CONNstruction - Summer 2009 - (Page 13)

newsandviews Demanding Notice and an Opportunity to Be Heard When a State Agency Changes its Rules: A Call for Democracy By Matthew Hallisey CCIA Director of Government Relations and Legislative Counsel A regulation in Connecticut is defined by statute as an “agency statement of general applicability,” regardless of what the agency calls it. If an agency adopts a rule that “implements, interprets, or prescribes law or policy,” it is a regulation. Or at least it should be. If an agency adopts a rule informally and then does not adhere to the new standard, expectations are not clear for regulated entities and regulators. Agency whim – like elected or appointed public officials – can change, shifting applicable standards. This creates uncertainty for businesses and industry – as well as regulators – that is bad for public policy and democracy. Before promulgating a regulation, an agency must follow a process set forth under the Uniform Administrative Procedure Act in state statute. Basically, with some exceptions, a regulation is not valid until the public has been properly notified and allowed to comment; it has been approved by the Attorney General and the legislative Regulation Review Committee; and it has been properly filed with the Secretary of the State’s Office. An agency is not supposed to adopt an administrative rule by characterizing it as policy or an agency statement not subject to review. Statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public, declaratory rulings or intra-agency or interagency memoranda are not regulations. The cumbersome process has had the unintended effect of encouraging some agencies to circumvent it and adopt illegal regulations without any notice or opportunity for the public to comment. The state Department of Public Works, in a recent request for qualifications and advertisement for construction of a new academic laboratory building at a state university, indicated that the construction administrator, serving as the owner’s representative for the construction manager at risk project, must be an independent firm not engaged in any form with construction management or general contracting and have no prime contract relationships with construction managers, general contractors, subcontractors or other similar entities. This is a significant change in policy that affects a number of otherwise qualified contractors. While the agency has some discretion to adopt new contract provisions, this one appears substantive and affects private parties’ rights. Some view it as a regulation that should be subject to review. The agency, of course, asserts that it is authorized to adopt the new provision and cites as precedent a similar provision used in another state. Other agency rules raising questions of validity include: a claim specification adopted by the Department of Transportation that refers to the authorizing statute but exceeds its authority, and the process and qualifying requirements for reviewing and evaluating the safety fitness of motor carriers seeking to perform contractual services for a state agency adopted by the state Department of Motor Vehicles Commercial Vehicle Safety Division. Persons adversely affected by such regulations have little recourse. They can petition an agency for a declaratory ruling as to the validity of a regulation or its applicability to specified circumstances. Or, they can challenge in court the result of an agency decision that relied on the illegal regulation. This, however, presents challenges for any contractor expecting future work from an agency that regulates the contractor. Besides, in the case of DPW’s new contract provision, the agency can, in its discretion, select any contractor who is otherwise qualified. CCIA and AGC/CT have raised concerns with agency officials about circumventing the regulation review process or regulations that exceed statutory authority. Ultimately, lawmakers who set the policy and judges who rule on disputes may have to decide who is correct. Meanwhile, this is the ideal role for an industry trade association – to object and take any slings and arrows – where it is difficult for individual members to do so. CONNstruction / Summer 2009 / 13

Table of Contents for the Digital Edition of CONNstruction - Summer 2009

CONNstruction - Summer 2009
Adapting to Change
The Future will be Lean and Green
Think Regionally, Act Regionally
Demanding Notice and an Opportunity to Be Heard When a State Agency Changes its Rules: A Call for Democracy
U.S. Supreme Court Expands Employee Protection Against Retaliation
ConsensusDOCS™: Dare to Change
Reauthorization of Federal SAFETEA-LU
Get on the Bus: LiUNA
Get on the Bus: LiUNA
Economic Downturn Gives Owners Time for Business Exit Strategy Planning
AGC/CT Annual Meeting
CONNDOT-CAAPA Paving Conference
Senator Lieberman Visit
UCAC’s Spring General Membership Meeting
Local 478 Education Trust Dinner
Index to Advertisers

CONNstruction - Summer 2009