AMERICAN BAR ASSOCIATION SECTION OF ADMINISTRATIVE LAW & REGULATORY PRACTICE Midyear Meeting ABA Headquarters Washington, DC January 31, 2009

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1 AMERICAN BAR ASSOCIATION SECTION OF ADMINISTRATIVE LAW & REGULATORY PRACTICE Midyear Meeting ABA Headquarters Washington, DC January 31, 2009 Persons present: Chair H. Russell Frisby, Jr., Chair-Elect William V. Luneburg, Last Retiring Chair Michael Asimow, Vice-Chair Jonathan Rusch, Secretary Anna Williams Shavers, Budget Officer William S. Morrow, Jr., Section Delegates Randolph May and Hon. John Michael Vittone; and Council members Cary Coglianese, Charlotte Bahin, Daniel Cohen, Hon. Edward Schoenbaum, James W. Conrad, Jr., Joseph D. Whitley, Kenneth Hurwitz, Linda Lasley Ford, Paul Robert Noe, Richard W. Murphy, Richard Parker, Robin Arzt, Jeffrey Rosen, Steve Vieux, William Jordan: and Liaisons Matthew Weiner (Legislative Liason), James Muetzel (Young Lawyers Division Liaison) and Brandon Sherr ( Law Student Liaison) Absent: Hon. Brett Kavanaugh (Federal Judiciary), Ronald Smith, Assistant Budget Officer; and Liaison David R. Gienapp (ABA Board of Governors) I. Administrative The meeting started promptly at 9:00 am. Persons present introduced themselves. The minutes of the Fall meeting were approved with a few minor corrections. II. Chair s Report Russell announced that the meeting was being held in DC in lieu of the midyear meeting in Boston primarily for budgetary reasons. Consideration will be given to the future affect of this change. He noted that the section had a number of balls in the air regarding reports and taskforce as well as numerous requests for blanket authority. The POTUS report, the E-rulemaking report and the OPM letter were approved by the Council and have been submitted. The new legislative committee will help make sure our actions do not die. Jamie Conrad will report on the progress of the committee. Bill Funk is on the preemption task force and Bill Luneburg is working on the regulations task force along with Ron Levin. Russell thanked Section Director, Anne Kiefer and Program Associate, Katrina Pariera for assistance with the meeting. Russell noted that Anne has developed an 18-month plan for the section which he will share with the Council. He noted that there are a number of meetings coming up as well as programs in Boston at the Midyear Meeting. Caroline Newcombe and Ken Hurwitz helped organize programs along with the program chairs Renée Landers and Paul Afonso. The 4th Annual Homeland Security Law Institute will be held in February at the L'Enfant Plaza Hotel in D.C. The Spring Meeting, 2009 Spring Regulatory Conference, will be held in Williamsburg, Va. The meeting Co-Chairs are Richard W. Parker & Scott Delacourt. A different approach is being tried with the meeting with several excellent CLE programs scheduled for the first day including one on financial regulation chaired by Fiona Philip, a panel on emerging regulatory ethics issues including Edward J. Schoenbaum and another on OIRA. With respect to the new administration, Russell noted many section members have been involved in the transition including Sally Katzen and Cass Sunstein has been named to head OIRA. Looking forward, Russell noted that we are moving into the electronic era, we have concerns regarding membership and some committees such as the Transportation Committee are doing very interesting things that may help with membership. 1

2 III. Chair-Elect s Report Bill Luneburg announced that the American League of Lobbyists, a practice section of DC bar and our section are working on a possible joint program in the late summer that will be of particular interest to lobbyists. The idea is that they will start small, but the program may develop into a permanent fixture. Bill also noted the significance of the Treasury Department s and President Obama s actions on lobbying issues. IV. Vice-Chair s Report Jonathan Rusch referred to Tab 2 of the Council materials for the agenda and information on the 5th Annual Administrative & Regulatory Law Institute scheduled for June 10, The focus of the Institute will be on new directions in agency rulemaking and it will be held at the National Press Club. An invitation has been extended to Cass Sunstein to speak but it is likely he will wait until after confirmation to firmly commit. Jonathan noted that Bill Luneburg has been extremely helpful with the Institute. Russ commented on their hard work and that they are moving along nicely and working closely with GAO. It was also noted that Jeff Rosen, Department of Transportation former general counsel, will help with the Institute. V. Section Budget Officer s Report Bill Morrow referred to Tab 3 and the included Budget Approval Timeline. Bill announced that the ABA has accelerated its budgeting process. The Budget Committee has met and will have a series of meetings. They are working with Anne to get the necessary data and will have a detailed report at the spring meeting with the numbers needed to make informed decisions. Bill noted that the section will have to try and rely less on investment income. Russell noted that the ABA has asked for an across the board cut. The amount will be decided at the Midyear Meeting. It could range from 5% to 9% and will have an impact on our staff. Our 3 rd position has not been filled during the hiring freeze and the budget cut could mean either that the position will be cut or it will be part-time. Anne will submit an order for a temporary position. Andy Kawel announced that the ALR members are willing to help with some volunteer hours. Russell agreed to talk with Andy Poppers and Jeff Lubbers about the possibility. VI. Delegates Report Randy May and John Vittone referred those present to Tab 4 and the resolutions that had been highlighted for discussion. The section was asked to co-sponsor resolutions 105 by the Section on State and Local Government and 111B by the Commission on Law and Aging regarding mandatory arbitration in longterm care facilities. It was agreed that there was no consensus to co-sponsor 105, but the delegates would not oppose. After a motion by Michael Asimow and second by Steve Vieux the Council voted unanimously to co-sponsor 111B. Randy and John pointed out the other highlighted resolutions: There was no discussion on 10A and some discussion on 101C, 106, 107A-G, and 113. With respect to resolution 10B regarding direct payment of attorneys fees and costs to attorneys, Edward Schoenbaum made a motion to co-sponsor which was seconded by Michael Asimow. The motion was approved. The motion made by Michael Asimow and 2

3 seconded by Steve Vieux to co-sponsor resolution 112 regarding the selection of administrative law judges was also approved. An extensive discussion was conducted on resolutions 109 from the Standing Committee on Ethics and Professional Responsibility and 110 from the Section of Litigation at Tab 5 regarding the screening of lawyers to prevent conflicts of interest. The discussion included comments from Miles Eastwood from the perspective of a small firm and University of Pennsylvania Professor Lawrence Fox who called in to participate. It was noted that the section and the house are significantly split on this issue. A motion made by Ken Hurwitz and seconded by Joe Whitley to support 110 was withdrawn. A motion was made by Bill Jordan and seconded by Jamie Conrad to get a sense of the Council with respect to resolution 110. The vote was 14 for and 2 opposed. VII. Administrative, con t The Council took a brief lunch break at 11:45. VIII. Legislative Committee Report Jamie Conrad informed the Council about the work of the Legislative Committee and its purpose. The Committee will serve the function of helping to make things happen when the section gets resolutions passed. Tom Sussman and Larson Frisby will assist with their efforts by lobbying for action. The Committee will work on both legislative and administrative actions. Jamie referred the Council to the POTUS report for important issues such as funding ACUS, including e-rulemaking as a budget line item, and providing procedural protections for non-apa adjudications. For more narrow issues and substantive matters, the section will look to committees. Russell will serve as an ex officio member of the Committee. Other members include Elizabeth Getman, Randy May, Otto Hetzel, Warren Belmar, Paul Noe and Richard Parker. Jeff Lubbers will assist as a reserve member. IX. Upcoming Meetings The section will have programs at the Midyear Meeting in Boston even though the Council will not be meeting there. Renée Landers and Paul Afonso have worked very hard on the programs. There will also be a reception at Suffolk Law School. Bill Luneburg highlighted the program organized by Ken Hurwitz. Anne Kiefer made a plea to help increase the attendance at the bailout program. Russell directed attention to Tab 7 for information on the Spring Meeting. The ethics program proposed by Ed Schoenbaum as a presidential showcase program at the Annual Meeting has been accepted, but it was merged with the Criminal Justice Section proposal. Therefore, what was proposed will be presented in the Ethics program at the Spring Meeting. There will be golf in Williamsburg. Anna Shavers as graciously consented to scheduling the publications meeting at an early hour. X. Awards The Mary C. Lawton Award for Outstanding Government Service, the Awards for Scholarship in Administrative Law and the Gellhorn-Sargentich Law Student Essay Competition Award will be made as usual. Members should encourage nominations and participation. 3

4 XI. Publications The Sales report was discussed. The publications are doing well, but we need more books. The Publications Committee will pursue new methods for updating books. It was announced that the Council had adopted the resolution at Tab 11 with respect to the posting of articles on SSRN as long as it did not prejudice the ALR or published book in which the article was included. A motion made by Cary Coglianese and seconded by Bill Jordan to include similar services passed. Publications Co-Chair Bill Jordan will make decisions on requests for posting of book chapters. Andy Kawel, ALR Editor in Chief, reported on the successful year of the ALR. Some events of note include the Duncan Writing Award and annual dinner and the ALR endowment started by Andy. Section members were invited to attend the dinner. Harvard Law Review requested the assistance of ALR in revamping Rule 14 of the Bluebook. The ALR is considering an online magazine. Andy introduced other executive board members in attendance Russell extended thanks and kudos to the ALR editors. XII. Membership Communication with members needs to be improved. Efforts are being made to use blogs, discussion forums and other technology. Les Glick and Nancy Skancke are assisting with this effort. Anne Kiefer explained ABA rules regarding the use of these methods. An extensive discussion was conducted regarding possible methods to attract and retain members. The need for these efforts was pointed out by Dan Cohen and the Membership Committee Report at Tab 9. In his Law Students Report, Brandon Sherr made several suggestions for attracting and retaining law student members. Some ideas suggested include: sending letters to those who do not renew, welcoming those who join, soliciting those who have not joined, providing a members resource page on the website, producing a glossy brochure with section benefits, opening section events to law students, establishing mentorships, giving a membership as an award to a student, publishing an administrative law careers book similar to that of the business section and password protected website for jobs and internships. Members should contact Dan if they want to assist with these efforts. XIII. Ex-Officio, Legislative Branch Report This is a new creation. Discussion of ACUS funding as a priority, establishing House and Senate staff working relationship; midnight regulations (it was noted that Jack Beerman has an article on this issue, Russell will contact Beerman); establishing a more formal mechanism to deal with issues of importance. Council was referred to Dan Metcalf s website CGS (collaboration on government secrets). Russell, Dan Cohen, Jeff Lubbers and Nancy Skancke will further discuss these issues. Anne will set up the call. 4

5 XIV. Nominating Committee Report Judy Kaleta invited members to contact the committee regarding suggestions for nominations. XV. Ad Hoc Committee On Selection of ALJs The report is included in Tab 10. Nancy Skancke spoke on behalf of the ad hoc committee. She was accompanied by John Miller. The committee is seeking section support on 3 actions: (1) follow-up on the letter that has been sent to Sally Katzen, (2) follow-up with OPM Acting Director and (3) work with ABA Government Affairs liaison, Lillian Gaskin to get letter to appropriate Senate committee. Lillian is to be consulted regarding existing ABA policy. It was suggested that a letter be sent to the appropriate Senate committee along with ABA existing policy. Lillian and Tom Sussman can help Nancy Skancke with this effort. [James Muetzel excused himself from the room from this portion of the meeting] XVI. Staff Report Anne Kiefer distributed the 18-month plan for consideration. Anne and Katrina will assist with getting committee content on the website. James Muetzel was thanked for assistance with the Young Lawyers Division. XVII. Administrative Law Section Logo Russell announced that the ABA wants to go to a uniform logo see Tab 12. This could affect ALR; everyone should take a look and consider. XVIII. Veteran s Pro Bono Project Bill Luneburg reported that the ABA Enterprise money funded a project for getting assistance to veterans. He referred to the January 2009 memo from David Godfrey. Ron Smith is willing to help our pro bono committee create materials. The pro bono committee was supposed to take on cases, but the committee is only 3 members, so we will need to change our contribution to helping with training materials. XIX. AIDS Coordinating Committee Jody Levine referred to the Liaison Report distributed at the meeting. The report provides information about the Committee s programs and projects. She directed attention to the health advisory committee on page 2 of the report. XX. Committee Newsletters Discussion Jason Schlosberg reported on the activities of the Transportation Committee as an example of actions that other committees could take. He reported that the Transportation Committee Quarterly Publication is a lot of work but the committee members appreciate it. He provided a PowerPoint handout. The presentation engendered some discussion. It was suggested that other sections should consider publishing committee newsletters. The question was raised as to the possibility of acquiring multiple licenses for software such as InDesign and Adobe Photoshop that committees could use to create the newsletters. Jason provided his address, jason.schlosberg@dot.gov, for those who might be interested in contacting him. 5

6 It was suggested that a memo be sent to committee chairs with TQ newsletter attached. Questions arose for further consideration about (1) possible advertising such as job ads in the newsletters and the ABA s position, (2) whether newsletters should be put on the section website, perhaps with a members only page for current issues (noted Bill Morrow s position that for the section newsletter only members get most recent issue) and (3) links from other sites to our page. XXI. Congressional Process Project Bill Luneburg reported on the Congressional Process Project which was started in Las Vegas. The intent of the project is to consider issues of transparency and earmarks, reductions in appropriations, etc. Bill is identifying members with expertise and interest such as Richard, Jamie, etc. A report will be given in Williamsburg. XXII. Homeland Security Law Coordinating Committee Jo Whitley reported on the Homeland Security Institute and referred the Council to the handout. XXIII. Old Business/New Business A discussion of the approval of the Fall 2009 meeting location and 2010 meeting locations. The Council was referred to the information at Tab 14 on the Nemacolin Woodlands Resort provided by Bill Luneburg. There was a sense of the Council that this was a desirable location. The Council was assured that there were golf, spa, and shopping opportunities. The meeting adjourned at 2:20 p.m. 6