By MARTHA S. COLLINS
Checking the "fourth branch'
THE 80th General Assembly enacted a significant law amending the Illinois Administrative Procedure Act which affects nearly every state agency. Ironically, this law, P.A. 80-1035, represents an answer to a 20th century problem that was created by a 19th century solution, Theoretically, P.A. 80-1035 (H. B. 14) should help to rescind a huge number of outdated and anachronistic rules while also decreasing the number of (current rules generated by state agencies. In the process, it should encourage citizen participation in the devolopment of agency rules and provide for legislative review of agency In the light of massive state budgets for operations, it may be blasphemous to talk of a fourth branch of government •the administrative bureaucracy. But such talk would at least reflect current realities in state government. In the 1800's the Illinois legislature was begining to delegate "to administrative bodies or officers the power to do those things which it might properly, but cannot understandably or advantageously, do itself." Since then, administrative bodies and their rules have proliferated beyond these early legislarors' imaginations. This has led to a ruling feeling on the part of the legislators that they were no longer such in control of their offspring. The citizens, the theoretical beneficiaries of the work of agencies, were even more helpless in the face of agencies over-grown with rules and regulations. Take, for example, a hospital and physician in the Joliet area wanting to honor a couple's desire to share the Caesarean birth of their child all the way through the operating room. The physician and the hospital were unable to do so because of a state agency regulation that "no lay visitor shall be given access to the operating room during surgery." William A. DeWitt, M.D., called this a "law established by appointed bureaucrats" rather than the legislators, and suggests that these regulations are even harder to change than "real" laws.
This regulation was issued by one of over 110 agencies (encompassing commissions, boards, departments or individual officers) implementing government policy in Illinois. Although the existence of agencies and the scope of their functions are determined by the legislature, these 110 and more agencies have a remarkable degree of autonomy. They have created their own rules and rule-making process in order to act on the responsibilities they were assigned by legislation. Collectively, these agencies have managed to generate something like 300 volumes of rules, all filed with the Index Department, Rules Division, in the Secretary of State's Office. The Illinois Commerce Commission, with 25 volumes and the Department of Public Health with 24 volumes, are among the more prolific rule makers. Other agencies, more modest in the scope of their functions, can at least boast of having only one volume of rules. An approximately equal number of rescinded rules are also filed. Legislators have high hopes that the rescinded portion of rules will grow with P.A. 80-1035. An increase in the number of rescinded rules, or a decrease in the number of current rules, is not all that P.A. 80-1035 was designed to accomplish, although these are the major intents of the law. Rep. Harry "Bus" Yourell (D., Oak Lawn), cosponsor of H.B. 14, aimed the legislation at "the situation of runaway agencies and haphazard rule-making" and at making agencies accountable for every rule that is on their books. The new procedure From now on, any time an agency wants to adopt, amend or repeal a rule it must follow the process set forth by P.A. 80-1035 which includes responding to comments by citizens and to remarks of a joint committee of the General Assembly. Briefly then, here is what is involved in the rule-making process: An agency submits to the Secretary of State's Office a proposed rule, amendment or repeal of a rule to be published in the Illinois Register. The following information must be given in a uniform format specified by the Rules Division of the Index Department: the text of the proposed rule, or the old rule with the proposed amendments or the proposed rule to be repealed; the statutory citation that authorizes the rule; a statement of the issues that are involved; and the time, place and manner in which citizens can contribute their comments. Immediately upon publication and for 45 days following, the public may submit comments, although a request to comment must be made within the first 14 days. The amended act is significant
MARTHA S. COLLINS April 19781 Illinois Issues/13 because it requires nearly all state agencies to comply, exempting only the Office of the Governor, the Senate and the House of Representatives, the courts and agencies that do not have statutory rule-making powers, and thus vastly increases the opportunities for the public to participate in rule making. Also important is the new law's provision for a specific legislative review process. And the law requires all agencies to follow a uniform and systematic procedure for publicizing, recording and documenting rule-making decisions. The Office of the Secretary of State continues to be responsible for the recording of rules and has the added task of publishing rule-making actions in the Illinois Register, a weekly publication created by P.A. 80-1035. Legislative review is carried out by the Joint Committee on Administrative Rules. Its 16 members are selected from the General Assembly to serve two-year terms. Four members are appointed by the Senate president, four by the minority leader of the Senate, four by the House speaker and four by the minority leader of the House. The Joint Committee, with an initial budget of one quarter million dollars, also has a salaried executive director. Joint committee review Upon publication of the information required in the Rules Division format, the joint committee begins its review of the proposed rule. The joint committee makes sure that the rule proposed is within the agency's statutory authorization, that it is in proper form and legally correct and that the public notice period "was sufficient to give adequate notice of the purpose and effect of the rule, amendment or repeal." The next step depends on the joint committee's findings during the review. If no objections-are raised, the agency files a certified copy of the rule proposed with the Rules Division after the 45-day notice period has ended. The Rules Division sends a certified copy to the joint committee within three days and publishes the final text of the rule in the next issue of the Illinois Register. Ten days after the rule is filed it becomes effective. However, if the joint committee issues an objection, the agency has 90 days after receiving the statement in which to respond. The agency has four response options, each with consequences that are considerably stacked against an agency which wishes to reject or ignore an objection.
Two of the options are of the Catch 22 variety, because either way the agency responds, it ends up without its proposed rule. First, the agency may withdraw the entire rule to meet the joint committee's objections and it must notify the Rules Division so that this action can be published in the Illinois Register. Or, the agency may not respond at all, within the 90 days; in which case the joint committee notifies the Rules Division that the proposed rule is withdrawn. That result must also be published. The agency may also decide to incorporate modifications to meet the joint committee's objections. In that case the modified rule would be filed and published. Another option the agency has is to notify the joint committee that it refuses to modify or withdraw the proposed rule. This is the situation that requires keeping "an open mind with the communication link of each issuing agency," as the joint committee's Executive Director Bruce Johnson has explained. If an understanding is reached, then the rule continues on to the filing and publishing process and becomes effective. Otherwise the joint committee may draft legislation for introduction into the General Assembly which could make a change in the statutes. Agency accountability That process does not leave much leeway for agencies. One way or another, agencies must account for the rules they make, change or rescind. Rule-making matters exempt from following that exact process are few. They are emergency rules which terminate after 150 days, rules required by federal rules or law and rules resulting from court orders. P. A. 80-1035 also designates long-range accountability and review responsibilities to the agencies and the joint committee. As of January 1, 1978, a comprehensive and overall review process is underway. Agencies have between January 1 and March 1,1978 to file certified copies of all their rules currently in effect with the Rules Division. Any rules not filed within that 60-day period are automatically considered void. Within 45 days after receiving certified rules, the Rules Division sends copies of them to the joint committee. Agencies must now also prepare a compilation, with an index, of all its current rules to "be filed in the office of the Secretary of State in Springfield, . . . and in the Cook County Law Library in Chicago,. . . and with the Joint Committee on Administrative Rules." An update must be done at least once every two years. The initial compilation must be completed before September 27, 1979. Since the indexing is to be done by each individual agency, the collective filing alone does not make this a centra codified index, such as the Federal Codified Index or California's computerized index. Precise knowledge of which agency issued a rule is still a prerequisite to locating the details of it. But that compilation will provide a invaluable basis for an index in the future, which, incidentally, P. A. 80-1035 does not mandate. As Executive Director Johnson sees it, the priority concern is to update and trim the mass of rules that are now in the books. Once that is accomplished, a central codified index would be a more realistic goal. Five-year review The joint committee also is responsible for conducting a continuing study and review of rules and the rule-making process. This requires reporting to the General Assembly by February 1 of each year and holding review sessions at least once every five years. For the latter assignment, rules must be grouped and evaluated in topic categories, such as human resources, environment or public utilities. The purpose for regrouping is to eliminate duplication of rules and to improve coordination between agencies. 14/ April 1978/ Illinois Issues The joint committee cannot approve or veto rules. But it does have authority to request the following from any agency: (1) an analysis of the effect of a rule-making action (including the economic impact); (2) an evaluation of the public comments submitted; (3) justification for a rule-making action; and (4) a description of any modifications made since the proposed rule was published. In addition, the joint committee, upon a majority vote, may give the executive director subpoena powers to bring any person to report to the joint committee or to procure any written information. Far-reaching changes This is not Illinois' first law directed at regulating administrative rulemaking, but it is the most far-reaching. In 1951, "An Act concerning administrative sales" called for rules to be filed with the Secretary of State and to be made available to the public. The Administrative Procedures Act, first enacted in 1975, had more ambitious intentions. Among its provisions was one for publishing rules with a 30-day public notice period for submitting comments, and the act required agencies to keep compilations of all their rules. However, only 16 agencies and only portions of their statutes had to comply with this act. That crucial limitation was spelled out in section 1001 of the Illinois Revised Statutes, 1975, Ch. 127: "This Act applies to every agency as defined herein to the extent that the Act creating conferring power on such agency adopts by express reference the provisions of this Act." With the amended Administrative Procedure Act, Illinois has joined the league of 34 states that have adopted law that regulate administrative rule-making and provide for various degrees legislative review. Only 12 of these aies have laws that set forth procedures as rigorous and systematic as Illinois, according to Johnson. Often a particularly significant piece of legislation tends to generate loud controversy. That does not appear to be the with this law. Johnson's observation is that "agencies are making good faith efforts to comply." He added that complying with the new procedures should not be more work if agencies have been performing their jobs properly. Well-run agencies most likely have well-designed systems for making and publicizing rules. However, not all agencies have equally complex or simple functions. And the effect that P.A. 80-1035 has on an agency does not necessarily identify how well it is managed. To the Department on Aging, the new law's requirements will mean a "terrific and permanent work load addition," said one staff member. Why? Because of the bureaucratization of the format that must now be followed, said Joe Goleash, Jr., legal counsel for the Department on Aging. Goleash questioned whether this law represents the most effective way to make information on rules available to the public. He added that the Department on Aging derives a fair number of its rules from interpretation of federal guidelines. Federal guidelines are known to be voluminous and the task of publishing any of them in the Illinois Register could be a cumbersome burden. To Goleash bureaucratization of the rule-making process can go two ways: it can "compel agencies to do housecleaning" and to trim the volume of rules, or tempt agencies to change their definition of what is a rule to avoid the extra work. On the other hand, the Department of Corrections, according to Robert G. Hedges, legislative liaison and hearing officer, is able to utilize its existing staff. Hedges pointed out that the Class X crime law has already necessitated a review and updating of the department's rules, giving that department a headstart on meeting some of the new requirements.
The big unknown Hedges suggested that the big unknown is the joint committee's impact. It could turn out to be a "viable committee" or a "bureaucratic mountain." A staff member of the Illinois Office of Education expressed a similarly cautious sentiment towards the joint committee which, he said, could delay rule-making action. On the other hand, Ann Lousin, director of the Civil Service Commission, and associate professor at John Marshall Law School, Chicago, had been advocating this kind of law for the last four years. She is particularly pleased about the creation of the Illinois Register and anticipates that the uniform procedure and the legislative review process will do much towards improving coordination among agencies. Implementation With the exception of Goleash from the Department on Aging, none of the agency staff interviewed thought that P.A. 80-1035 would lead to a reduction in the number of rules that will remain current or that will be issued from now on. However, by March 1, an informal count showed that only about 90 per cent of all the rules originally on file had been certified to be retained, said T.C. Christian, Jr., manager of the Rules Division. One agency, the Illinois Commission on Human Relations, simply mailed a letter stating that all their rules were obsolete and would not be recertified. Only six agencies appear to have failed to meet the deadline, according to Christian. He added that these outstanding agencies — related to higher education — are taking the position that P.A. 80-1035 does not apply to their situation. The law has just begun to be fully implemented and the dead wood conjectures have yet to be proven. Despite the comprehensively constructed law, there are bound to be problems that could not be anticipated and situations that will require legal interpretation. One positive result seems certain, however: P.A. 80-1035 will make it difficult for agencies, citizens and legislators to stray too far apart. For citizens who want to keep track of the rule-making events by agencies, copies of the Illinois Register will be on the shelves of the Cook County Library in Chicago, the State Library in Springfield, the 40 state depository libraries throughout Illinois and other libraries which request the weekly publication from the Rules Division. Individuals, through the Rules Division, may also subscribe to the Illinois Register at a cost of $52.00 a year. April 1978/Illinois Issues/15
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