question
what is conflict of interest
answer
Situation in which a person is in a position to derive personal benefit from actions or decisions made in their official capacity.
question
examples of conflict of interest
answer
Permits and Licenses
Overlooking licenses violations
Showing favoritism in awarding contracts and grants
giving tax breaks
not enforcing code violations
using campaign funds for personal use
granting special privileges that would otherwise be denied
Overlooking licenses violations
Showing favoritism in awarding contracts and grants
giving tax breaks
not enforcing code violations
using campaign funds for personal use
granting special privileges that would otherwise be denied
question
Ways to Mitigate
answer
Removal
Avoid situations
Resign from boards
Sell stocks
or set up blind trust
politicians and public employees must disclose financial info and potential conflicts of interest
recusal
code of ethics
Avoid situations
Resign from boards
Sell stocks
or set up blind trust
politicians and public employees must disclose financial info and potential conflicts of interest
recusal
code of ethics
question
Purpose of loyalty oaths for public employees
answer
Purpose is to ensure public employees do not use office to undermine or threaten government
question
Have the oaths been misused?
answer
McCarthyism is the practice of making accusations of subversion or treason without proper regard for evidence.
question
How have courts treated loyalty oaths
answer
was that forcing people to take a loyalty oath violated the first amendment guarantees freedom of speech Association and Assembly.
loyalty of today have no teeth and cannot be used effectively to try to harass intimidate or control the behavior of public employees.
loyalty of today have no teeth and cannot be used effectively to try to harass intimidate or control the behavior of public employees.
question
Speech Debate Clause
answer
•The Senators and Representatives...shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.
question
Why do we have a clause in our constitution
answer
it guarantees a sense of freedom in thought and action. The framers understood the need for members of the legislative branch to be able to form policy and discourse without fear of apprehension or silencing of voice. Given how the Legislative Branch is the seat of all policy for the nation, the Speech or Debate clause is essential because it enables freedom of thought to transpire without repressive tendencies.
question
Did this decision resolve all of the constitutional questions surrounding the Speech or Debate Clause?
answer
no because there were loopholes in how the system could be manipulated
question
Gravel v. U.S
answer
interpreted immunity to legislators and their aides in regard to speech, and various other legislative functions, but it does not permit legislators or their assistance to violate and otherwise valid criminal law in preparing for or implementing legislative Acts.
question
interpret the scope of the Speech or Debate Clause? Discuss.
answer
The clause applies only to things generally done in a session in the house by one of its members in relation to the business before it or things that are done by him as a representative in the exercise of the functions of that office
question
Court decision Myers v. U.S (1926)
answer
power to remove appointed officers is vested in the President alone. "discharge his own constitutional duty of seeing that the laws be faithfully executed."
question
Court decision Humphrey's Executor v. U.S (1935)
answer
President cannot remove certain appointed officers for political reasons. Administrators who exercise quasi-legislative or quasi-judicial powers can only be removed for cause (bad or illegal behavior)
question
Court decision Wiener v. U.S (1958)
answer
Congress had intended to create a body that was "'entirely free from the control or coercive influence, direct or indirect,' of either the Executive or the Congress."
sword of removal by the President for no reason other than that he preferred to have on that Commission men of his own choosing."
sword of removal by the President for no reason other than that he preferred to have on that Commission men of his own choosing."
question
What is rule-making
answer
the whole or part of an agency statement of general applicability and future effect designed to implement, interpret, or prescribe law or policy, or describing the organization, procedure, or practice requirements of an agency.
question
Informal rule-making
answer
The informal rulemaking process is intended to be a legislative-like process in which the rulemaker gives the public an opportunity to influence the making of a regulatory decision. It involves 1) publishing an NPRM in the Federal Register 2) inviting public comment 3) considering the public comment; and 4) publishing a final rule in the Federal Register.
question
formal rule-making
answer
that rules be "made on the record after agency opportunity for hearing" and for which the APA prescribes particular procedures. Simply requiring that rules be made "after a hearing" does not trigger the requirements of formal rulemaking.
question
Negotiated rule-making
answer
Negotiated Rulemaking Act (1990). Designed to bring together representatives of organizations which agency administrators believe will be affected the most by proposed agency action leading to a promulgated rule. (Note: looks good on the surface, but it can only work under "ideal conditions")
question
Rule-making not being democratic
answer
•not apply to interpretive rules, statements, procedure, etc.
•Warren concludes that administrators have absolute
•discretionary power to ignore or honor inputs from interested parties
•Congress had no choice but to give administrators discretion
•Military and foreign affairs functions are exempt but what
•about actions not related to national security?
•Warren concludes that administrators have absolute
•discretionary power to ignore or honor inputs from interested parties
•Congress had no choice but to give administrators discretion
•Military and foreign affairs functions are exempt but what
•about actions not related to national security?
question
if anything, can be done to make the rulemaking process more democratic?
answer
Increase administrative formality were in practice by which means simply the adherents by administrator to internal agencies rules and regulations governing the promulgation substantive agencies. And codification
question
Theodore Lowi
answer
that our rulemaking practices are undemocratic and contrary to the public interest. Legislators write poor laws which are vague and inconsistent - causes administrators to interpret. He suggested that administrative formality (adherence to internal agency rules and regulations) would help increase democratic element. Supports a unified code of administrative law.
question
Effect of deregulation on agency rule-making procedures
answer
SC ruled an agency cannot arbitrarily and capriciously rescind a rule without weighing alternatives and applying "reasoned decision making
question
What's Order-making
answer
Adjudicative process used by administrative agencies to make orders (general commands or fiats)
question
Order v Rule-making
answer
...
question
Supreme Court interpretation of due process
answer
Supreme Court has held that due process should meet
"standards of fundamental fairness" but even that phrase requires interpretation
"standards of fundamental fairness" but even that phrase requires interpretation
question
Procedural protections is based on the interests at stake. Identify those interest
answer
•Life: administrative agencies rarely perform acts that threaten life but a few exceptions exist
•Liberty: our liberty encompasses a multitude of personal freedoms
•Property: a person has a property interest in their tangible
•property such as houses, cars, money, etc.
•Entitlements: citizens may have an intangible property
•interest in receiving government benefits or entitlements
•Others: other property interests include public
•employment, licenses, and education
•Liberty: our liberty encompasses a multitude of personal freedoms
•Property: a person has a property interest in their tangible
•property such as houses, cars, money, etc.
•Entitlements: citizens may have an intangible property
•interest in receiving government benefits or entitlements
•Others: other property interests include public
•employment, licenses, and education
question
Matthew v. Eldridge
answer
is a case in which the United States Supreme Court held that individuals have a statutorily granted property right in Social Security benefits, and the termination of such benefits implicates due process but does not require a pre-termination hearing. The case is significant in the development of American administrative law.
question
Ethics in Government Act (1978)
answer
Federal law passed in the wake of the Nixon Watergate scandal and the Saturday Night Massacre. It created mandatory, public disclosure of financial and employment history of public officials and their immediate family.
question
Government ethics reform act (1989)
answer
Strengthened federal government ethical standards. Key reforms in the Act include: the extension of post-employment "revolving door" restrictions to the legislative branch; a ban on receipt of honoraria by Federal employees (except the Senate); limitations on outside earned income for higher-salaried, non career employees in all branches; increased financial disclosure; creation of conflict-of-interest rules for legislative branch staff; and limitations on gifts and travel.
question
Section 553
answer
•Administrative Procedure Act (APA) - outlines rule-making requirements and abilities. (formal, informal, hybrid)
question
Ex parte contacts
answer
Take place behind closed doors, outside of the process, etc. Should be avoided. An ex parte decision is one decided by a judge without requiring all of the parties to the controversy to be present. Controversial because they raise the possibility/appearance of undue influence and parallel nonpublic dockets in administrative decision making. In informal rulemaking conducted under Section 553 of the Administrative Procedure Act (APA), however, ex parte communications are permitted so long as agencies act to preserve transparency, ensure due process of law, and develop an administrative record adequate for judicial review.
question
Closed mind rule
answer
An unlawful prejudice "when there has been a clear and convincing showing that the agency member has an unalterably closed mind on matters critical to the disposition of the proceeding." Disqualifies those unable to consider meaningfully the materials produced in the rulemaking.
question
Preponderance of evidence standard
answer
The greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence.
question
Residuum Rule
answer
The decision or order of an administrative agency should be supported by at least a small amount of evidence, which is not inadmissible hearsay, in order to be upheld on review.
question
Personal Bias
answer
as something related to money or that can be valued in money. [3] Bias is an operative prejudice, whether conscious or unconscious, as a result of some preconceived opinion or predisposition, in relation to a party or an issue. [4] The maxim Nemo in propria causa judex, esse debet, broadly governs the rule against pecuniary bias. [5] Thus, Pecuniary Bias in the ambit of Administrative Law would deal with any operative prejudice that the authority may have against an individual which vitiates the latter's interests.
question
Perales rule
answer
Court decision in the Perales case held that residuum rule was too impracticable. "There is a pragmatic factor that, although not controlling, deserves mention." In essence, practicality can win out.
question
Exclusionary Rule
answer
A law which prohibits the use of illegally obtained evidence in a criminal trial. Section 556(d) of the APA and state administrative codes do not permit agency adjudicators to admit privileged evidence (attorney-client, husband-wife, etc)
question
Whole record requirement
answer
Judicial review is to be based on the full administrative record that was before the agency official at the time the decision is made to promulgate the final rule.
question
U.S. v. Florida East Coast Railway Co. (1973)
answer
Due to a chronic freight car shortage, Congress had enlarged the scope of the Interstate Commerce Commission's authority to prescribe per diem rate charges for the use of one company's freight car by another, thus giving an incentive to each company to use the cars more efficiently or to acquire more freight cars. The Commission in passing the regulation had allowed railroads 60 days to file statements of position on the matter. The court upheld the process and found the agency's action was of a basically legislative type judgment as opposed to an adjudication which could entail due process hearing rights.
question
Vermont Yankee v. Natural Resources Defense Council (1978)
answer
While federal agencies are free to grant additional procedural rights in the exercise of their discretion, a court cannot impose rulemaking procedures on a federal government agency.
question
Motor Vehicle Manufacturers v. State Farm (1983)
answer
Rescission of seat belt and air bags policies - Passive restraint requirements were suspended, re-instated, and re-rescinded. The standard of review for rescinding notice and comment rules is the same as that for enacting rules. The rescission was arbitrary and capricious for failing to consider the alternative of requiring airbags, and for too quickly dismissing the benefits of automatic seat belts.
question
Buck v. Bell (1927)
answer
Eugenics - Those in favor of eugenics argued that the State should step in and sterilize "inferior" individuals to protect the purity of society (heavy racism, unreliable "science"). Doctor petitioned to sterilize an individual believed to be feeble-minded. Supreme Court held that Due Process has been followed and upheld the decision - State could impose sterilization on a class of citizens.
question
Morgan v. U.S. (1938)
answer
Fair hearings - Agencies must follow intention and direction of law and provide fair hearings. Congress gave the Secretary of Agriculture the authority to set rates for stockyards after fair hearing. Hearing oral arguments delegated to subordinates. Morgan appealed decision because the decider (Sec of Agriculture) had not heard arguments. Supreme Court agreed with Morgan and ordered a new hearing. New Secretary appointed, made minor changes, and ordered the stockyards to lower rates. Morgan appeals again. Supreme Court said secretary's order was "fatally defective."
question
Ingraham v. Wright (1977)
answer
The cruel and unusual punishment clause of the Eighth Amendment did not apply to corporal punishment as a disciplinary practice in public schools, and the due process clause of the Fourteenth Amendment did not require notice or a hearing prior to imposition of such punishment, as the state's laws authorized the practice and allowed common law constraints and remedies.
question
Bird v. Bland County School Board (2000)
answer
Tenured high school teacher Bird sued the Bland County School Board, alleging his due process rights had been violated by a biased termination decision. Administrative judges/hearing examiners had "closed minds" (had already prejudged the case before the hearing) and had denied Bird his due process rights.
question
Cinderella Career and Finishing Schools v. FTC (1970)
answer
•Unfair hearing/denial of due process - Petitioners sought review of an order from respondent Federal Trade Commission that required petitioners to cease and desist from engaging in certain advertising and recruitment practices that were held to be unfair and deceptive under the Federal Trade Commission Act. A hearing examiner held hearings and determined the charges should be dismissed. Respondent reversed as to several of the charges and ordered petitioners to cease and desist the allegedly unfair conduct. The court held that respondent was not authorized to ignore the evidence amassed during the hearings and decide the case de novo.
•The court further held that a commissioner's refusal to recuse himself was a denial of due process where he had made a public statement that indicated that he had already reached a decision in the case.
•The court further held that a commissioner's refusal to recuse himself was a denial of due process where he had made a public statement that indicated that he had already reached a decision in the case.
question
Walters v. National Association of Radiation Survivors (1985)
answer
$10 fee limit to pay an attorney or agent who represents a veteran seeking benefits from the Veterans' Administration (Petitioner) for service-connected death or disability. Appellees claimed that the fee limitation denied them realistic opportunity to obtain legal representation, and violated due process. Court held appellees had an opportunity under the present claims process, and that significant Government interests favored the limitation on 'speech'. Under those circumstances, the appellees' First Amendment claim has no independent significance."
question
Goldberg v. Kelly (1970)
answer
is a case in which the Supreme Court of the United States ruled that the Due Process Clause of the Fourteenth Amendment to the United States Constitution requires an evidentiary hearing before a recipient of certain government welfare benefits can be deprived of such benefits.
question
Impact of Goldberg v. Kelly
answer
The Court concluded that state interests in conserving administrative costs are not sufficient to override public aid recipients' interest in procedural due process.
question
Impact of Matthew v. Eldridge
answer
Three part test used to determine what due process procedures should be extended to parties in various circumstances: first private interest, second risk of erroneous deprivation, finally government's interest.
question
Where in the U.S. Constitution do we find the concept of due process?
answer
mentioned but not defined in Snyder v. Commonwealth of Massachusetts court held that due process should meet standards of fundamental fairness
question
How has the Supreme Court interpreted the meaning of due process
answer
•If no property interests are at stake, not much process is due
•In administrative law, meaning of due process shifts with the interests at stake
•In administrative law, meaning of due process shifts with the interests at stake
question
Should agency hearings be more trial-like?
answer
judicial review would be facilitated, simply because all procedures leading to agency decisions would be clearly spelled out for the reviewing judges.
question
Does the Court make a reasonable distinction between these two cases regarding pre-termination hearings
answer
administrative of hearing should not be expected to provide Court like procedural protections to litigious parties because administrative agencies are not supposed to act like courts. Hear and decide controversies
question
...
answer
...
question
pros and cons of order making and rule making of the general public
answer
...
question
pros and cons of order making and rule making of the agency officials
answer
...
question
pros and cons of order making and rule making of the regulated
answer
PRO: This has the advantages of minimizing unnecessary delays imitation of policies deemed necessary by a regulated industry and reduces the sea uncertainties and promoting Fair competition among industry competitors
CON: Incremental order making process excludes the general Industry from agency policy decisions leads to unnecessary litigations and tends to promote instability and industry-wide inequities
CON: Incremental order making process excludes the general Industry from agency policy decisions leads to unnecessary litigations and tends to promote instability and industry-wide inequities
question
Differentiating order making from rule making
answer
it's not easy to differentiate legislative ruemaking and judicial ordermaking functions in administrative agencies frequently juxtapose in practice. trying to differentiate between two process often turns out to be furtile academic exercise.
question
Right to counsel
answer
In criminal cases, a citizen has the right to counsel. If too
poor to hire a lawyer, the state must provide one.
• The right to an attorney in administrative proceedings only
•covers the right to hire and pay for legal assistance
poor to hire a lawyer, the state must provide one.
• The right to an attorney in administrative proceedings only
•covers the right to hire and pay for legal assistance
question
How did agencies restrict the use of counsel in hearings
answer
adding small fees
•It would place a tremendous and unjustifiable burden on administrative agencies.
•It would make the hearing process more adversarial, longer, and complicated.
•Although administrators have an obligation to respect a
•person's right to counsel under the APA they do not have
•an obligation to advertise that the right exists.
•It would place a tremendous and unjustifiable burden on administrative agencies.
•It would make the hearing process more adversarial, longer, and complicated.
•Although administrators have an obligation to respect a
•person's right to counsel under the APA they do not have
•an obligation to advertise that the right exists.
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