Lawmakers primarily formulate, sponsor, and enact legislation to meet the needs of voters. Any law should improve the health, safety, and welfare of all. When legislators create new laws or amend statutes governing existing programs, they typically defer the implementation of the statute and adoption of regulations to the agency administering the program.

Legislators mostly pass bills that address issues and solve problems. Legislation may have many purposes; it may: regulate; authorize; declare; grant; outlaw; provide; sanction; or restrict.

To be fully effectuated, any law must be administered or enforced by some government agency, which requires the adoption of regulations as the guiding source and primary means of the law’s implementation.

The California Government Code defines a “regulation” as “. . . every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of any rule, regulation, order, or  standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure.”

State agencies, with few exceptions, are required to adopt regulations following the procedures established in the Administrative Procedure Act (APA). If a state agency issues, utilizes, enforces, or attempts to enforce a rule without following the APA as required, the rule is considered an “underground regulation.” To properly implement and effectuate legislation, any California state agency must adopt, amend, or repeal regulations and avoid the use of prohibited “underground regulations.”

Any person who believes a state agency has issued an alleged underground regulation may challenge the alleged underground regulation by filing a petition with California’s Office of Administrative Law (OAL). If the petition is accepted, the OAL may issue a determination.

The Office of Administrative Law ensures that agency regulations are clear, necessary, legally valid, and available to the public. The OAL may not determine the wisdom or social worthiness of a rule or policy as this determination is deferred to the agency involved.

However, the authority of the OAL is limited. Pursuant to Government Code section 11340.5(e), anyone who has begun litigation that challenges an underground regulation may not have any determination issued by OAL considered in this pending litigation. Also, the OAL may not resolve disputes between the public and an agency, or individual personnel within the agency. These must be resolved by internal dispute resolution process or by the courts.

The attorneys at Glass & Goldberg in California provide high quality, cost-effective legal services, and advice for clients in all aspects of commercial compliance, business litigation, and transactional law. Call us at (818) 888-2220, send an email inquiry to [email protected] or visit us online at glassgoldberg.com to learn more about the firm and to sign up for future newsletters.

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