Harter called the meting to order at 8:30 a.m.

Present: Philip Harter (Chair), James O'Reilly (Chair-Elect), Warren Belmar (Vice-Chair), Sidney Shapiro (Secretary), Barbara Timmer (Budget Officer), Russell Frisby, Jr. (Assistant Budget Officer), Richard Wiley and Edward Grenier, Jr. (Section Delegates to the House of Delegates) and the following Council members: Lawrence Baxter, Barbara Bracher, Shela Hollis, Judge John Holmes, Roberta Karmel, Jeffrey Lubbers, Trevor Potter, Elaine Reiss, Judge Judith Rogers, William Roush, Jr., and Steven Ryan.

Absent: Janet Belkin (Last Retiring Chair), Peter Shane (Council Member)

1. Approval of Minutes: The Council approved the minutes of its Summer, 1995 meeting.

2. Report of the Chair: Harter welcomed Cynthia Price as the new section administrator and thanked her for the difficult task of putting on the Fall meeting when she did not yet have a permanent office at the ABA building in Washington. Harter announced the formation of an FDA committee and that Joel Hoffman will chair the committee this year. He mentioned that the Baltimore meeting will focus on the internationalization of the administrative law.

3. Report of the Chair-Elect: O'Reilly explained that one of his functions is to work with committees this year. He noted that it is important to the retention of members that chairs communicate with members and solicit their program ideas and recommendations. He said that he has asked committee chairs at least to have "one shining moment" this year, such as a meeting, CLE program, an article for the Administrative Law News, or sponsorship of a recommendation. He noted that it is crucial for retention of members that committees be busy and that committee chairs seek the input of committee members. O'Reilly stated that his theme for 1996-97 will be that "administrative law is of service to real people." He encouraged members to talk to the Section leadership about long-range projects concerning this theme or any other relevant issue.

4. Report of the Vice-Chair: Belmar reported on his attendance at the Section Officers conference. He noted that there is an increased level of conflict in the ABA and that the meeting reflected this hostility concerning issues of governance and the waiver of dues to attract new members. He said the sections have failed to get the governance and administrative changes that they wanted, which raises the important issue of whether the ABA should orient itself toward the sections or its other constituencies.

5. Report of the Budget Officer: Timmer said that she was trying to look ahead at potential problems, including changes in membership, the costs of the Administrative Law Review, changes in costs associated with the move to Washington and the new $100 per diem. She noted that there are two trend lines: whereas revenue is flat or declining (because of stagnant membership), costs are increasing (due in part to inflation). Timmer moved adoption of the budget, and Grenier seconded. The Council unanimously approved the budget.

6. Report of the Membership Committee: Franklin presented her draft plan to increase membership in the Section. It is based on a preliminary statistical analysis of membership characteristics and trends. She is awaiting further assistance from the ABA membership office in developing a final plan, but she is seeking ideas based on the preliminary plan. She noted that her data shows that the Section has many attorneys who are in private practice, but few attorneys from government. Of the government attorneys who are members, most are from Washington. The goals of the membership plan are to retain existing members and to recruit new members. She warned that the ABA says that in takes a year or two for any positive results from a membership drive. She said that the Section must make some basic philosophical decisions concerning a membership campaign such mass mailing versus waiving section dues for new members.

Karmel asked whether there was a special rate for government attorneys, and Bracher responded that there is a slight reduction in ABA dues, but that the Section does not discount its dues. Strauss suggested that the Section obtain a fee arrangement with the Government Employees section. Bracher noted other sections have made such joint arrangements. Harter asked Franklin for a report on joint fee arrangements in Baltimore.

Lubbers noted that there are several ways for ABA members to reduce their dues, but that this Section does not sufficiently publicize these opportunities. For example, attorneys can obtain a group rate for ABA dues.

O'Reilly noted that a direct mail campaign worked well for the Section in 1989-90, but was less successful in its third year. He argued that the key is to retain new members after a membership campaign, which depends heavily on having committee chairs who are active. Franklin noted that the ABA recommends that any mailings be targeted and personalized. She warned that the current budget does not provide for mass mailings and that such mailings could cost in the $25,000 range over several years. Karmel was skeptical about direct mail. She noted that the 1989-90 success occurred at a time when legal business was especially robust. Reiss thought that the Section's problem was not getting new members, but retaining the persons already in the Section. Franklin noted that the Section is among the best sections in the ABA at recruiting new members.

Belmar noted that law students get free membership in the ABA and the Section. He proposed that the Section furnish membership applications to administrative law professors to be passed out in class. Strauss noted that the Section should recruit persons who were on the Administrative Conference. Harter noted that the Section had obtained the names of the 90 General Counsels in the federal government.

Braden stressed the importance of personal contacts. She suggested that key members of the Section should recruit at agencies. For example, the Section can ask the Chairman of the Federal Trade Commission to host an informal reception at the Commission. Another suggestion was to issue specific invitations to government attorneys to attend receptions held at the Fall meeting.

Hollis recommended that the Section target state utility commissioners and public advocates as potential members. She noted that NARUC has two meetings a year and that we could get someone to recruit at these meetings.

Baxter suggested that a joint membership efforts be made with the business law section. Reiss noted that there were other organizations that might be a source of names, like an organization of Food and Drug lawyers. Leo mentioned that some members of the Federalist Society might be interested in membership in the Section, but the problem is the payment of ABA dues. He explained that the Federalist Society stresses debate and discussion, which attracts even liberals as members. He thought that an advertising approach that stresses debate and discussion may have similar good results for the Section.

Franklin pointed out that it is easier to get new members for the Section from the pool of persons who are already ABA members. She noted that only 20% of ABA members who indicate administrative law as a concentration are Section members. Roush noted that we may need to invest in a logo and similar attention getting items to attract ABA members, but Reiss thought that the graphics had to await a better definition of the Section's identity. Ahrens noted that this and other sections have been asked to cosponsor professional development seminars for the Young Lawyers Division (YLD). She also suggested that the section have a booth at the YLD meeting. Franklin said that co-sponsorship might cost $5,000, which was too expensive for the section.

7. Report on Future CLE Programs: Zengerle announced that the Section will sponsor CLE programs with the ABA. The first program is a banking program to be held this Spring which is co-sponsored with the Business Law Section. There has been a hiatus in CLE activity because of the changeover to ABA sponsorship. She asked persons who previously gave her ideas about CLE programs to contact her again.

Roush asked whether the Section can sponsor a program with a non-ABA group. Zengerle noted that the ABA has a right of first refusal. Fleming noted that the Natural Resources Section combines with non-ABA entities to sponsor CLE programs. Timmer warned that the Section should be careful not to get linked to ideological groups. Hollis suggested we seek joint efforts with groups like the Federal Bar Association.

8. Report of Ad Hoc Committee on Publications: Olpin reported for the Ad Hoc Committee on Publications. He noted that the Administrative Law Review is excellent, but that the Section leadership has asked the committee to study other options, particularly a magazine. The committee will survey members and then make recommendations to the Council by the Spring meeting. The committee is trying to figure out how to get comments from members. Funk said it is difficult to get members to respond to questions in the Newsletter. Reiss suggested that committee members make telephone calls. O'Reilly and Price are going to suggest some outreach ideas. Besides Olpin, members of the committee are: Ahrens, Asimow, Belkin, Funk, Franklin, Karmel, Koch, May, O'Reilly and Troy. Olpin noted that a magazine will cost about twice as much as the Review.

9. Report on National Conference of Administrative Law Judges: Judge Holmes noted that the Conference is monitoring the impact of the budget on the selection process for ALJs. He noted that the government is making progress in diversifying the ALJ ranks. For example, the last six ALJ hires by the Department of Labor have been women. He also noted that Senator Heflin has revived the idea of an ALJ corps. Finally, Judge Holmes noted the growth in the number of state ALJs as states upgrade the status of hearing examiners and similar personnel. He invited anyone with any questions or comments concerning issues germane to ALJs to contact him.

Judge Ronnie Yoder thanked the Section for its help concerning a recommendation in the House of Delegates sponsored by the Conference. He explained that Congress may require agencies who select ALJs to reimburse OPM for the selection costs. He expressed concern that this plan could affect the independence of the selection process. Since the Social Security administration hires the vast preponderance of ALJs, SSA may end up footing the bill for most of the selection process. If SSA makes certain demands concerning how OPM conducts the selection process, Judge Yoder noted it may be difficult for OPM to resist. If so, the process could be skewed toward SSA's preferences.

10. Report of the Nomination Committee: Wiley announced that the Nomination Committee wrote section members to request nominations for a new Vice-Chair, section delegates, and members of the Council, and that there has been a good response. Besides Wiley, Morgan and Levin are members of the selection committee. He encouraged anyone interested in being nominated to contact him or the other committee members. The committee will submit a tentative slate after the mid-year meeting to Executive Committee. Final nominations will be submitted at the Spring meeting. Harter noted that Sylvia Alderman has resigned from ABA and Council.

11. Report of the Delegates to the ABA House of Delegates: Grenier had good and bad news. As good news, he reported that the House of Delegates passed the recommendations sponsored by the Section. At the request of the Business Law Section, the recommendation concerning agency rule review (Report No. 103) was amended to clarify that agencies should engage in rule review. The Business Law Section then became a cosponsor of the recommendation. The recommendation concerning the Sentencing Commission sailed through without discussion. As bad news, he noted governance changes favored by the Sections were routed by the state bar associations. He also noted that the Assembly has been eliminated.

Harter noted that the Litigation and Tax Sections have threatened to leave annual meeting to get ABA's attention concerning section grievances. Grenier said this threat may not work because many members of section also belong to other divisions of the ABA. Belmar noted that this threat relates to his earlier report on the unhappiness of the sections with the rest of the ABA. He noted that the section budget officers are asking hard questions concerning ABA budget management.

Harter said reports and recommendations for the House of Delegates must be submitted by Nov. 20, 1995. He mentioned that there is no similar time limit on state bar associations, which is another example of how sections were treated unfairly within the ABA.

12. Discussion Regarding ABA's Policy Positions and Process and Time Given Council Recommendations to Consideration of House of Delegates: Olson noted that there are two problems concerning such recommendations. First, this section often does not have the time to discuss and suggest a response to our delegates. Second, controversial ABA recommendations can cause turmoil within the Section and lead to a loss of membership for the ABA. He wondered whether the benefits of taking such positions outweigh the costs in terms of lost in membership and other negative effects on the ABA.

Gellhorn doubted that we could design a policy for the ABA, but he thought the Section could recommend that the ABA create a committee to discuss whether the organization should have some limits concerning the type of issues on which it makes recommendations. He noted that the Federal Bar Association has such a policy. He noted that the ABA also needed to fix the process by which it consults sections about such recommendations. Finally, he noted that this Section could prioritize its consideration of ABA recommendations as indicated in the draft report.

O'Reilly and Holmes endorsed the general direction of the draft recommendations. Reiss counseled, however, that lawyers should advocate for justice, and this may involve lawyers in controversial issues. For example, the Family Law Section may generate an issue that appears to members of this Section to be peripheral to ABA concerns, but the Family Law Section may see the issue as central to the ABA. She noted that this reality makes it difficult to define what issues should be avoided by the ABA. Lubbers noted that the very nature of some ABA groups invites controversial subjects, such as the Section on International Law or groups that address gun violence or legal problems of the elderly. Karmel noted that since many policy disputes end up in court, it is difficult to draw a line that says what controversies should be outside the ABA's jurisdiction. She also noted that although some ABA members may have dropped out because of ABA policy positions, others may have joined to convince the ABA to take such positions. She wondered if some persons would leave the ABA if it declined to get involved in policy issues the way it does today. Potter emphasized that recommendations should address issues with a legal nexus, but Susman answered that most controversial public policy issues have a legal nexus. Potter noted we should get other sections to focus on this issue.

Susman thought the ABA should consider having sections speak for themselves on controversial issues, which would avoid the ABA entangling itself in this disputes. Leo reported that the ABA produced reports on civil rights that were influential, but it did not take an official position on civil rights issues. The same tactic was used years ago concerning New Deal. Leo suggested that the ABA might want to use this approach again.

Olson recommended that the Section sponsor a program on this issue in Baltimore.

13. Section Resolution on Reforms to Internal Congressional Process: Bruff presented the report and recommendation concerning Congressional ethics regulation. One part of the recommendation is intended to assist members of Congress concerning constituent service by restating applicable administrative law principles. The second part of the recommendation suggests changes concerning the process by which Congress investigates and disciplines members for ethical violations. Bruff indicated that he would withdraw section 1F of the recommendation.

Bracher indicated her concern that if Congress complied with sections 1C and 1D, which involve the participation of persons from outside Congress, there might be a separation of powers violation. Bruff responded that outsiders would only make recommendations to Congress and that it would retain final decision making power.

Belmar asked with reference to 1H, which recommends that Congress recognize common law evidentiary privileges, how Congress would resolve disputes concerning such privileges. Bruff responded that such disputes would be resolved, as now, by the appropriate committee and house of Congress. Ryan noted that a person who seeks to assert a common law privilege has to refuse to answer and be subject to a contempt citation.

Timmer indicated that she saw section 2C as another potential infraction of separation of powers. Strauss asked whether 2c permits ABA to oppose congressional attempts to stop agencies from keeping logs. Bruff said that was the intent.

Lubbers proposed that the word "Congress" in Section 1 should be changed to "the House of Representatives and the Senate" to recognize that each house might adopt different methods to comply with the recommendations made in Section 1.

Lubbers called the question with a second by Wiley.

The recommendation passed with three no votes (Timmer, Belmar, Bracher) and two abstentions (Judge Rogers, Reiss)

14. Section Resolution on Administrative Conference of the United States: Anthony presented a resolution concerning the loss of funding by the Administrative Conference of the United (ACUS). He noted that if ACUS is still authorized by legislation, the President could use his reorganization powers to locate it somewhere in the Executive Branch. Gellhorn noted that because the ABA is on record as supporting ACUS, the Section can pass the proposed resolution and follow it up with appropriate action.

Reiss suggested that nothing is likely to happen without strong lobbying by Section representatives. She asked what strategy the Section would employ. Gellhorn said that the key question is whether the Administration will support locating ACUS's functions somewhere in the Executive Branch. Lubbers indicated that ACUS would have to be recreated because the current organization will soon be disbanded. Goodman noted that the Section should stress that ACUS has ongoing responsibilities under several statutes and the Administration should reorganize it to meet these mandates. Eisner noted that the Administration is considering whether to assign these responsibilities to other agencies.

Potter wonder whether it would be better to take out reference to OMB in the resolution because the Administration might prefer another location. Karmel suggested that the resolution could read that the "functions of the Administrative Conference . . . should be carried forward in an appropriate department, such as the Office of Management and Budget."

Eisner wondered whether OMB would be an appropriate location for ACUS's functions. He explained that some agencies still distrusted OMB because of its oversight during the Reagan administration. He thought that the Section might have to look outside of the government to a foundation to transfer ACUS's functions. Strauss suggested that the Office of Federal Register might be an appropriate home.

Strauss also indicated his hope that committee chairs would contact ACUS consultants who had not yet completed their studies. He proposed that such studies might be the basis of Section recommendations.

Lubbers proposed that the recommendation read that the "functions of the Administrative Conference . . . should be carried forward in the Office of Management and Budget, the Department of Justice, or other appropriate agency." Gellhorn accepted this amendment. Harter moved the adoption of the recommendation and Holmes seconded the position.

The vote was unanimous with one abstention (Judge Rogers).

15. Advocacy School Law Groups: Peter Ban gave a short report on the Alternative Dispute Resolution Society which has been started recently at the Georgetown Law School.

16. Report of Administrative Law Review: Koch gave a short report on the status of the Administrative Law Review. He asked for articles by practitioners of twenty pages of thinking based on their experience. Such articles would not have to be heavily footnoted. Wiley hoped that the Review would publish articles on regulatory practice. Belmar asked everyone to congratulate Koch on the great job he was doing with the Review.

The meeting was adjourned at 12.:00 p.m.