested that a link from the Section website be created for benefit of the members.E-Rulemaking. Section Fellow and E-Rulemaking Committee Chair Peter Strauss said that the increasingly electronic character of rulemaking promises changes that the Section should monitor. On the plus side, much more information about the development and data-base of rules is now available on the web, even before the stage of formal proposal; it is increasingly easy to get automatic notice of rulemakings of interest from agencies one follows; OIRA interventions are becoming increasingly visible and available, and so forth. On the less clearly beneficial change, the increase in visibility -- in particular opportunity to see agency data and comments as they are posted -- is making the idea of "responsive comment" more realistic. This may drive rulemaking in the direction of

2 ? Council Member Merrick Garland abstained from all votes during the Council meeting.

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adjudication. He offered the following recommendations: (1) invite a Council liaison from OIRA, the government agency chiefly responsible for overseeing and coordinating these developments, so that the Council and Section are aware of developments as they occur (Council agreed); and (2) use Section's e-mail listserv to conduct a survey from which to generate recommendations for the Council (Council agreed). Thomas Bolling remarked that the DOT site is first rate and should be the standard going forward. In response to a question, Chair Eisner noted that agencies sometimes can not handle the volume of electronic comments and have contractors summarize them. Section Fellow and Nominating Committee Chair Levin said that the FDA had an experience with over 700,000 comments filed on a rule but that they had a sophisticated system to help sort comments.APA Project – Adjudication Proposals. Council Member Asimow referred the Council to the prescriptive proposals. He said the goal is to create a consensual document. He questioned whether the adjudication proposals should be stand-alone or part of the APA Project package? He said he had gotten feedback on the draft from Gary Edles, Bill Funk and John Holmes. The Council went through the proposals contained in Revised Draft January 29, 2003. Council Member Asimow noted that in fact Section A1 and Section A2 are current Association policy and said that while some members oppose Section A2, it is important to the Judicial Division and ALJs. He noted that there is no opposition to Section A3. There was discussion on Section A4 – Chair-Elect Bill Funk suggested adding “or the issue involves the exercise of discretion” and Section Fellow and Nominating Committee Chair Ron Levin suggested instead “unless there is an issue of disputed fact material to violation or to exercise of discretion.” With regard to B1, Council Member Ann Young will send Council Member Asimow a copy of a resolution from two years ago on separation of powers. Section B8 will be removed. Council Member Asimow said that his preference would also be to remove Section C1 (John Homes opposes) and Section C2 (Bill Funk and John Holmes oppose). There was Council discussion on Section C3 – Council Member Asimow speculated that the ALJs might oppose it but Council Member Young thought differences could be worked out so suggested leaving it in for now. There was Council consensus to move forward with recommendations in Section D. The Chair said that debate on these proposed reforms will continue by e-mail and asked that anyone who wanted to be included let Leanne Pfautz, Section Staff Director, know. Adjudication Committee Report. Committee Chair Jodi Levine reported that NCALJ has been continuing to build on the work of the Task Force on Social Security Disability. She said there had been a meeting in October and a letter sent out from ABA President A.P. Carlton. She said that there is a new item out in the President’s budget on Medicare asking for a set-aside so that ALJs are not used in some medicare claims. She noted a recent e-mail she had received and said that she would circulate it to the Council after the meeting (copy attached).Membership. Myles Eastwood, Chair of the Membership Committee, reported that the Section has 14,788 members. In the last six months, the Section has increased its lawyer members by 133 and its law school members by 3,300. The greatest challenge, he said, is to get law school members to stay in this Section after graduation.Blanket Authority. Section Fellow and Nominating Committee Chair Ron Levin asked for comments to his draft of Section comments to the Board of Governors subcommittee

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that is studying the blanket authority process. The draft – which reflects suggestions offered by Jack Young, Randy May and the author - was circulated to the Council by e-mail and comments are due by February 28th. He asked that any further comments be sent to him by e-mail in enough time to submit the Section’s comments by the deadline.Publications Committee. Randy May, Vice Chair and Chair of the Publications Committee, began by thanking Jeffrey Lubbers for editing the newest volume of Developments in Administrative Law and Regulatory Practice. He reported that the warehouse copies of Developments will contain a postcard so that purchasers could subscribe to the annual book. He said that the Guide to Adjudication had already sold 300 copies and the Medicare book had sold 379 copies. He noted that William Luneberg has proposed a new edition of The Lobbying Manual and said that the Section will begin marketing its books through West.Budget. David Roderer, the Section’s Budget Officer, reported that the principal concern with the Section budget continues to be revenues and he questioned whether a dues increase should be considered.Delegates Report continued. Delegate Kaleta asked for the consensus of the Council on the following actions on specific recommendations:109: add “permanent” and the Section will co-sponsor102: change “select” members…to “appoint”…115: add Section as co-sponsor (committees support)

There being no further business, the Chair adjourned the meeting at 11:30 a.m.* * *

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TAB 2Kimberly Knight’s Bio

Kimberly Knight is an association executive with expertise in the areas of marketing, membership recruitment, conferences and meetings, non-dues revenue, and publications. Her most recent experience includes serving as Executive Director of the Women’s Bar Association of D.C. and their related Foundation. Kim was instrumental in helping the Women’s Bar pull out of a deficit situation and revamp programs and services to attract new and lapsed members. Prior to that, Kim was director of marketing and membership for the 10,000-member American Association for Higher Education, where she held responsibility for all event marketing, member services, sponsorship revenue, web development, and the sales and marketing of over 30 publications. Kim has also held management positions with the Newspaper Association of America, and with the Environmental Industry Associations. Kim received her bachelor’s degree from the University of Miami, and is currently enrolled in Georgetown University’s Non-Profit Management Graduate Certificate program.

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Draft Revised Ombuds Standards February 18, 2003

TAB 4AAMERICAN BAR ASSOCIATION

SECTION OF ADMINISTRATIVE LAW AND REGULATORY PRACTICESECTION OF BUSINESS LAW

SECTION OF DISPUTE RESOLUTION

REPORT TO THE HOUSE OF DELEGATES

RECOMMENDATION

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RESOLVED, that the American Bar Association supports the greater use of “ombuds” to receive, review, and resolve complaints involving public and private entities.

FURTHER RESOLVED, that the American Bar Association adopts the amendments to the ABAendorses the Standards for the Establishment and Operation of Ombuds Offices dated August 20013.

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STANDARDS3 FOR THE ESTABLISHMENT AND OPERATION OF OMBUDS OFFICES

PREAMBLE

Ombuds4 receive complaints and questions from individuals concerning people within an entity or the functioning of an entity. They work for the resolution of particular issues and, where appropriate, make recommendations for the improvement of the general administration of the entities they serve. Ombuds protect: the legitimate interests and rights of individuals with respect to each other; individual rights against the excesses of public and private bureaucracies; and those who are affected by and those who work within these organizations.

Federal, state and local governments, academic institutions, for profit businesses, non-profit organizations, and sub-units of these entities have established ombuds offices, but with enormous variation in their duties and structures. Ombuds offices so established may be placed in several categories: A Classical Ombuds is a part of the legislative branch of government operates in the public sector and addressesing issues raised by the general public or internally, usually concerning the actions or policies of government entities, or individuals or contractors with respect to holding agencies accountable to the public. An Executive Ombuds may be located in either the public or private sector and receives complaints concerning actions and failures to act of the entity, its officials, employees and contractors; an Executive Ombuds may either work to hold a the entity or one of its programs accountable or work with entity officials to improve the performance of a program. An Organizational Ombuds may be located in either the public or private sector and ordinarily addresses problems presented by members, employees, or contractors of an entity concerning its actions or policies. Both types may conduct inquiries or investigations and suggest modifications in policies or procedures. An Advocate Ombuds may be located in either the public or private sector and like the others evaluates claims objectively but is authorized or required to advocate on behalf of individuals or groups found to be aggrieved.

As a result of the various types of offices and the proliferation of different processes by which the offices operate, individuals who come to the ombuds office for assistance may not know what to expect, and the offices may be established in 3 These standards modify the Standards for the Establishment and Operation of Ombuds Offices that were adopted by the ABA in August, 2001, in three regards. First, they clarify the issue of notice in Paragraph F; secondly, they provide for a new category of executive ombuds that is described in Paragraph H; third, they modify the definition of classical ombuds and the standards applicable to them to make them conform to the new category of executive ombuds. The 2001 Standards, in turn, expanded on a 1969 ABA resolution to address independence, impartiality, and confidentiality as essential characteristics of ombuds who serve internal constituents, ombuds in the private sector, and ombuds who also serve as advocates for designated populations. 4 The term ombuds in this report is intended to encompass all other forms of the word, such as ombudsperson, ombuds officer, and ombudsman, a Swedish word meaning agent or representative. The use of ombuds here is not intended to discourage others from using other terms.

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ways that compromise their effectiveness. These standards were developed to provide advice and guidance on the structure and operation of ombuds offices so that ombuds may better fulfill their functions and so that individuals who avail themselves of their aid may do so with greater confidence in the integrity of the process. Practical and political considerations may require variations from these Standards, but it is urged that such variations be eliminated over time.

The essential characteristics of an ombuds are:

· independence

· impartiality in conducting inquiries and investigations, and

· confidentiality.

ESTABLISHMENT AND OPERATIONS

A. An entity undertaking to establish an ombuds should do so pursuant to a legislative enactment or a publicly available written policy (the “charter”) which clearly sets forth the role and jurisdiction of the ombuds and which authorizes the ombuds to:

(1) receive complaints and questions about alleged acts, omissions, improprieties, and systemic problems within the ombuds’s jurisdiction as defined in the charter establishing the office

(2) exercise discretion to accept or decline to act on a complaint or question

(3) act on the ombuds’s own initiative to address issues within the ombuds’s prescribed jurisdiction

(4) operate by fair and timely procedures to aid in the just resolution of a complaint or problem

(5) gather relevant information

(6) resolve issues at the most appropriate level of the entity

(7) function by such means as:

(a) conducting an inquiry

(b) investigating and reporting findings

(c) developing, evaluating, and discussing options available to affected individuals

(d) facilitating, negotiating, and mediating

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(e) making recommendations for the resolution of an individual complaint or a systemic problem to those persons who have the authority to act upon them

(f) identifying complaint patterns and trends

(g) educating

(h) issuing periodic reports, and

(i) advocating on behalf of affected individuals or groups when specifically authorized by the charter

(8) initiate litigation to enforce or protect the authority of the office as defined by the charter, as otherwise provided by these standards, or as required by law.

QUALIFICATIONS

B. An ombuds should be a person of recognized knowledge, judgment, objectivity, and integrity. The establishing entity should provide the ombuds with relevant education and the periodic updating of the ombuds’s qualifications.

INDEPENDENCE, IMPARTIALITY, AND CONFIDENTIALITY

C. To ensure the effective operation of an ombuds, an entity should authorize the ombuds to operate consistently with the following essential characteristics. Entities that have established ombuds offices that lack appropriate safeguards to maintain these characteristics should take prompt steps to remedy any such deficiency.

(1) Independence. The ombuds is and appears to be free from interference in the legitimate performance of duties and independent from control, limitation, or a penalty imposed for retaliatory purposes by an official of the appointing entity or by a person who may be the subject of a complaint or inquiry.

In assessing whether an ombuds is independent in structure, function, and appearance, the following factors are important: whether anyone subject to the ombuds’s jurisdiction or anyone directly responsible for a person under the ombuds’s jurisdiction (a) can control or limit the ombuds’s performance of assigned duties or (b) can, for retaliatory purposes, (1) eliminate the office, (2) remove the ombuds, or (3) reduce the budget or resources of the office.

(2) Impartiality in Conducting Inquiries and Investigations. The ombuds conducts inquiries and investigations in an impartial manner, free from

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initial bias and conflicts of interest. Impartiality does not preclude the ombuds from developing an interest in securing changes that are deemed necessary as a result of the process, nor from otherwise being an advocate on behalf of a designated constituency. The ombuds may become an advocate within the entity for change where the process demonstrates a need for it.

(3) Confidentiality. An ombuds does not disclose and is not required to disclose any information provided in confidence, except to address an imminent risk of serious harm. Records pertaining to a complaint, inquiry, or investigation are confidential and not subject to disclosure outside the ombuds’s office. An ombuds does not reveal the identity of a complainant without that person’s express consent. An ombuds may, however, at the ombuds’s discretion disclose non-confidential information and may disclose confidential information so long as doing so does not reveal its source. An ombuds should discuss any exceptions to the ombuds’s maintaining confidentiality with the source of the information.5

LIMITATIONS ON THE OMBUDS’S AUTHORITY

D. An ombuds should not, nor should an entity expect or authorize an ombuds to:

(1) make, change or set aside a law, policy, or administrative decision

(2) make binding decisions or determine rights

(3) directly compel an entity or any person to implement the ombuds’s recommendations

(4) conduct an investigation that substitutes for administrative or judicial proceedings

(5) accept jurisdiction over an issue that is currently pending in a legal forum unless all parties and the presiding officer in that action explicitly consent

(6) address any issue arising under a collective bargaining agreement or which falls within the purview of any existing federal, state, or local labor or employment law, rule, or regulation, unless the ombuds is authorized to do so by the collective bargaining agreement or unless the collective bargaining representative and the employing entity jointly agree to allow the ombuds to do so, or if there is no collective bargaining representative,

5 A classical ombuds should not be required to discuss confidentiality with government officials and employees when applying this paragraph to the extent that an applicable statute makes clear that such an individual may not withhold information from the ombuds and that such a person has no reasonable expectation of confidentiality with respect to anything that person provides to the ombuds.

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the employer specifically authorizes the ombuds to do so, or

(7) act in a manner inconsistent with the grant of and limitations on the jurisdiction of the office when discharging the duties of the office of ombuds.

REMOVAL FROM OFFICE

E. The charter that establishes the office of the ombuds should also provide for the discipline or removal of the ombuds from office for good cause by means of a fair procedure.

NOTICE

F. These standards do not address the issue whether a communication to the ombuds will be deemed notice to anyone else including any entity in or for which the ombuds acts. Important legal rights and liabilities may be affected by the notice issue.

An Ombuds is intended to supplement, not replace, formal procedures. Therefore:

(1) An Ombuds should inform anyone who contacts the Ombuds for help or advice that –

(a) the Ombuds will not voluntarily disclose to anyone outside the Ombuds office, including the entity in which the Ombuds acts, any information the person provides in confidence or the person’s identity unless necessary to address an imminent risk of serious harm or with the person’s express consent;

(b) working with the Ombuds may address the problem or concern effectively, but may not protect the rights of either the person contacting the office or the entity in which the Ombuds operates;

(c) the Ombuds is not, and is not a substitute for, anyone’s lawyer;

(d) important rights may be affected by when formal action is initiated; and

(e) the person may wish to consult a lawyer or other appropriate resource with respect to those rights.

(2) Unless provided otherwise in the Charter —

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(a) an Ombuds who functions in accordance with Paragraph C of these standards should not be deemed by anyone, including the entity in which the Ombuds operates, to be an agent of any person or entity other than the Office of the Ombuds for purposes of receiving notice of alleged violations, and

(b) communications made to the Ombuds should not be imputed to anyone else, including the entity in which the Ombuds acts.

(3) If the Ombuds communicates with representatives of the entity concerning an allegation by an individual, whether or not the communication constitutes "notice" to the entity is a question that should be determined by the facts of the communication.

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CLASSICAL OMBUDS

G. A classical ombuds is established by the legislature as part of the legislative branch a public sector ombuds who receives complaints from the general public or internally and addresses actions and failures to act of a government agency, official, or public employee, or contractor. In addition to and in clarification of the standards contained in Paragraphs A-F, a classical ombuds:

(1) should be appointed by the legislative body or by the executive with confirmation by the legislative body6

(2) should be authorized to work to hold agencies within the jurisdiction of the office accountable to the public and to assist in legislative oversight of those agencies

(13) should be authorized to conduct independent and impartial investigations into matters within the prescribed jurisdiction of the office

(24) should have the power to issue subpoenas for testimony and evidence with respect to investigating allegations within the jurisdiction of the office

(35) should be authorized to issue public reports, and

(46) should be authorized to advocate for change both within the entity and publicly.

(5) should, if the ombuds has general jurisdiction over two or more agencies, be established by legislation7 and be viewed as a part of and report to the legislative branch of government.

EXECUTIVE OMBUDS

H. An executive ombuds may be located in either the public or private sector and receives complaints from the general public or internally and addresses actions and failures to act of the entity, its officials, employees, and contractors. An executive ombuds may either work to hold the entity or specific programs accountable or work with officials to improve the performance of a program. In addition to and in clarification of the standards contained in Paragraphs A-F, an executive ombuds:

(1) should be authorized to conduct investigations and inquiries6 This restates the 1969 ABA Resolution, which remains ABA policy, that a classical ombuds should be “appoint[ed] by the legislative body or . . . by the executive with confirmation by the designated proportion of the legislative body, preferably more than a majority, such as two thirds.”7 The 1969 ABA Resolution, which remains ABA policy, provided that a classical ombuds should be “appoint[ed] by the legislative body or . . . by the executive with confirmation by the designated proportion of the legislative body, preferably more than a majority, such as two thirds.”

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(2) should be authorized to require the full cooperation of the program over which the ombuds has jurisdiction, including where appropriate subpoena power

(3) should be authorized to issue reports on the results of the investigations and inquires, and

(4) if located in government, should not have general jurisdiction over more than one agency or subject matter, but may have jurisdiction over a subject matter that involves multiple agencies.

ORGANIZATIONAL OMBUDS

HI. An organizational ombuds facilitates fair and equitable resolutions of concerns that arise within the entity. In addition to and in clarification of the standards contained in Paragraphs A-F, an organizational ombuds should:

(1) be authorized to undertake inquiries and function by informal processes as specified by the charter

(2) be authorized to conduct independent and impartial inquiries into matters within the prescribed jurisdiction of the office

(3) be authorized to issue reports

(4) be authorized to advocate for change within the entity.

ADVOCATE OMBUDS

IJ. An advocate ombuds serves as an advocate on behalf of a population that is designated in the charter. In addition to and in clarification of the standards described in Paragraphs A-F, an advocate ombuds should:

(1) have a basic understanding of the nature and role of advocacy

(2) provide information, advice, and assistance to members of the constituency

(3) evaluate the complainant’s claim objectively and advocate for change relief when the facts support the claim

(4) be authorized to represent the interests of the designated population with respect to policies implemented or adopted by the establishing entity, government agencies, or other organizations as defined by the charter, and

(5) be authorized to initiate action in an administrative, judicial, or legislative forum when the facts warrant.

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TAB 4BREPORT

The American Bar Association (ABA) adopted a resolution in 1969 recommending that state and local governments consider establishing ombudsmen who would be authorized to inquire into administrative action and to make public criticism. That policy also recommended that the statute or ordinance creating the ombudsmen contain twelve essential points. The ABA then adopted a resolution in 1971 recommending that the Federal government experiment with the establishment of ombudsmen for certain geographical areas, specific agencies, or for limited phases of Federal activities. In 2001, ABA the adopted resolution supporting the greater use of “ombuds8” to receive, review, and resolve complaints involving public and private entities. That policy also endorsed Standards for the Establishment and Operations of Ombuds Offices (Standards). The 2001 Resolution and Standards broadened the ABA’s existing policy to address ombuds who are appointed within government, academia, and the private sector, and who respond to complaints from individuals from within and outside the entity. The 2001 Resolution and the Standards also clarified that independence, impartiality in conducting inquiries and investigations, and confidentiality are essential characteristics of all ombuds. Ombuds must operate consistently with these essential characteristics to discharge the duties of the office effectively.

This Resolution recognizes that entities that create ombuds offices should adhere to the Standards for the Establishment and Operations of Ombuds Offices, dated August 2003. The fundamental underlying premise of this resolution is that all ombuds must operate with certain basic authorities and essential characteristics. The effort here is to provide practical advice and guidance on the structure and operation of ombuds offices so that ombuds may better fulfill their functions and so that individuals who avail themselves of their aid may do so with greater confidence in the integrity of the process. These Standards modify the Standards for the Establishment and Operation of Ombuds Offices that were adopted by the ABA in August, 2001, in three regards. First, they clarify the issue of notice in Paragraph F; secondly, they provide for a new category of Executive ombuds that is described in Paragraph H; third, they modify the definition of Classical Ombuds in Paragraph G and the Standards applicable to them to make them conform to the new category of Executive ombuds.

INTRODUCTION Over the past three decades, and particularly recently, an extraordinary

growth in the number and type of ombuds has taken place. Congress has established several ombuds in various programs. In addition to specific

8 The term ombuds in this report is intended to encompass all other forms of the word such as ombudsperson, ombuds officers, and ombudsman, a Swedish word meaning agent or representative. The use of ombuds here is not intended to discourage others from using other terms.

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legislation concerning ombuds, the Administrative Dispute Resolution Act authorizes Federal agencies to use “ombuds.” As a protector of individual rights against the excesses of public and private bureaucracies, an ombuds receives complaints and questions from individuals concerning the functioning of an entity, works for the resolution of particular issues, and where necessary, makes recommendations for the improvement of the general administration of the entity. As an independent, impartial, and confidential complaint handler, an ombuds serves as an alternative means of dispute resolution – a means by which issues may be raised, considered, and resolved.

Federal, state and local governments, academic institutions, for profit businesses, non-profit organizations, and sub-units of these entities have established ombuds offices, but with enormous variation in their duties and structures. Ombuds offices so established may be placed in several categories. A Classical Ombuds is established by the legislature as part of the legislative branch and addresses issues raised by the general public or internally, usually concerning the actions or policies of a government agency, official, public employee, or contractor. An Executive Ombuds may be located in either the public or private sector and receives complaints from the general public or internally and addresses actions or failures to act of the entity, its officials, employees, or contractors; an Executive Ombuds may either work to hold the entity or specific programs accountable or work with officials to improve the performance of a program. An Organizational Ombuds may be located in either the public or private sector and ordinarily addresses problems presented by members, employees, or contractors of an entity concerning its actions or policies. An Advocate Ombuds may be located in either the public or private sector, and like the others evaluates claims objectively but is authorized or required to advocate on behalf of individuals or groups found to be aggrieved.

As a result of the various types of offices and the proliferation of different processes by which the offices operate, individuals who come to the ombuds’s office for assistance may not know what to expect, and the offices may be established in ways that compromise their effectiveness. The ABA endorsed Standards that were developed to provide advice and guidance on the structure and operation of ombuds offices to the end that ombuds may better fulfill their functions and so that individuals who avail themselves of their aid may do so with greater confidence in the integrity of the process. The ABA action was based on the collaborative efforts of the Sections of Administrative Law and Regulatory Practice and of Dispute Resolution who worked together and appointed a steering committee consisting of representatives from the Coalition of Federal Ombudsmen, the National Association of State Ombudsman Programs, the International Ombudsman Institute (IOI subsequently withdrew), The Ombudsman Association, the United States Ombudsman Association, and the University and College Ombuds Association, as well as other experts in the field. The committee consulted with numerous ombuds from Federal, state, and local agencies, academic institutions,

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companies, and non-profit organizations. Further, it solicited, received, and considered comments from the international community of ombuds. Within the ABA, the Commission on Legal Problems of the Elderly, based on its experience with advocate ombuds, was instrumental in distinguishing among the types of ombuds. The Section of Business Law collaborated extensively with the committee to further the understanding and appreciation of the role of the ombuds in the business environment. Consultations with the Section of Labor and Employment Law resulted in refining the ombuds’ jurisdiction.

The Standards for the Establishment and Operation of Ombuds Offices dated August 2001 have been widely distributed and utilized by Federal, state and local governments, academic institutions, for profit businesses, non-profit organizations, and sub-units of these entities. For example, Congress is currently considering legislation to reauthorize an ombuds at the U.S. Environmental Protection Agency and has relied upon the ABA’s Standards in defining the position.

To ensure that ombuds can protect individual rights against the excesses of public and private bureaucracies, now, again, the Sections of Administrative Law and Regulatory Practice, Business Law, and Dispute Resolution have worked together and with the ombuds community and other ABA entities to develop a resolution to support amendments to the Standards for the Establishment and Operations of Ombuds Offices.

STANDARDSSection A. Establishment and Operations

An ombuds is a person who is authorized to receive complaints or questions confidentially about alleged acts, omissions, improprieties, and broader, systemic problems within the ombuds’s defined jurisdiction and to address, investigate, or otherwise examine these issues independently and impartially.

Importantly, the ombuds’s jurisdiction – who complains and who or what are complained about – needs to be defined in advance, setting out the scope of the duties and authority. The ombuds’s jurisdiction must be defined in an official act that establishes the office, which is appropriately called the “charter” in the Standards. The charter may be a legislative enactment9 or a publicly available written policy. The jurisdiction may be limited to a defined constituency or population. For example, a state ombuds may receive complaints or questions from any person, while a university student ombuds may receive complaints or questions only from students at that university, and a long-term care ombuds has jurisdiction only to resolve complaints initiated by or on behalf of residents receiving long-term care.

9 The “legislative enactment” might be in a constitution, statute, local government charter, or local ordinance depending on the establishing jurisdiction.

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The ombuds determines whether to accept or to act on a particular complaint or question. The ombuds also has the discretion to initiate action without receiving a complaint or question. An ombuds may determine that the complaint is without merit. Or, an ombuds may receive a complaint or question on a specific topic and conduct an inquiry on a broader or different scope.

Appropriate subjects for an ombuds to review include allegations of unfairness, maladministration, abuse of power, abuse of discretion, discourteous behavior or incivility, inappropriate application of law or policy, inefficiency, decision unsupported by fact, and illegal or inappropriate behavior. It is essential that the ombuds operate by fair procedures to aid in the just resolution of the matter. Ombuds need access to all information relevant to a complaint or a question so that the review is fair and credible, and the charter should authorize access to all relevant information. The entity must be responsible for protecting those seeking assistance from or providing information to the ombuds from personal, professional, or economic retaliation, loss of privacy, or loss of relationships.

An ombuds may make a formal or informal report of results and recommendations stemming from a review or investigation. If such a report is issued, the ombuds should generally consult with an individual or group prior to issuing a report critical of that individual or group, and include their comments with the report. Moreover, the ombuds should communicate the outcome, conclusion or resolution of a complaint or an inquiry to the complainant and may also communicate with other concerned entities or individuals.

In addition, to ensure the office’s accountability, an ombuds should issue and publish periodic reports summarizing the ombuds’s findings and activities. This may include statistical information about the number of contacts with the ombuds, subjects that the ombuds addressed, evaluation by complainants, etc. These reports may be done annually, biannually, or more frequently.

In receiving complaints or questions and examining problems, the ombuds may use a variety of dispute resolution and other techniques. These processes include: conducting an inquiry; investigating and reporting findings; developing, evaluating, and discussing the options which may be available for remedies or redress; facilitating, negotiating, and mediating; making recommendations for the resolution of an individual complaint or a systemic problem to those persons who have authority to act on them; identifying complaint patterns and trends; and educating.

As necessary, the ombuds may advocate on behalf of affected individuals or groups when authorized by the charter and the situation warrants that action. An ombuds may initiate litigation to enforce or protect the authority of the office. For example, if an ombuds issues a subpoena and the subpoena is

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ignored, the ombuds should be able to initiate litigation to compel a response. In addition, an ombuds may initiate litigation as otherwise provided by these standards or as required by law. For example, an advocate ombuds should be authorized to initiate action in an administrative, judicial, or legislative forum when the facts warrant.

An ombuds uses the powers of reason and persuasion to help resolve matters. The goal of the ombuds’s efforts is to provide a path to fairness and justice. Therefore, the ombuds’s quest is to seek the fair and just resolution of the matter.

Section B. QualificationsAn ombuds should be a person of recognized knowledge, judgment, objectivity, and integrity. The establishing entity should provide the ombuds with relevant education and the periodic updating of the ombuds’s qualifications.

Section C. The Essential CharacteristicsThe original 1969 resolution contained twelve essentials for the ombuds

described in it. These have been distilled and expanded in the Standards. The core qualities are independence, impartiality in conducting inquiries and investigations, and confidentiality. Without them, an ombuds cannot discharge the duties of the office effectively. The Standards therefore provide that an entity should authorize an ombuds it establishes to operate consistently with these essential characteristics to ensure the effective operation of the duties of the office. The Standards also recognize, however, that some entities may have already established offices that lack appropriate safeguards to comply fully with the characteristics. The Standards then provide that such entities should take prompt steps to remedy any such deficiency.

1. Independence in structure, function, and appearanceTo be credible and effective, the office of the ombuds is independent in

its structure, function, and appearance. Independence means that the ombuds is free from interference in the legitimate performance of duties and independent from control, limitation, or a penalty imposed for retaliatory purposes by an official of the appointing entity or by a person who may be the subject of a complaint or inquiry. In assessing whether an ombuds is independent, the following factors are important: whether anyone subject to the ombuds’s jurisdiction or anyone directly responsible for a person under the ombuds’s jurisdiction (a) can control or limit the ombuds’s performance of duties, or (b) can, for retaliatory purposes, (1) eliminate the office, (2) remove the ombuds, or (3) reduce the office’s budget or resources.

Historically, ombuds were created in parliamentary systems and were established in the constitution or by statute, appointed by the legislative body, and had a guarantee of independence from the control of any other officer, except for responsibility to the legislative body. This structure remains a

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model for ensuring independence for Classical Ombuds, and a number of states have followed it. In more recent times, however, Executive Ombuds have been created by public officials without legislation, by regulation or decree, and by private entities. Ensuring the independence of the ombuds is equally important in these instances, but will require other measures. 10

Great care has to be exercised in establishing the ombuds structure to ensure that the independence described in the resolution is, in fact, achieved. Choosing which of these approaches are appropriate will depend on the environment. The instrument used to establish independence should be the strongest available and should guarantee the independence of the ombuds from control by any other person.

The twelve essential characteristics of the 1969 ABA Resolution continue to serve as the model for an ombuds reporting to the legislative branch of government who is authorized to investigate administrative action, help provide legislative oversight, and offer criticism of agencies from an external perspective. While there are a number of potential avenues of achieving independence, experience on the state and local level has demonstrated rather consistently that unless there is a structural independence for these ombuds akin to the 1969 ABA Resolution that independence will not be accomplished and the office will not be able to function as envisioned in this resolution and the accompanying standards.

Structuring independence for ombuds who serve inside organizations require similar care. These elements should be in the charter. The ombuds position should be explicitly defined and established as a matter of organizational policy, authorized at the highest levels of the organization; the ombuds should have access to the chief executive officer, senior officers and the oversight body or board of directors of the organization; the ombuds should also have access to all information within the organization, except as restricted by law; and the

10 In the United States since the late 1960s, a number of other ways have been developed to ensure independence. Examples of approaches that contribute to an ombuds’s independence include: establishment of the office through a formal act of a legislature or official governing body of an organization; establishment outside the entity over which the ombuds has jurisdiction; a direct reporting relationship to a legislative body, the official governing body of an organization or the chief executive; designation as a neutral who is unaligned and objective; a broadly defined jurisdiction not limited to one part of the entity or one subject matter; appointment or removal of the ombuds free of influence from potential subjects of a complaint or inquiry; a set term of office; no reporting relationship to someone with assigned duties that conflict with the ombuds’s role; no assignment of duties other than that of the ombuds function; specifically allocated budget and sufficient resources to perform the function; freedom to appoint, direct, and remove staff; sufficient stature in the organization to be taken seriously by senior officials; placement in an organization at the highest possible level and at least above the heads of units likely to generate the most complaints; discretion to initiate and pursue complaints and inquiries; access to and resources for independent legal advice and counsel; prohibition of disciplinary actions against the ombuds for performing the duties of the office; removal only for cause; provision of an employment contract that the ombuds will receive a significant severance provision if terminated without good cause.

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ombuds should have access to resources for independent legal advice and counsel.

The Standards recognize that at this time there are ombuds who have not achieved this goal. The Standards urge and anticipate that these variations will be eliminated over time.

2. Impartiality in conducting inquiries and investigationsThe ombuds’s structural independence is the foundation upon which the ombuds’s impartiality is built. If the ombuds is independent from line management and does not have administrative or other obligations or functions, the ombuds can act in an impartial manner.

Acting in an impartial manner, as a threshold matter, means that the ombuds is free from initial bias and conflicts of interest in conducting inquiries and investigations. Acting in an impartial manner also requires that the ombuds be authorized to gather facts from relevant sources and apply relevant policies, guidelines, and laws, considering the rights and interests of all affected parties within the jurisdiction, to identify appropriate actions to address or resolve the issue.

The ombuds conducts inquiries and investigations in an impartial manner. An ombuds may determine that a complaint is without merit and close the inquiry or investigation without further action. If the ombuds finds that the complaint has merit, the ombuds makes recommendations to the entity and/or seeks resolution for a fair outcome. Impartiality does not, however, preclude the ombuds from developing an interest in securing the changes that are deemed necessary where the process demonstrates a need for change nor from otherwise being an advocate on behalf of a designated constituency. The ombuds therefore has the authority to become an advocate for change where the results of the inquiry or investigation demonstrate the need for such change. For example, when an ombuds identifies a systemic problem, it would be appropriate for the ombuds to advocate for changes to correct the problem. An advocate ombuds may initiate action and therefore serve as an advocate on behalf of a designated population with respect to a broad range of issues and on specific matters when the individual or group is found to be aggrieved. But, when determining the facts, the ombuds must act impartially.

3. ConfidentialityConfidentiality is an essential characteristic of ombuds that permits the

process to work effectively. Confidentiality promotes disclosure from reluctant complainants, elicits candid discussions by all parties, and provides an increased level of protection against retaliation to or by any party. Confidentiality is a further factor that distinguishes ombuds from others who receive and consider complaints such as elected officials, human resource personnel, government officials, and ethics officers.

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Confidentiality extends to all communications with the ombuds11 and to all notes and records maintained by the ombuds in the performance of assigned duties. It begins when a communication is initiated with the ombuds to schedule an appointment or make a complaint or inquiry. Confidentiality may apply to the source of the communications and to the content of the communications. Individuals may not want the ombuds to disclose their identity but may want the ombuds to act on the information presented. Therefore, an ombuds does not reveal the identity of a complainant without that person’s consent. The ombuds may, however, disclose confidential information so long as doing so does not compromise the identity of the person who supplied it. It should be emphasized that the decision whether or not to disclose this information belongs to the ombuds, and it would not be appropriate for anyone to demand that the ombuds disclose such information, except as required by statute. To the extent that an ombuds may not maintain confidentiality, the ombuds should discuss those exceptions with individuals who communicate with the office.

The authorizing entity should allow the ombuds to provide confidentiality of the identity of persons who communicate with the ombuds and of information provided in confidence. The authorizing entity should not seek information relating to the identity of complainants nor seek access to the ombuds’s notes and records.

Providing for confidentiality and protection from subpoena in a statute is particularly important because, where statutes have not provided confidentiality, state courts have not consistently recognized an ombuds privilege nor granted protective orders to preserve the confidentiality of communication made to ombuds. One Federal district court, Shabazz v. Scurr, 662 F. Supp. 90 (S.D. Iowa 1987), recognized a limited privilege under Federal law for an ombuds with a state statutory privilege. The only Federal circuit court to have addressed the issue, Carman v. McDonnell Douglas Corp., 114 F. 3d 790 (8th Cir. 1997), failed to recognize an ombuds privilege.

Short of explicit statutory authority, ombuds offices should adopt written policies that provide the fullest confidentiality within the law. These policies should be publicly available, broadly disseminated, and widely publicized. Several existing model ombuds acts and policies of ombuds organizations address confidentiality.

An ombuds will rarely, if ever, be privy to something that no one else knows. Therefore, providing confidentiality protection to the ombuds allows the ombuds to perform assigned duties while at the same time, society continues to

11 For example, the Model Ombudsman Statute for State Governments that was developed by the Ombudsman Committee of the Section of Administrative Law and Regulatory Practice in 1974 directs the ombudsman to “maintain secrecy in respect to all matters and the identities of the complainants or witnesses coming before him.” See, Bernard Frank, State Ombudsman Legislation in the United States, 29 U. Miami L.R. 379 (1975).

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have access to the underlying facts. As evidenced by the statutes and policies that have been developed, there may be instances in which other, competing societal interests dictate that the ombuds must disclose some information. If an individual speaks about intending harm to himself or herself or others, an entity may require an ombuds to disclose this information. Moreover, an ombuds may be compelled by protective service laws or professional reporting requirements to report suspected abuse.

Section D. Limitations on the ombuds’s authorityAn ombuds works outside of line management structures and has no direct power to compel any decision. The office is established by the charter with the stature to engender trust and to help resolve complaints at the most appropriate level of the entity. To ensure the ombuds’s independence, impartiality, and confidentiality, it is necessary to establish certain limitations on the ombuds’s authority.

An ombuds should not, nor should an entity expect or authorize an ombuds to make, change, or set aside a law, policy or administrative/managerial decision, nor to directly compel an entity or any person to make those changes. While an ombuds may expedite and facilitate the resolution of a complaint and recommend individual and systemic changes, an ombuds cannot compel an entity to implement the recommendations.

It is essential that an ombuds operate by fair procedures which means that the actions taken will likely vary with the nature of the concern, and that care must be taken to protect the rights of those who may be affected by the actions of an ombuds. Furthermore, since due process rights could well be implicated, it would not be appropriate for the ombuds’s review to serve as the final determination for any disciplinary activity or civil action, nor as a determination of a violation of law or policy. An ombuds’s inquiry or investigation does not substitute for an administrative or judicial proceeding. In an administrative or judicial proceeding, the deciding official should not consider the ombuds’s review or recommendations to be controlling. Rather, the deciding official must conduct a de novo examination of the matter.

Moreover, it would not be appropriate for the ombuds to act as an appellate forum when a complainant is dissatisfied with the results in a formal adjudicatory or administrative proceeding. Thus, an ombuds should not take up a specific issue that is pending in a legal forum without the concurrence of the parties and the presiding officer. It may, however, be fully appropriate for an ombuds to inquire into matters that are related to a controversy that is in litigation so long as they are not the subject of the suit.

Further, an ombuds should not address, nor should an entity expect or authorize an ombuds to address, any issue that is the subject of a collective bargaining agreement. There are two potential exceptions to this general prohibition: An ombuds may address issues concerning employees who have a

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lawfully designated collective bargaining agreement if: (1) the ombuds is authorized to do so by the collective bargaining agreement covering the employees or (2) the collective bargaining representative and the employing entity jointly agree to allow the ombuds to do so.

Even where there is no collective bargaining agreement, the involvement of an ombuds in matters that fall within the purview of labor or employment laws raises sensitive issues that may implicate the rights and liabilities of the parties under those laws, such as the issue of notice mentioned in Section F of the Standards. Accordingly, the Standards contemplate that an employer, in establishing an ombuds office, should consider its overall policies for maintaining compliance with those laws, and determine in that light whether to authorize the ombuds to address those matters. That recommendation is in no way intended to suggest, however, that a policy of authorizing an ombuds to address labor- or employment-related matters should be a suspect or disfavored practice. On the contrary, involvement in such matters is a role typically performed by Organizational Ombuds, and the growing reliance on ombuds at institutions across the country is largely attributable to the broad satisfaction with ombuds' fulfillment of that role on the part of both management and the affected employees. Thus, the language in the Standards indicating that an employer should specifically authorize an ombuds to address labor- or employment-related matters does not require any detailed or ponderous recitals. Rather, it should be read as simply a particularized application of the generalized expectation in Section A of the Standards that the jurisdiction of an ombuds office should be identified in its charter.

Finally, an ombuds should not act in a manner inconsistent with the grant and limitations on the jurisdiction of the office when discharging the duties of the office of ombuds.

Section E. Removal from officeEntities which establish ombuds offices need to ensure their accountability. Therefore, the charter that establishes the office of ombuds should also provide for the discipline or removal of the ombuds for good cause by means of a fair procedure.

Section F. NoticeWhen meeting with an ombuds, people discuss allegations of unfairness, maladministration, abuse of power, and other sensitive subjects. They may fear personal, professional, or economic retaliation, loss of privacy, and loss of relationships. Faced with sexual or racial harassment, for example, many people will quit, get sick, or suffer in silence. People often need help in developing ways to report or act so that these matters will be considered and resolved. Because an ombuds is intended to supplement, not replace, formal procedures, the Standards address actions that ombuds should take to clarify

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the relationship between working with an ombuds and seeking legal redress and continue to elaborate on the consequences of that relationship.

Communications must be protected if people are to be willing to visit and speak candidly with the ombuds. As noted above, some ombuds have confidentiality protected by law. Under these Standards, entities that establish an ombuds should authorize the ombuds to operate with confidentiality and independence, and an ombuds should inform anyone who contacts the ombuds offices, that the ombuds will not voluntarily disclose to anyone outside the ombuds office, including the entity in which the ombuds operates, any information the person provides in confidence or the person’s identity, unless necessary to address the imminent risk of serious harm or with the person’s express consent. Further, the ombuds should describe to persons that working with the ombuds is an informal process that may well address the person’s concern effectively, but doing so may not protect that person’s legal right or indeed, those of the entity for whom the ombuds functions. Moreover, the ombuds needs to make clear that the ombuds is not serving as anyone’s lawyer — not for the complainant nor for the entity.

The Standards are designed to make sure that a person coming to the ombuds will be aware that legal rights might well be at stake and that the person may have to take action beyond working with the ombuds to protect those rights. This is to ensure that the person approaching the ombuds office to redress some particular problem understands that protecting rights may depend on just when formal action is initiated. Working with the ombuds does not change that requirement or the specific time when the action must be started. So that the person is not lulled into putting off checking what those rights are, the Standards provide that the ombuds should inform the person that he or she may wish to consult a lawyer or other appropriate resource (such as a union representative, for example) with respect to preserving and protecting those rights.

Unless the charter establishing the ombuds office provides otherwise, if an ombuds functions in accordance with these Standards by operating with confidentiality and independence, what is told to the ombuds will not be told to anyone in the entity itself, and hence it would not be appropriate or accurate to impute it to the entity — that is, hold the entity responsible for knowing something that it cannot know. Therefore, the Standards provide that the ombuds should not be deemed an agent of any person or entity other than the Office of the Ombuds for purposes of receiving notice of alleged violations and any communication to the ombuds should not be imputed to any other person, including the entity. Rather, the ombuds would be deemed independent of the entity itself for these purposes. Thus, it would not be appropriate for the ombuds to accept notice on the entity’s behalf with respect to any alleged grievance, in absence of contrary language in the charter.

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The Standards recognize, however, that the ombuds’s actions may well provide actual notice to the entity. When an ombuds works to address an issue, he or she will usually need to work with those in the entity. The ombuds may provide enough information — even though confidentiality is maintained — that the entity in fact is on notice that a potential offense has occurred. The Standards provide that when an ombuds communicates with representatives of the entity concerning an allegation by an individual, whether or not that communication constitutes “notice” to the entity is a question that should be determined by the facts of the communication and applicable law.

Thus, the Standards draw a clear distinction between communications to an ombuds when the ombuds makes no further communication to the entity and those situations where the ombuds communicates with agents of the entity. In the former case, the Standards would provide that it is not appropriate to impute the communication to the entity since it has no way of learning what was communicated. But in the second instance, whether or not the entity has notice depends on the facts of the situation and the applicable law.

Section G. Classical Ombuds

A Classical Ombuds is established by the legislature as part of the legislative branch and receives complaints from the general public or internally and addresses actions and failures to act of a government agency, official, public employee, or contractor. For Federal, state, and local governments that want to create a Classical ombuds who would be authorized to address, investigate or inquire into administrative action and to criticize agencies, officials, and public employees, the ABA’s 1969 policy continue to serve as a model.12 A Classical Ombuds should be appointed by the legislative body or by the executive with confirmation by the legislative body.13 A Classical Ombuds should be authorized to work to hold agencies within the

12 The twelve essential characteristics that were identified in the original ABA resolution continue to have vitality and remain ABA policy. They are: (1) authority of the ombudsman to criticize all agencies, officials, and public employees except courts and their personnel, legislative bodies and their personnel, and the chief executive and his personal staff; (2) independence of the ombudsman from control by any other officer, except for his responsibility to the legislative body; (3) appointment by the legislative body or appointment by the executive with confirmation by the designated proportion of the legislative body, preferably more than a majority of the legislative body, such as two thirds; (4) independence of the ombudsman through a long term, not less than five years, with freedom from removal except for cause, determined by more than a majority of the legislative body; (5) a high salary equivalent to that of a designated top officer; (6) freedom of the ombudsman to employ his own assistants and to delegate to them, without restrictions of civil service and classifications acts; (7) freedom of the ombudsman to investigate any act or failure to act by any agency, official, or public employee; (8) access of the ombudsman to all public records he finds relevant to an investigation; (9) authority to inquire into fairness, correctness of findings, motivation, adequacy of reasons, efficiency, and procedural propriety of any action or inaction by any agency, official, or public employee; (10) discretionary power to determine what complaints to investigate and to determine what criticisms to make or to publicize; (11) opportunity for any agency, official, or public employee criticized by the ombudsman to have advance notice of the criticism and to publish with the criticism an answering statement; and, (12) immunity of the ombudsman and his staff from civil liability on account of official action.

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jurisdiction of the office accountable to the public and to assist in legislative oversight of those agencies. A Classical Ombuds may conduct inquiries or investigations and suggest modifications in policies or procedures. To ensure access to all pertinent facts, a Classical Ombuds should be granted subpoena power for testimony and evidence relevant to an investigation. In addition, a Classical Ombuds should be authorized to issues public reports and to advocate for change both within the entity and publicly.

Section H. Executive Ombuds An Executive Ombuds may be located in either the public or private sector and receives complaints from the general public or internally and addresses actions and failures to act of the entity, its officials, employees, and contractors. An Executive Ombuds may either work to hold the entity or specific programs accountable or work with officials to improve the performance of a program. In addition, an Executive Ombuds should be authorized to conduct investigations and inquiries. An Executive Ombuds should also be authorized to require the full cooperation of the program over which the ombuds has jurisdiction, including, where appropriate, subpoena power. It may not be appropriate, however, to authorize subpoena power where an Executive Ombuds has been established to receive complaints from regulated entities with regard to an agency’s regulatory or enforcement activities. An Executive Ombuds should be authorized to issue reports on the results of the investigations and inquiries. Finally, if located in government, an Executive Ombuds should not have general jurisdiction over more than one agency, but may have jurisdiction over a subject matter that involves multiple agencies. For example, an Executive Ombuds may oversee a variety of governmental agencies having jurisdiction over child welfare, crime victims, or mental health issues.

Section I. Organizational OmbudsAn Organizational Ombuds ordinarily addresses problems presented

by members, employees or contractors of an entity concerning its actions or policies. An Organizational Ombuds may undertake inquiries and advocate for modifications in policies or procedures.

Section J. Advocate OmbudsThe Advocate Ombuds may be located in either the public or private sectors, and like the Classical and Organizational Ombuds, also evaluates claims objectively. However, unlike other ombuds, the Advocate Ombuds is authorized or required to advocate on behalf of individuals or groups found to be aggrieved. Because of the unique role, the Advocate Ombuds must have a basic understanding of the nature and role of advocacy. In addition, the Advocate Ombuds should provide information, advice, and assistance to members of the population identified in the law or publicly available written

13 This restates the 1969 ABA Resolution, which remains ABA policy, that a classical ombuds should be “appoint[ed] by the legislative body or . . . by the executive with confirmation by the designated proportion of the legislative body, preferably more than a majority, such as two thirds.”

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policy. Further, the Advocate Ombuds represents the interests of a designated population with respect to policies implemented or adopted by the establishing entity and government agencies.

CONCLUSIONGovernment, academia, and the private sector are answering demands for fairness and responsiveness by establishing ombuds. Ombuds receive complaints and questions concerning the administration of the establishing entity. However, the basic authorities of these persons called ombuds and the independence, impartiality, and confidentiality with which they operate vary markedly. An ombuds works for the resolution of a particular issue, and where necessary, makes recommendations for the improvement of the general administration of the entity. To be credible and effective, the office of the ombuds must be independent in structure, form, and appearance. The ombuds’s structural independence is the foundation upon which the ombuds’s impartiality is built. The ombuds must conduct investigations and inquiries in an impartial manner, free from initial bias and conflicts of interest. Confidentiality is a widely accepted characteristic of ombuds, which helps ombuds perform the functions of the office. Without these Standards, individuals may be reluctant to seek the ombuds’s assistance because of fear of personal, professional, or economic retaliation, loss of privacy, and loss of relationships. This Resolution and the Standards for the Establishment and Operation of Ombuds Offices are appropriate now to ensure that ombuds can protect individual rights against the excesses of public and private bureaucracies. Practical and political considerations may require variations from these Standards, but it is urged that such variations be eliminated over time.

Respectfully submitted,

Neil R. EisnerChair, Section of Administrative Law and Regulatory Practice

Harold S. BarronChair, Section of Business Law

Bruce E. MeyersonChair, Section of Dispute Resolution

August 2003

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TAB 5ASTATEMENT IN SUPPORT OF

THE ACADEMY FOR THE ADMINISTRATIVE PROCESS

The processes government agencies use to make decisions are complex, difficult, and continually evolving. The flexible, scant procedures outlined in the Administrative Procedure Act have been supplemented by numerous Executive Orders, judicial decisions, and ad hoc statutory requirements. Moreover, since the APA was enacted in 1946 significant changes have taken place in the management structure of the Federal government, and there are new forms of public-private interaction, new developments in the relationship between Federal and State governments, and new perceptions as to how the government should function when making important decisions. Officials in each agency must confront all of these demands each time they take action. As a result, similar choices must be made over and over again in the halls of Washington about how to make decisions.

Oftentimes officials have little information as to how well a program implemented by another agency worked or little guidance as to how the duties could be successfully discharged or major pitfalls avoided. Many who deal regularly with multiple agencies have witnessed the dire need for some means by which agencies can share insights and experiences and to gain expert advice as to the best ways to go about the public’s business. Without it, agencies necessarily incur high transaction costs by repeatedly reinventing similar procedures; the lack also means the best ideas are not recognized, strengthened, and used more widely nor the worst improved or discarded.

Further, advice would be helpful both to Congress and the agencies as to the potential structure of new ways to achieve public goals and to respond to public inquiries and criticisms about how individual agencies have functioned. And, Congress and the agencies alike could benefit from the insights and advice of those who are directly affected by the administrative process and from those who study it from a variety of perspectives.

We currently lack the means to refine how we do the public’s business: no office or organization regularly convenes a broadly representative group of experts to deliberate about how to improve the quality of the administrative process. A permanent entity is needed that can be devoted to solving the problems of excess costs, delays, and burdens that are imposed upon the agencies and upon the public by inadequate, inefficient, and duplicative government processes.

Individual agencies, while they have the ability to review their own performance, lack the capacity to make cross-cutting agency reforms and comparisons. Furthermore, agencies acting alone cannot make the necessary procedural reforms for the improvement of administrative process as a whole. A forum for collegial self-critique and development of effective administrative

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practices is eminently desirable. Moreover, a forum is needed that can bring a sense of unity to administrative agencies and promote an appropriate degree of uniformity in their procedures. Congress should, therefore, establish such an institution that will systematically seek to promote improvements in the administrative process.

The primary purpose of such a new entity would be to care for the improvement of the administrative process. In doing so, it would examine government procedures and practices, with the goal being to search for new ways of helping governmental agencies function more fairly, efficiently, and effectively. The organization could play a leading role in the development of domestic administrative law doctrines. One of its foremost functions would be to review and evaluate whether the basic law governing administrative procedure, the Administrative Procedure Act (“APA”), as well as other procedural requirements should be revised and updated. It could also be charged with arranging for the interchange among administrative agencies of information potentially useful in improving administrative procedures. Another role it could discharge would be the preparation of resource documents, bibliographies, and advice and recommendations on various topics confronted by agencies.

Such an organization could also focus on the more minute details of the administrative process as well. Specifically, it could study and adopt recommendations concerning better rule-making procedures, or ways to avoid legal technicalities, controversies, and delays through agency use of alternative means of dispute resolution. For example, the exploding use of the internet and other forms of electronic communication present wonderful opportunities for increasing the information available to our citizens and their participation in our affairs. But, tapping these resources and making sure they work effectively and efficiently is itself a daunting task. The entity could collect information and statistics from administrative agencies and publish reports that could be useful for evaluating and improving administrative procedure. It could also evaluate the judicial review of agency actions and make recommendations for its improvement. A major issue confronting the administrative process that has emerged forcibly in the past few years is the delicate balance of open government in a time of concern over national security and the means by which requirements are imposed on our citizens and businesses to protect our homeland.

Another purpose for establishing the new body could be to serve as a regulatory ombuds. It could in appropriate circumstances investigate and respond to individual complaints and undertake a systematic performance review of various government agencies, especially of those agencies with serious operational and programmatic problems. Individual agencies themselves often resist any critical self-evaluation in response to public complaints due to burdensome workloads, inertia, or a failure to admit the flaws in one’s own prior decisions. An independent, objective entity, unfettered by internal agency politics and its own inertia, can offer meaningful recommendations to improve the operational structure of administrative agencies.

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The entity could also be a repository on administrative processes that the various state governments could call upon for high quality administrative procedural advice. It could consider ways to improve federal, state, and local relations in different areas, including those in which state and local agencies administer federal programs. The organization could attempt to promote cooperation and coordination on interstate administrative procedural matters to foster a responsible and efficient administrative process among the several states. The entity would be equipped to advise state agencies and their staffs of significant legal developments and emerging trends occurring in the area of administrative procedure.

Another major issue in administrative procedure comes from the international harmonization of laws and regulations. As a result of harmonization, many domestic regulations will need to be changed to bring them into conformity with the international requirements. Just how that is to be done is a complex, controversial issue that needs to be addressed.

The entity should be structured to give objective, non-partisan analysis and advice. If the new organization is afforded sufficient independence from particular policy-based responsibilities, its recommendations will be given credence and can be seen as a detached analysis. The structural makeup would be unique in that it would bring together an inter-disciplinary collection of experts in the administrative process. Membership would preferably include: committed senior management agency officials, professional agency staff, representatives of diverse perspectives the private sector who deal frequently with agencies, leaders of public interest organizations, highly regarded scholars from a variety of disciplines, and respected jurists. The problems that the organization will address will include management as well as legal issues. Thus, the panel of the organization’s experts should be comprised of members with both legal backgrounds and those who may not have legal training, such as management, public administration, political science, dispute resolution, and law and economics. State interests should also be included in the entity’s membership by sending representatives from certain state agencies or state organizations.

After having studied the matter, we believe that it is appropriate to create such an entity in the private sector based on the highly successful model of the National Academy of Sciences. Being in the private sector, it can achieve a detached, independent expertise that would be difficult to achieve if it were a part of the government itself. But, it must also be structured in such a way that the government agencies, officials, and employees, as well as the Administration, feel confident in the integrity of its work and are comfortable participating in its affairs. Considerable thought has gone into that structure to accomplish these ends.

We therefore propose that Congress establish “The Academy for the Administrative Process.” While the Academy will be in the private sector, like the National Academy of Sciences, having it chartered by Congress will demonstrate a Congressional imprimatur for its activities. The Academy will consist of

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individuals who are experts in administrative law and the administrative process, with the actual number of members to be established in the Academy’s Bylaws. That expertise may come via government position, practicing before agencies, or scholarship. It may be in law, public administration, management, economics, or political affairs. It will be governed by a Board of Directors. The Board will consist of ten members appointed by the President of the United States, half of whom shall be officers or employees of the Federal Government and the others should reflect a diverse mix of interests and expertise. The Chief Executive Office of the Academy, who will also be its public persona, will be its Chair who will be appointed by the President of the United States for a 5 year term. The Chair of the Academy will appoint the members of the Academy with the approval of the Board.

The Board will be responsible for adopting bylaws that would govern the affairs of the Academy. The Academy would meet in plenary session at least once per year unless the Board explicitly decided otherwise. The Academy would be authorized to receive bequests, donations, and grants, and to enter into contracts to perform functions within its charter. It would also be authorized to receive appropriated funds to discharge its responsibilities.

The Academy for the Administrative Process will help significantly in ensuring that our public decisions are made effectively, efficiently, and fairly. That is clearly a major undertaking, but one the Academy is structured to discharge for the benefit of us all.

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TAB 5BCHARTER OF

THE ACADEMY FOR THE ADMINISTRATIVE PROCESS

Article 1. CharterArticle 2. PowersArticle 3. Objectives and PurposesArticle 4. MembershipArticle 5. Board of Directors; Composition; ResponsibilitiesArticle 6. Chair of the AcademyArticle 7. BylawsArticle 8. Minutes; Financial RecordsArticle 9. ActivitiesArticle 10. DissolutionArticle11. Amendments

Article 1. CharterBe it enacted by the Congress, The Academy for the Administrative Process is hereby established as an independent, non-partisan, and objective entity and shall be granted the authority to act conferred upon it by this Charter.

Article 2. Powers The Academy for the Administrative Process (hereinafter referred to as the “Academy”) shall have the power:

1. To adopt, alter, and use an official seal.

2. To adopt, amend, and alter bylaws, not inconsistent with this Charter, for the regulation of its affairs.

3. To choose such officers, members, agents, and employees as the activities of the Academy may require.

4. To do any other acts and things, not inconsistent with this Charter, as may be necessary and proper to carry out the purposes of the Academy.

Article 3. Objectives and PurposesThe objectives and purposes of the Academy shall be:

1. To care for the organization and protection of the administrative process.

2. To develop new ways to help administrative agencies function more fairly, efficiently, and effectively in carrying out administrative programs.

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3. To promote improvements in the quality of administrative agencies and the administrative process.

4. To evaluate any unnecessary costs, delays, and burdens imposed upon the various administrative agencies by inadequate, inefficient, and duplicative administrative processes.

5. To make cross-cutting agency comparisons and to formulate the necessary procedural reforms for the improvement of the administrative process as a whole.

6. To facilitate communication among administrative agencies and to arrange for the interchange of information potentially useful in improving the administrative process.

7. To serve as a forum for the self-critique of administrative agencies.

8. To bring a sense of unity to administrative agencies and to promote an appropriate degree of uniformity in their procedures.

9. To review and evaluate whether the basic law governing administrative procedure, the Administrative Procedure Act or any related statute or other procedural requirement, require revision and updating.

10. To study and adopt recommendations concerning better rule-making procedures, and ways to avoid legal technicalities, controversies, and delays through agency use of alternative means of dispute resolution.

11. To evaluate judicial review of agency actions and make appropriate recommendations to the end that it might be more expeditious and contribute to the development and improvement of the administrative process.

12. To consider ways to improve federal, state, and local relations in different areas, including those in which state and local government agencies administer federal programs.

13. To advise state and local government agencies and their staffs on significant legal developments and emerging trends occurring in the area of administrative procedure.

14. To consider new ways of achieving public goals through the greater reliance on the private sector, and the procedures that would make these means more effective, efficient, and accountable as well as more acceptable to government agencies and the affected constituencies in the private sector.

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15. To provide assistance in response to requests relating to the improvement of administrative procedure in foreign countries, and make recommendations for the appropriate means by which American agencies undertake to modify their regulations in response to international harmonization and treaty requirements.

16. To bring together an inter-disciplinary collection of experts in the administrative process to deliver results in the improvement of the administrative process through recommendations agency accountability.

17. To receive and investigate, as appropriate, complaints and inquiries about how individual agencies have functioned, and thereby serve as an Ombuds for the administrative process.

18. To make recommendations for the improvement of the Administrative Process to Congress, the President, Federal Agencies, States, State instrumentalities, and Federal and State Courts.

Article 4. Membership The Academy shall consist of individuals from the public, private, academic, and not-for-profit sectors who are experts in administrative law and the administrative process. That expertise may come via government position, professional interactions with agencies, or scholarship. It may be in law, public administration, management, economics, dispute resolution, or political affairs. The members of the Academy shall be appointed by the Chair of the Academy with the approval of the Board of Directors. Members shall be selected in a manner which will provide broad and diverse representation of the views on administrative law and the administrative process.

Article 5. Board of Directors; Composition; ResponsibilitiesThe Academy shall have a Board of Directors composed of a Chair and 10 other members. The Board of Directors shall be appointed by the President of the United States for a term of 3 years, serving at the will of the President. Half of the members of the Board shall be officers or employees of the United States Government, and the others shall be experts in the administrative process who reflect a diverse mix of interests and perspectives. The Board of Directors shall be the governing body of the Academy and shall, during intervals between meetings of the members, be responsible for the general policies and programs of the Academy. The Board of Directors shall be responsible for the control of all funds administered by the Academy.

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Article 6. Chair of the AcademyThe Chair is the Chief Executive Officer of the Academy who shall be appointed to a 5 year term by the President of the United States without the advice and consent of the Senate. The Chair shall serve at the will of the President.

Article 7. BylawsThe Academy shall adopt, amend, and alter bylaws, not inconsistent with this Charter, for the regulation of its affairs, including:

1. The number of members of the Academy.

2. The term for members, and the number of terms a member may serve.

3. The officers of the Academy.

4. The establishment of such committees as appropriate.

5. The meetings and other functions of the Academy by which it discharges its responsibilities under this Charter.

Article 8. Minutes; Financial RecordsThe Academy shall keep minutes of the proceedings of its members, Board of Directors, and committees having authority under the Board of Directors. It shall also keep books and records of its financial transactions. After the close of each fiscal year, the accounts of the Academy shall be audited by independent certified public accountants.

Article 9. Activities1. The Academy may, whenever called upon by Congress, the Administration,

an agency, a State, or any state instrumentality, investigate and report upon any subject of the administrative process, broadly construed. The reasonable expenses of such investigations and reports may be paid by the requesting entity.

2. The Academy is authorized to receive donations and bequests, and to enter into contracts for the provision of services.

3. The Academy is authorized to use, with their consent, the services and facilities of Federal Agencies and of State and private agencies and instrumentalities with or without reimbursement.

4. No part of the income or assets administered by the Academy shall inure to any member or director of the Academy, or be distributed to any such person during the life of the Academy or upon its dissolution or final liquidation. Nothing in this section

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shall be construed to prevent the payment of reasonable compensation to the Chair, agents, and employees of the Academy, or to provide reimbursement for actual necessary expenses for participation in the affairs of the Academy by members of the Board of Directors and the members of Academy in amounts approved by the Board of Directors.

5. The Academy is authorized to receive appropriated funds for the purposes of fulfilling its activities and responsibilities under this Charter.

6. The Academy shall not make any loan to any director, member, agent, and employee of the Academy.

7. The Academy is not an agency of the Federal Government for any purpose and shall not claim Congressional approval or Federal Government authority for any of its activities other than by mutual agreement.

8. Section 15 of the Federal Advisory Committee Act, 5 U.S.C. Appendix 2 § 15, shall apply to the Academy in the same manner and to the same effect as it applies to the National Academy of Sciences. The Freedom of Information Act, 5 U.S.C. § 552 shall apply to the Academy as if it were an agency.

Article 10. DissolutionUpon final dissolution or liquidation of the Academy, and after discharge or satisfaction of all the outstanding obligations and liabilities for which it is responsible, the remaining assets in the hands of the Academy shall be distributed in a manner that is consistent with the purposes of the Academy and in accordance with all applicable restrictions and obligations of the Academy.

Article 11. AmendmentsCongress expressly reserves the right to alter, amend, or repeal this Charter.

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TAB 6

POSSIBLE PRESCRIPTIVE RECOMMENDATIONS: ADJUDICATIONRevised Draft April 15, 2003

Submitted by Michael Asimow This memo contains prescriptive recommendations arising out of the adjudication

portion of the Section's APA project. They are revised in light of the discussion at the Winter, 2003 meeting and input I've received since that meeting, particularly from Ann Young and Bill Funk. Please discard all drafts dated prior to April 15, 2003. They will serve as the basis for discussion at a meeting of the Adjudication Committee at the San Juan meeting and for a Council discussion. .

Please note that this draft contains a quite important (and undoubtedly controversial) proposal for extending certain APA provisions to a range of adjudicatory decisions conducted by administrative judges (AJs) that are presently not covered by the statute. (Part A).

The assumption is that these recommendations will be submitted to the ABA House of Delegates for approval. This will require a more detailed statement of reasons for each recommendation as well as a preamble. The HOD document should state that it repeals previous HOD action that is inconsistent with these recommendations (the reference here is to a set of recommendations for APA revision that were approved by our Section and the HOD in 1970 and which are inconsistent with these recommendations in important respects). A. Informal adjudication. In response to suggestions by Ann Young and Bill Funk, I suggest a radical departure from existing law (which basically provides no protections for private parties except in the narrow band of cases in which ALJs preside). . The APA would be amended to provide for three tiers of adjudication.

Tier 1 is the existing statute in which ALJs conduct formal hearings (also including those few situations in which Congress requires the existing APA adjudication provisions to be followed even though ALJs are not employed) . Tier 1 applies when a statute requires a "hearing on the record." Under the new default provision discussed in B.2., Tier 1 will also apply to adjudicatory hearings called for in future statutes (even if not "on the record") unless Congress provides the contrary. Other than those changes described in B. and C. below, Tier 1 would not change from its existing form.

Tier 2 will apply to all evidentiary adjudicatory hearings required by statute that are not covered by Tier 1. The word "hearing" is intended to exclude such things as public, rulemaking-type hearings or informal inquiries, but to include those hearings in which a neutral decisionmaker is required to decide the case based on the evidence submitted at the hearing.

Included are a large number of statutory schemes including immigration and naturalization, civil penalties, license modifications, government contracts, veterans' benefits, and many others. Hearing officers who are often referred to as administrative

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judges (AJs) preside in these hearings (AJs may be full-time decisionmakers or may be agency staff members who do judging part-time).

Under the proposal, certain provisions of the existing APA will apply to all Tier 2 hearings unless Congress otherwise provides. The provisions that will apply are separation of functions, prohibition on ex parte contacts, requirement of impartiality, requirement of notice, the requirement that a party have an opportunity to present its case by oral or documentary evidence and to conduct cross examination, and the requirement of a written decision.

We might also provide that agencies subject to both Tier 1 and Tier 2 must adopt a code of ethics for their judges. A comment could refer agencies to the 2001 ABA resolution calling for adoption of ethics codes adapted from the ABA Model Code of judicial conduct in light of the unique characteristics of the administrative judiciary and the particular agency.

Tier 3 applies to all other adjudicatory decisions (that is, those in which no evidentiary hearing is required by statute. Tier 3 applies to millions of informal interactions between federal government officials and private parties in which the official is empowered to make a final decision. Some of these decisions are quite important to the people involved, some would be considered trivial.

Just to name a few, Tier 3 includes decisions: · about prisoners (such as removal to a different prison), · by consular officials denying a visa to a foreign national, · by banking officials denying an application to open a new bank· by a postal clerk about the amount of postage a customer must pay for· by an official of a service academy over who will conduct the band· concerning hiring and other employment decisions not otherwise

controlled by statute· concerning government contracting when not otherwise controlled by

statute · by a forest ranger about who gets a campsite.

Proposed statute: APA §551(7.5): Tier 1 adjudication means agency process for the formulation of

an order where §554 applies under the standards of §554(a) [that is, where statute calls for a hearing on the record or where the new default provision in B.2. applies]

§551(7.6): Tier 2 adjudication means agency process for the formulation of an order when a statute requires an evidentiary hearing but §551(7.5) does not apply [that is, where the statute calls for a hearing but not a hearing "on the record" or where Congress has specified that the APA shall not apply]

551 (7.7): Tier 3 adjudication means agency process for the formulation of an order where neither §551(7.5) or §551(7.6) do not apply [that is, all other instances of adjudication]

§560: In cases of Tier 2 adjudication, as defined in §551(7.6), the following provisions will apply: [here listing the APA's provisions on separation of functions; ex parte contacts; impartiality; right to notice, present evidence, and cross examine; written decision; transcripts]. Agencies shall adopt regulations setting forth a code of ethics for judges in Tier 2 adjudications.

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§561: Tier 3 adjudication: (a) This section applies when §551(7.7) applies and neither §551(7.5)

nor §551(7.6) apply. (b) A party subject to a proposed agency order shall be afforded either notice of the terms of the proposed order or notice of the subjects or issues involved in the informal proceeding. When an order will not be addressed to a particular party, notice shall be published or given in a manner calculated to reach interested persons. A party subject to a proposed order shall be entitled to inspect the agency file applicable to the party's case (if such file

exists).

(c) After notice, the party subject to the proposed order and other interested persons shall be allowed to participate in the informal process through submissions in writing or orally, at the agency's option.

(d) The decisionmaker in the case shall be impartial and shall not be an "adversary" (as defined in the discussion of separation of functions). (e) The agency's order, or decision not to issue an order, shall be accompanied by a brief oral or written statement of reasons and basis for the order, if any. If the decision is adverse to a private party, the decision shall inform the party of any opportunity for agency reconsideration of the decision.

Rationale: At present, informal adjudication is the black hole of administrative law. The term "informal adjudication" covers proceedings that in fact involve quite formal hearings (as in government contract or deportation cases) but others that involve little more than an agency letter denying an application or that involve relatively trivial interactions between government and private parties.

This proposal breaks informal adjudication into two parts: relatively formal evidentiary hearings to which the existing APA does not apply (Tier 2) and informal encounters between government and private party in which no hearing is provided (Tier 3). Certain important protective provisions of the existing APA (Tier 1) will be applied to Tier 2 but not to Tier 3 cases.

The idea of Tier 2 is that federal agency adjudication has spread far beyond the APA provisions which require ALJs to conduct hearings. There are no provisions assuring fair procedure in this vast area (other than due process). It is not politically feasible to extend the existing APA (and its requirement that hearings be conducted by ALJs) to all those other hearing schemes. Therefore, it would be worthwhile to expand the APA to provide basic procedural protections in these agency proceedings not covered by the existing APA. This would be a truly dramatic expansion of the APA and would, for the first time, give it the same kind of universal coverage in the world of adjudication that it already has in the world of rulemaking, judicial review, and access to information.

I caution this three-tier system is complex and difficult to explain to people. It will also be difficult to draft statutory language to establish Tier 2, to distinguish Tier 2

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cases from Tier 3 cases, and to provide a set of procedures that would work across the rather vast universe of Tier 2 cases without causing undue problems.

Many agencies would plead for exemptions from Tier 2 restrictions and there will be a huge legislative fight on this subject that could bog down the whole bill. (Recall the way in which the INS, after Wong Yang Sung, got itself exempted from the APA because it objected to separation of functions). An important issue is whether Tier 2 should apply to hearings required by due process but not by statute (also whether it should apply to hearings required by regulations but not by statute).

As a possible indication of what the statute might look like, consider the provisions in the new California APA. The CA statute preserved a Tier 1, which was the existing APA adjudication statute. Tier 1 applies mostly to professional licensing and uses a corps of central panel ALJs. (Thus it is parallel to the proposed federal Tier 1 in which ALJs are used although they are not in a central panel).

The CA statute then provides for Tier 2--which is all other adjudicatory proceedings in which a hearing is legally required--and provides for basic procedural protections in Tier 2). Here is the way it is drafted: CA Gov't Code §§11,410.10: "This chapter applies to a decision by an agency if, under the federal or state Constitution or a federal or state statute, an evidentiary hearing for determination of facts is required for formulation and issuance of the decision." §11,425.10 then sets forth an "administrative adjudication bill of rights" applicable to all adjudications as defined in §11,410.10.

The proposals for Tier 3 are designed to provide basic protections in cases of adjudication where no hearing is legally required. Tier 3 apply to situations--many (but by no means all) quite trivial--in which an agency denies a benefit, makes a decision about licensing, employment, education, land use, or contracting, or imposes some sort of fee, penalty or other detriment. The intention is to provide only rudimentary requirements that would not result in formalizing existing procedures or increasing agency costs. These provisions set forth the basic minima for a civilized interaction between a government official and a private person.14 Of course, where due process calls for greater procedural formality than provided by this section, the due process norms would apply.

The requirements of Tier 2 and 3 apply only to adjudication, not to rulemaking. Under the revised definition of adjudication discussed in B.3., adjudication means a final disposition of an agency in a matter that is of particular, rather than general, applicability. The statute should make clear that decisions under informal process are not subject to the various statutes and executive orders imposing procedural requirements on rulemaking.B. Application of the APA Adjudication Provisions

1. When Congress sets up a new program involving adjudications with opportunity for hearing, it should consider and explicitly determine whether the new program will be subject to APA formal adjudication provisions.

Congress should consider the following factors:

14 See Warner W. Gardner, The Procedures By Which Informal Action is Taken, 24 Admin. L. Rev. 155, 163-66 (1972); Paul Verkuil, A Study of Informal Adjudication Procedures, 43 U. Chi. L. Rev. 739, 780-92 (1976).

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a. Whether the adjudication is likely to involve substantial impact on personal liberties or freedom, orders that carry with them a finding of criminal-like culpability, imposition of sanctions with substantial economic effect, or determination of discrimination under civil rights or analogous laws.

b. Whether the adjudication would be similar to, or the functional equivalent of, a current type of adjudication in which an administrative law judge presides.

c. Whether the adjudication would be one in which adjudicators ought to be lawyers. (Judicial Division previously resolution adopted by the HOD)

2. Congress should amend the APA to provide prospectively that absent a statutory requirement to the contrary, in any future legislation that creates opportunity for hearing in an adjudication, such hearing shall be subject to the APA's formal adjudication provisions (§§554, 556, 557). (Judicial Division resolution adopted by the HOD.

Reasons for 1. and 2: The APA adjudication provisions now apply only when a statute other than the APA calls for a "hearing on the record." Where a statute calls for an adjudicatory hearing but does not use the magic words "on the record," it has been difficult to decide whether the APA applies. The case law is conflicting. This resolution (already adopted by the HOD) calls for Congress to carefully consider this issue when it adopts a new program calling for hearings. It also provides a prospective-only default rule that the APA applies whenever Congress fails to provide the contrary.

This resolution makes sense. Congress should consider this issue carefully when it adopts a new adjudication provision; and there should be a clear default rule that applies when Congress fails to consider it. The default provided here will nudge the federal administrative system in the direction of more comprehensive APA coverage and away from further atomization of administrative adjudication. Generally agencies are well aware of legislation that affects them and the burden should be on them to inform Congress if they think APA adjudication is inappropriate.

Several members have expressed concern with the default rule since it could extend the APA and the system of ALJ decisionmaking to inappropriate cases because of Congressional oversight in drafting new legislation. At the very least, the comment should make clear that the default is not triggered by amendment of an existing statute, only by enactment of an entirely new statute calling for a new regulatory scheme. Others urge that we change this recommendation so that it would not apply in cases "where it would be clearly inappropriate."

If the recommendation relating to Tier 2 adjudication (D. below) is adopted, this recommendation must be altered so that it makes clear that it affects whether a particular adjudicatory scheme is subject to Tier 1 or Tier 2 provisions.

3. Delete the words "or particular" from APA §551(4). Also delete "and includes the approval or prescription for the future of rates, wages, corporate or financial structure or reorganizations thereof, prices, facilities, appliances, services or allowances therefore or of valuations, costs, or accounting, or practices bearing on any of the foregoing."

Rationale: At present, the APA definitions of adjudication and rulemaking are defective. Rulemaking is the process for formulating a "rule." A "rule" is a "statement of

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general or particular applicability and future effect designed to implement, interpret or prescribe law or policy…" Adjudication is the process for formulating an "order" and an "order" means a "final disposition . . . in a matter other than rule making but including licensing."

The proposed change will make clear that agency action of general applicability is a rule and agency application of particular applicability is adjudication. Under the existing definitions, for example, an FTC cease and desist order would be rulemaking (since it is agency action of particular applicability and future effect), but everyone treats such orders as adjudication. (From APA Recommendations approved in 1970 by our section and the HOD). As under existing law, a rule that in practice would apply to only a single person is still a rule (rather than an adjudication) as long as it is stated in general terms and it is theoretically possible that it could apply to additional persons. An agency's grant of exemption from a rule to a particular person would be an adjudication.

4. No oral APA hearing (involving the presentation of witnesses and cross examination) is required unless the party requesting one can demonstrate the existence of a disputed issue of material fact that it is necessary to resolve.

Rationale: This provision would codify existing case law and affirm that agencies can use summary judgment procedure to resolve cases in which there is no disputed issue of material fact. An APA oral hearing could be required if there is a disputed issue of material fact arising out of the agency's exercise of discretion (such as setting a sanction).

Agencies should adopt procedural rules to explain how their system of summary judgment will function and how they will determine whether there is a disputed issue of material fact. C. Separation of functions.

APA §554(d), stating the general requirement of internal separation of functions, should be clarified in the following respects. The existing statute is poorly drafted and has not been clarified by case law. As a result there is a good deal of uncertainty over the meaning of the existing statute.

Probably the provision on separation of functions should be moved to a separate APA provision rather than being part of the section that defines when the formal adjudication provisions apply. (It would be applied to Tier 2 cases if that idea is adopted--see A above).

These recommendations are designed to clarify the statute in a way that will make a broader range of advice available to upper-level agency adjudicators such as agency heads. It should be noted that these recommendations do not touch on or suggest changes to APA §554(d)(1). This provision relates to ALJs (as opposed to other agency adjudicatory decisionmakers) and provides that ALJs cannot "consult a person or party on a fact in issue, unless on notice and opportunity for all parties to participate." Thus it is not intended to alter the existing strict requirements of separation of functions at the ALJ level.

1. Separation of functions applies only if the proceeding is prosecutorial or accusatory in nature. With respect to government benefits (such as loans or grants), separation of functions should apply only in cases of termination or reduction of such benefits.

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Rationale: There is a long-standing and unsettled issue of whether §554(d) applies to matters that do not involve sanctions. As discussed below, §554(d) is explicitly inapplicable to initial licensing and ratemaking or other proceedings involving public utilities or carriers. But it is unclear whether it applies to such proceedings as the modification of a water pollution permit or a nuclear power plant license. Many such proceedings are polycentric in nature, are quite complex and technical, and involve high economic stakes. Agency decisionmakers need all the help they can get in deciding such matters, which suggests separation of functions may do more harm than good.

Most of such cases involve initial licenses or ratemaking (or other public utility type determinations) and so are already exempt from separation of functions; this change would add a relatively small number of cases that would also be excepted. Note that this recommendation would not change §554(d)(1) which prohibits ALJs from consulting with any person or party on a fact in issue, regardless of whether the matter is prosecutorial or accusatory in nature. Of course, agencies that wish to separate functions in these cases could continue to do so; the amendment would allow them to choose whether to separate functions or not..

The existing statute is ambiguous on this point because it disqualifies "prosecutors or investigators" from taking part in decisionmaking, which suggests that it might apply only to prosecutorial-type proceedings. To clarify this uncertainty, we propose limiting the APA separation of functions provision to prosecutorial-type determinations.

Separation of functions should also be inapplicable to cases involving applications for government benefits, but should apply to cases involving termination or reduction of such benefits. See also B.7. for clarification of separation of functions in Social Security cases.

2. The phrase "employee or agent engaged in the performance of investigative or prosecuting functions" should be clarified.

This phrase should refer to a staff member whose role in that proceeding or a factually related proceeding is likely to cause him or her to identify with or against the interest of one of the parties. It includes a staff member who at any time participates personally and significantly as an investigator or in planning, developing or presenting evidence in that proceeding or a factually related proceeding. It does not include a person who served as a presiding officer or assistant to the presiding officer in an earlier stage of the proceeding.

The phrase does not include a staff member who served as a supervisor or a subordinate of a prosecutor or investigator unless the staff member became personally and significantly involved in the case in the manner described in the preceding paragraph. Nor does it include a staff member who participates in an insignificant manner (such as by answering a technical question) or who participates in a collateral matter (such as in judicial review or rulemaking).

Rationale: This change should clarify §554(d) by providing a more precise definition of the "prosecutors or investigators" who are disqualified from serving as decisionmakers or as advisers to decisionmakers. At present, these issues are unclear and this uncertainty may cause agencies to separate functions where they would not be legally required to do so.

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The change identifies the persons who should be disqualified (those who have acquired a will to win or would appear to have acquired it) and distinguishes between such persons and others in the administrative hierarchy who should not be disqualified from decisionmaking or advising decisionmakers. The goal here is to exclude persons whose work on a case might have predisposed them (or appeared to predispose them) toward one particular outcome from others whose contact with the case has been more peripheral or who were in roles that would not cause them to acquire such predispositions (or appear to do so). Because agency decisionmakers often need advice on pending matters, only those persons who have acquired (or would appear to have acquired)strong predispositions should be disqualified.

3. Separation of functions is not violated when decisionmakers or advisers to decisionmakers communicate with prosecutors or investigators for the purpose of deciding whether to investigate a matter, start a proceeding, or set a case for formal hearing (or to frame the issues to be considered at a formal hearing).

Rationale: This provision codifies existing case law but it would be useful to state it clearly in the statute. For example, the decision whether to issue a complaint often occurs in a meeting in which the agency heads discuss the evidence with agency prosecutors. Later the agency heads decide the same case. Case law appropriately establishes that separation of functions is not offended by this common procedure.

If agency heads were prohibited from engaging in such meetings, it would be a bad result because often the decision whether to issue a complaint or start an investigation is often the most critical determination in the entire case. The interests of regulated parties are well served if agency heads can participate in that meeting and, in some cases, decide not to launch a proceeding that the staff wants to launch. Of course, agencies would be free to exclude agency heads from such preliminary meetings if they wish to do so.

4. The "agency head" exception does not permit agency heads to consult off the record with prosecutors or investigators with respect to an adjudication after the adjudication is initiated.

Rationale: The agency head exception in the existing statute, §554(d)(C), excludes "the agency or a member or members of the body comprising the agency" from the separation of functions provision. This exception is poorly drafted and has remained unclear since 1946.

This suggestion follows the interpretation in the Attorney General's Manual. According to the Manual, the exception was intended to allow agency heads to personally participate in all phases of case investigation and development, then decide the matter on final review. But the Manual says that the provision was not intended to permit adversary staff members to furnish off-the-record advise to the agency heads when they decide an adjudicatory matter at the agency-head level. This recommendation provides the necessary clarification.

5. Separation of functions is not violated when decisionmakers or advisers to decisionmakers communicate with prosecutors or investigators with respect to

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collateral matters such as informal public meetings, budget planning, informal rulemaking, or Congressional testimony.

Rationale: This recommendation prevents separation of functions from interfering unduly with agency tasks other than formal adjudication.

6. A staff member who takes part in the predecisional or collateral matters described in paragraphs 3. or 5. is not thereby disqualified from later serving as a decisionmaker (other than as an ALJ) or an adviser to decisionmakers. A staff member who receives legally proper ex parte communications from outside parties before being designated as an adviser to the decisionmakers is not thereby disqualified from serving as an adviser. If feasible, however, the staff member should disclose the ex parte communications. A staff member should not serve as a decisionmaker or an adviser to decisionmakers if participation in collateral matters, or outsider ex parte contacts, have caused (or appear to have caused) that staff member to prejudge the matter or become unable to provide objective advice.

Rationale: This recommendation prevents separation of functions from excluding too many decisional advisers. Participation in predecisional or collateral matters should not strongly predispose a staff member in favor of the agency's side in an adjudicatory matter.

Frequently, staff members receive ex parte contacts that are legal under APA §557(d) because the employee was not "expected to be involved in the decisional process of the proceeding." Later that staff member is tapped as a decisional adviser. Again, that staff member should be available as an adviser despite the exposure to ex parte information and the legal ex parte contact should not become retroactively illegal.

The recommendation calls for the adviser to disclose the ex parte communications if it is feasible to do so. It might not be feasible if the communication was oral and there was no contemporaneous record of its contents.

This recommendation does not overrule Grolier, Inc. v. FTC, 615 F.2d 1215 (9th Cir. 1980). Grolier held that a staff member exposed to investigatory data while serving as attorney-adviser to a commissioner is barred from later serving as an ALJ in the same matter. A party exposed to predecisional or investigative material, or to prior ex parte contacts, should not serve as an ALJ in the same case.

7. The separation of functions provision should make clear it does not invalidate Social Security's "three-hat" practice of requiring ALJ to develop the case on behalf of the government, assist the claimant, and make decision.

Rationale: Richardson v. Perales upheld the three-hat system under due process but left unclear whether it violated APA separation of functions. Some writers have suggested that that Social Security violates the APA separation of functions provision by requiring the judge both to make the case for the agency and then decide the case. This provision would insure that the APA would not invalidate the three-hat system which is a longtime practice at Social Security. If the Tier 2 idea (see A. below) is adopted, this provision would also be useful with respect to decisionmaking at the VA.D. Hearing requirements

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1. Residuum rule and ALJ expertise in evaluating evidence: The "residuum rule" (followed in some states) requires that at least some non-hearsay evidence support a decision. It is generally believed that Richardson v. Perales rejected the residuum rule but this should be made clear in the statute.

The statute should also make clear that an adjudicator can utilize his or her expertise to evaluate evidence. This could be achieved if the second sentence of section 556(d) is amended to incorporate language drawn from 4-215 of the Model State APA of 1981. Thus the APA would read: "A rule or order may not be issued except on consideration of the whole record or those parts thereof cited by a party and supported by reliable, probative, and substantial evidence, and may be based on such evidence even if it would be inadmissible in a civil trial. The presiding officer's experience, technical competence, and specialized knowledge may be utilized in evaluating evidence but the presiding officer must explain the basis on which he has done so. [the term presiding officer here would be defined to include both the ALJ and the agency head or other agency decisionmaker]."

This language incorporates the traditional distinction between a prohibition on consideration of extra-record evidence and permission for adjudicators to use expertise in evaluating the worth of evidence in the record (such as expert witness testimony). However, the judge must explain why, for example, he chose to disregard the testimony of an expert.

2. Transcripts. The APA should provide that transcripts of agency proceedings (if they exist) should be available to private parties at cost. Thus the APA might include a provision modeled on §11 of FACA providing: "Except where prohibited by contractual agreements entered into prior to the effective date of this act, agencies shall make available to any person, at actual cost of duplication, copies of transcripts of agency proceedings (as defined in §551(12)).

3. Conference procedure: [I have deleted this proposal in response to criticism. Most of the objectives of conference procedure can be achieved through summary judgment practice as provided in BA. 4. and through reliance on several existing APA rovisions. The APA provides that cross-examination is obligatory only when "required for a full and true disclosure of the facts" and it can be dispensed with in claims for benefits or applications for initial license . . . when a party will not be prejudiced thereby." APA §557(d)]

4. Substitute ALJs. [deleted in response to criticism--this recommendation would have made clear that if a substitute ALJ must be appointed because the previous ALJ is disqualified or unavailable, the substitute need not start the hearing over (or rehear any of the witnesses) unless the ALJ determines it is necessary to do so or the parties demonstrate they will be prejudiced thereby].

(file: ABA/Prescriptive recommendations--4-15-03 revision.doc)

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TAB 7Proposed Amendment to Bylaw Article VI, Sections 2 and 5.Amend Section 2 as follows: “The Council may create There shall be an Executive Committee, consisting of the Officers and the Last Retiring Chair, to exercise between meetings of the Council such functions and duties as itthe Council may assign to such Committee.”EXPLANATION: The Section has been operating for several years under the assumption that there is an executive committee and that it is comprised of the officers and the Last Retiring Chair (who is not an officer according to the bylaws). This change would codify this past understanding and practice.Amend Section 5 as follows: “The Chair of the Section may, and upon the request of any member of the Council shall, submit or cause to be submitted in writing, to each of the members of the Council, any proposition upon which the Council may be authorized to act. The members of the Council may vote upon such proposition or propositions so submitted by communicating their vote thereon, either by written ballot or by telephone vote, confirmed in writing, to the Secretary. The Secretary shall record in the minutes each proposition so submitted, when, how, at whose request, and the vote of each member of the Council thereon, and keep on file the written ballots and confirmations. If the votes of a majority of the members of Council so recorded shall be against such proposition, such majority shall constitute the binding action of the Council. When to wait for the next regular meeting of the Council would preclude the Section from acting upon any proposition upon which the Council may be authorized to act, the Executive Committee may, by majority vote, authorize the action on behalf of the Section so long as the members of the Council are afforded by email no less than 7 calendar days in which to vote a negative on any such action. Any email triggering this procedure shall clearly identify that it is an email notice under this section of the bylaws. If a majority of the members of the Council do not vote a negative on the action, the action may be taken. If the action consists of the submission of written views, no submission shall be made that contains a material change from what was presented to the voting members of the Council. Any action taken under this section shall be reported to the Council at the next meeting.”EXPLANATION: Between the Midyear and Spring meetings there were two opportunities for the Section to express its views on a matter within its jurisdiction that would not wait for the next meeting of the Council. In both cases an attempt by email was made to obtain the views of a majority of the Council before acting, but in neither case were a majority of members of the Council heard from one way or the other.

The existing bylaw is not explicit that email qualifies as “in writing,” provides no guidance as to period allowed for voting, places the burden on the Secretary when in practice it is the Staff Director who sends and receives the emails, and is ambiguous as to the consequence of a lack of a majority negative vote.

The proposed amendment would authorize the Executive Committee to take action in these circumstances so long as the proposed action had been submitted to the Council and had not received a negative vote.

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TAB 8Proposed Amendment to Bylaw Article IV, Section 1In the first sentence, delete “and at least one of whom shall not be a former officer or Council member of the Section,”. EXPLANATION: Persons on the Nominations Committee should ideally be persons who have been active in the Section long enough to be familiar with a wide range of people in the Section in order both to suggest possible nominees and to assess possible nominees. At the same time, persons who have been that active and who have not yet been an officer or Council member are the most likely persons who themselves should probably be nominated for officer or Council member positions. Moreover, to assure adequate balance and diversity on the Nominations Committee it is important to not artificially limit the pool of possible committee members. The effect of this deletion would not be to preclude the appointment of a person who had not been a former officer of Council member, but it would not require such a person to be appointed.

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TAB 9

Basic Training Courses1. Intro.

This is a first stab at presenting a list of basic training courses our Section could offer. Please offer suggestions on everything from additions or subtractions to the list of subjects, to the timing, to the pricing, to the method, etc.2. Background

a. In our long-term planning, we discussed the need for more "basic training" courses. We have many programs on things like the effect of Chevron decisions on informal rulemaking, but rarely have general, basic courses on things like informal rulemaking.

b. The courses proposed in 3. are set up around the "A Blackletter Statement of Federal Administrative Law" and our various publications.

c. The material for each course could be built around (1) powerpoint presentations or similar handout material that could be updated easily and used by different "teachers" and (2) other Section publications, such as our recently published book on adjudication. The powerpoint presentations would be expected to be detailed, so that they would offer excellent support for web broadcasts of the program via our West contract.

d. The courses would probably take 3 - 4 hours (perhaps some longer; but, if so, we should consider breaking the subject into two or more courses). We should probably charge $75 - $100, not including any publication. We could also offer two rates for the courses, with a higher rate including our publication on the subject, but at a slightly reduced rate. For example, we might offer a course for $75; if the accompanying book was $50, we could offer the course plus the book for $110. Or we could just charge the higher price and include the book. We would also have different rates for members and nonmembers.

e. The courses could be offered under the general heading of the Ad Law Section "Federal Administrative Law Institute." The Institute could be presented every Spring during May and June, or every Fall in the weeks preceding our Fall meeting. The courses could be spread out over that time period to make it easier for those who wished to take multiple courses. If, however, we expect that people from outside the D. C. area would be interested, we might be better off offering all the courses over a period of a few days. Whether the courses would be repeated each year would be determined based on interest, but there may be a need to offer new courses based on such things as questions asked. For example, the course on consensus decisionmaking would cover mediation; based on interest, we may decide it is worth presenting a course just on mediation, covering topics such as when to use it, how to effectively participate, etc.

f. The classrooms should be suitable for lengthy courses; e.g. tables for materials and ease of taking notes, ability to hear and see screens easily, etc. We could conduct some of the courses in ABA HQs. The HQs conference room can hold about 60 people theater style; 40 classroom style(with tables. We have used two banks in the immediate

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area for committee programs in the past; they charge a nominal fee, are convenient, and can hold up to 100 or so. If larger rooms are necessary, nearby buildings or hotels have space. The convenience would make it easier for our support staff.

g. We should be able to keep the costs for producing the programs relatively low, especially if we can use ABA rooms or low-cost alternatives. The other significant cost would be expenses for out-of-town speakers. Because of the cost of renting equipment such as projectors for powerpoint presentations, we are already considering purchasing what we need. The major “cost” will be the preparation time for the first course; it will take the “teachers” a considerable amount of time to prepare for and develop good materials for the first time that they teach the course. However, if done well, the courses themselves could generate significant revenue as well as enhance the sales of our books. In addition, basic training courses may be of interest but not available to many outside the D.C. area. With good supporting powerpoint presentations and with books to back them up, they may be very popular on our West website. It might also be easy to offer them when we are holding meetings in cities such cities as San Francisco, Atlanta, and Chicago.

3. Courses [All would cover Federal law or practice.]

a. Adjudication

(1) Legal requirements(2) How the process works

b. Effective Oral Advocacy

[Danny Boggs, the chair of the Appellate Judges Conference, advised usthey would be very happy to assist on such a program.] The course could cover all levels of adjudication, or we could have one for ALJ proceedings and one for federal appellate proceedings.

c. Informal Rulemaking

(1) The legal requirements

(a) Process(b) Management

(2) The process

(a) How it works [how it should and how it does](b) Effective public participation/advocacy [e.g., a panel

with both government and private practitioners offering “do’s and don’ts”]

[Jeff Lubbers and Neil Eisner have taught a course on the general subject for the D. C. Bar the last three years. The D.C. Bar also teaches a

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companion course on judicial review. We, therefore, should present thisdifferently or accent different matters; for example, we may want to present the course in parts (e.g., one just on legal requirements; another could accent how the process works, OMB's and SBA's role, and the roll of Congress) or we may wish to accent effective public participation. Fred Emery and others have suggested the need for a rulemaking process

coursefor Congressional staff; the emphasis there would be different, since they would not need much on how to participate but would need more onthings like the pros and cons of imposing deadlines for rules.]

(3) Economic analyses and risk assessments

[With OMB’s pending new requirements in this area, our work in commenting on the OMB draft, and our Sunstein book, this is another possible subject.]

d. Judicial Review

(1) Scope(2) Availability

e. Openness, Data Quality, and Lobbying

(1) Legal requirements

(a) FOIA(b) FACA(c) Sunshine Act(d) Data quality legal requirements and agency guidance(e) Lobbying disclosure and registration

(2) Effective use

[Are these subjects appropriate for one course? Should we have a separatecourse on lobbying, covering legal requirements and how to do iteffectively? Should it be combined with f.?]

f. Legislative Process

(1) The process

(a) Substantive(b) Appropriations

(2) How to effectively participate

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g. Alternative Decisionmaking Processes

(1) Negotiated rulemaking(2) FACA(3) Mediation(4) Other ADR processes

[Is there enough here? Should we offer separate courses of varioustechniques?]

h. EU Administrative Law

[With our pending work in this area, we may shortly be able to develop a course on this subject]

i. Other topics

[These could include topics based on other or new publications, such as Kinney’s medicare book, or on ombuds based on our ABA recommendation and our soon-to-be new publication.]

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TAB 11Draft Guidelines for Sponsorship Here are some draft guidelines for us to consider as we intensify oursponsorship activities in the years to come. Before writing them, Ireviewed the ABA policy and such materials as we have from the office ofthe ABA Director of Sponsorship. I haven’t repeated the ABA policybelow because it’s reasonably clear and binding anyway, and because Iwanted to isolate the concerns that are particular to our Section. Ihave written this draft more as an issues discussion than as a proposedrule, hoping to incite discussion and perhaps even permit agreementbefore any technical wording becomes the focus of attention. Please addyour thoughts and we can get all of this to the Council for the Springmeeting.

DRAFT GUIDELINES FOR SPONSORSHIP RELATIONSHIPS SECTION OF ADMINISTRATIVELAW AND REGULATORY PRACTICE Preamble. Guidelines for sponsorship relationships with our sectionmust focus on the nature of our membership. We have many state andfederal regulators and state and federal administrative law judges amongour members. All of these individuals must be alert to any appearanceof impropriety in their extracurricular activities. Private attorneyswho appear before agencies may sometimes find that a particular sponsorrelationship poses a potential conflict of interest for themselves ortheir firms. Nevertheless, by the very nature and purpose of oursection, we must affirm that the gathering of administrative lawyersfrom many backgrounds and responsibilities to trade ideas and advancepublic policy is a constructive contribution to the public interest. Itis, then, special circumstances that cause concern. The receipt ofmoney from sponsors is always sensitive enough that guidelines should beadopted and followed to assure consistency and systematic attention topertinent issues.

Kinds of Sponsorship Relationships. These guidelines are supplementaryto the ABA’s Sponsorship Policies and Procedures, which define anddelimit sponsorship activities and require ABA approval of mostrelationships. The ABA guidelines contain various technical provisions,such as use of the logo, which our section’s review entity will need toconsider as particular proposals are processed. There are also someoverall principles, such as the need for each section to maintaincontrol over the content of its proceedings rather than cede them to anysponsor, which are sensible and unlikely to constrain relationships thatthe section finds appropriate.

“Continuing Sponsorships” as defined by the ABA tie the sponsor’sidentity to that of the section generally and over time. “Eventsponsorships” are for quarterly meetings, parts of them, or occasionalgatherings. A major project such as our European APA initiative couldcontain elements of both. Continuing sponsorships usually have morepotential for revenue generation, and for heightened sensitivities aswell because the section and the sponsor are more firmly linked thanthey can be at a single reception or meeting. In other words, thestakes are higher.

Principles for all sponsorships. Some kinds of sponsors usuallypresent few problems; others are usually unacceptable. Corporations

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that provide services to attorneys, such as Lexis, are generallyinterested in all members of the section more or less equally, andapproach us in our common role as attorney/customer. At times, ofcourse, such a company may be deeply embroiled in litigation with stateor federal governments. (Of course, all corporations have relationshipswith many government agencies all the time; it should take somethingmore to raise sensitivities.) The existence of a long-term continuingrelationship with the section on the part of a company that comes intoan acute conflict with government would provide some assurance that arelationship was not sought to obtain improper influence. Still, thesection must be aware that some will see such a continuing relationshipas old-fashioned capture of the regulators. In general, though,corporations that tend to see us as customers present fewer problemsthan corporations having no obvious interest in our members apart fromour roles as regulators or judges. Even for corporations that do havethe latter kind of interest in us, a generalized concern for the qualityof regulation on the part of a regulated entity should be regarded aslegitimate. If review of particular sponsorships by our section issensitive to these concerns, and if we remain willing to reconsidercontinuing relationships in light of developments, corporate sponsorshipshould not be per se improper.

Private foundations often present fewer sponsorship sensitivities thando corporations. Those foundations having a charitable purpose that isnot obviously politically ideological, such as the Ford Foundation, areusually not problematic. Thus, as successful companies such as Ford orHewlett-Packard spin off charitable foundations, they create a layer ofinsulation from the companies’ operations that should usually suffice topermit sponsorship relationships. If a foundation does appear to berelatively closely linked to a particular ideology (e.g., a Chamber ofCommerce entity), we could pair its sponsorship to that of its oppositecounterpart (e.g., Consumers Union) with notice to both sponsors.

Our section has sometimes received event sponsorship from prominent lawfirms, for example at our receptions. These firms may have offices inmany cities and may represent clients before many state and federalagencies. At some point it is difficult to distinguish such sponsorshipcleanly from the mere presence of multiple firm members as sectionmembers. Moreover, event sponsorship at relatively low levels orcontinuing sponsorship of a lesser sort, for example a continuingadvertisement in our newsletter, is inherently less sensitive than avery prominent continuing relationship. Hence, the Tax Section wouldprobably allow H & R Block to sponsor a reception, but would be unlikelyto restyle itself the H & R Block Tax Section. Event sponsorship alsoallows section members who have special personal sensitivities to avoidparticular events. (For example, if a firm that is currently appearingbefore an administrative law judge sponsors a dinner, the judge mightdine elsewhere).

Section approval of sponsorship relationships. We need a regularentity to review and approve sponsorships for us. Although the ABApolicies are not themselves unduly complex, they are overlain by someparticular requisites that need to be assessed systematically, such asthe advertising regulations. The Sponsorship Committee could be chargedwith this task, with ratification by the Chair or the executive group.

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TAB 13AGEORGE A. BERMANN

Walter Gellhorn Professor of Law and Jean Monnet Professor of European Union LawDirector, European Legal Studies Center

Columbia University School of Law

Office:435 West 116th Street (Box A-10) Home:New York, New York 10027 57 Hemlock CircleTel.: (212) 854-4258 Princeton, New Jersey 08540Fax: (212) 854-7946 Tel.: (609) 924-6149e-mail: [email protected] Fax: (609) 924-2038

PERSONAL:Date of birth: Married to Professor Sandra L. Bermann

December 2, 1945 Princeton UniversityChildren:

Sloan (born 1978); Suzanne (born 1982); Grant (born 1987)EMPLOYMENT:Columbia University School of Law: Walter Gellhorn Professor of Law, 2002 to present; Jean Monnet Professor of

European Union Law, 2001 to date; Charles Keller Beekman Professor of Law, 1993 to 2002; Professor of Law, 1981-93; Associate Professor of Law, 1979-81; Assistant Professor of Law, 1975-79

Courses taught:Comparative Law and European Law International TradeContracts WTO Dispute ResolutionEuropean Union Law Administrative LawTransnational Litigation and Arbitration Government and Public Official Liability

UNIVERSITY FUNCTIONS:Director, European Legal Studies Center, 1998 to dateChair, Comparative and International Law Committee, 1991 to 1996, 1997 to dateDirector, Columbia London Law Institute, 2000 to dateSteering Committee, Columbia-IALS Research Centre (London), 2000 to dateChair, Curriculum Committee, 1987 to 1988Advisory Committee, 2000 to dateAppointments Committee, 1984 to 1986Junior Faculty (Promotions) Committee, 1989 to 1993 (chair 1990 to 1991)Advisory Committee, University Institute for the Study of Europe, 2000 to dateAdvisory Committee, Reid Hall Institute for Scholars (Paris), 2000 to dateAdvisory Committee, Maison Française, 1991 to dateAdvisory Committee, Western European Institute, 1991 to 1999Advisory Board, Legislative Drafting Research Fund, term 1993-96

OTHER EMPLOYMENT:Visiting Professor, Faculty of Law of University of Paris I and II (France) (January-June, 2002)Visiting Professor, Faculty of Law of University of Paris II (France) (April-May, 2001)Visiting Professor, University of St. Gallen (Switzerland), Master of European Law and International

Business Law, offered at Collège d’Europe, Bruges (Belgium) (September 1999, September 2000)Visiting Professor, Faculty of Law of University of Paris I (France) (April-May, 1998)

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Visiting Professor, Faculties of Law of Universities of Paris I, II and V (France) and Fribourg (Switzerland) (January-July, 1997))

Professor, University of San Diego Law School Summer Program (Paris, France, summers of 1989, 1994, 1997-2001)

Faculty, June Program for International Lawyers, Parker School of Foreign and Comparative Law, New York, New York (June 1987-June 1989, June 1992)

Eason-Weinmann Visiting Professor of Comparative Law, Tulane Law School, New Orleans, Louisiana (fall term 1988)

Visiting Professor, Faculties of Law of Universities of Paris I and Rouen (France) (1981-1982)Professor, Leyden-Amsterdam-Columbia Summer Program in American Law, Leyden and Amsterdam

(Netherlands) (1979-1982)Lecturer, International Faculty for the Teaching of Comparative Law (Pescara, Italy, August 1975)Associate, Davis Polk & Wardwell, One Chase Manhattan Plaza, New York, New York (litigation) (1970-

1973)PROFESSIONAL MEMBERSHIPS AND ACTIVITIES:

President, American Society of Comparative Law (ASCL), 1998 to 2002Board of Directors, American Society of Comparative Law (ASCL), 1988 to date; ASCL Vice-President,

1994-1998Member, Board of Editors, American Journal of Comparative Law, 1976 to dateChair of the Executive Committee, Columbia Journal of European Law, 1997 to date (Editor-in-Chief,

1994-1997)Board of Directors, Columbia Journal of Transnational Law, 1989 to date (Board of Advisors, 1976 to

date)Member, Board of Editors, Tulane European and Civil Law Forum, 1992 to dateMember, Board of Editors, Indiana Journal of Global Legal Studies, 1997 to dateMember, International Academy of Comparative Law (Paris, France), 1991 to date, President of the

Common Law Group, 2002 to dateMember of Executive Committee, European Union Studies Association (EUSA)Member, US State Department, Advisory Committee on the Hague Convention on Jurisdiction and

JudgmentsMember, American Law Institute (ALI), Advisory Committee on the Hague Convention on Jurisdiction

and JudgmentsMember, Board of Advisors, Institute for the Study of Europe, Columbia University, 2000 to dateMember, Reid Hall (Paris) Committee, Columbia University, 2000 to dateMember, Advisory Board, Institute for Global Legal Studies, Washington University of St. Louis, School

of Law, 2001 to dateBoard of Directors, American Foreign Law Association (New York, New York), 1983-1986; Vice-

President, 1986 to dateSecretary and member of Board of Directors, American Academy of Foreign Law, 1983 to 1996Member, European Law Committee, New York City Bar Association (New York, New York),

2000 to dateMember, Committee on International Commercial Dispute Resolution, New York City Bar Association

(New York, New York), 2000 to dateDelegate of American Bar Association (ABA) to the Union Internationale d'Avocats (UIA), 1993-1995International Arbitrator in International Chamber of Commerce and ad hoc international arbitrations, 1982

to dateCommercial Arbitrator, American Arbitration Association, 1982 to dateConsultant to members of the bar and Expert Witness and Deponent on Foreign (French, German, Swiss,

Belgian, UK and European) and Transnational Law, 1979 to dateCourt-appointed Foreign Law Expert on French, German and Swiss Law, 1988, 1991, 1997Member, Société de Législation Comparée (Paris, France), 1980 to dateBoard of Directors, German American Law Association (GALA) (New York, New York), 1978-1982;

member, 1978 to date

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Public Member, Administrative Conference of the United States, 1986-1989; Consultant, 1983-1986, 1989-1995

Executive Director, Leyden-Amsterdam-Columbia Summer Program in American Law (Netherlands), 1979-1982; member, Leyden-Amsterdam-Columbia Summer Program Board of Directors,1979 to date

Consultant, New York State Bar Association, 1979-1981Consultant and Lecturer, National Center for Administrative Justice, 1979-1982

EDUCATION:Legal:Jervey Fellow, Parker School of Foreign and Comparative Law, 1973-1975, resulting in LL.M. Columbia

University School of Law, 1975 (program of study of French, German and Swiss law)J.D. Yale Law School, 1971; Editor of the Yale Law Journal; Legal Education Research Project with

Professor Robert B. Stevens (Stevens, Law Schools and Law Students, 59 Va. L. Rev. 551 (1973))Undergraduate:B.A. Yale College, 1967; Summa cum laude with exceptional distinction in political science; University

Prize for best senior essay in political science; Phi Beta Kappa; Senior editor and copy editor Yale Daily NEWS; William S. Cowles Scholarship

Other:Visiting Fellow, Center for International Studies, Princeton University, Princeton, New Jersey, 2000Visiting Scholar, Legal Service of the Commission of the European Communities, Brussels, Belgium, 1994Visiting Scholar at Max Planck Institut für ausländishes öffentliches Recht und Völkerrecht, Heidelberg,

Germany, 1976Non-degree legal studies at University of Paris II, 1974-1975; University of Munich, 1975; and University

of Heidelberg, 1976Visiting Scholar at Conseil d'Etat, Paris, France, 1975Marshall Scholar, University of Sussex, Falmer, Brighton, England, 1967-1968, in law and comparative

politicsMAJOR PUBLICATIONS:

CASES AND MATERIALS ON EUROPEAN UNION LAW (West Pub.) (with R. Goebel, W. Davey & E. Fox) (2d ed. 2002)

FRENCH LAW: SELECTED COMMERCIAL LEGISLATION (Juris Pub.) (forthcoming 2002)Federalism Obstacles to Effective U.S. Participation in International Legal Regimes (forthcoming 2002)INTRODUCTION TO COMPARATIVE AND INTERNATIONAL LAW: MATERIALS FOR A

«BRIDGE» COURSE (West Pub.) (with Mark Drumbl) (forthcoming 2002)CASES AND MATERIALS ON TRANSNATIONAL LITIGATION (West Pub.) (with David S. Clark)

(forthcoming 2002)Proportionality and Subsidiarity; in THE LAW OF THE SINGLE EUROPEAN MARKET: UNPACKING

THE PREMISES (Hart Pub. 2002)Law in an Enlarged European Union, in LAW AND LAWS IN A MULTI-STATE SYSTEM (festscrift in

honor of Prof. Arthur von Mehren) (S. Symeonides & J. Nafziger, eds.) (Transnational Pub. 2002)TRANSATLANTIC REGULATORY COOPERATION: LEGAL PROBLEMS AND POLITICAL

PROSPECTS (Oxford University Press) (with M. Herdegen & P. Lindseth) (2001)The Role of Law in the Functioning of Federal Systems, in THE FEDERAL VISION (K. Nicolaidis & R.

Howse, eds.) 191 (Oxford Univ. Press 2001)European Law: Yesterday, Today and Tomorrow, 36 Texas Int’l L.J. 525 (2001)The Discipline of Comparative Law in the United States, 1999 Revue Internationale de Droit Comparé

1041 (1999)Judicial Enforcement of Federalism Principles, in ENTWICKLUNGS PERSPEKTIVEN DER

EUROPAISCHEN VERFASSUNG IM LICHTE DES VERTRAGS VON AMSTERDAM (M. Klöpfer & I. Pernice, eds.) 64 (Baden-Baden: Nomos Verlagsgesellschaft 1999)

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Comparative Law in the New European Community (festschrift for Prof. Rudolf Schlesinger), 21 Hastings Int’l & Comp. L. Rev. 865 (1998)

The European Intergovernmental Conference: An American Perspective (festschrift for Prof. Peter Herzog), 25 Syracuse J. Int’l L. & Comm. 61 (1998)

Provisional Relief in Transnational Litigation, 35 Colum. J. Transnat'l L. 553 (1997)REGULATORY FEDERALISM: EUROPEAN UNION AND UNITED STATES (Hague Academy of

International Law), 263 Recueil des Cours de l‘Académie de Droit International de la Haye 9 (1997)

Comparative Law in Administrative Law, in L'ETAT DE DROIT (Mélanges en l'honneur de Guy Braibant) 29 (Editions Dalloz, Paris 1996)

Regulatory Decisonmaking in the European Commission, 1 Colum. J. Eur. L. 415 (1996)Regulatory Cooperation Between the European Commission and U.S. Administrative Agencies, 9 Adm.

L.J. of Amer. Univ. 933 (1996)European Community Law from a U.S. Perspective, 4 Tulane J. Int'l & Comp. L. 1 (1995)Managing Regulatory Rapprochement: Institutional and Procedural Approaches, in REGULATORY CO-

OPERATION FOR AN INTERDEPENDENT WORLD 73 (OECD Pub. 1994)Taking Subsidiarity Seriously: Federalism in the European Community and the United States, 94 Colum.

L. Rev. 331 (1994)Subsidiarity and the European Community, 17 Hastings Int'l & Comp. L. Rev. 97 (1993); reprinted in 3

[Canadian] National Journal of Constitutional Law [Revue Nationale de Droit Constitutionnel] 357 (1993) and in EUROPE AFTER MAASTRICHT: AMERICAN AND EUROPEAN PERSPECTIVES (P. Lützeler, ed.) 139 (Providence: Berghahn Books 1994)

A Commentary on the Harmonization of European Private Law, 1 Tulane J. Int'l & Comp. L. 47 (1993)Competence to Set Aside an Award and Procedural Grounds for Refusing Enforcement: The Viewpoint

and Role of the Arbitration Law Expert, in IUS ARBITRALE INTERNATIONALE, ESSAYS IN HONOR OFHANS SMIT (T. Carbonneau & V. Pechota, eds.), 3 Am. Rev. Int'l Arb. 93 (1992)

Bijuralism in Federal Systems and in Systems of Local Autonomy (with M. Hilf), in GENERAL REPORTS OF THE XIIITH INTERNATIONAL CONGRESS OF THE INTERNATIONAL ACADEMY OF COMPARATIVE LAW (Montreal, Aug. 1990) 21 (Cowansville, Quebec: Les Editions Yvon Blais 1992)

Administrative Law, in INTRODUCTION TO THE LAW OF THE UNITED STATES (ch. 5) (T. Ansay & D. Clark, eds.) 92 (Berlin: Duncker & Humblot 1992)

Regulatory Cooperation with Counterpart Agencies Abroad: The FAA's Aircraft Certification Experience, 24 Law & Policy in Int'l Bus. 669 (1993), also published in Administrative Conference of the US, Recommendations and Reports 63-172 (1991)

EEC Community-Building under the Single European Act, in COMPARATIVE AND PRIVATE INTERNATIONAL LAW (festschrift for John Henry Merryman) (D. Clark, ed.) 333 (Berlin: Duncker & Humblot 1990)

The Use of Anti-Suit Injunctions in International Litigation, 28 Colum. J. Transnat'l L. 501 (1989)The Single European Act: A New Constitution for the Community?, 27 Colum. J. Transnat'l L. 529 (1989)The Hague Evidence Convention in the Supreme Court: A Critique of the Aérospatiale Decision, 63

Tulane L. Rev. 525 (1989)FRENCH LAW: CONSTITUTION AND SELECTIVE LEGISLATION (Transnational Juris Pub.) (with

H. de Vries & N. Galston) (1988) (with annual supplements)Federal Tort Claims at the Agency Level: The FTCA Administrative Process, 35 Case W. Res. L. Rev. 509

(1985)Administrative Handling of Monetary Claims: Tort Claims at the Agency Level, in Administrative

Conference of the United States, Administrative Conference of the US, Recommendations and Reports 639-895 (1984)

La Responsabilité civile des fonctionnaires au niveau fédéral aux Etats-Unis: vers la solution d'une crise, 1983 Revue Internationale de Droit Comparé 319 (1983)

Occupational Licensing in New York State: A Report of the New York State Bar Association, published in New York State Bar Association, NEW YORK STATE REGULATORY REFORM 10 (1982)

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Contracts between States and Foreign Nationals: A Reassessment, in INTERNATIONAL CONTRACTS (H. Smit, N. Galston & S. Levitsky, eds.) 184 (New York: Matthew Bender 1981)

French Treaties and French Courts: Two Problems in Supremacy, 28 Int'l & Comp. L.Q. 458 (1979)Integrating Governmental and Officer Tort Liability, 77 Colum. L. Rev. 1175 (1977)The Scope of Judicial Review in French Administrative Law, 16 Colum. J. Transnat'l L. 195 (1977)Les Droits de la défense: réflexions comparatives sur les droits administratifs français et américains à

propos d'un cas concret, Actualité Juridique Droit Administratif (AJDA) 410 (1975)Bringing the Vagueness Doctrine on Campus, 80 Yale L.J. 1261 (1971) (with Ballard Jamieson, Jr.)

CONFERENCE PAPERS AND REPORTS:The Precautionary Principle in WTO Case Law (Conference at School of International and Public Affairs,

Columbia University, NY, NY, Nov. 8, 2002)Moderator, Comparative Law in Multi-State Practice (conference at Harvard Law School, Cambridge,

Mass, Oct. 27, 2002) Discussant, Trade Diplomats Meet Academics (conference at European University Institute, Florence, Italy,

Sept. 13-14, 2002)Contracts, International Law and Constitutions (general report to the XVIth Congress of the International

Academy of Comparative Law, Brisbane, Australia, July 2002Concluding Observations, The Resolution of Transatlantic Disputes (conference at European University

Institute, Florence, Italy, May 10-11 2002)Discussant, Non-Discriminatory Sanitary and Phytosanitary Standards: Lessons from the Disputes over

Hormones and Genetically Modified Organisms (comment delivered at conference on Dispute Prevention and Dispute Settlement in Transatlantic Partnership, European University Institute, Florence, Italy, July 5, 2001)

The Common Core Project (paper delivered at the 2001 session of the Common Core Project, Trento, Italy, July 14, 2001)

International Tribunals and United States Courts: A New Relationship for the New Millennium (comment delivered at panel at Second Circuit Judicial Conference, Sagamore Resort, Bolton Landing, N.Y. June 16, 2001)

Developments in International Trade and Regulatory Law (Columbia Law School, European alumni reunion, European University Institute, Fiesole, Italy (June 11, 2001)

Transatlantic Regulatory Cooperation: Legal Problems and Political Prospects (paper delivered at 6th biennial conference of the European Community Studies Association, Madison, Wis., June 1, 2001)

Discussant, Making Member States Comply with Community Law (paper delivered at 6th biennial conference of the European Community Studies Association, Madison, Wis., June 1, 2001)

Comment on «Proceduralization of Law and the Transformation of Adjudicative Functions in the EC and the WTO (Oliver Gerstenberg) and «Indeterminacy and the Establishment of a Working Law of Market Administration (Michelle Everson) (comment delivered at workshop on Law and New Approaches to Governance in Europe, University of Wisconsin, Madison, Wis., May 29, 2001)

Proportionality and Subsidiarity (paper delivered at workshop on The Legal Foundations of the Single Market: Unpacking the Premises, Cambridge University, Cambridge UK (April 27, 2001)

The Future of Comparative Law (paper delivered at Centennial Congress of Comparative Law, Tulane University, New Orleans, La., Nov. 4, 2000)

Panelist, Free Movement of Services: European Union Lessons for NAFTA ( U.S-Mexico Law Institute, Santa Fe, N.M.., Oct. 28, 2000)

European Law: Yesterday, Today and Tomorrow (paper delivered at conference of Texas International Law Journal in honor of Prof. Hans Baade, University of Texas, Austin, Texas, Sept. 29, 2000)

Comment, The WTO and Human Health and Safety (paper delivered at World Trade Institute, University of Berne, Berne, Switzerland, August 21, 2000)

Panelist , The European Commission: The World’s Most Powerful Administrative Agency? (annual meeting of Association of American Law Schools, Washington D.C., Jan. 8, 2000)

La Jurisprudence (paper delivered at colloquium on the Bicentennial of the Conseil d’Etat, Paris,

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Dec.13-15, 1999, published in 2000 La Revue Administrative 38, 2001 La Revue Administrative 175 (Presses Universitares de France, 2001)

Regolazione e liberalizzazione dei mercati: un’analisi comparativa (Regulation and Market Liberalization: A Comparative Analysis), in REGOLAZIONE E CONCORRENZA (G. Tesauro & M. D’Alberti eds.) 27 (Soc. Il Mulino, Bologna, 2000) (paper delivered at conference on Regulation and Competition, Autorità garante della concorrenza e del mercato (Italian Competition Authority), Rome, Nov. 22-23, 1999)

The Transatlantic Dimension of U.S. and E.U. Federalism (paper delivered at Kennedy School of Government, Harvard University, conference on U.S. and E.U. Federalism, Apr. 19-20, 1999)

The Federalism Dimension of Transatlantic Regulatory Cooperation (paper delivered at conference on Transatlantic Regulatory Cooperation, Columbia University School of Law, Apr. 16-17, 1999)

Judicial Enforcement of Federalism Principles (paper delivered at inaugural conference of Walter Hallstein Institute of European Constitutional Law, Humboldt University, Berlin, Nov. 10-11, 1998)

The Supreme Court’s Role in Policing U.S. Federalism (paper delivered at Joint U.S. Supreme Court- European Court Justice Symposium, European Court of Justice, Luxembourg, July 5, 1998)

Constitutional Implications of U.S. Participation in Regional Integration, in U.S. NATIONAL REPORTS TO THE XVth CONGRESS OF THE INTERNATIONAL ACADEMY OF COMPARATIVE LAW (Bristol, U.K., July 1998), 46 Am. J. Comp. L. (Supp.) 463 (1998)

The Treaty of Amsterdam: Institutional Reforms (paper delivered at 1997 International Law Weekend, New York City Bar Association, Nov. 8, 1997)

Comment, Legal Aspects of the New European Single Currency, 4 Colum. J. Eur. L. 353 (1998) (paper delivered at conference on The Euro: A New Single Currency for Europe?, Washington University School of Law, St. Louis, Missouri, Oct. 30, 1997)

La Codification aux Etats-Unis, in FAUT-IL CODIFIER LE DROIT? EXPÉRIENCES COMPARÉES, 82 Revue française d’administration publique 221 (1997) (paper delivered at colloquium of Institut International d’Administration Publique, Paris, France, June 16, 1997)

An American Perspective on the Intergovernment Conference (paper delivered at colloquium of the Free University of Brussels, Belgium, May 23, 1997)

Regulatory Federalism: A Reprise and Introduction, 2 Colum. J. Eur. L. 395 (1997) (paper delivered at Columbia-Frankfurt symposium on comparative federalism at Columbia University School of Law, April 11, 1996)

Transnational Provisional Relief in the Courts, in INTERNATIONAL DISPUTE RESOLUTION: THE REGULATION OF FORUM SELECTION (J.L. Goldsmith, ed.) 99 (Transnational Publishers Inc., Irvington, N.Y., 1996) (paper delivered at 14th Sokol Colloquium on Private International Law, University of Virginia School of Law, March 23, 1996)

Civil Procedure: Trends and Recent Developments in Civil Procedure: Towards a Modern ius commune, in International Association of Legal Science, 1995 Colloquium 253 (Universidad Argentina de la Empresa, Buenos Aires, Argentina, 1999) (paper delivered at colloquium of International Association of Legal Science (IALS), Buenos Aires, Argentina, Sept. 6, 1995)

The Constitutional Amendment Process, in THE EUROPEAN CONSTITUTIONAL AREA (R. Bieber & P. Widmer, eds.) 291 (Schulthess Polygraphischer Verlag, Zurich 1995) (paper delivered at colloquium on the European Constitutional Area, Swiss Institute of Comparative Law and University of Lausanne, Lausanne, Switzerland, April 11, 1995)

Harmonization of Law and Regulatory Federalism, in HARMONIZATION OF LEGISLATION IN FEDERAL SYSTEMS (I. Pernice, ed.) 37 (Nomos Verlagsgesellschaft, Baden-Baden 1996) (paper delivered at Columbia-Frankfurt symposium on comparative federalism at University of Frankfurt-am-Main, Frankfurt, Germany, Feb. 9, 1995)

Decisionmaking Aspects of the European Commission (paper delivered at annual meeting of the Association of American Law Schools, New Orleans, Jan. 6, 1995)

Regulatory Cooperation by the EC Commission with US Agencies (report to the Administrative Conference of the United States, Washington, D.C., December 1994)

Subsidiarity as a Principle of U.S. Constitutional Law, in U.S. NATIONAL REPORTS TO THE XIVth CONGRESS OF THE INTERNATIONAL ACADEMY OF COMPARATIVE LAW (Athens,

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Greece, August 1994) (G. Bermann, F. Juenger, P.J. Kozyris, eds.), 42 Am. J. Comp. L. (Supp.) 555 (1994)

Post-Maastricht Europe (paper delivered at 1993 International Law Weekend, New York City Bar Association, Oct. 29, 1993)

Managing International Regulatory Cooperation (paper delivered at conference of Organization for Economic Cooperation and Development [OECD], Paris, France, Oct. 4, 1993)

Subsidiarity and the European Community, in POST-MAASTRICHT EUROPE (P. Lützeler, ed.) 153 (Berghahn Books 1994) (paper delivered at conference on Post-Maastricht Europe at Washington University in St. Louis, Oct. 2, 1993)

Taking Subsidiarity Seriously (paper delivered at conference of Department of Justice of Canada on Federalism, Economic Union and Subsidiarity: Canadian and European Perspectives, Ottawa, Canada, April 30, 1993)

Subsidiarity and Federalism (paper delivered at symposium of Hastings International and Comparative Law Review on the European Community, San Francisco, California, March 27, 1993)

Moderator, Foreign Sources of Financing Privatization, at conference on Privatization in Eastern Europe (Parker School of Foreign and Comparative Law at Columbia University, New York, New York, Feb. 18, 1993)

The Contemporary Use of Comparative Law in Law Reform (paper presented at annual meeting of the Association of American Law Schools, San Francisco, California, Jan. 9, 1993)

Le Dialogue entre les Entreprises et le Gouvernement fédéral aux Etats-Unis (paper delivered at colloquium of la Commission pour l'Etude des Communautés Européennes [CEDECE] at Université de Paris II, Paris, France, Oct. 8-9, 1992)

Moderator, Communitarianism and the Law (annual meetings of American Society of Comparative Law and International Association of Legal Science, Provo, Utah, Sept. 1992)

Commentator, The Impact of European Integration on Private Law (comment on papers delivered at the Eason-Weinmann Colloquium of the Tulane Law School at University of Helsinki, Helsinki, Finland, June 4, 1992)

1992: The European Community at a New Crossroads (annual meeting of the American Society of International Law, Washington, D.C., April 18, 1991)

Le dualisme juridictionnel: le débat aux Etats-Unis, in LE DUALISME JURIDICTIONNEL (G. Timsit, ed.) 56 (Paris: Presses Universitaires de France 1992) (paper delivered at colloquium of Université de Paris I at the French Senate, Paris, France, May 11, 1990)

Anti-suit Injunctions in International Litigation, and moderator of panel on Provisional Relief from Foreign Courts in International Litigation (1989 International Law Weekend, New York City Bar Association, Nov. 4, 1989)

Le droit administratif américain et le droit administratif français, 42 Conseil d'Etat, Etudes et Documents 169 (1990) (paper for seminar of United States Supreme Court justices, federal circuit court judges and members of the French Conseil d'Etat, in the Franco-American Judicial Exchange, at the National Archives, Washington D.C., Sept. 5, 1989)

Moderator of panel on Equality, Minorities and Pluralism, at Conference of Columbia University Center for the Study of Human Rights on The Declaration of the Rights of Man: France and the United States (Columbia University, April 5-6, 1989)

The Autonomy of the International Arbitral Process (paper delivered at the Third Journées Juridiques Franco-Américaines, New Orleans, Louisiana, Nov. 11-12, 1988)

The Legal Uniqueness of the Italian Constitution, in 2 Italian Journal 5 (1988) (paper delivered at Columbia University colloquium on the Fortieth Anniversary of the Italian Constitution, New York, New York, Sept. 30, 1988)

Le régime juridique des fondations aux Etats-Unis, in LE DROIT DES FONDATIONS EN FRANCE ET A L'ETRANGER (La Documentation Française, Notes et Etudes Documentaires, no. 4879) 65 (Paris 1989) (paper delivered at colloquium organized by the Collège de France, Paris, France, Jan. 29-30, 1988)

Federalism: European and American, in TWO HUNDRED YEARS OF US CONSTITUTION AND THIRTY YEARS OF EEC TREATY (K. Lenaerts, ed.) 75 (Brussels: Story-Scientia, and

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Deventer: Kluwer 1988) (paper delivered at Leuven Day, Leuven University, Belgium, Mar. 27, 1987)

Les mesures de restriction aux exportations d'application extraterritoriale dans les relations entre l'Europe et les Etats-Unis, in LES RELATIONS COMMUNAUTE EUROPEENE ETATS-UNIS (J. Bourrinet, ed.) 169 (Paris: Economica 1987) (paper delivered at colloquium of la Commission pour l'Etude des Communautés Européennes [CEDECE] at Université d'Aix-Marseille, France, Oct. 9-10, 1986)

Public Law in the Conflict of Laws, in LAW IN THE USA FACES SOCIAL AND SCIENTIFIC CHANGE (Reports for the Twelfth World Congress of Comparative Law, Sydney-Canberra, Australia), published in 34 Am. J. Comp. L. (Supp.) 157 (1986)

The Premises of Government Liability (paper delivered at Administrative Conference of the United States, Washington, D.C., plenary session of June 14, 1985)

Comment, Government in the Sunshine: Lessons from the American Experience (paper delivered at the Second Journées Juridiques Franco-Américaines, Paris, France, Mar. 17-19, 1983)

Administrative Delay and its Control, in LAW IN THE USA FOR THE 1980s (Reports for the Eleventh World Congress of Comparative Law, Caracas, Venezuela) (J. Hazard & W. Wagner eds.), published in 26 Am. J. Comp. L. (Supp.) 473 (1982)

Proliferation of Legislation and Regulation: The United States (paper delivered at symposium of the Institut International des Sciences Administratives, Karlovy-Vary, Czechoslovakia, May 20-21, 1982)

Comment, Denis Tallon, The Constitution and the Courts in France, 27 Am. J. Comp. L. 583 (1979)The Principle of Proportionality, in LAW IN THE USA IN THE BICENTENNIAL ERA (Reports for the

Tenth World Congress of Comparative Law, Budapest, Hungary) (J. Hazard & W. Wagner, eds.), published in 26 Am. J. Comp. L. (Supp.) 415 (1978)

Report on United States law, in LES INSTRUMENTS JURIDIQUES DE LA POLITIQUE FONCIERE DES VILLES: ETUDES COMPARATIVES PORTANT SUR QUATORZE PAYS OCCIDENTAUX (M. Fromont ed.) 329 (Brussels: Bruylant 1978)

OTHER PUBLICATIONS:Basic Principles for the Allocation of Competence in the United States and the European Union (with K.

Nicolaidis), in THE FEDERAL VISION (K. Nicolaidis & R. Howse, eds.) 483 (Oxford Univ. Press 2001)

Book Review, Eric Stein, Thoughts from a Bridge (forthcoming in American Journal of International Law, 2000)

Introduction, Special Issue: European Identity and the Opposing Pulls of Globalization , Nationalism and Regionalism, 5 Columbia Journal of European Law 365 (1999)Book Review, Ami Barav & Christian Philip, Dictionnaire juridique des communautés européennes, 1995

Revue Internationale de Droit Comparé 260 (1995)Réflexions sur le droit administratif aux Etats-Unis, 1993-1994 (with P. Lindseth), 46 Conseil d'Etat Etudes

et Documents 515 (1994)Evolution du droit administratif américain 1992-1993 (with P. Lindseth), 45 Conseil d'Etat Etudes et

Documents 483 (1993)Introduction, Symposium on Harmonization in the European Community, 29 Colum. J. Transnat'l L. 7

(1991)Book Review, Integration through Law: Europe and the American Federal Experience (vol. 1, books 1-3)

(M. Cappelletti, M. Seccombe, & J. Weiler), 11 Fordham Int'l L.J. 232 (1987)In Memoriam: Charles Szladits (1911-1986), 34 Am. J. Comp. L. 822 (1986)French Public Law, in THE WORLD'S LEGAL SYSTEMS: PAST AND PRESENT (G. Bermann & J.

Hazard, eds.) (Condyne Audio Tape Series 1985)The Law of the European Economic Community, in THE WORLD'S LEGAL SYSTEMS: PAST AND

PRESENT (G. Bermann & J. Hazard, eds.) (Condyne Audio Tape Series 1985)Book Review, P. Schuck, Suing Government: Citizen Remedies for Official Wrongs, 99 Pol. Sci. Q. 120

(1984)

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Book Review, Z. Nedjati and J. Trice, English and Continental Systems of Administrative Law, 28 Am. J. Comp. L. 105 (1980)

GUEST LECTURES:Cambridge University (UK), Center for European Law, Cambridge, UK (2002)

“The Judicial Role in Policing Federalism: The US and the EU”Institut des Science Politiques, Paris, France, (2002)

“The Judicial Role in Policing Federalism: The US and the EU”European Community Studies Association, 6th biennial conference, Madison, Wis (2001)

«Law in an Enlarged European Union», published in !4 European Union Studies Association (EUSA) Review, no. 3 (summer 2001)

British Institute of International and Comparative Law, London, UK (2001)«European Law and European Enlargement»

Institut de Droit Comparé, University of Paris II, Paris, France (2001)«Proportionality and Federalism in Recent Supreme Court Case Law»

Federal Judicial Center and Princeton University, Princeon, NJ (2001)“European Union: Between Law and Politics”

European University Institute, Florence, Italy (2001)«Litigating in the Other’s Court: A New Forum for Fashioning EU/US Relations»

Columbia University, School of International and Public Affairs (2001)“Law in an Enlarged European Union”

Princeton University, Center of International Studies, Princeton, New Jersey (2000)«The States and Foreign Affairs»

Tulane University, School of Law, New Orleans, Louisiana (2000) «Introduction to the Centennial World Congress of Comparative Law»

University of Wisconsin, Madison, Wisconsin (2000) «Genetically-Modified Organisms and Food Safetyin US/ EU Relations»

European University Institute, Florence, Italy (2000) «Federalism and the Treaty Power»

School of International and Public Affairs, Columbia University (2000) «Flexibility in the EU: A Critique of the Amsterdam Treaty’s Provisions on ‘Closer Cooperation’»

Federal Judicial Center and Princeton University (1999, 2000) «European Union: Between Law and Politics»

University of Paris I, France (1998) «Constitutional Jurisdiction of U.S. Courts over Non-Nationals»

Legal Service of the Commission of the European Communities, Brussels, Belgium (1998)«Federalism Obstacles to Effective US Participation in International Legal Regimes»

Princeton University, Woodrow Wilson School of Internationl Affairs, New Jersey (1998) «Subsidiarity: An Update»

Princeton University, Alumni College, New Jersey (1997)«The Idea of Europe: A Legal Dimension»

Universities of Berlin (Humboldt University), Bonn, Erlangen-Nüremberg and Munich, Germany (1997)«An American Perspective on the 1996 European Intergovernmental Conference»

Universities of Rome (La Sapienza), Italy, and Lausanne, Switzerland (1997)Subsidiarity: Does it Have a Future?» (published in Centro di studi e ricerche di diritto comparato e straniero, «Saggi, Conferenze e Seminari» (No. 26) (Rome, 1997))

American Bar Association, Section of Administrative Law and Regulatory Practice 1996 Mid-year Meeting, Baltimore, Maryland (1996)

"Regulatory Practice in the European Commission"University of Barcelona, Spain (1995)

"U.S. Administrative Law in Comparative Perspective"Tulane Law School, Eason-Weinmann Distinguished Lecture, New Orleans, Louisiana (1994)

"European Community Law from a US Perspective"Legal Service of the Commission of the European Communities, Brussels, Belgium (1994)

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"The Interstate Commerce Clause: Lessons for the European Community"Association of the Bar of the City of New York, Comparative and Foreign Law Committee (1992)

"Europe after the French Referendum on Maastricht"Association of the Bar of the City of New York (1992)

"The Maastricht Treaty"National People's Congress of the People's Republic of China (Legislative Affairs Commission, Administrative Litigation Research Group), Beijing, China (1991)

"Administrative Procedure in the United States and in Western Europe"National People's Congress of the People's Republic of China (Legislative Affairs Commission, Administrative Litigation Research Group) Beijing, China (1989)

"Government Liability in the United States, France, West Germany and the European Economic Community"

New York State Bar Association annual meeting, New York, New York (1989)"1992: Its Constitutional Significance"

Carnegie Council on Ethics and International Affairs, New York, New York (1987)"The Single European Act: A New Constitution for the Community?"

Crossroads Africa, African Leaders Program, Southampton, New York, New York, (1983-87)"Introduction to the American Legal System" (orientation seminar for African jurists)

University of Clermont-Ferrand, Clermont-Ferrand, France (1982)"Vermont Yankee and Judicial Review of Agency Rulemaking" and"Trends in Governmental and Officer Liability in the United States"

Centre d'Etudes du "Common Law," University of Paris I, Paris, France (1982)"Trends in Governmental and Officer Liability in the United States"

University of Lausanne, Lausanne, Switzerland (1982)"Legislative Control of Administrative Action in the United States,""Executive Control of Administrative Action in the United States," and"Judicial Control of Administrative Action in the United States"

University of Paris I, Paris, France (1981)"Freedom of Information in the United States" and "Proceduralism in American Administrative Law"

Max-Planck-Institut, Hamburg, Germany (1980)"Governmental Liability Reform in Germany and the United States"

University of Bonn, Bonn, Germany (1980)"Governmental Liability Reform in Germany and the United States"

HONORARY DEGREES:Jean Monnet Chair of European Law (conferred July 2001)University of Fribourg, Switzerland (conferred Nov. 2000)

BAR ADMISSIONS:Supreme Court of the United States (1992)Southern District of New York (Federal) (1980)Eastern District of New York (Federal) (1980)New York State (1972)

FOREIGN LANGUAGES:FrenchGermanSpanish (reading)

date: November 2002

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Professor G.A. Bermann

TAB 13BProfessor Bermann’s Bio

B.A., Yale, 1967; J.D., 1971; LL.M., Columbia, 1975; doctorat honoriscausa, University of Fribourg. Editor, Yale Law Journal. Associate withDavis, Polk & Wardwell in New York. Jervey fellow of the Parker School ofForeign and Comparative Law, 1973?75. Advanced legal studies at theUniversity of Paris II, 1974?75; Conseil d'Etat of France, 1975;Universities of Munich and Heidelberg, and Max Planck Institut fürausländisches öffentliches Recht und Völkerrecht, Heidelberg, 1975?76.Member of the Columbia faculty since 1975. Visiting professor, Universitiesof Bordeaux, Paris I, Paris II, Paris V, and Rouen, France, and Fribourg,Switzerland; Tulane Law School; and the New York University School of Law.Visiting scholar, Legal Service of the Commission of the EuropeanCommunities, 1994. Executive director, Leyden-Amsterdam-Columbia SummerProgram, 1979?82, and currently member of the program's board of directors.Editorial board member, American Journal of Comparative Law. President ofthe American Society of Comparative Law. Member of the AcadémieInternationale de Droit Comparé (Paris). Chair of the Executive EditorialBoard of the Columbia Journal of European Law. Founder and former member ofthe board of directors, German American Law Association (New York).Consultant to the New York State Bar Association; the National Center forAdministrative Justice; the Ford Foundation; and the National People'sCongress of the People's Republic of China. Public member of theAdministrative Conference of the United States, 1985?89. Member of theDeutsch-Amerikanische Juristen Vereinigung (DAJV), Bonn; the AmericanArbitration Association panel of international commercial arbitrators; andICC and ad hoc international arbitral tribunals. Vice president and formerdirector of the American Foreign Law Association. Principal interests arecomparative law and civil law, the international practice of law, EuropeanCommunity law, European law, transnational litigation and arbitration,international trade, administrative law, contracts, and governmentliability.

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TAB 13CAdministrative Law of the European Union – A Joint Project of the Administrative Law

and International Sections of the American Bar Association

BackgroundIt is clear in this increasingly interconnected world that the impacts of regulatory processes and procedures in other countries transcend their national boundaries, affecting US citizens and US economic interests. One place this is particularly evident is in the European Union’s legislative and regulatory initiatives that acutely affect US interests because of the magnitude of US-EU trade and investment. Yet, most US attorneys have little knowledge or understanding of the European Union or its regulatory systems, much less how to interface with EU regulatory bodies or how to prepare clients to comply with regulatory directives. Moreover, the mutual lack of understanding about each other’s system has led to barriers to cooperation and communication between the United States and the European Union and exacerbated trade tensions.Recognizing these obvious opportunities and needs, the Administrative Law and International Law Sections of the American Bar Association are jointly sponsoring a European Union Administrative Law Project. Administrative and regulatory practitioners and commentators along with their international law colleagues are well equipped to provide the necessary expertise for this project. Because administrative law has always dealt with a vast array of diverse systems, it can easily focus its experience and expertise on the emerging law about global governments. Its partnership with the international law experts will create a special synergism. ObjectivesThe International and Administrative Law Sections hope to achieve three objectives with the EU Administrative Law Project. First and foremost, they intend to create a practical resource about EU administrative and regulatory law for US practitioners who have clients affected by EU regulations because they import to, or want to invest in, EU member states. At this time, no such resource exists, and basic unfamiliarity of the EU administrative systems can be a substantial impediment to trade with, and investment in, the EU. Second, the Sections expect the Project to facilitate discussions between US and EU lawyers, generating greater mutual understanding of each other’s systems and perhaps some agreement on features of an optimal administrative system. Finally, they seek to encourage a scholarly analysis of the EU Administrative law system, emphasizing traditional features of due process and transparency. Project DescriptionTreatise: The ultimate goal of the European Union Administrative Law Project will be the development and publication of a treatise on the administrative law and procedures of the European Union. It is intended that this treatise be organized in a manner similar to the Black Letter Statement of the Administrative Procedure Act, recently published by the Administrative Law Section, to facilitate useful analytical comparisons between our own administrative law system and that of the Europe Union. Nevertheless, there will be some distinct differences in these two treatises. First, the features of the EU’s administrative processes and procedures are

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not in any way direct analogues of our system so it may not always be possible to fit the features of the European system into that of the APA. Second, the European Union’s laws and procedures are still relatively nascent and rapidly evolving. Thus, the material will likely not be as deep and rich. Finally, the treatise will have to include considerable background material regarding the structure of the EU and the complicated relationship between the Union and its member states with respect to adopting, implementing and enforcing regulatory programs. The treatise will be drafted by well-regarded legal scholars and practitioners with relevant expertise and experience. To the extent possible, each chapter will be writer by a team including a legal scholar and a practical lawyer who specializes in EU law. The Sections intend to involve administrative law experts from Europe in the drafting of this document. That will have the dual benefits of enhancing the quality of the treatise and fostering discussions across the Atlantic of administrative law issues. International Symposia: In order to build expertise, the Sections will sponsor two or more trans-Atlantic symposia to discuss and contrast US and EU administrative law systems. At least one should be held as a prelude to any drafting of the treatise to allow for full explication of the key issues and for an exchange of views across the Atlantic. Likewise, a similar trans-Atlantic symposium should follow circulation of the next to final draft of the treatise to allow for review and comment of the draft. Library: The Administrative Law Section has assembled a considerable library of primary and secondary materials on the legal and administrative systems of the European Union. These materials will initially be used as a starting resource for the authors of the treatise, but one goal of the Project will be to make as many of them available through the Internet to ABA members as copyright and technology limitations will allow. Organization and FundingThe treatise will likely take one to one and a half years to complete. The full project with follow-on symposia may continue beyond that. In addition, the Sections are considering options for updating the treatise, including relying on on-line revisions. The Administrative and International Law Sections are seeking funding from foundation sources to support the administrative costs of the project, including the cost of contracting with an administrative law scholar to organize and to oversee the development of the treatise and the symposia. That individual would be the primary editor of the treatise. The project will have a steering group comprised of members of the Administrative Law and International Law Sections. The Sections will seek liaisons from organizations representing the European bar to participate on the steering group.

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TAB 13D1/7.03 draft

PROJECT ON THE EUROPEAN UNION REGULATORY PROCESS Project Outline Phase

This is a prospectus for a long-term project on the European Union regulatory process and, in the more immediate, a short-term project on the organization of that longer one.

BackgroundThe Administrative Law and International Law Sections of the ABA have

preliminarily discussed the prospect of launching a joint European Union Administrative Law Project. The immediate purpose of the Project would be to create a reliable and reasonably comprehensive resource for US practitioners whose practice or interests necessitate an understanding of the EU’s regulatory processes. Not only are clients of US practitioners regularly subject in their operations to the regulations emerging in the EU context, but US regulatory authorities are themselves engaged in ever-closer collaboration with their EU counterparts. Thus, even understanding current US regulatory processes entails an understanding of the EU processes with which they are increasingly interacting.

While most useful to practitioners in the regulatory field in the short term, the Project has the potential to illuminate the broader policy issues at stake in the contemporary regulatory phenomenon (such as transparency and public participation). It will also inform the growing debate in academic circles over emerging international and even global forms of governance. But its central focus remains production of a highly useful resource for these needful of, or interested in, understanding European Union administrative law/

The Long-Term ProjectThe long-term project entails principally the preparation of (a) a companion to the

volume entitled “A Blackletter Statement of Federal Administrative Law” and (b) counterpart volumes to the various background studies that were, or are still being, prepared in connection with that volume.

However, it is understood that the existing Blackletter Statement will only be a point of departure for the European volume. Many factors will require deviations from that model.

A chief difference stems from the fact that the EU lacks a general codified administrative procedure act of any kind and that its administrative procedure law is therefore more fragmented. This difference will not prevent production of a general volume parallel to the Blackletter Statement, but it will require that volume to be more tentative in its assertions.

At the same time, this difference suggests that the sound approach may be to organize the research on a heavily sectoral level, so that, for example, the background volumes are not necessarily titled in functional terms (e.g., “rulemaking”, “adjudication,” etc.), but rather in sectoral terms (e.g., “telecommunications,” “food safety,” etc.). This is not invariably the case, though. For example, it may be possible to produce generic background volumes on those functional issues that do run fully across the sectors, such as access to information (the FOIA

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equivalent) or what is known as ”comitology” (i.e. the Council’s insistence that the Commission’s exercise of delegated authority be subject to review by expert authorities of the Member States).

A basically sectoral approach in preparation of the background volumes presents two other advantages. First, the persons most willing and able to prepare the volumes may well be (unlike the US academics who produced the corresponding volumes in the federal administrative law project) US attorneys based in Brussels whose practice is itself basically sectoral (e.g., food and drug, competition law, etc.). Second, among the most useful aspects of this project is the information it provides on the various processes of transatlantic regulatory coordination and cooperation that are now afoot. While certain general government structures have been set up to help orchestrate these processes, the fact remains that they are largely conducted on a direct “US-agency-to-EU-Directorate-General” basis. Both the US agencies and the D-G’s are largely sectorally organized, and so are their cooperative and coordinative efforts.

While publication of synthetic volume and a series of sectoral volumes is the centerpiece of the project, it is anticipated that their production will be associated with a series of symposia, both US- and Brussels-based, in which both persons involved in the Project and persons not involved in it will participate.

The European Administrative Law Project will necessarily be a long-term one. Realistically, one and a half to two years will be needed. In order to ensure that both the background volumes and the synthetic volume have the required combination of academic quality and professional utility, the contribution of a wider than usual variety of persons will be needed. The Project will accordingly entail a substantial amount of delegated activity, and therefore also a substantial amount of coordination and orchestration. It seems indispensable as well to enlist, for each sector studied, the cooperation of the competent regulatory officials in Brussels, both to ensure accuracy and completeness and to see to it that the accounts reflect the actual collaboration that is taking place with US regulatory counterparts. The project will also necessarily entail overseas travel.

From a more specific organizational view, it is anticipated that the Project, like the Blackletter Statement Project, will require the long-term services of a Chief Reporter and two Assistant Chief Reporters. As in the case of that project, it is anticipated that university law professors with a suitable European and administrative law background would be best suited to fill these positions. The leadership of both the Administrative and International Law Sections of the ABA, if they are to co-sponsor this effort, needs to be committed in its support of this Project, including in the provision of logistical support, advice and fundraising effort.

At this stage – and the thinking is necessarily preliminary only – it will be necessary to assemble two research teams. One team will consist primarily of the Brussels-based US practitioners, each one of whom would assume primary responsibility for conducting the research and writing necessary to produce the sectoral volumes that are contemplated. Needless to emphasize, the Chief and Assistant Chief Reporters will have responsibility for developing guidelines that all Brussels-based practitioners constituting this first team will follow in conducting their research and writing.

It will be necessary to ensure that each member of this first team has the necessary access to the competent regulatory officials in Brussels referred to earlier. While some

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members of the team may already have that access, it will be necessary for the Chief Reporter and Assistant Chief Reporters to ensure that the Project, overall, has sufficient support at the crucial Commission levels (e.g., the Secretariat, the Legal Service, etc.). This will entail a certain amount of “outreach.” For these and other purposes, outreach to members of the European bar may likewise be needed.

A second team would consist of a number of European and American administrative law scholars, headed directly of course by the Chief Reporter and Assistant Chief Reporters. Their responsibilities would include (1) producing the non-sectoral background volumes, if any, (2) reviewing and assisting in production of the draft “sectoral” volumes (thus entailing direct collaboration with the members of the first team), and (3) assisting the Chief Reporter and Assistant Chief Reporters in producing the general volume on European Union Administrative Law that will correspond to the Blackletter Statement.

All of this means that substantial funds, and fundraising, will be required. An important phase of the Project will therefore also consist of achieving the financial means of carrying it off. Obviously a budget needs to be prepared that is realistic both in terms of the attainability of funding and adequacy of the funds attained.

The Short-Term ProjectThe complexity of the landscape on which this Project is being conducted, as

compared for example with the landscape on which the Blackletter Statement Project was conducted, means that the Project requires very careful -- and realistic -- planning and organization. It will not succeed unless it is adequately and realistically designed.

Accordingly, it seems necessary to commission initially, as a short-term project, the task of designing the long-term project in all relevant respects. The short-term project will therefore entail, at a minimum, the following:(a) substantive tasks:

1. outlining the intended structure of the synthetic volume2. identifying the regulatory sectors to be studied in the “sectoral” background

volumes

3. identifying the functional subjects that are appropriate for non-sectoral background volumes4. planning periodic symposia

5. collecting available existing materials on the EU regulatory process

(b) personnel tasks:1. identifying a Chief Reporter and two Assistant Chief Reporters

2. preliminarily identifying members of the two teams (a Brussels-based practitioner team and a joint US-European academic team) referred to above

3. identifying the personnel support that will be needed for logistical aspects of the Project

(c) administrative tasks:1. preparing a preliminary budget2. preparing a fund-raising strategy

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3. identifying the administrative support that will be needed for logistical aspects of the Project3. taking the initial “outreach” steps, not only with the Commission, as noted above, but with other

relevant entities (e.g. US law firms in Brussels, counterpart US agencies, associations such as the US Chamber of Commerce in Brussels, lobbyist organizations, etc.)

4. preparing a project calendar of progress milestones and events (including symposia)

The short-term project will itself have a certain duration, possibly of up to six months, requiring a substantial investment of time by a person having a background similar to what would be sought in a Chief Reporter or Assistant Chief Reporter. On the other hand, there should be no necessity or presumption that the person charged with carrying out the short-term project will become a Reporter of the long-term project, whether chief or assistant.

Whoever carries out the short-term project needs of course to work closely with the leadership of the Administrative and International Law Sections of the ABA. To the extent that the sectors to be examined in the sectoral studies mirror other ABA sections in their fields of interest, it seems advisable to assemble an multi-section advisory group. While there will be many useful sources of information and inspiration to the person conducting the project, a preeminently useful source will be the Delegation of the European Commission in Washington DC, whose staff is accustomed to acting as liaison between persons in academic and governmental circles. In addition, the Commission Delegation in Washington could be crucial in publicizing and marketing the work that emerges from this ABA Project.

It is anticipated that the short-term project will culminate in a formal report detailing the substantive and operational aspects of the long-term project. While a decision to go forward with the short-term project should not be allowed to prejudice the eventual decision whether to go forward with the long-term project, the assumption is that the latter will eventually be conducted in one fashion or other, commensurate with the resources, financial and non-financial alike, that become available. The reason for commissioning the short-term project is precisely to enhance the likelihood that a long-term project will be adequately conceived and organized and that the necessary resources will become available.

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TAB 14

AMERICAN BAR ASSOCIATIONREPORT TO THE BOARD OF GOVERNORS

RECOMMENDATION

RESOLVED, that the American Bar Association opposes legislation or regulations granting the Securities and Exchange Commission new administrative authority to impose civil monetary fines on individuals and companies, without regard to whether or not they are regulated persons, where the individuals or companies are alleged to have violated, or caused another to violate, any federal securities law or regulation, without first obtaining a judgment in a court of competent jurisdiction.

FURTHER RESOLVED, that the ABA opposes legislation or regulations granting the Securities and Exchange Commission new administrative authority to subpoena records without the need to notify the subject of the request.

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REPORT

On April 9, 2003, the United States Senate passed legislation that would give the Securities and Exchange Commission (“SEC”) authority to levy civil monetary penalties in administrative proceedings against any individual or company alleged to have violated (or to have “caused” someone else’s violation of) any federal securities law or regulation. Currently the SEC can do this only against individuals and companies in the securities industry, such as broker-dealers, investment companies or investment advisors. For non-regulated persons, the SEC currently can only seek civil monetary penalties in federal court, where defendants have a right to a jury trial. The legislation would also authorize the SEC administratively to subpoena financial records without notice to the subject of the request. Under present law, federal court approval is required to subpoena records without such notice.

This legislative provision, sponsored by Sen. Carl Levin (D-MI) and Bill Nelson (D-FL), was adopted by the Senate during consideration of tax legislation known as S. 476 or the “CARE Act of 2003.” The Senate then approved the underlying bill on April 9, 2003 by a vote of 95-5. The Levin-Nelson provision is similar to language contained in a separate bill introduced by Sen. Levin in January, 2003 known as the SEC Civil Enforcement Act or S. 183. The earlier bill was co-sponsored by Sen. Nelson, as well as Sens. Jon Corzine (D-NJ), Joseph Biden, Jr. (D-DE), Paul Sarbanes (D-MD), and Norm Coleman (R-MN).

Now that the Senate has approved S. 476, House Ways & Means Committee Chairman William Thomas (R-CA) has indicated that he may introduce his own version of the underlying tax legislation in the near future. In addition, the House Financial Services Committee, which has primary jurisdiction over issues involving the SEC, may also consider legislation similar to the Levin-Nelson provision in the near future. Both SEC Chairman William Donaldson and Rep. Barney Frank (D-MA), Ranking Democrat on the House Financial Services Committee, have expressed support for the Levin-Nelson provision. Because the Levin-Nelson provision has already passed the Senate and is likely to be considered in the House in the near future, the issue may become moot before the next meeting of the ABA House of Delegates in August, 2003. Therefore, in order to ensure that that ABA has the opportunity to speak out on this issue in a timely manner, the ABA Board of Governors should consider the proposed recommendation on an expedited basis.

The purpose of the Levin-Nelson provision is to strengthen the SEC’s enforcement authority. The ABA supports vigorous and effective enforcement of the securities laws to protect investors and the public interest. Specifically, the ABA has gone on record as urging Congress to fully fund the SEC’s enforcement efforts. However, enforcement measures must be consistent with protection of the fundamental rights of those accused, including the right to due process, to trial by jury and to effective representation of counsel. Moreover, such measures should not erode the role of the federal courts and the protections provided by vesting authority in the federal courts rather than in an administrative agency without the same safeguards. The Levin-Nelson provision does not meet these standards because removing from the federal courts and placing in

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the hands of the SEC, an administrative agency, the authority to impose civil monetary penalties on anyone, without regard to whether or not they are a regulated person, and to dispense with notice of subpoenas undermines fundamental rights of accused persons. In the absence of a showing of a compelling need to place this broad authority in the hands of an administrative agency, eliminating the basic protections afforded defendants in the federal courts is contrary to sound public policy. In addition, the Levin-Nelson provision raises serious constitutional questions under the Seventh Amendment’s right to trial by jury.*

Granting the SEC new administrative powers to subpoena documents without notice or to assess civil monetary penalties without court approval would weaken important due process protections for those who are the subject of SEC action, even though they are not regulated persons. For example, SEC administrative law judges, unlike Article III federal judges, are neither confirmed by Congress nor granted life tenure, and as a result, they do not enjoy the same protections to their independence that Article III judges do. In addition, SEC administrative proceedings are not subject to the Federal Rules of Evidence, the Federal Rules of Civil Procedure, or other procedural protections that are enjoyed by other types of defendants.

The legislation would also weaken important due process protections in the appeals process. Appeals from SEC administrative proceedings are referred to the SEC Commissioners for review, but this does not ensure the same protection as judicial review, especially since it is the SEC Commissioners themselves who voted to authorize the case in the first instance. Although final SEC decisions are ultimately reviewable by the federal court of appeals, a party must first go through the lengthy, time-consuming and expensive process of completing an administrative hearing and an appeal to the Commissioners. Once the matter reaches the federal court of appeals, moreover, the court will only review the matter on a very deferential “substantial evidence” standard. See 5 U.S.C. § 706(2)(E).

No convincing argument has been made that the SEC needs the authority to subpoena documents without notice or assess civil monetary penalties in administrative proceedings without court approval. The SEC does not contend that it has had any difficulty in getting courts to waive the usual notice requirement for subpoenas in appropriate circumstances or assess appropriate civil monetary penalties against those accused of violating the securities laws. Furthermore, in those cases in which the SEC has solid evidence against alleged wrongdoers, the Commission has generally been successful in obtaining court judgments and appropriate remedies, including civil monetary penalties.

By permitting the SEC administratively to impose civil monetary penalties on non-regulated persons, the legislation also raises serious constitutional questions. The Seventh Amendment guarantees the right to a jury trial for actions seeking legal (i.e., non-equitable) remedies tried to a jury at common law. Civil monetary penalties are among the legal remedies for which a jury trial is required. See, e.g., Feltner v. Columbia Pictures TV, 523 U.S. 340 (1998) (right to jury

* No view is expressed on the provisions of the legislation that would increase the amount of civil fines that could be imposed.

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for copyright statutory damages); Tull v. United States, 481 U.S. 412 (1987) (right to jury for civil penalties under Clean Water Act). Congress may not evade the Seventh Amendment by assigning legal remedies to a non-Article III tribunal without juries. Granfinanciera SA v. Nordberg, 492 U.S. 33(1989) (right to jury for fraudulent conveyance actions assigned by Congress to non-jury bankruptcy courts).

A line of cases allows Congress to permit administrative agencies to assess civil monetary penalties against regulated entities in cases involving “public rights.” Atlas Roofing Co. v. OSHA, 430 U.S. 442 (1977) (permitting OSHA civil monetary penalties in administrative actions). These cases, in turn, provide support for the view that the existing statutory provisions allowing the SEC to assess civil monetary penalties against regulated individuals and entities in the securities industry are constitutional (despite the tension with the Supreme Court’s more recent decision in Granfinanciera). However, there is a much more serious constitutional problem in allowing administrative civil monetary penalties against non-regulated individuals and entities. For example, many such cases would involve the relationship between a company and its shareholders – a set of issues that the Supreme Court has held is subject to Seventh Amendment jury trial rights. Ross v. Bernhard, 396 U.S. 531 (1970) (right to jury trial for shareholder derivative suits).

In his April 9, 2003 press release supporting the legislation, Senator Levin identifies lawyers as among the persons upon whom the SEC would be authorized to impose administrative fines. While the issues raised by this legislation are much broader as described above, that statement raises the particular concern that vesting this power in the hands of an administrative agency, especially one before which the lawyer represents his or her client, will further interfere with the client’s right to effective representation by counsel. Exposing lawyers to civil monetary penalties without the protections afforded by a judicial proceeding will interfere with the critical attorney – client relationship by putting counsel in the position where counsel’s own interests may conflict with the need to provide zealous advocacy for the client.

The Levin-Nelson provision, which seeks to grant the SEC new administrative authority to impose civil monetary fines against and subpoena without notice financial records of those accused of securities law violations, would have serious adverse consequences for our nation’s securities law enforcement system. By violating the fundamental rights of those accused of violating the securities laws, including the right to due process, to trial by jury and to effective representation of counsel—without any showing that these extraordinary powers are even needed by the SEC—the Levin-Nelson provision would cause far more harm than good. Accordingly, the provision should not be enacted.

April, 2003

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