§ 800. Purpose
The general assembly intends that:
(1) agencies maximize the involvement of the public in the development of rules;
(2) agency inclusion of public participation in the rule-making processes should be consistent;
(3) the general assembly should articulate, as clearly as possible, the intent of any legislation which delegates rule-making authority;
(4) when an agency adopts policy or procedures, it should not do so to supplant or avoid the adoption of rules. (Added 1999, No. 146 (Adj. Sess.), § 2.)
§ 801. Short title and definitions
(a) This chapter may be cited as the "Vermont Administrative Procedure Act."
(b) As used in this chapter:
(1) "Agency" means a state board, commission, department, agency, or other entity or officer of state government, other than the legislature, the courts, the Commander in Chief and the Military Department, authorized by law to make rules or to determine contested cases;
(2) "Contested case" means a proceeding, including but not restricted to rate-making and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing;
(3) "License" includes the whole or part of any agency permit, certificate, approval, registration, charter, or similar form of permission required by law;
(4) "Licensing" includes the agency process respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license;
(5) "Party" means each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party;
(6) "Person" means any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency;
(7) "Practice" means a substantive or procedural requirement of an agency, affecting one or more persons who are not employees of the agency, which is used by the agency in the discharge of its powers and duties. The term includes all such requirements, regardless of whether they are stated in writing;
(8) "Procedure" means a practice which has been adopted in the manner provided in section 835 of this title, either at the election of the agency or as the result of a request under subsection 831(b) of this title;
(9) "Rule" means each agency statement of general applicability which implements, interprets, or prescribes law or policy and which has been adopted in the manner provided by sections 836-844 of this title;
(10) "Incorporation by reference" means the use of language in the text of a regulation which expressly refers to a document other than the regulation itself;
(11) "Adopting authority" means, for agencies which are attached to the Agencies of Administration, Development and Community Affairs, Natural Resources, Human Services and Transportation, or any of their components, the Secretaries of those agencies; for agencies attached to other departments or any of their components, the Commissioners of those departments; and for other agencies, the Chief Officer of the agency. However, for the procedural rules of boards with quasi-judicial powers, for the Transportation Board, for the Vermont Veterans' Memorial Cemetery Advisory Board and for the Fish and Wildlife Board, the chairman or Executive Secretary of the Board shall be the adopting authority. The Secretary of state shall be the adopting authority for the Office of Professional Regulation;
(12) "Small business" means a business employing no more than 20 full-time employees. (Added 1967, No. 360 (Adj. Sess.), § 1, eff. July 1, 1969; amended 1981, No. 82, § 1; 1983, No. 158 (Adj. Sess.), eff. April 13, 1984; 1985, No. 56, § 1; 1985, No. 269 (Adj. Sess.), § 4; 1987, No. 76, § 18; 1989, No. 69, § 2, eff. May 27, 1989; 1989, No. 250 (Adj. Sess.), § 88; 2001, No. 149 (Adj. Sess.), § 46, eff. June 27, 2002.)
§§ 802Repealed. 1981, No. 82, § 7(1).
§ 803. Repealed. 1981, No. 82, § 7(2).
§ 804. Repealed. 1981, No. 82, § 7(3).
§ 805. Repealed. 1981, No. 82, § 7(4).
§ 806. Procedure to request adoption of rules or procedures
A person may submit a written request to an agency asking the agency to adopt, amend or repeal a procedure or rule. Within 30 days of receiving the request, the agency shall initiate rule-making proceedings, shall adopt a procedure, or shall deny the request, giving its reasons in writing. (1967, No. 360 (Adj. Sess.), § 6, eff. July 1, 1969; amended 1981, No. 82, § 2.)
§ 807. Declaratory judgment on validity or applicability of rules
The validity or applicability of a rule may be determined in an action for declaratory judgment in the Washington superior court if it is alleged that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The agency shall be made a party to the action. A declaratory judgment may be rendered whether or not the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question. (1967, No. 360 (Adj. Sess.), § 7, eff. July 1, 1969; amended 1973, No. 193 (Adj. Sess.), § 3.)
§ 808. Procedure to request declaratory rulings by agencies
Each agency shall provide for the filing and prompt disposition of petitions for declaratory rulings as to the applicability of any statutory provision or of any rule or order of the agency, and may so provide by procedure or rule. Rulings disposing of petitions have the same status as agency decisions or orders in contested cases. (1967, No. 360 (Adj. Sess.), § 8, eff. July 1, 1969; amended 1981, No. 82, § 3.)
§ 809. Contested cases; notice; hearing; records
(a) In a contested case, all parties shall be given an opportunity for hearing after reasonable notice.
(b) The notice shall include:
(1) a statement of the time, place, and nature of the hearing;
(2) a statement of the legal authority and jurisdiction under which the hearing is to be held;
(3) a reference to the particular sections of the statutes and rules involved;
(4) a short and plain statement of the matters at issue. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter upon application a more definite and detailed statement shall be furnished.
(c) Opportunity shall be given all parties to respond and present evidence and argument on all issues involved.
(d) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default.
(e) The record in a contested case shall include:
(1) all pleadings, motions, intermediate rulings;
(2) all evidence received or considered;
(3) a statement of matters officially noticed;
(4) questions and offers of proof, objections, and rulings thereon;
(5) proposed findings and exceptions; and
(6) any decision, opinion, or report.
(f) Oral proceedings or any part thereof shall be transcribed on request of any party subject to other applicable provisions of law, and upon payment by the requesting party of the reasonable costs thereof.
(g) Findings of fact shall be based exclusively on the evidence and on matters officially noticed.
(h) The chair of a board, commission or panel, a hearing officer appointed by a board, commission or panel, or a licensed attorney representing a party before a board, commission or panel may, whether or not specifically authorized in any other provision of law, compel, by subpoena, the attendance and testimony of witnesses and the production of books and records. Sections 809a and 809b of this title shall apply to all subpoenas issued under this subsection. Notwithstanding the provisions of section 816 of this title, this subsection shall apply to the human services board, the labor relations board and the employment security board. (1967, No. 360 (Adj. Sess.), § 9, eff. July 1, 1969; amended 1987, No. 104.)
§ 809a. Enforcement of subpoenas; compulsion of testimony
(a) When an agency has issued a subpoena to compel a person to appear and testify or to produce documents or things, if the person:
(1) Has failed to appear or has failed to produce the subpoenaed materials, any party or the agency may bring a proceeding to enforce the subpoena.
(2) Has appeared but has refused to take an oath or affirmation authorized by law, or has refused to testify or to answer a question, any party or the agency may bring a proceeding to compel testimony by the person.
(b) A proceeding under this section shall be brought in superior court for the county in which the administrative proceeding is or will be held. The court shall consist of the presiding judge, sitting alone, and no jury shall be used. The proceeding shall be commenced by motion, and the motion shall be served in the manner provided for motions in civil actions. No filing fee shall be required. No answer or responsive motion is required, but such papers may be filed. The court shall schedule a hearing on the motion as soon as is reasonably practicable.
(c) In a proceeding to compel testimony, the court may order the respondent to testify and answer questions, and may impose limits on those questions or answers.
(d) In a proceeding to enforce a subpoena, if the petitioner establishes that the subpoena was properly issued, and that the person subpoenaed has failed to appear or to produce documents or things required, the court shall issue an order compelling compliance with the agency subpoena. Otherwise, the court shall vacate or modify the subpoena.
(e) In a proceeding to enforce a subpoena, after giving the respondent an opportunity to present evidence, if the court determines that the subpoena was properly issued, and that failure to comply with the agency's subpoena was without reasonable excuse, it shall assess a penalty against the respondent, to be paid to the petitioner, in an amount not to exceed $100.00 and shall also award all costs of litigation which the petitioner incurred as a result of the respondent's noncompliance, including but not limited to costs of issuing new subpoenas and incurring additional expenses for expert witnesses.
(f) A person who, without reasonable excuse, fails to comply with an order of the court issued under this section may be held to be in contempt of the court. (Added 1983, No. 230 (Adj. Sess.), § 5.)
§ 809b. Modification of subpoena or discovery order
(a) When an agency has issued a subpoena to compel testimony or the production of documents or things, or has issued a discovery order to a party, an aggrieved person may bring a proceeding to modify or vacate the subpoena or order in the superior court for the county in which the petitioner resides or in which the administrative proceeding is or will be held.
(b) The court shall consist of the presiding judge, and no jury shall be used. The proceeding shall be commenced by motion, which shall be served in the manner provided for motions in civil actions. No answer or responsive motion is required, but such papers may be filed. No filing fee shall be required. The court shall schedule a hearing on the motion as soon as is reasonably practicable.
(c) After hearing, the court may issue its order affirming, modifying, or vacating the subpoena or discovery order. (Added 1983, No. 230 (Adj. Sess.), § 5.)
§ 810. Rules of evidence; official notice
In contested cases:
(1) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The rules of evidence as applied in civil cases in the superior courts of this state shall be followed. When necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may be admitted (except where precluded by statute) if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. Agencies shall give effect to the rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form;
(2) Documentary evidence may be received in the form of copies or excerpts, if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original;
(3) A party may conduct cross-examinations required for a full and true disclosure of the facts;
(4) Notice may be taken of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the agency's specialized knowledge. Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material noticed, including any staff memoranda or data, and they shall be afforded an opportunity to contest the material so noticed. The agency's experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence. (1967, No. 360 (Adj. Sess.), § 10, eff. July 1, 1969; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.)
§ 811. Examination of evidence by agency
When in a contested case a majority of the officials of the agency who are to render the final decision have not heard the case or read the record, the decision, if adverse to a party to the proceeding other than the agency itself, shall not be made until a proposal for decision is served upon the parties, and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral argument to the officials who are to render the decision. The proposal for decision shall contain a statement of the reasons therefor and of each issue of fact or law necessary to the proposed decision, prepared by the person who conducted the hearing or one who has read the record. The parties by written stipulation may waive compliance with this section. (1967, No. 360 (Adj. Sess.), § 11, eff. July 1, 1969.)
§ 812. Decisions and orders
(a) A final decision or order adverse to a party in a contested case shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. If, in accordance with agency rules, a party submitted proposed findings of fact, the decision shall include a ruling upon each proposed finding. Parties shall be notified forthwith either personally or by mail of any decision or order. A copy of the decision or order shall be delivered or mailed forthwith to each attorney of record and to each party not having an attorney of record. That mailing shall constitute actual knowledge to that person or party.
(b) When a decision or order is approved for issue by a board or commission, the decision or order may be signed by the chair or vicechair on behalf of the issuing board or commission. (1967, No. 360 (Adj. Sess.), § 12, eff. July 1, 1969; amended 1983, No. 190 (Adj. Sess.), § 1, eff. April 27, 1984.)
§ 813. Ex parte consultations
Unless required for the disposition of ex parte matters authorized by law, members or employees of any agency assigned to render a decision or to make findings of fact and conclusions of law in a contested case shall not communicate, directly or indirectly, in connection with any issue of fact, with any person or party, nor, in connection with any issue of law, with any party or his or her representative, except upon notice and opportunity for all parties to participate. An agency member:
(1) May communicate with other members or employees of the agency; and
(2) May have the aid and advice of one or more personal assistants. (1967, No. 360 (Adj. Sess.), § 13, eff. July 1, 1969.)
§ 814. Licenses
(a) When the grant, denial, or renewal of a license is required to be preceded by notice and opportunity for hearing, the provisions of this chapter concerning contested cases shall apply.
(b) When a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, the existing license does not expire until the application has been finally determined by the agency, and, in case the application is denied or the terms of the new license limited, until the last day for seeking review of the agency order or a later date fixed by order of the reviewing court.
(c) No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.
(d) An agency having jurisdiction to conduct proceedings and impose sanctions in connection with conduct of a licensee or former licensee shall not lose jurisdiction if the license is not renewed or is surrendered or otherwise terminated prior to initiation of such proceedings. (1967, No. 360 (Adj. Sess.), § 14, eff. July 1, 1969; amended 1987, No. 229 (Adj. Sess.), § 1; 2001, No. 151 (Adj. Sess.), § 4, eff. June 27, 2002.)
§ 815. Judicial review of contested cases
(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in any contested case may appeal that decision to the supreme court, unless some other court is expressly provided by law. However, a preliminary, procedural, or intermediate agency action or ruling is immediately appealable under those rules if review of the final decision would not provide an adequate remedy, and the filing of the appeal does not itself stay enforcement of the agency decision. The agency may grant, or the reviewing court may order, a stay upon appropriate terms.
(b) If, before the date set for court hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decisions by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.
(c) If the final decision of an agency is expressly provided by law to be reviewable in superior court or in the supreme court, such review shall be commenced by filing a notice of appeal pursuant to Rule 74 of the Vermont Rules of Civil Procedure or Rule 13 of the Vermont Rules of Appellate Procedure, as appropriate. (1967, No. 360 (Adj. Sess.), § 15, eff. July 1, 1969; amended 1971, No. 185 (Adj. Sess.), § 1, eff. March 29, 1972; 1997, No. 161 (Adj. Sess.), § 2, eff. Jan. 1, 1998.)
§ 816. Exemptions
(a) Sections 809-813 of this title shall not apply to:
(1) Acts, decisions, findings, or determinations by the Human Services Board or the Commissioner for Children and Families or a duly authorized agent, and to procedures or hearings before and by the Board or Commissioner or agent.
(2) Acts, decisions, findings, or determinations by the Employment Security Board or the Commissioner of Labor or his or her, its, or their duly authorized agents and to any and all procedures or hearings before and by him or her or it or his or her or its agents, provided further that subdivisions 802(a)(3) and (4), and subsections 802(b) and 804(a) of this title shall not apply to information made confidential under federal or State law and provided further that subdivisions 802(a)(3) and (4), and subsections 802(b) and 804(a) shall not apply to a determination of a hearing or claims examiner or appeal referee.
(3) Acts, decisions, findings, or determinations by the Department of Labor or the Commissioner of Labor or his or her, its, or their duly authorized agents as to any and all procedures or hearings before and by the Department or Commissioner or his or her or their agents, arising out of or with respect to 21 V.S.A. chapter 5, subchapter 2, and chapters 9 and 11.
(b) Sections 809-814 of this title shall not apply to any and all acts, decisions, findings, or determinations by the Commissioner of Motor Vehicles or his or her duly authorized agents or to any and all procedures or hearings before and by him or her, or his or her agents, provided further that subsection 804(a) of this title shall not apply to decisions of that Commissioner respecting the grant, denial, suspension, or revocation of a license or registration under Title 23.
(c) This chapter shall not be construed to apply to the Commander-in-Chief or any other officer, individual, board, or set of persons in the Military Department of this State. (Added 1967, No. 360 (Adj. Sess.), § 17, eff. July 1, 1969; amended 1981, No. 66, § 5(b), eff. May 1, 1981; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2005, No. 174 (Adj. Sess.), § 4; 2013, No. 15, § 7.)
§ 817. Legislative Committee on Administrative Rules
(a) There is created a Joint Legislative Committee to be known as the Legislative Committee on Administrative Rules. The Legislative Committee on Administrative Rules shall be composed of eight members of the General Assembly to be appointed for two-year terms ending on February 1 of odd-numbered years as follows: four members of the House of Representatives, appointed by the Speaker of the House, not all from the same party, and four members of the Senate to be appointed by the Senate Committee on Committees, not all from the same party. The Committee shall elect a Chair and a Vice Chair from among its members.
(b) The Committee shall meet as necessary for the prompt discharge of its duties and may use the staff and services of the Legislative Council. The Committee shall adopt rules to govern its operation and organization. A quorum of the Committee shall consist of five members. For attendance at a meeting when the General Assembly is not in session, members of the Legislative Committee on Administrative Rules shall be entitled to the same per diem compensation and reimbursement for necessary expenses as provided members of standing committees under 2 V.S.A. § 406.
(c) The Legislative Committee on Administrative Rules may hold public hearings on a proposed or previously adopted rule on its own initiative. The Committee shall give public notice of any hearing at least 10 days in advance and shall notify the agency affected. Any public hearing shall be scheduled at a time and place chosen to afford opportunity for affected persons to present their views. As appropriate, the Legislative Committee on Administrative Rules shall consult with the standing legislative committee having jurisdiction in the area of the rule under review.
(d) In addition to its powers under section 842 of this title concerning rules, the Committee may, in similar manner, conduct public hearings, object, and file objections concerning existing rules. A rule reviewed under this subsection shall remain in effect until amended or repealed.
(e) At any time following its consideration of a final proposal under section 841 of this title, the Committee, by majority vote of the entire Committee, may request that any standing committees of the General Assembly review the issues or questions presented therein which are outside the jurisdiction of the Committee but are within the jurisdiction of the standing committees. On receiving a request for review under this subsection, a standing committee may at its discretion review the issues or questions and act on them. The Committee's request for review shall not affect the review or review period of a final proposal. (Added 1975, No. 211 (Adj. Sess.), § 1; amended 1979, No. 59, § 12; 1981, No. 82, § 4; 1983, No. 88, § 10, eff. July 3, 1983; 2011, No. 89 (Adj. Sess.), § 2; 2013, No. 161 (Adj. Sess.), § 72.)
§§ 818Repealed. 1981, No. 82, § 7(5).
§ 819. Repealed. 1981, No. 82, § 7(6).
§ 820. Interagency committee on administrative rules
(a) For assistance in the review, evaluation and coordination of programs and activities of state agencies, the development of strategies for maximizing public input, and the promotion of consistent measures among agencies for involving the public in the rulemaking process, subject to the provisions of this chapter, an interagency committee on administrative rules is created. Members of the committee shall be appointed by the governor from the executive branch and shall serve at his or her pleasure.
(b) The duties and responsibilities of the committee shall be those established under this section or those directed by the governor and shall include review of existing and proposed rules of agencies designated by the governor for style, consistency with the law, legislative intent and the policies of the governor. The committee shall make reports and recommendations concerning programs and activities of designated agencies subject to this chapter.
(c) After a proposed rule is prefiled with the committee, the committee shall work with the agency and prescribe a strategy for maximizing public input on the proposed rule. The committee shall evaluate the current efforts and practices of agencies for including the public in the development of proposed rules, and shall recommend an appropriate process for maximizing public input, based on the committee's evaluation of current agency practices and the importance of public involvement, given the nature of the proposed rule. The committee shall prescribe a specific strategy regarding the location, time and frequency of public hearings, and advise the agency on specific provisions of chapter 5 of Title 1 and the consequences of failing to adhere to the prescribed strategy. (Added 1975, No. 211 (Adj. Sess.), § 2; amended 1981, No. 82, § 5; 1999, No. 146 (Adj. Sess.), § 3; 2001, No. 149 (Adj. Sess.), § 47, eff. June 27, 2002.)
§ 821. -830. [Reserved.]
§ 831. Required policy statements and rules
(a) Where due process or a statute directs an agency to adopt rules, the agency shall initiate rulemaking and adopt rules in the manner provided by sections 836-844 of this title.
(b) An agency shall adopt a procedure describing an existing practice when so requested by an interested person.
(c) An agency shall initiate rulemaking to adopt as a rule an existing practice or procedure when so requested by 25 or more persons or by the legislative committee on administrative rules. An agency shall not be required to initiate rulemaking with respect to any practice or procedure, except as provided by this subsection.
(d) An agency required to hold hearings on contested cases as required by section 809 of this title shall adopt rules of procedure in the manner provided in this chapter.
(e) Except as provided in subsections (a)-(d) of this section, an agency shall not be required to initiate rulemaking or to adopt a procedure or a rule. (Added 1981, No. 82, § 6; amended 1995, No. 61, § 1; 2001, No. 149 (Adj. Sess.), § 48, eff. June 27, 2002.)