CHAPTER 7 ADMINISTRATIVE LAW

• Jurisdiction: United States

Chapter 7 Administrative Law

I. Administrative Law and Governmental Agencies

Administrative law encompasses the rules and decisions of governmental agencies. Agencies include boards, commissions, and departments that are part of the executive branch of government.¹ Chapter 182 of Oregon Revised Statutes (ORS) lists the agencies found in Oregon. Examples include the Department of Transportation, the Public Utility Commission, and the Board of Nursing.²

Although agencies are administered by the executive branch, they are generally established by the legislature through enabling statutes. In Oregon, some agencies are created by the state constitution; for example, the State Lottery Commission was created through the initiative process that amended the Oregon Constitution.³ The statutory or constitutional provisions that create agencies establish the powers and duties of the agencies. Each agency must work within the limits set by its enabling statute or constitutional provision.

Administrative law is primary authority like statutes and cases. It is unique because agencies perform functions of all three branches of government. Agencies write rules (also called regulations) that interpret and apply statutes in the agencies' jurisdictions; these rules are similar in form and in authority to statutes enacted by the legislature. As part of the executive branch, agencies issue licenses (such as those permitting citizens to drive) and conduct investigations to see whether laws are being followed (e.g., inspecting environmental sites). Agencies also hold quasi-judicial hearings, deciding cases that involve the agency's rules or its mission (e.g., to suspend a dental license or award unemployment benefits). These hearings are similar to court proceedings, but less formal.

In general, agencies function within the bounds of an Administrative Procedures Act (APA), such as Oregon's APA, found at chapter 183 of ORS.⁴ The APA requires that the public be involved in developing agency policy and drafting rules. Agencies are encouraged "to seek public input to the maximum extent possible before giving notice of intent to adopt a rule."⁵ To meet this goal, agencies schedule public hearings where interested entities or individuals may make suggestions or express concerns before a rule is finally adopted or changed. The APA also sets requirements for administrative hearings to ensure they are conducted fairly.⁶

Each of the three branches of government has some oversight of agency functions. The legislative branch generally grants agencies the power to perform their duties and provides funding for the agencies to operate. The courts may determine in contested cases whether agencies' rules are valid. The Governor is the supervisor of all state agencies, and the executive branch exercises control over some agencies by appointing their highest officials.

II. Administrative Rules

Administrative agencies promulgate rules, similar to the legislature enacting statutes. Administrative rules are written in an outline-numbering format similar to that of statutes. Rules are defined by Oregon statute to include "any agency directive, standard, regulation or statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of any agency."⁷ Many rules supply details that the legislative branch is not able to include in statutes. Since agencies are the experts in particular legal areas, they are well suited for supplying specific details to general statutes. See Table 7-1 for an example of the relationship between a statute and a rule. Rules also may provide guidance based on an agency's understanding of a relevant statute or determine procedural deadlines and format for agency filings.

Table 7-1. Example of Relationship between Statutes and Rules

An Oregon statute provides that an individual is disqualified from receiving unemployment compensation benefits if the individual left work voluntarily "without good cause."

An Oregon rule issued by the Employment Department enumerates the following examples of leaving work "without good cause":

(A) Leaving suitable work to seek other work;
(B) Leaving work rather than paying union membership dues;
(C) Refusing to join a bona fide labor organization when membership therein was a condition of employment; [and]
(D) Leaving to attend school, unless required by law.

Sources: Oregon Revised Statutes 657.176(2)(c); Oregon Administrative Rules 471 -030-0038(5)(b) (excerpt).

Although rules and statutes are both primary authority, rules are subordinate to statutes. In any inconsistency between a rule and a statute, the statute wins. Moreover, a rule cannot "cure" a statute that a court has held to be unconstitutional.

Administrative rules in Oregon are designated by a ten-digit number in the form 000-000-0000. The first three digits are the agency chapter number. The next three digits are a division number, which groups related rules together. The last four digits are the number assigned to a particular rule. See Table 7-2. In Oregon, the abbreviation "OAR" is used before regulations.⁸ Note that the agency chapter number is not related to the chapter of ORS that created the agency or the chapter of the enabling statute in Oregon Laws.

Table 7-2. Example of Oregon Administrative Rule Numbering

The rules of the Board of Massage Therapists are contained in chapter 334 of Oregon Administrative Rules Compilation. Rules are separated into five divisions:

Division 1: Procedural Rules
Division 10: Massage Licensing
Division 20: Sanitation, Facility and Building Requirements
Division 30: Ethical Standards
Division 40: Complaints and Discipline

Within division 10, OAR 334-010-0005 contains rules for applying to take the exam to be licensed as a massage therapist; it requires certain forms to be submitted with the required fee, a copy of photo identification, class transcripts, etc. A later rule in that division, OAR 334-010-0012, sets out the appeal procedures for an applicant who fails the examination.

III. Researching Oregon Administrative Law

The basic process for researching Oregon administrative law has four steps:

(A) Find the statutory or constitutional provision granting the agency power to act. Research case law to determine whether the agency acted within that power.
(B) Find the text of the relevant rule in Oregon Administrative Rules Compilation (OAR) for the year at issue.
(C) Update the rule to find any proposed changes.
(D) Find agency and judicial decisions applying the rule in similar circumstances.

Each of those four steps is explained below.

A. Researching the Enabling Act

Analytically, the initial question with any agency action is whether the agency acted within its power. If that is in doubt, the first step in administrative law research is to find the statute or constitutional provision that gives the agency power and to find cases interpreting that provision. Chapters 2 and 5 explain the process of researching constitutional provisions and statutes, respectively. Chapter 4 explains how to find cases in addition to those listed in annotated codes. If the agency's power is clear, skip this inquiry and move directly to finding relevant rules, as explained next.

B. Oregon Administrative Rules Compilation

Oregon's permanent rules are published annually by the Oregon Secretary of State in Oregon Administrative Rules Compilation (known as OAR, not OARC).⁹ It includes the full text of rules as of November 15 of the previous year. Volume 1 contains an alphabetical list of agencies and a numerical index of chapters. OAR does not, however, contain an index for locating rules on a particular topic. When using only print sources, skim the list of agencies and determine which would be likely to make rules relevant to your client's situation. Turn to that agency's rules in OAR and skim them to see which ones apply.

A better approach for researching OAR is to use the Oregon Secretary of State's website at sos.oregon.gov. On that site, you can access rules through an alphabetical index of...