American Bar Association: Section of Administrative Law and Regulatory Practice - Council Meeting Minutes: February 3-4, 1996

Council Meeting Minutes: February 3-4, 1996

February 3, 1996

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

Present: Phillip Harter (Chair), James O'Reilly (Chair-Elect), Janet Belkin (Past-Chair), Warren Belmar (Vice-Chair), Sidney Shapiro (Secretary), Russell Frisby (Assistant Budget Officer), Richard Wiley and Edward Grenier, Jr, (Section Delegates), and the following Council members: Lawrence Baxter, Susan Braden, Barbara Bracher, John Holmes, Roberta Karmel, Jeffrey Lubbers, Trevor Potter, Elaine Reiss, Judge Judith Rogers, William Roush, Jr. Steven Ryan, Peter Shane.

Absent: David Cardwell, Russell Frisby (Assistant Budget Officer), Shela Hollis, Barbara Timmer (Budget Officer).

Minutes: The minutes were approved as corrected.
Chair's Report: Harter discussed the Section's request for a supplemental appropriation from the Board of Governors of $6,000 for administrative assistance and his perception that the finance committee's treatment of the request indicated the bias against sections in the ABA. Harter reported that about 210 persons attended the ACUS reception and that Walter Gelhorn's absence was sorely missed. The debate over regulatory reform is quiet at the moment although some moderate Democrats are trying to put together a centrist bill. Harter testified on behalf of the ABA in both houses of Congress on the reauthorization of the Dispute Resolution Act. He concluded that the move to Washington has been a good choice by the Section and is paying off in terms of our activities.
Vice Chair's Report: O'Reilly indicated he has spent time in Washington and Chicago familiarizing himself with the inner workings of the ABA. He will attend a leadership training session for section leaders. He invited articles from the membership for the Administrative Law Review. The theme for next year will be administrative law as service.
Nominations committee: The committee recommended that Susan Braden fill the remainder of Alderman's term. Harter moved the nomination and Grenier seconded. The election was unanimous.
Continuing Legal Education: Young reported that David Baker and Linda Zingerlee have been active as CLE co-chairs. The Section is now in an ABA consortium to provide CLE programs. The ABA will split the profits with the Section and ABA staff time will not considered an expense for this purpose. Young invited committee chairs and others to sponsor CLE programs. Organizers are responsible for choosing the topic and finding speakers. The organizational work will be done by the ABA staff. The lead time to organize a program is ordinarily about four months, but it could be done more quickly for breaking topics, such as the new telecommunications bill. O'Reilly recommended a program on lobbying rule changes.
Publications Committee: The committee tentatively decided against a section magazine because of the high cost and apparent lack of member interest. The committee received three concrete proposals concerning the Administrative Law Review from American University, Catholic University, and William and Mary. The first two schools proposed joint editors. William and Mary proposed that there be a rotating editor or that the review be student edited. American University would fold its current Administrative Law Journal into the Review. Rees, a former editor, strongly urged the Council to follow the same format that has been used since his tenure in light of its success of the Review. He stressed the importance of having one person as editor to locate the responsibility for the publication. Susman warned that the Section should negotiate a disengagement clause particularly if American University is chosen. The committee will have a final recommendation for the Council tomorrow.
Administrative Law Judges: The annual banquet of the Federal Administrative Law Judges, which is May 4, 1996, will honor Justice John Paul Stevens. The financial downsizing of the federal government has negatively impacted ALJ employment. Homes indicated that women and minorities continue to be better represented among the ALJs and that he would no longer report on this subject because of this success.
Chair Elect's Report: Belmar indicated his interest in having the Spring 1998 meeting somewhere in West, with Phoenix, Palm Springs, and San Diego as possibilities. He invited suggestions. He is working on a theme for the year.
Meetings Committee: Two topics are under consideration for future meetings in light of the Section's celebration of the 50th anniversary of the APA. State administration law is one topic. Possible subjects include what lessons federal administrative law can learn from the states and whether the states are prepared for devolution. The second topic is the next 50 years of administrative law. This program will include an examination of the impact of technology on administrative and regulatory practice, and if regulatory reform passes, an examination of the impact of the new legislation.
Section Homepage: Roush has done the pioneering work to establish a home page for the Section on the ABA net. Persons wishing to join the Section will be able to do so through this site. He reported on other potential uses such as an e-mail link with committee chairs. Persons who wish to add events to the on-line schedule should contact Cynthia Price. Section events will be added automatically. The Administrative Law News will be added perhaps with hypertext links to cases mentioned in the report. Harter indicated the section's appreciation of Roush's work on this project.
Membership Committee: Franklin presented a two part plan on behalf of the membership committee. She recommended forward planning to determine future membership initiatives and the adoption of several proposals for immediate membership recruitment.
- Planning session: Harter indicated that the Section should undertake a broader planning effort which would discuss committee structure, activities, publications, and so on. Council members indicated that the makeup of the planning group needed to be more diverse that the Executive Committee or the Council itself. For example, the Council might invite a representative from the Young Lawyers Section which would permit the planing group to consider whether the Council should engage in some sort of placement assistance. Various council members expressed their desire that Harter choose the most inexpensive method to conduct the planning session.
  
  Belkin moved that the Council sponsor a planning meeting that would put together a framework for discussion in Orlando at the Spring meeting. Reiss seconded the motion. The motion passed with one no vote (Baxter) and two abstentions (Judge Rogers, Shane).
- Membership Efforts: Members of the Council discussed various aspects of the proposal concerning recruitment efforts.
  - Survey: Roush suggested that the section survey both ABA and non-ABA members and that the survey should include a membership brochure.
  - Direct mail campaign: O'Reilly initiated a discussion of whether the Section should launch a direct mail campaign similar to the one he employed when he served as chair of the Membership Committee. Council members indicated their reluctance to engage in an expensive effort before some type of planning effort which would hone the message the Section would use. Karmel explained her experience with PLI indicated the importance of carefully targeting any mail campaign. Braden urged the Section to rely on personal contacts to build membership. For example, the Council could invite representatives from Washington offices of software companies to some function.
  - Who to solicit: There was a discussion of which groups the Section should target for its membership efforts. Current ABA members who have indicated administrative law as an area of practice is one possibility. Persons who belong to the administrative law sections of state bar associations is another.
  - Retention: The council also discussed to what extent our efforts should be focussed on retention.
- Item 1: Franklin moved adoption items 1 through 10 of her report except item 3. Karmel seconded the motion. O'Reilly attempted to amend the motion, but Karmel objected. The chair suggested that the Council approved the items one by one. Franklin withdrew her original motion and agreed to this approach. Item 1 proposed to spend $3,000 to $5,000 on a survey. Roush moved to amend item 1 to include soliciting the views of non-ABA members. The motion was approved with four no votes (Bracher, O'Reilly, Shane, and Baxter) and one abstention (Judge Rogers).

The meeting was adjourned at 12:17.

February 4, 1996

Harter called the meeting to order at 9:00 a.m.

Present: Phillip Harter (Chair), James O'Reilly (Chair-Elect), Janet Belkin (Past-Chair), Warren Belmar (Vice-Chair), Sidney Shapiro (Secretary), Russell Frisby (Assistant Budget Officer), Richard Wiley and Edward Grenier, Jr, (Section Delegates), and the following Council members: Lawrence Baxter, Susan Braden, Barbara Bracher, David Cardwell, John Holmes, Jeffrey Lubbers, Trevor Potter, Elaine Reiss, William Roush, Jr. Steven Ryan, Peter Shane.

Absent: Roberta Karmel, Shela Hollis, Judge Judith Rogers, Barbara Timmer (Budget Officer)

Membership Committee:
- Items 2, 4-9: Roush moved approval of items 2 and 4-9 in the membership committee report. Grenier seconded the motion. The items cover the full day planning session ($5,000 - $10,000), membership committee ($500), ABA net ($2000), committee activities ($500), corporate law initiative ($2,000), YLD professional development conference ($300), AdLaw Professors' Distribution of Student Membership Materials ($500), Banking CLE program ($200). The vote was unanimous in favor.
- Item 3: Belmar moved that the Council approve $2,500 for membership brochures and Grenier seconded. Belmar indicated that the Council could commit additional resources in the future as appropriate. O'Reilly proposed a substitute motion to approve $11,000 for brochures and Wiley seconded. After the motion failed, the Council unanimously approved the Belmar motion.
Publication Committee: The committee recommended that the Section not publish a magazine and that it negotiate with American University Law School to assume publication of the Administrative Law Review. The committee prepared a list of principles to guide Harter in negotiations with the law school including that the Review must have a faculty editor. Grenier moved that the Council accept the committee's report and Wiley seconded the motion. The Council voted unanimously in favor of the motion with one abstention (Lubbers).
Sunshine Act: May explained that the Sunshine Act has led to very little public debate and that commissioners deliberate, if at all, through their staffs, or in one on one meetings (except if there is a three person commission). The Act also enhances the power of the chair of a commission because commission members can not meet privately to discuss agency priorities. Wiley and Grenier indicated that their experience with the FCC and FERC confirm the lack of public debate. Berg noted that although people will not speak candidly in public, sunshine advocates (primarily the press) are not willing to accept anything less than the current law.

O'Reilly moved adoption of the committee's's report and Grenier seconded the motion. Ryan proposed that the recommendation should contain language endorsing the general principles of the Sunshine Act and O'Reilly accepted the suggestion as a friendly amendment. Berg wondered, however, how the Section could endorse the principle of open discussion when the recommendation was contary to that principle.

Shane suggested that amendment of the Sunshine Act would make a good program. Frisby asked what was meant by the reference in the recommendation to "important substantive matters" May said the recommendation anticipated that agencies would develop a definition as part of joining the pilot program. Lubbers suggested that the recommendation refer to "important" matters and leave out the reference to "substantive." Cass warned that they may be situations in which it would not be advisable to discourage notation voting. Grenier noted that the committee would have to delete the "whereas" clauses because they were not the proper form for the House of Delegates.

Cardwell moved that May should bring back the redrafted recommendation for final approval at the Spring meeting. The Council voted unanimously to approve the report and recommendation subject to a final review at the Spring meeting.
Report of the Section Delegates: Grenier noted that the sections have been fighting for increased representation in the House, nominating committee's, and the Board of Governors. The sections currently have six representatives on the Board of Governors (including Tom Susman who represents this section). The problem is that there are four new sections and the ABA has not allocated any more seats to the sections on the Board. The Section Advisory Committee has proposed a new rotation policy and will attempt to get one more seat on the Board. The larger sections rotate in and off the Board more often under the current policy and this approach would continue.
- Resolution 100: The Section on Individual Rights and Responsibilities (IRR) asked the Council to adopt the following amendment to resolution #100:
  
  3. This policy does not require Members of Congress and their staffs to refrain from (a) making a routine referral of a constituent's inquiry, with a request that the agency give it due consideration; (b) urging prompt conclusion of a matter in what manner the merits justify; (c) soliciting or accepting a contribution from an individual in whose behalf such routine contacts are made.
  
  Ron Levin suggested the amendment be changed as follows to make it more consistent with the rest of the recommendation:
  
  3. This policy does These guideline do not require Members of Congress and their staffs to refrain from (a) making a routine referral of a constituent's inquiry, with a request that the agency give it due consideration; (b) urging prompt conclusion of a matter in what manner the merits justify; (c) soliciting or accepting a small contributions from an individual a constituent in whose behalf a such routine contacts are is made.
  
  The Council then debated the merits of subsection (c) after some members expressed concern that it endorses a quid pro quo of a small contribution in return of legislative assistance. Shane moved to accept the IRR amendment as changed. Ryan moved to strike section C of the amendment. Braden seconded Ryan's motion. The Council approved the IRR amendment with the previous changes and with subsection C deleted. The vote was unanimous except Bracher abstained.
- Resolutions 103, 114, 115, 301: Members of the Council discussed a series of resolutions that addressed fee caps and related limitations on the representation of clients. Members of the Council and others present split concerning whether issues such a "fee shifting" were a proper subject for the ABA to address. Shane suggested that section's program concerning this issue (held the previous day) revealed no plausible standard to separate issues that the ABA should or should not consider. Wiley noted that he is on a ABA committee that is considering this matter. Ryan noted that the Section might review the Equal Access to Justice Act and related representation issues.
- 107b-d: The Council discussed some concerns of Bracher about the scope of proposed resolutions that endorse parts of the Beijing platform.
Assistant Budget Officer: Frisby reported that some changes had been made concerning investment of the Section reserves, that the ABA was discussing how it would split up registration fees at the annual meeting (and that the resolution might be disadvantages to small sections like this one), and that he hoped attendance was good at the Spring meeting to minimize the Section's losses.
6. Name Change: Olson proposed that the Section change its name to the "Section of Constitutional, Administrative, and Regulatory Law" to help recruitment and because the proposed name better reflected the scope of Section activities. Lubbers proposed that the Section might be renamed the "Section on Administrative Law, Regulatory Practice, and Government Institutions" which would encompass constitutional issues that concern government structure. While members of the Council expressed some interest in a name change, there was a consensus that this recommendation should be considered as part of the Council's future planning session.

The meeting was adjourned at 11:45 a.m.

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