FPPC’s rule-making needs a dose of transparency

The Legislature should enact legislation to require the Fair Political Practices Commission (FPPC) to fully comply with the current California Administrative Procedure Act (APA).

While the FPPC takes the position that it is only bound by the version of the APA that was in existing in 1974 (when the FPPC was created by the voters in their adoption of Proposition 9 that also enacted the Political Reform Act), we believe the FPPC should be bound by the current version of the APA.

The FPPC, after all, is focused on transparency in the political and election processes. However, without compliance with the entire APA, the FPPC’s rulemaking procedures are not conforming with contemporary standards that most other state agencies and departments follow.

Unfortunately, in an unpublished decision, the 3rd District Court of Appeal held that the post-1974 APA amendments do not apply to the Fair Political Practices Commission.

The APA was substantially amended by the Legislature in 1979 and has been modified in numerous instances over the past forty years.

As one of the legislative findings and declarations included in the APA, there has been “an unprecedented growth of unclear and unnecessarily complex administrative regulations.” And, the Legislature established the Office of Administrative Law (OAL) to ensure that state agency regulations are written in a comprehensible manner, and are authorized by statute and consistent with other law.

Since its original enactment, there have been changes to the APA in the Legislature’s continuing effort to ensure transparency in the regulatory process by establishing procedural requirements and standards for agencies in the adoption of rules and regulations.

Readers may not be aware that, in 1992, the FPPC filed suit requesting declaratory and injunctive relief in superior court arguing that it was not bound by the post-1974 amendments to the APA, including provisions that granted the OAL authority to substantively review FPPC regulations.

Unfortunately, in an unpublished decision, the 3rd District Court of Appeal held that the post-1974 APA amendments do not apply to the Fair Political Practices Commission. The Court’s reasoning was that the citation to the APA in Government Code Section 83112 (which is found in the APA statutes) was intended to reference the specific statutory provisions in the APA, rather than serve as a general reference to the APA, including amendments adopted after 1974.

The Legislature should require the FPPC to adopt rules, regulations, and other administrative materials to comply with modern standards of transparency…

The appellate court reached its determination despite what appears to be the clear intent of the voters to subject the FPPC to the APA as stated in Gov. Code section 83112, which reads:

“The Commission may adopt, amend and rescind rules and regulations to carry out the purposes and provisions of this title, and to govern procedures of the Commission. These rules and regulations shall be adopted in accordance with the Administrative Procedure Act (Government Code, Title 2, Division 3, Part 1, Chapter 4.5, Sections 11371 et seq.) and shall be consistent with this title and other applicable law.”

In response to this unpublished court decision, the FPPC adopted 2 CCR §18312 providing that the FPPC is subject to procedures in the APA “that were in effect as of June 4, 1974.” This regulation remains in effect today and governs the FPPC’s administrative procedures.

This should not remain the law.

Instead, the Legislature should require the FPPC to ensure that its processes and procedures for adopting rules, regulations, and other administrative materials comply with modern standards of transparency and public accountability that apply to nearly every other state agency, except where there is an express statutory exemption.

Compliance with the current APA would achieve legitimate public policy objectives.

For example, it would provide more time for those who are affected by FPPC regulations to review and analyze proposed regulations. Also, the APA requires an agency to respond to objections, recommendations, and proposed alternatives that are identified during public comment period. Finally, the APA requires proposed regulations to be reviewed by OAL to ensure that they are clear, necessary, legally valid, and available to the public.

Fundamentally, having the FPPC comply with the current version of the APA will ensure compliance with these modern standards and improve the FPPC’s rulemaking process by ensuring that its regulations are legally valid and responsive to legitimate public concerns.

If the FPPC is to demand transparency and accountability on the part of those who are regulated by the PRA, it too should be subject to the highest standards of transparency and accountability imposed on government agencies.
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Editor’s Note: Richard Rios is an attorney and partner in the Olsen Remcho political and election law firm. Chris Micheli is an attorney and lobbyist with the governmental relations firm of Aprea & Micheli.