The Role of State Agencies in Public Policy

Today’s podcast deals with state agencies and their role in public policy development. California’s agencies – including departments, boards and commissions – engage in a fair amount of public policy making through their rulemaking authority as well as their interpretation and enforcement of existing statutes and regulations.

There are many state agencies that do policy development by adopting regulations and implementing statutes. They can also engage in policy making when issuing guidelines, legal opinions, management memos and other sorts of written documents.

When dealing with a given state agency, it’s important first to know whether it’s a plural executive agency, an independent agency, or a line authority agency. Generally speaking, the Governor has less control of plural executive – his or her fellow constitutional officers – and independent agencies. On the other hand, the Governor has considerable authority to manage his or her line authority agencies.

Generally speaking, the authority of state agencies to adopt policy through their rulemaking process is defined and often restricted by state statute. While it’s an established principle of administrative law that an agency cannot go beyond its legally prescribed authority to regulate, many statutes confer broad powers to some state agencies regarding matters that directly affect the general public.

One interesting phenomenon in the rulemaking process is that businesses cannot rely in good-faith upon the written determinations issued by state agencies. State agencies’ written interpretation is often not given significant legal weight by a reviewing court.

In other words, despite being charged with interpreting, implementing, and enforcing California statutes and regulations, individuals and businesses that obtain written guidance from state agencies have little to no protection from legal liability if they follow that written guidance. There are a few exceptions, such as the FPPC, with advice letters to requestors, as well as the Franchise Tax Board and the Board of Equalization, which have Chief Counsel Rulings that provide limited protection to taxpayers.