In 2007, the Florida Legislature wanted to change some rules about how state agencies make their policies. The governor vetoed the changes because he was worried about unintended problems. So, in 2008, the legislature made some adjustments to the bill and passed it. The changes were meant to make sure that agencies follow the proper procedures when making their policies. This was called “The Open Government Act.” The goal is to make sure that the public knows about agency policies and has a chance to give their input. An unadopted rule is a statement made by a government agency that should be a rule, but it hasn’t gone through the proper process to become one. If someone challenges this unadopted rule and an administrative law judge agrees that it doesn’t follow the rules, the agency has to stop using it. They can start using it again if they prove that it’s a valid rule and they gave people enough notice about it. In 2007, there was a controversial provision in a bill that caused the governor to veto it. The provision would have stopped an agency from enforcing laws if someone challenged a rule without showing any harm. This provision was removed from the 2008 bill. However, starting in 2009, agencies can’t make decisions based on rules that haven’t been officially approved. Agencies must follow the rules and laws when making decisions, and they can’t rely on rules that haven’t been officially adopted. There are some exceptions for new laws that haven’t had rules written for them yet. If there’s a dispute about a rule, the agency can start the process of making it an official rule, and the dispute will be put on hold until the rule is finalized. The law now says that agencies can’t use a defense to avoid making rules just because they are already working on it. If a judge says an agency’s statement is against the rulemaking requirement, the agency has to stop using it right away. There’s also a new rule that says an agency can still use a statement if they are already working on making a rule about it. The law also says that the most a winning party can get for attorneys’ fees in a rule challenge is now $50,000, and attorneys’ fees can be awarded in challenges to emergency rules too. The APA used to limit the amount of money that can be awarded for lawyers’ fees in cases where people challenge proposed or existing rules. But there was no limit for cases involving challenges to unadopted rules. But now, starting in 2009, there are some changes. Now, before someone can get lawyers’ fees in a challenge to an unadopted rule, they have to give the agency 30 days’ notice that they might challenge the rule. If the agency doesn’t start the process to adopt the rule within that time, then lawyers’ fees might be awarded. This gives the agency a chance to fix the problem and avoid paying lawyers’ fees. If a government agency makes a rule that hasn’t been approved, someone can challenge it in court. If the agency starts the process of making the rule official before the court makes a final decision, they can avoid paying the challenger’s legal fees. If the proposed rule is found to be invalid, the agency has to stop using the rule and can be ordered to pay the challenger’s legal fees. If the government wins a legal case, the judge can make the other side pay for the costs and lawyer fees if they were being dishonest or knew their claim was not supported by the facts or law. The law also clarifies that agencies have the authority to make rules even if the word “rule” isn’t used in the law. It also makes it clear that agencies can only make rules based on the specific powers and duties given to them in the law. âLaw implementedâ refers to the rules and regulations that agencies create to carry out the laws passed by the government. The government has specific rules about how the agencies can make these rules, including giving people a chance to speak up about them. The new law also says that certain boards within the Department of Business and Professional Regulation or the Department of Health have to hold at least one public hearing about their rules and can’t let someone else do it without permission. The law requires that before a proposed rule can become effective, a statement of estimated regulatory costs (SERC) must be provided to the public and to anyone who suggested a cheaper alternative. The Joint Administrative Procedures Committee (JAPC) has the power to review the SERC and object to a proposed rule if it doesn’t comply. Additionally, a rule that references another rule from the same agency automatically includes any future changes to that referenced rule, unless the rule states otherwise. After 2010, Florida rules must have the full text available online through a link in the Florida Administrative Code. If the agency can’t do this because of copyright laws, they have to provide a statement saying so and tell people where they can see the material in person. Starting in 2010, the Florida Administrative Code must be published online, and you can search for specific rules. The law clarifies the deadlines for challenging rules and allows agencies to post their final orders on a website. It also says that if there’s a disagreement in a meeting, a formal discussion must be held unless everyone agrees to skip it. The law goes into effect on July 1, 2008, with different parts taking effect on different dates. The Florida government had concerns about a bill that would have changed how the Administrative Procedure Act works. The bill was vetoed, and the governor worried about unintended consequences. There have been cases where groups challenged unadopted policies, and this led to the policies being invalid. A law passed in 2008 made some changes to how agencies can rely on nonrule policies. The court made a change in a law, and it affected a case called JM Auto v. DHSMV. The change was based on a previous ruling in a case called Financial Serv. Commn v. Fla. Ins. Council, Inc. The new law also had additional provisions regarding the review of agency statements. There were also discussions about how the new law would apply to ongoing court cases. Lawrence E. Sellers is a lawyer who works at a firm in Tallahassee. This column is written by the Administrative Law Section of The Florida Bar. Their goal is to teach their members about duty and serving the public, improve how justice is carried out, and advance the study of law.
Source: https://www.floridabar.org/the-florida-bar-journal/the-2008-amendments-to-the-apa-the-open-government-act/
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