Scholar focuses on administrative law at the municipal government level.
Scientists have a long time debated principles of US administrative law, but these discussions focused almost exclusively on federal law. To what extent do these principles apply at the local level?
Despite the abundance of research in administrative law, fundamental questions about the oversight of local government remain clearly unanswered, argues Maria ponomarenko of University of Minnesota Law School in a recent paper.
Ponomarenko addresses this gap in the literature, arguing that local agencies to respond differently from procedural and substantive constraints than federal agencies. Compared to the federal system, explains Ponomarenko, substantial local judicial review provides value greater than procedural requirements.
At the local government level, agencies manipulate much of the government work. In cities like Seattle, Chicago, and New York, agencies problem thousands of regulations on a wide range of issues. Even in relatively small towns, administrative agencies regulate everything from tanning salons to youth athletics.
Define a local agency, however, pose no easy task. Some organizations, like their federal counterparts, are created by a legislative body and located in the “executive power” of a municipality, with heads of agencies appointed by the mayor and liable to be dismissed by the mayor. Other entities lack the “separation between legislative and executive powers” that characterizes federal agencies. For example, a city council can directly appoint agency heads and a county supervisory board can both legislate and oversee administrative officials.
In addition, unlike the federal government, local agencies cannot adopt binding rules. Instead, the regulations are adopted by non-agency entities, including legislative bodies and municipal councils. Anyway, the agencies exercise significant power of interpretation in the execution of regulations.
Local authorities also tend to characteristic hybrid agencies created by national and local law. For example, in Georgia, state law mandates county health councils, but counties appoint council members and assign functions to councils.
In addition, procedural requirements for local agencies, which are based primarily on local law, may vary widely. Federal constitutional requirements to bring a baseline for the adjudication of local agencies; for more than a century, the Supreme Court of the United States has tenuous that when the policy-making of local governments has an impact on private rights, they should to afford affected citizens “at least a rudimentary opportunity to be heard before a final decision is made”. Still, a lot of variation exist through the requirements of municipalities for the development of local rules.
Although a few states have State administrative procedural acts that govern local rule making, local law usually determines rule making procedures for municipal agencies. Although a few large cities have adopted administrative procedural acts of their own, most municipalities matter only agencies specific to procedural requirements – or do not specify procedures at all.
Comparison of two major cities on the east coast provides an example of the dramatic variations in local agency procedures. In New York, agencies must Publish proposed regulations on a regulatory website 30 days before the proposed adoption date and accept comments. But in Massachusetts, health boards can adopt regulations after giving only 10 days’ notice in a newspaper, without soliciting public opinion.
Significant constraints for local agencies as well to prove a lot of variation. State laws are often to allow judicial oversight of local agencies and define applicable oversight standards. Even where state laws do not explicitly apply to local agencies, some state courts have tenuous that they do. In other states, courts are content review agency decisions under the substantive due process clause of the state constitution.
The standard of review applied by the courts may range of an arbitrary and capricious standard – similar to the federal standard “hard lookWhich requires agencies to provide detailed explanations of their decisions – to a more respectful “rational basis” test, which the courts have applied when reviewing federal legislation.
Given the diversity of local administrative structures, Ponomarenko argues that the principles of local administrative law should also vary. Using the Federal Administrative Stock Exchange as a road map, Ponomarenko Explain that the substantive and procedural constraints operate differently at the local level than at the federal level.
Ponomarenko maintains that substantial judicial review offers more advantages to local agencies than to federal agencies. At the federal level, academics have highlighted the complexity of agency decision-making, the assessment of which may require substantial expertise. But the decisions of local agencies – which may concern zoning, transport or public health –to imply much less expertise, so courts have less reason to rely on agencies on the basis of their technical expertise.
In addition, Ponomarenko Explain that requiring agencies to give reasons for their decisions is of greater importance at the local level. Federal administration specialists have critical justification requirements leading to performative “court training,” where lawyers develop justifications simply to survive judicial scrutiny. Since local agencies have fewer legal resources, decision-makers themselves should Explain their justifications, encouraging further deliberation. Ponomarenko argues that this could tangibly increase the quality of policy-making, given the informal nature of most local agency processes.
On the other hand, Ponomarenko argues that procedural requirements are of less benefit to local agencies. Admittedly, the absence of procedures may shame perceived legitimacy of agencies, but strong procedures may not to improve neither is the quality of the decisions of local agencies.
Empirical evidence suggest that citizens are more likely to participate in local government in smaller jurisdictions, but overall participation in local agency proceedings remains low. Even if procedural regulatory requirements increase participation, it is unlikely that these procedures produce new technical information that could ultimately improve local policies. Instead, Ponomarenko Explain that members of the general public tend to provide only political information, presenting opinions without additional reasons or evidence to inform agencies.
Since local agencies may benefit more from substantive constraints than from procedural constraints, Ponomarenko defenders “hard” scrutiny of local agency decision-making. She rejects the principle to rely on agency decisions produced by more robust procedures.
Ultimately, recognizing what she sees as a vast need for more scholarships on the local administrative state, Ponomarenko present its arguments as a preliminary framework for assessing the constraints weighing on local agencies.