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Section of Administrative Law and Regulatory Practice

Council Meeting Minutes: August 3-4, 1996

August 3, 1996

Present: Philip Harter (Chair), James O'Reilly (Chair-Elect), Janet Belkin (Past-Chair), Warren Belmar (Vice-Chair), Sidney Shapiro (Secretary), Russell Frisby (Assistant Budget Officer), Edward Grenier, Jr. (Section Delegate), Richard Wiley (Section Delegate), and the following Council members: Susan Braden, Barbara Bracher, David Cardwell, Sheila Hollis, John Holmes, Judith Kaleta, Jeffrey Lubbers, Trevor Potter, Peter Shane, and William Roush, Jr.

Absent: Thomas Fritz (Board of Governors) Elaine Reiss (Council) Judge Judith Rogers (Judiciary).

The meeting was convened at 8:00 a.m.

  1. Report of the Chair: Lawrence Baxter has resigned. Harter moved the election of Judith Kaleta as a replacement, and Grenier seconded the motion, which passed unanimously.

  2. Current Status and Developments Concerning ALJs: John Holmes reported on recent events concerning Administrative Law Judges including the closing of the Office of Administrative Law Judges in the Office of Personnel Management.

  3. Chair Elect's Report: O'Reilly spoke of his goal of adding 300 new members to the Section and the importance of adding value to membership in the Section. He indicated, for example, that the Section can increase the number of practioner oriented articles in the Administrative Law Review, and develop more CLE programs (including possible use of the satellite capability to be developed by the ABA).

  4. Report of the Vice Chair: Belmar mentioned the location of the meetings the year after next: Fall--Washington; Midyear--Nashville; Spring--Phoenix.

  5. State Administrative Law Web Site: Roush moved that the Section explore the ramifications of cosponsorship of a state administrative law webb site under development at Florida State University Law School, subject to whatever agreements and approvals are appropriate. The relationship could include establishing a link between the Section's home page and the proposed site, which will be an interactive bibliographic resource on state administrative law, and permitting FSU to use the Section's logo. The motion passed unanimously.

  6. Discussion of Forward Planning Report: Kaleta reported on the discussions held at the Spring meeting concerning forward planning and presented a draft report of a strategic plan.

  7. Report of the Assistant Budget Officer: Frisby indicated that he will be proposing a break-even budget for the upcoming year, and he thanked Leonard Leo for his assistance.

    1. Frisby moved to raise the dues to $35 for the year 1997-98, which will yield approximately $25,000 additional revenue for the section. Braden seconded the motion. After a discussion of the proposal, the motion passed with two no votes. Several Council members stressed the importance of indicating to members the additional services that the dues increase will make possible.

    2. Belmar moved that the Section print and deliver the membership directory to all members. The cost will be $5000 more than last year's cost. The motion was seconded by Frisby. Belmar recommended that the Section consider adding a list of all members at the end. Wiley suggested that the directory should include a letter from the chair.

    3. Frisby proposed to terminate the $2000 budget the Section contributes to the cost of the ABA Coordinating Group on Energy Law: Hollis reported that ABA Program Committee approved the continuation of the Group, although at reduced funding, and she gave a review of the Group's activities and programming. Grenier moved to fund the committee at $1000 and Wiley seconded the motion. The motion passed.

  8. Report of the Publications Committee: Kinney outlined the plans of the committee which include the publication of two monographs: a third edition of The Guide to Rulemaking (to be undated by Jeff Lubbers), and a second edition of The Lobbying Manual (to be updated by Professor Bill Luneberg). She also explained the budget implications of publications of such monographs.

  9. Report of the Delegates to the ABA: Grenier and Wiley briefly described some the recommendations that the House of Delegates would consider and there were no instructions issued to them. Ron Cass briefly discussed the background of recommendation concerning accreditation standards for law schools.

  10. Report of the Membership Committee: Franklin reported on the results of the survey undertaken by the Section. The majority of section members are somewhat satisfied or not satisfied. The resounding message from the survey was that members want "cutting edge" information, they do not want to come to meetings to get it, and they are not getting such information from current publications. Franklin proposed the Section undertake a follow-up survey to find out exactly what information people want and how they want it delivered. She also recommended that survey results be made available to other sections to be helpful and to establish a reciprocal expectation of getting similar information. The Council approved this suggestion, but only if other sections agree to share similar information.

The meeting was adjourned at 1:00 p.m.

August 4, 1996

Present: Philip Harter (Chair), James O'Reilly (Chair-Elect), Janet Belkin (Past-Chair), Warren Belmar (Vice-Chair), Sidney Shapiro (Secretary), Russell Frisby (Assistant Budget Officer), Edward Grenier, Jr. (Section Delegate), Richard Wiley (Section Delegate), and the following Council members: Barbara Bracher, John Holmes, Judith Kaleta, Jeffrey Lubbers, Trevor Potter, Peter Shane, and William Roush, Jr.

Absent: David Cardwell (State Administrative Law), Thomas Fritz (Board of Governors), Judge Judith Rogers (Judiciary), and the following members of the Council: Susan Braden, Sheila Hollis and Elaine Reiss

  1. Report of the Nominations and Elections: Wiley described the nominations process and moved the acceptance of the slate of nominees. Holmes seconded the motion. The nominations were unanimously accepted. O'Reilly indicated that he will write letter to new members concerning the Section's attendance requirements.

  2. Report of the Publications Committee (continued): O'Reilly moved to authorize the Publications Committee to negotiate an agreement with the Government and Public Sector Lawyers section to cosponsor the third edition of the Guide to Rulemaking on the basis of a 50-50 split of revenues and expenses. Grenier seconded. The Executive Committee will approve the agreement when it is submitted by Kinney. The motion passed unanimously.

  3. Proposed Recommendation: Judicial Review Power: Levin proposed a commendation on judicial remands.

    1. Frisby moved the following change in paragraph 2(b):

      (b) the challenging party's interest in obtaining relief from the agency's decision is <clearly> substantially outweighed by the risk that vacation of the action would

      Grenier seconded the motion and it passed with one no vote.

    2. Shane moved the following change to paragraph 2(b):

      (b) the challenging party's interest in obtaining relief from the agency's decision is <clearly> substantially outweighed by the risk that vacation of the action would unduly . . .

      Belmar seconded the motion, but it failed on a 6 to 5 vote.

    3. Roush moved that paragraph (2)(a) be amended to limit a remand without vacation to "circumstances involving a technical or ministerial defect that has no reasonable likelihood of affecting the outcome." Ryan seconded the motion. The motion failed.

    4. Grenier moved to substitute "or" for "and" in paragraph 2(a), and Frisby seconded the motion. The motion failed.

    5. Grenier moved to adopt the recommendation as amended and Bracher seconded the motion. The motion was adopted. Belmar recommended that a copy be sent to Judge Rogers to permit her to indicate any concerns. A copy will also be send to the Chief Judge of the District of Columbia Court of Appeals and to Judge Wald for the same purpose.

  4. Report of the Ad Hoc Committee on ABA Policy: The Council discussed the draft recommendation presented by Gellhorn and a consensus was reached to drop the idea that some entity be given a gate keeping function for the House of Delegates. Gellhorn indicated that a new paragraph will be added to provide that recommendations and reports be made available to sections for their review at an early date before meetings of the House of Delegates. After further redrafting, the recommendation will again be submitted to the Council.

  5. Report of Membership Committee (continued):

    1. Bracher suggested that the Section send several times a year a "legal back grounder" to members which would cover recent developments. The Council discussed various aspects of this proposal including cost, which committee or persons would be responsible, and use of fax transmission rather than the mail. Bracher moved that the Section distribute by fax a two page newsletter as a pilot project. The motion passed.

    2. Belkin moved that the Section conduct a follow-up survey to find out exactly what information members would like and how they want it delivered. Grenier seconded the motion. Potter moved to amend the motion that the cost of the survey should not exceed $3,000. Belkin accepted the amendment. The motion was adopted with one no vote.

  6. Proposed Blanket Authority Submission on FDA Legislative Reform: Hoffman proposed that the Section join the Business Law Section in submitting "Comments on FDA Reform Legislation" under blanket authority. O'Reilly moved adoption of the comments and Grenier seconded. The motion was unanimously adopted.

  7. Updates on 1996-97 Seasonal Meetings: Eisner, Kaleta, and Ahrens gave an update on the programs and activities planned for upcoming meetings.

  8. Outstanding Lawyer Award: Judge Burnet urged members to submit nominations for the Section's outstanding lawyer award.

  9. Forward Planning Session Report (continued): Kaleta gave a summary of the draft strategic report that she had prepared on the basis of the forward planning session held at the Spring meeting. O'Reilly indicated that he will ask committee chairs to indicate action items that respond to the strategic plan.

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

Contact the Section

For additional information on the Section, please contact:

Kimberly Knight, Director
ABA Section of Administrative Law & Regulatory Practice
740 15th Street, NW, 10th Floor,
Washington, DC 20005-1009
Phone: 202/662-1665, Fax: 202/662-1529

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