CalPERS To Consider External Investment Resource Disclosure Rule
Last August the Investment Committee of the California Public Employees’ Retirement System (CalPERS) approved revisions to its External Investment Resource Conflict of Interest Policy. A week later, I asked the Office of Administrative Law to make a determination that the policy was an illegal “underground regulation” (i.e., a rule that has not been adopted in accordance with the rulemaking provisions of Read more...
Court Holds That Same Attorney May Advocate Before The ALJ and Agency Head
The Department of Corporations, like many state and federal agencies, does not observe a strict separation of powers. Indeed, the Department performs quasi-legislative functions in the form of rule making, prosecutorial (executive) functions in the form of investigation and advocacy and quasi-adjudicative functions in the form of making decisions. The combination of prosecutorial and adjudicative functions within a single agency is typical of many, if not Read more...
Aren’t All Administrative Decisions Precedential?
As lawyers, we are used to citing earlier decisions as precedent. Thus, we might expect that the Department of Corporations is free to rely on its earlier administrative decisions as precedent. Surprisingly, this is not the case. In fact, the Administrative Procedure Act prohibits a state agency from expressly relying on a decision as precedent unless the agency has designated Read more...
It May Be The Hobgoblin Of Little Minds, But California Requires It Nonetheless
In yesterday’s post, I mentioned the very recent decision by the U.S. Supreme Court in U.S. v. Home Concrete & Supply, LLC (April 25, 2012). The underlying fight was about a tax deficiency, but the legal question was whether the Internal Revenue Service could adopt a regulation that effectively overruled a prior U.S. Supreme Court decision (Colony, Inc. v. Commissioner, 357 Read more...
The SEC’s Rule Making Rule Doesn’t Follow The Rules
As discussed in yesterday’s post, Congress has once again directed the Securities and Exchange Commission to engage in rule making. The SEC almost always adopts rules through the informal rule making procedures of the Administrative Procedure Act (5 U.S.C. § 553) rather than the formal, on the record provisions (5 U.S.C. §§ 556 & 557). In general, Section 553 requires: Publication of a notice Read more...
Comment Letters, Or “What Loon Came Up With This Proposal?”
Last Friday, I wrote about publication requirements under the informal rule making provisions of the federal and California Administrative Procedure Acts. Although not required to do so, the SEC, CFTC and many other federal agencies post the rule making comment letters that they receive on their websites. This is in stark contrast to California agencies. None of the Department of Read more...
Comment Letters And The APAs
Yesterday, Broc Romanek wrote that the Commodity Futures Trading Commission had removed a comment letter from its website. This caught my attention because I teach Administrative Law at the University of California, Irvine School of Law and this very week I had used the CFTC’s website to demonstrate to my class how the informal comment process (Section 553) works under the Read more...
C&DIs And The APA
On Monday, Broc Romanek wrote that the SEC’s Division of Corporation Finance has issued a new Compliance & Disclosure Interpretation clarifying how say-on-pay proposals should appear on the proxy card. Many may welcome additional guidance from the staff. I’m concerned. C&DIs reflect the views of the Corp Fin staff. Although the SEC’s website claims that C&DIs are not rules, regulations, or statements of Read more...
The Commissioner’s Precedent Decisions – Another Route To Rulemaking?
The Commissioner of Corporations may issue desist and refrain orders under the Corporate Securities Law of 1968. Cal. Corp. Code § 25532. If the respondent wishes to contest the order, s/he must do so by filing a request for hearing within 30 days of service of the D&R order. A hearing must then be held under the formal adjudication provisions Read more...
What Is, What Will Be & What’s Passed – The CCR, Z-Register & Register
The California Office of Administrative Law issues three different publications that are easily confused. However, it is useful to know the differences. The California Code of Regulations (aka the “CCR”) is the compendium of regulations adopted by state agencies in compliance with the California Administrative Procedure Act. Thus, the CCR is the place to check for current regulations. When a Read more...
