News From the States

by Patricia Salkin
Director, Government Law Center
Albany Law School
Co-chair, State Administrative Law Committee.

Regulatory Reform Continues to Dominate Political Agenda in New York

When Governor George Pataki campaigned for office, he promised regulatory relief and reform to the businesses and local governments in the State. One of the first things he did was to change the name of the Office of Regulatory Management Assistance to the Governor's Office of Regulatory Reform (GORR) and to appoint an Office head who epitomizes the "bureaucracy buster."

To further his reform agenda, the Governor has issued a number of recent Executive Orders. Upon assuming office in January 1995, he issued Executive Order No. 2 which placed a 90-day moratorium on the adoption of new agency rules and regulations, unless the proposed rule or regulation was one that relaxed a regulatory burden, responded to a statutory, administrative or judicially imposed deadline, responded to an emergency due to effects on public health, safety or welfare, or was necessary to enforce criminal laws. The Order required each agency head to transmit a report to the Governor containing recommendations for regulatory reform in their agency. This Executive Order was later extended by Executive Order No. 7 for five more months, through September 1995.

On December 1, 1995, he signed Executive Order No. 20, which requires, among other things, that any new agency regulations be authorized by the Director of GORR in consultation with the Governor's senior staff prior to formal proposal. In addition, the Order requires that all proposed regulations be clearly written, produce benefits that outweigh costs, be based on sound scientific information, and favor market-oriented solutions and performance standards over command-and-control regulations. The GORR has been busy providing training to agency staff on impact-analysis and has produced a guide to assist in carrying out this task.

Book Review -- New York State Administrative Procedure and Practice

Albany Law School professors Patrick J. Borchers and David L. Markell have created a "must have" guide for lawyers practicing administrative law in New York State. The book provides a thoughtful and instructive analysis of basic administrative law issues including: due process, adjudication and rulemaking, and judicial review. It also addresses external controls on agencies, such as the Freedom of Information Law and Open Meetings Laws, as well as agency acquisition of information.

With over 500 different types of permits or licenses issued for activities ranging from day care centers to beauty shops to auto repair operations, the permit and licensing process is a netherworld for the practitioner. Chapter nine of the book charts a course through this maze and provides guidelines as to how long it takes to receive the permit and how long it should take, along with tips on how to expedite the permit process.

The writing style is easy-to-read, and the book is packed with practical tips and advice on how to deal with common and not-so-common issues in traditional practice. The authors freely provide their opinions on proposed changes to the State Administrative Procedures Act, including the debate over the Central Panel and Regulatory Reform initiatives.

An appendix which contains relevant statutes, executive orders, selected environmental forms, rulemaking forms and materials, as well as information about key state agencies (including addresses and phone numbers) further makes this a necessary part of private and public practitioners' desk reference material. This book serves as a model for practitioners who desire to comprehensively address the practice of administrative law in any state. Its policy analysis and discussion of judicial decisions in the administrative law arena makes the book an important tool and model for scholars as well. The book is available from West Publishing Co., 772 pages (1995).

Current Developments in Maryland -- Video Hearings

In August of 1995, as part of a pilot project, the Maryland Office of Administrative Hearings began conducting hearings by video. The Office set up a video room at its headquarters, and the Maryland Division of Corrections installed video equipment in three of its prisons. Following a testing period, the Office began conducting inmate grievance and personnel hearings at the three sites.

As of February 1, 1996, the Office has conducted 30 dockets--over 100 cases. The project has been an unqualified success. The judges have been unanimous in praising the use of video hearings. The ability to conduct inmate grievance hearings without the need to go into the prisons boosts morale and productivity. Judges no longer have security concerns, and they can go straight from a series of hearings to their offices and begin writing decisions. Additionally, the Office anticipates fewer cancelled dockets and less exposure of judges to unsafe driving conditions as a result of varying weather conditions across the state.

The Office has found the quality of the hearings to be excellent. There is no loss in the judge's ability to assess credibility and control the hearing--two prime concerns before entering the project. The judge's ability to control the cameras at the remote locations is crucial in this regard. For example, if a judge feels it necessary, he or she can get a close-up view of a witness in the course of testimony. Also, the judge can examine documents or other evidence through the document camera--which can transmit a "still" picture, thereby enhancing clarity and detail. A dedicated fax machine is maintained in the video room and each of the prisons, so that documents admitted into evidence can be forwarded to the judge at once. In short, all due process requirements are met. Interestingly, there have been few objections to the use of video hearings.

The total equipment cost was approximately $55,000.00. Transmission costs for a typical local inmate hearing docket of about four hours are under $30.00; "long distance" hearings are somewhat more expensive. There is also a monthly service charge of $108.00.

Contributors to this column include: Professor Michael Asimow, William Dorsey, and the Honorable John Hardwicke