the statute provides it would be in the District Court for the District of Columbia, and one that comes to mind is the Department of Public Utilities. But by cutting down on the hodgepodge of review channels that exist for appeals from actions of the many various boards and agencies of the District of Columbia, I think the bill would effect a vast improvement in the uniformity of judicial decisions.

For instance, we had a zoning case not long ago, Donovan v. Clark (222 F. Supp. 634). That was an appeal to the District Court for the District of Columbia and involved a decision of the Zoning Commission. The court held the Zoning Commission had to accompany its decision with findings of fact. This, of course, is an elementary principle and we were glad it was applied to this case, but the point is there is no guarantee that the same principle would carry over in a review by the Board of Appeals in the case of barbers because there is a different channel or review. If this statute were in effect there would be some guarantee that these elementary principles, most of which are now written in the Federal Administrative Procedure Act. would apply here.

We think the passage of this bill would increase the public confidence in the administrative agencies of the District of Columbia. I think more competent people would be attracted to service in the legislative and quasi-judicial agencies of the District of Columbia if this bill were enacted.

be

Again the Commissioners, as I said a while ago, say "We may wrong but we are consistent," and I am inclined to agree with them on both counts. They do admit now, however, that the Department of Occupations and Professions could stand some cleaning up since we have these diverse boards all granted independence. They admit that something can be done there, and I think they might go so far as to say they would support some statutory change there.

My question is, if they concede a job needs to be done with respect to the Department of Occupations and Professions and they concede, at least in part, that it is only the Congress that can straighten that out, I do not see why they cannot accept the same principle for all the constituent agencies of the District of Columbia.

This is the third time since 1956 that legislation of this kind has been proposed. This bill provides a procedure whereby an interested party can petition for a rule and the agency should set up such a procedure. They point to the horrible example of 437 prisoners petitioning for a rule as to whether they should have beans 3 times a week or 4 times a week. There would be nothing to prevent the Commissioners from delegating the warden to accept such a petition. I do not think this bill would change that in any way. But this is an example of the arguments the Commissioners like to throw up at us.

And finally, I do not think this legislation would change many of the informal procedures in the Department of Licenses. In the Department of Licenses there are two steps. There is an informal hearing and if the applicant does not like it he can take it to the Superintendent. And finally there is a formal hearing before the Board of Appeals and Review, and it would be in that hearing that the protection of this act would begin to operate.

That is about our position. I would like to point out since the Federal Administrative Procedure Act was adopted by Congress in 1946,

some 18 States in the Union have adopted a State administrative procedure act. They vary, but at least 18 States have acts that guarantee minimum standards of fair administrative procedure, and we can see no reason for any further delay on the part of the District of Columbia from proceeding in this direction, remembering, as I indicated in the beginning, we have tried in this bill to take into effect the fact that the District of Columbia is not a State, perhaps it is more a city, and we have geared the bill with that in mind, and while the tailoring might not be perfect, we think the garment fits, and we think there is only one organ of government that can do it, and that is the Congress.

I was just getting out of law school when the Federal Administrative Procedure Act was passed, and I wrote a paper on it. I recall that the same arguments were advanced by the Federal agencies as to why they should not have the Federal Administrative Procedure Act as are now advanced by the Corporation Counsel's Office and the Commissioners; namely, "It is too expensive. What is the justification? If there is anything wrong, we can fix it." Those are the traditional arguments of administrative agencies-I do not like to say bureaucrats. This is quite a general statute. It does not go into extreme details. We can see no valid argument for not adopting it at this time. Thank you.

(Mr. Scanlan's prepared statement and his exhibit A follow :)

STATEMENT OF ALFRED L. SCANLAN IN SUPPORT OF H.R. 7067

My name is Alfred L. Scanlan. I am a member of the bar of the District of Columbia and a member of the board of directors of the Bar Association of the District of Columbia. As President McArdle has advised the committee, I have been designated to present the bar association's position in support of H.R. 7067.

The legislation now before this subcommittee is the result of many years of careful work by a number of lawyers in the District of Columbia. It has the endorsement of the District of Columbia Bar Association, as well as of the State division of the Administrative Law Section of the American Bar Association. The bar association has been on record in favor of the principles embraced in H.R. 7067, and a companion measure pending in the Senate as S. 1529, for nearly 10 years. (See, "A Proposed District of Columbia Administrative Procedure Act," 22 District of Columbia Bar Association Journal 268 (1955).) The problems associated with administrative procedure before agencies of the government of the District of Columbia have been discussed and the need for a comprehensive District of Columbia Administrative Procedure Act developed in several well-documented articles. (See, e.g., Wilkes, 17 District of Columbia Bar Association Journal 392 (1950), and Harrison, "Licensing Procedures in the District of Columbia," 30 District of Columbia Bar Association Journal 395 (1963).) Similar legislation was introduced in the 88th Congress, 1st session, both in the House and in the Senate. Hearings were held on the House bill by a subcommittee of the House District Committee. The subcommittee did not report out the bill. However, the staff of the House committee suggested a number of technical changes of representatives of the bar association responsible for keeping a watching brief on the legislation. These suggestions have been adopted and are reflected in the legislation now before your committee in the form of H.R. 7067.

The enclosed bill would be applicable to the administrative agencies of the District of Columbia and the laws which those agencies administer. The legislation represented by the enclosed bill is not a recent innovation. As you know, along with the establishment of uniform administrative procedures in the Federal Government, a model act was established for the administrative procedures in the States. The model act, or variations thereof, has been adopted in some 18 States of the Union. Since the District of Columbia is different than the ordinary State, however, committees of the bar association

have given much thought and study to necessary modifications and adjustments for a similar act to be effectively applicable to the District of Columbia.

As far back as May of 1956, the board of directors of the Bar Association of the District of Columbia had approved a proposal similar to that now submitted to you. The bill was then introduced in the House of Representatives in 1958 as H.R. 5545. A hearing was held before the House Committee on the District of Columbia on May 23, 1958. At the hearing, the legislation was opposed by the corporation counsel. The Commissioners and the corporation counsel appeared to have opposed the legislation on the ground of additional expense and too rigid restrictions upon the officials of the District government.

The bar association continued its study of this matter, however, in order to bring about a constructive result. Beginning in September of 1960, the administrative law section of the association redrafted the proposed legislation with the express purpose of clarifying certain ambiguities which may have existed and eliminating the grounds which the corporation counsel relied upon in opposing the bill before the House committee. We believe that our administrative law section has successfully revised the bill to take into account that the District of Columbia is more a city than a State and, therefore, that all the provisions of the usual model State Administrative Procedure Act may not successfully be applied literally to the varied operations of the many different administrative agencies in the District of Columbia. On the other hand, we think that there is little doubt as to the desire and need for some minimum uniformity of procedure among the 93 or so administrative bodies operating in the District of Columbia.

The District Commissioners, primarily through the Corporation Counsel, however, up till now at least, have opposed legislation of the type embraced in H.R. 7067. While they concede the need for the reform of administrative process, representatives of the Corporation Counsel's Office continue to argue that this can be achieved by rules or orders issued by the Commissioners, or by the agencies themselves and, therefore, that legislation is not needed. The District of Columbia Bar Association is in fundamental disagreement with this position. The association believes that the reforms at which the bill is directed will never be achieved unless an express statute of the Congress makes them requirements of law with which the administrative agencies of the District of Columbia must comply. Rarely, if ever, either in the Federal Government or among the States, has there been a truly effective procedural reform achieved unless imposed by the legislature through an appropriate statute or statutes. The situation with respect to the District of Columbia is no exception to that rule. Accordingly, we call upon the Congress to break the stalemate which has existed between the organized bar of the District of Columbia and the Corporation Counsel's Office by enacting H.R. 7067.

Attached to this statement as an appendix is a section-by-section analysis of H.R. 7067. In essence, the bill has three primary features. First, it provides for the compilation and publication in the District of Columbia Register of all rules and regulations of the administrative agencies of the District of Columbia which are currently in effect. In addition, it would require that prior to the adoption of any rule, or the amendment or repeal of any rule, a notice of such intended action must be published in the District of Columbia Register. The bill thus would afford interested persons the opportunity to submit data or facts on proposed rules or changes in administrative rules before final action is taken by the agency.

In an illuminating article published not long ago in the District of Columbia Bar Association Journal and reported in part in the local press, attention was called to the fact that the procedural rules issued by a number of the administrative agencies of the District of Columbia were "informal," "erratic,” “vague,” and "incomplete." (Harrison, “Licensing Procedures in the District of Columbia," 30 District of Columbia Bar Association Journal 395 (1963), Washington Post, Sept. 2., 1963, p. B-1.) At the time the article was published 14 of the 22 boards and commissions under the jurisdiction of the District of Columbia Department of Occupations and Professions had no procedural rules at all. Among rules that were published, many contained "little or no exposition of one's rights, few procedural details, inadequate references to the availability and types of hearings, no hint as to appellate review, vague or incomplete statements as to applicable standards, and no references to statutory citations."1

1A copy of this interesting and most informative article by Mr. Harrison will be filed for inclusion in the record of the hearing before this subcommitttee.

I understand that the distressing situations to which the law review writer called attention have been remedied in part by the issuance of rules of procedure in some instances where none existed before. Nevertheless, the need surely remains for the District to achieve uniformity of administrative rules and rulemaking procedures and to insist on a common, published repository of such rules, so that the person affected by them, as well as his attorney, may learn at least of their existence.

The second major purpose of the bill is to provide the opportunity of a hearing for all parties in "contested cases," as specifically defined in the proposed bill, and to require that a transcript of the record be kept in all such cases. In addition, the bill would minimize the possibilities of an agency relying on information dehors the record in reaching a decision in a contested case. While the bill is not as explicit as the Federal Administrative Procedure Act in curtailing opportunities for ex parte consultations, it should suffice until trial and error shows that it does not go far enough.

Under the present procedure within the Department of Inspections and Licenses, for example, when a hearing is requested by a licensee or an applicant for a license, the Department transmits the record to the Board of Appeals and Review, but does not forward to the Board, "confidential intradepartmental or interdepartmental correspondence or documents or information of a confidential nature * * *.” These it transmits, instead, separately to the assistant corporation counsel who represents the Department of Inspections and Licenses in the particular case and on whose advice the Board most surely will heavily rely. In recent years, the press has reported that there have been a number of complaints made by applicants who were denied, or had revoked, licenses as pawnbrokers, cabdrivers, automobile salesmen, and practical nurses, to mention just a few, on the grounds that the particular licensing board or commission concerned based their denial or revocation on evidence not found in the record before the agency. Under H.R. 7067, this could not be done.

Similarly, recent complaints have been voiced that the Board of Zoning Adjustment and the Zoning Commission have, on occasion based, their decisions on some hidden reservoirs of alleged facts or knowledge not set out or referred to in the record of the proceedings before the agency.

A well publicized case illustrating the present susceptibility of administrative agencies of the District of Columbia to secret, ex parte, advice is Jarrott v. Scrivener, (225 F. Supp. 827 (D.D.C. 1964)). In that case, the Zoning Board of Adjustment granted an exception in order to pave the way for the construction of a new building for the Soviet Embassy. The Board's decision was attacked by an action instituted in the U.S. District Court for the District of Columbia, seeking declaratory and injunctive relief against the Board's decision on the ground that members of the Board had been secretly informed that highly placed persons in the Federal and District Governments desired that the Board grant the application. The district court did overturn the decision because of these extra record influences. In reversing the Board the court admitted, however, that it had to go beyond an administrative record which was on its face "clean."

If H.R. 7067 were enacted this type of influence dehors an administrative record would be kept to a minimum in that the bill would require, in section 10(c) thereof, that:

"The testimony and exhibits, together with all papers and requests filed in the proceeding, and all material facts not appearing in the evidence but with respect to which official notice is taken, shall constitute the exclusive record for order or decision. No sanction shall be imposed or rule or order or decision be issued except upon consideration of such exclusive record, or such lesser portions thereof as may be agreed upon by all the parties to such case." [Italic supplied.] The third important general purpose of the bill is to provide for a uniform means, whereby the final determination of any agency, other than certain rules or decisions expressly excepted by other provisions of the act, may be reviewed in court in accordance with traditional standards, as enunciated in the decisions of the Supreme Court of the United States and the other Federal courts of appeal, controlling judicial review of administrative action.

Although the judicial review of the decisions of many agencies of the District of Columbia government now is provided for, or at least, permitted, it is unsystematized, and in other instances no clearly defined avenue or channel of Judicial review of administrative action is established. Certainly, the Congress would agree that unless parties and litigants have judicial recourse they are, in

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practical effect, at the mercy of the administrative agencies to whom they must come in seeking vindication of important personal and property rights.

For example, in a zoning decision of some interest, the U.S. District Court for the District of Columbia ruled that the denial of a petition to rezone must be accompanied by findings of fact justifying the reversal, Donovan v. Clark (222 F. Supp. 634 (D.D.C., 1963)). The Donovan decision thus reaffirmed and applied an elemental principle of fair administrative procedure so far as appeals from decisions of the Zoning Commission to the district court are concerned. However, because of the hodgepodge of review channels that exist for appeals from actions of the many various boards and agencies of the District of Columbia, there is no insurance, in the absence of an overall statutory requirement, that the principle that requires administrative findings to accompany administrative decisions will be protected in all future cases.

When we say "hodgepodge" we believe the facts support the description. For example, decisions of the Board of Appeals and Review to which quasi-judicial agency of the District of Columbia government administrative appeals lie from the various constituent agencies within the Department of Inspections and Licenses, must be brought to the District Court for the District of Columbia (Harris, et al., v. Tobriner, 113 App. D.C. 10, 304 F. 2d 377, 378). On the other hand, within the District Department of Occupations and Professions there are a significant number of constituent boards, commissions, and committees from whose rulings appeals lie to several different courts and, in at least one case, must be brought to the Board of Commissioners themselves whose action purports to be final (2 D.C. Code, sec. 1305 (1961)). We have listed the specifics of this statutory maze in the footnote. It is an illogical, purposeless, and, in many cases, at least to the uninitiated, confused complexity of statutory provisions which only the Congress, and not the Commissioners, can simplify and systematize, as attempted in H.R. 7037.

The bar association believes that the occasion for careful consideration and enactment of the Administrative Procedure Act is especially propitious now. Both in the Congress and the States there has been an awakened interest in, and recognition of, the need to insure that government not only act fairly in its dealings with the public, but that it appear to so act. The passage of this bill, we believe, should increase the confidence of the public in the operations of administrative agencies of the District of Columbia whose obligation it will be to comply with its text and its spirit.

Similarly, we believe that if the bill were enacted the public prestige and administrative efficiency of the agencies effected by it would also be significantly increased. Elevating the administrative process and improving administrative procedures observed by the boards and agencies of the District of Columbia in the long run is certain to attract more competent personnel to serve in the District government. Therefore, through a fortuitous combination of improved and more equitable minimum standards of administrative procedure and more competent personnel, the levels of performance achieved by the administrative agencies and the departments of the District of Columbia should be raised to a higher plane.

I should like to emphasize, however, that the bill is not a measure designed to confer administrative powers not now possessed by the agencies of the District. Nor, is the legislation offered in carping criticism of, or as an indictment en blank of, the administrative agencies of the District of Columbia, their processes, and procedures, as these now exist.

Review by Court of Appeals of the District of Columbia, final review by the Court of Appeals for the District of Columbia Circuit: Board of Barber Examiners for the District of Columbia, sec. 2-1110; Commission on Licensure to Practice the Healing Art in the District of Columbia, sec. 2-129; Physical Therapists' Examining Board, sec. 2-463; Practical Nurses' Examining Board, sec. 2-434.

Revocation by District Court for the District of Columbia upon motion of the Board: Board of Dental Examiners, secs. 2-311, 2-312; Board of Podiatry Examiners, secs 2-701, 2-708; Commission on Licensure to Practice the Healing Art in the District of Columbia, sec. 2-213; Nurses' Examining Board, sec. 2-407.

Review by Court of Appeals for the District of Columbia Circuit: Board of Examiners and Registrars of Architects, sec. 2-1028.

Appeal from revocation by Court of Appeals of the District of Columbia: Board of Examiners of Veterinary Medicine, sec. 2-810.

Review by Court of Appeals of the District of Columbia: Board of Pharmacy, sec. 2-606.

Appeal to the Board of Commissioners only and purporting to be final: District of Columbia Board of Cosmetology, sec. 2-1305.

Review by District Court for the District of Columbia: District of Columbia Board of Registration of Professional Engineers, sec. 2-1809; Real Estate Commission, sec. 45-1409.