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Administrative law refers to the regulations, statements of policy and adjudications by executive and independent agencies, boards and commissions located within the Commonwealth.
Executive agencies are under the control of the Governor and are often headed by a cabinet member; for example, the Secretary of Transportation oversees the Department of Transportation. Independent agencies such as the Public Utilities Commission (PUC) and Liquor Control Board (LCB) are not under the Governor's control.
Getting StartedIn Pennsylvania, administrative agency rules and regulations are published in the Pennsylvania Code:
- Online at http://www.pacode.com/. A very thorough set of instructions for using the Code is contained at this site by clicking on "About" and then scrolling down to page 5.
- In print at KFP35.A2 P4 in Delaware (Closed Reserve) and Harrisburg (Reserve).
- LEXIS
- Westlaw
These rules and regulations are updated weekly in the Pennsylvania Bulletin:
- Online at www.pabulletin.com from 1996 to present.
- In print (KFP35.A2 P4) in Harrisburg (Stacks) from 1995 forward and in Delaware (Treatises) current year and one previous year.
- On microfilm - Harrisburg has volume 1 (1970) through volume 25:1 (1995) and Delaware has volume 13 (1983) through volume 25:1 (1995). Microfilming ceased in 1995.
- LEXIS contains the current version as well as prior issues back to October 1994.
Agency-specific information can be found on the Internet through the Commonwealth's official Web page at
www.state.pa.us by clicking on "Government in Pennsylvania" and then on "Agencies, Authorities, Boards ...." The exact information available online varies from agency to agency.
Profiles of Commonwealth agencies can be found in the
Pennsylvania Manual (REFJK3630.P4). An unofficial version of the
Pennsylvania Manual has been put online by the Pennsylvania Department of General Services
www.dgs.state.pa.us. While not completely up-to-date, it can provide you with some guidance when a library is not immediately available.
Regulations2 Pa.C.S. §102 (Administrative Law and Procedure) grants agencies the authority to promulgate regulations to carry out their statutory missions. As a general rule, the enabling law that establishes an agency also grants the agency this important power. Regulations are the primary means by which agencies take action; regulations have the force and effect of law to ensure compliance by the regulated entities or industries.
To assure the public that regulations are within the agency's scope of statutory authority, the legislature enacted the Commonwealth Documents Law (CDL), 45 P.S. §§1101 et seq. and the Regulatory Review Act (RRA), 71 P.S. §§745.1 et seq. These laws govern the promulgation of regulations and set forth a rigorous approval process which includes numerous layers of review by the Office of General Counsel, Attorney General, Independent Regulatory Review Commission (IRRC) and standing legislative committees. The CDL requires publication in the
Pennsylvania Bulletin of proposed regulations and provides for public comments. Once approved by IRRC, final regulations, along with all comments received and the agency's responses thereto, are published in the
Pennsylvania Bulletin.
The Legislative Reference Bureau publishes final regulations in the
Pennsylvania Code. At times, agencies, boards and commissions may review their current regulations and remove those that have been made obsolete by statutory changes or new procedures in the regulated field. The removal of regulations from the
Pennsylvania Code is also governed by the CDL and RRA and is similar to the approval process. There are special provisions for emergency regulations to take effect under a temporary streamlined process. Emergency regulations are the exception, not the rule.
Statement of PolicyAnother regulatory tool used by agencies is the
Statement of Policy. Unlike regulations,
Statements of Policy are advisory and without the force and effect of law. They are designed to provide guidance by notifying the public of the agency's position on an important question or the agency's interpretation of its role.
Statement of Policy also go through the CDL, RRA and IRRC processes and are published in proposed and final form in the
Pennsylvania Bulletin with final statements in the
Pennsylvania Code.
Administrative HearingsAgencies must give reasonable notice and a hearing to a party before rendering an
adjudication. 2 Pa.C.S. §504. Notice of an intended action is generally through an
Order to Show Cause prepared by the agency legal staff and served on the party who is generally a regulated entity. An administrative hearing before the agency is held after notice of the time and place is published in the
Pennsylvania Bulletin. The agency is represented by in-house counsel; the respondent is also permitted to have counsel. Proceedings in an administrative hearing differ from those in a civil or criminal trial. Administrative hearings are governed by the
Administrative Agency Law, 2 Pa.C.S. §§501-508, 701-704, the
General Rules of Administrative Practice and Procedure, 1 Pa.Code §§31.1-35.251, and the agency's own regulations. Decisions rendered after administrative hearings are called adjudications and consist of findings of fact, conclusions of law and discussion. Few Commonwealth agencies publish their adjudications. Prior unpublished agency decisions may be persuasive but are not binding precedent.
An agency adjudication may be appealed to the agency head or board or directly to Commonwealth Court, depending on the agency¹s hearing system. For example, hearings at the Insurance Department are conducted by a Hearing Examiner, but the adjudication is issued directly by the Insurance Commissioner and may be appealed to Commonwealth Court. Hearings before state licensing boards housed in the Department of State are conducted before either a hearing examiner or the licensing board itself. Hearing examiner decisions, called "proposed reports," must be appealed to the board before an appeal may be taken to Commonwealth Court. Finally, independent agencies such as the LCB have Administrative Law Judges whose decisions can be appealed directly to Commonwealth Court.
The Role of the Appellate CourtAdjudications and orders of Commonwealth agencies can be appealed as of right to Commonwealth Court, a court of both original and appellate jurisdiction set up to handle government matters. Commonwealth Court follows the Pennsylvania Rules of Appellate Procedure as well as its own operating rules. The court's standard of review is limited to whether the agency committed an error of law or constitutional violation, or acted outside the scope of its authority. The court reviews the agency's findings of fact to see if they are supported by substantial evidence. 2 Pa.C.S. §704. The court may also address the constitutionality of an agency's enabling legislation. An agency decision reviewed by the Commonwealth Court may be reviewed by the Pennsylvania Supreme Court if the Supreme Court grants allocatur.
Key Concepts
- Evidence
Section 505 of the Administrative Agency Law (2 Pa.C.S. §505) provides: "... agencies shall not be bound by technical rules of evidence at agency hearings and that all evidence of reasonably probative value may be received." This provision gives an agency broad discretion in admitting evidence. It also may lull an attorney into the mistaken belief that administrative hearings are "informal". An agency handling pro se appeals from denial of unemployment compensation benefits may conduct hearings in a less formal manner than a court, but an agency grappling with multimillion dollar rate increases will hold formal proceedings. Section 505 does not abolish all rules of evidence in administrative hearings. A hearsay objection can still serve to block inappropriate testimony. On the other hand, unobjected to hearsay corroborated by properly admitted evidence can be used to support a finding of fact by an administrative adjudicator.
- Commingling
The Pennsylvania Supreme Court addressed the commingling of prosecutorial and adjudicatory functions within an agency in Lyness v. Commonwealth, State Board of Medicine, 605 A.2d 1204 (PA 1992). The court found due process violations where prosecutorial recommendations were made to the same board that would hear the case and held that the prosecutorial and adjudicatory functions of an agency must be kept apart. Since agencies normally maintain prosecutors and adjudicators under the same roof, there were concerns that Lyness would invalidate all existing administrative hearing procedures. A subsequent case recognized the internal operating structure of administrative agencies and allowed prosecutions to stand where no actual commingling of functions occurred and sufficient walls of division were erected. Stone and Edwards v. Commonwealth, Department of Insurance, 648 A.2d 304 (Pa. 1994). The commingling issue continues to be raised on appeal and decided on a case-by-case, agency- by-agency basis.
- Judicial Deference
Judicial deference to an administrative agency¹s expertise is a judicial concept with no express statutory support. The Pennsylvania Supreme Court endorses this concept stating that "[a]n administrative agency's interpretation of a statute for which it has enforcement responsibility is entitled to great deference and will not be reversed unless clearly erroneous." Popowsky v. Pennsylvania Public Utilities Commission, 706 A.2d 1197, 1203 (PA 1997), quoting Alpha Auto Sales v. Department of State, 644 A.2d 153, 154 (PA 1994). In practice, this deference means that courts will not substitute their view of the facts for the agency's, particularly where the statutory scheme is complex.
Administrative Law ResourcesThere is no hornbook on Pennsylvania administrative law, but there are several dealing with federal administrative law: Understanding Administrative Law (Reserve, KF5402.F68 2000); Administrative Law and Process in a Nutshell (Reserve, KF 5402.Z9G4 1997); BNA Administrative Practice Manual: A Guide to Agencies and the Regulatory Process (KF5406.A8 B32); Administrative Law (KF5402.M49); Pike & Fischer Administrative Law (KF5401.A5163 3rd); Administrative Law, Hornbook Series, (RESERVE KF5402.A8 2001).
The Pennsylvania Bar Institute has published several administrative law texts: Advocacy in Administrative Rulemaking (KFP 440.A75 A38 1995); Administrative Due Process: "Walls of Division" (KFP 411.A75 A35 1995); Administrative Law Symposium (KFP 440.A75 A37 2001) and texts covering practice before specific agencies.
The
Widener Law Journal (K 27. I250) publishes the Annual Survey of Pennsylvania Administrative Law. Pennsylvania generates a uniquely large amount of administrative law, and this publication was created to provide an analytical and expository forum for addressing this often ignored area. With the publication of the Survey, the Journal is the only law review specifically focusing on administrative law in the Commonwealth of Pennsylvania. The Survey includes student-written analytical writing that examines Pennsylvania court decisions having a particularly significant impact on administrative law.