Present: James O'Reilly (Chair), Warren Belmar (Chair-Elect), Philip Harter (Last Retiring Chair), Sidney Shapiro (Secretary), Russell Frisby (Budget Officer), Leonard Leo (Assistant Budget Officer), Edward Grenier, Jr. (Section Delegate), Thomas Griffith (Federal Government Service liaison) and the following Council members: Susan Braden, Elaine Reiss, Christine Franklin, Sheila Hollis, John Holmes, Judy Kaleta, James Neet, Trevor Potter, Stephen Ryan, William Roush, and Ronald Wright

Absent: David Cardwell, Ted Olson, Barbara Olson, Judge Judith Rogers

1. Approval of Minutes: The minutes were approved as submitted.
   

2. Report of the Chair: O'Reilly reported on recent discussions between the sections and the ABA concerning the allocation of association revenue. He urged early sign up for San Antonio. He also stressed the importance of having active committee chairs in connection with the recruitment and retention of members.

3. Report of the Chair Elect: Belmar invited persons interested in increasing their activity in the section to please call or write him. He also invited suggestions for hotels for next years spring meeting in Phoenix or Tucson. Belmar intends to work with the Washington area law schools concerning presentations at next fall's meeting, and he will seek greater involvement of members and/of staff from the Congress and the Executive Branch.

4. Report of the Delegate to the House of Delegates: Grenier reported that the Section withdrew its report and recommendation concerning the Sunshine Act in order to gather support from administrative agencies. He reminded those present that November 13 is the deadline for submitting reports and recommendations to the House of Delegates. He also reported on the results of the annual meeting of the House of Delegates.

5. Current Status and Plans for Membership: Drew identified two targets for the Section's recruitment and retention efforts: the 15,000 ABA members who have indicated that they have Administrative Law as a practice area or interest and persons who have dropped out of our section but who are still ABA members. The Section will participate in the "Joint Section ABA Marketing Campaign" and will also employ a "targeted campaign" of sending brochures to some of the persons indicating Administrative Law as an area of practice or interest.

6. Update on Membership Survey No. 2: Franklin reported on the pending membership survey, which is a follow up to the Section's last survey, which indicated that section members wanted cutting edge information. This survey will attempt to pinpoint what information the members would like and the format in which they would like to receive it. She indicated the cost might be as much as $4,000 for the survey.

7. Report of the Budget Officer: Frisby placed four items of business before the Council.
   

   1. Proposal to increase Law Student Dues: Frisby moved an increase in law student dues of from $5.00 to $10, and Roush seconded the motion. The motion passed unanimously.
      
   2. Investment Fund Allocation: Frisby reported that the ABA now requires sections to have an investment fund allocation policy. He moved that the Section adopt the two to five year investment policy recommended by the ABA, which provides:

      Any funds expected to be required for operating funds within a two to five year period shall be invested in the following manner;
      

      • a maximum of 25% in an equity fund(with maximum of 5% in a foreign fund)

      • a maximum of 50% in a US Bond fund
      • at least 25% in short-term funds to assure liquidity

      Grenier seconded. The motion passed unanimously.

      ABA Membership Campaign Proposal/Budget: Frisby recommended that the Membership Committee budget be approved, and that the Section allocate $10,000 from reserves to help fund these costs. The Council had a discussion about the role of strategic planning in relationship to the planned recruitment efforts. The issue was to what extent should the Section engage in membership efforts prior to completion of a good strategic plan. A consensus was reached to undertake some membership efforts while strategic planning continues. Belmar moved to approve the allocation of reserves and to approve the budget for membership initiatives with one change: the $3,250 proposed for the targeted campaign was reduced to $2,500. Holmes seconded the motion. The motion carried with one no vote.

      Approval of the 1996-97 Section budget: Finally, Frisby moved that the 1996-97 budget be approved, and Belmar seconded the motion. Approval was unanimous.

8. Section Response to State "ALJ" Model Hearing Officer Agency: Holmes reported that the Judicial Administration Division of the National Conference of Administrative Law Judges has proposed a "Model Act" for creating a State Central Hearing Agency. He pointed out some potential difficulties in the act concerning the powers of the chief judge to establish procedural rules and to undertake performance review. Holmes also drew the Councils attention to the rules on ex parte contacts which he indicated may be too broad. After Council and audience members identified other potential problems with the proposed code, Grenier moved that O'Reilly ask the State Administrative Law committee to review the proposal, compare the proposed code to current state statutes on this subject, and to report back to the Council with a recommendation at the Winter meeting. Hollis seconded the motion. The motion passed unanimously, except Holmes abstained.

9. Proposed Recommendation: Judicial Review Power: Levin presented the Judicial Review Committee's recommendation and report on "remand without vacation." He asked that the Council consider the following revisions to the recommendation dated Oct. 4, 1996:

   3. In order to promote informed application of the above standards, courts should encourage parties to address remedial issues, such as the possibility of remand without vacation, in their briefs and at oral argument. In a given case, if further explanation is needed an undo delay will not result, the court should also consider inviting supplemental briefs directed to this issue.

   4. Where the court orders the remedy of remand without vacation, it should also consider specifying a time frame within which the agency is to comply with the terms of the remand order.

   Frisby moved adoption of the report and recommendation as revised, and Harter seconded. The vote of approval was unanimous.

10. Request for Support of Recommendation on Procedures for Adopting Rules of Procedure and Evidence for Military Court Rulemaking: Barry asked that the Council join the Federal Bar Association in sponsorship of a recommendation concerning the procedures used to adopt rules of procedure and evidence for military courts. The Criminal Justice Section has also been invited to be a cosponsor. Peter Strauss indicated that the Rulemaking Committee supports the recommendation. Grenier moved that the Section cosponsor the report and recommendation, and Shapiro seconded. After discussion, the Council unanimously approved cosponsorship of the recommendation.

11. Request for Support of Recommendation on Authorizing any U.S. or State Court to Utilize Systems of Alternative Dispute Resolution: The Section of Alternative Dispute Resolution requested that this Section cosponsor a recommendation which supports legislation and programs that authorize any United States or state court to utilize systems of alternative dispute resolution. Young identified several problems with the report and concluded that it was not ready for prime time. He recommended that the Council not support of the recommendation at this time, and that O'Reilly contact the chair of the Section on Alternative Dispute Resolution to explain the grounds for the Section's opposition. Grenier moved that the Section take the action Young recommended, and that a letter be sent to other sections indicating our opposition. Roush seconded the motion and it was unanimously adopted. Strauss recommended that O'Reilly should go to the Board of Governors, if necessary, to request that the report and recommendation not be put on the agenda of the House of Delegates because this effort does not meet the ABA's standards.

12. Request for Support of Recommendation on Application of ABA Policies Concerning the Administration of Benefit Programs Transferred to the States: The Commission on Legal Problems of the Elderly has asked the Section to cosponsor a resolution on application of ABA policies concerning the administration of benefit programs transferred to the states. Harter moved that the Section approve the resolution with the following change to the second paragraph:

    BE IT FURTHER RESOLVED, That the American Bar Association urges state, local and territorial governments in developing the transferred programs within their jurisdictions to utilize an open process that encourages public participation and that those programs as so developed provide clear standards for eligibility and fundamental elements of due process in their application including a process for determining issues of individual eligibility that includes notice, an opportunity to be heard and represented, and the right of appeal.

    Reiss seconded. O'Reilly stressed the importance of having the Section be in a leadership role in the ABA concerning devolution issues. The motion carried unanimously.

13. Miniminder: Reauthorization of the Alternative Dispute Resolution Act: Harter described the process concerning the reauthorization of the Alternative Dispute Resolution Act and the Negotiated Rulemaking Act. One important change is that agencies are now encouraged to establish procedures for an ombudsman. He recommended that the Section discuss at a future time the role of "ombudsmen" in agencies because different statutes assign different functions to ombudsmen.

    Ryan suggested that the Section seriously consider supporting retention of jurisdiction in U.S. District Courts of APA jurisdiction in government contract procurement actions pursuant to Scanwell Laboratories v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970) and its progeny. Congress attached a provision to the most recent reauthorization of the Administrative Dispute Resolution Act and Negotiated Rulemaking Act that eliminates such jurisdiction in four years.

14. Miniminder: On-line Services from the Federal Register: Michael White reported on the new online services of the Office of the Federal Register. He indicated that the Federal Register is now on the World Wide Web and that the Office of the Federal Register is in the process of putting the Code of Federal Regulations on the web.

15. Discussion of Guidelines and Procedures for Selection of Candidates for the Scholarship Award: Levin urged the Council to establish criteria for the Section's annual scholarship award. O'Reilly indicated he would ask Levin and the members of this years Awards Committee to discuss potential criteria and report back to the Council. Strauss suggested that the Committee consider adding the words "regulatory practice" to the award. Reiss moved that the Awards Committee be authorized to issue multiple awards in any year if appropriate. Franklin seconded. The motion carried with two opposing votes.

16. Update on ABA Web Site: Roush indicated that the past issues of the Section newsletter are being archived and will be available through our web site. The connection between the Section's web site and the Florida State site is now complete. The Publications Committee will consider the possibility of some type of electronic mail/newsletter. Finally, Roush indicated the importance of keeping the calender up to date and asked persons to submit their items to him in a timely matter.

17. Election Law Committee Report: Ortiz briefly discussed committee activities. The committee will prepare and circulate a directory of its members. Eventually, the committee hopes to achieve this in electronic form. The committee will also investigate an E-mail list server for its members. Finally, he indicated the committee would like to have one or two programs at the annual meeting.

18. Health Law Committee Report: Bernard reported the committee has under development projects concerning Medicare and Medicaid fraud, a CLE antitrust program, and the impact of technology on medical health services and law. The committee is also interested in doing a monograph on innovations in rulemaking and health law. Finally the committee has designated a liaison with the ABA's Health Law Section.

19. Rulemaking Committee Report: The committee will respond rulemaking procedures proposed by the Sentencing Commission in light of the ABA recommendation on this subject. The committee is likely to propose that the Section join in a blanket authority letter with the Criminal Justice Committee. Strauss also indicated that the committee has under development a recommendation and report on new congressional rulemaking review procedures. He reported that there was a lively and long discussion of this subject at the committee meeting.

20. Publications Committee Report: Krotoszynski indicated that there are two monographs under development. Jeff Lubbers is updating the rulemaking guide originally published by the Administrative Conference. Bill Luneburg is doing a second edition of the lobbying manual. The publications committee is considering a third monograph on alternative dispute resolution and has received a proposal for a fourth monograph on state administrative law. Finally, Krotoszynski indicated that the transition of the Administrative Law Review to American University has gone very well.

21. Nominations Committee: On behalf of the nominations committee, Belmar invited nominations. The nominations should be submitted to Janet Belkin.

The meeting adjourned at 12:20 p.m.