I’ve repeatedly held that state and federal legislatures (and relatedly governors/presidents) aren’t terribly good at writing law, which is often unclear, contradictory, and vague. Yet, could some laws be purposely written as vague to allow the administrative or regulatory bodies to further define?
Given this theory, the public can play a more significant role in that administrative or regulatory law as it is often developed in partnership with those affected by it, including the general populous. Yet, do these regulatory bodies truly consider anyone else’s opinion? Some do, while others are more authoritative in nature.
For example, state law could be enacted that auctioneers have to complete “periodic” continuing education. What is periodic? How many hours? What classes? What topics? What format? How is it reported/verified? What if an auctioneer doesn’t complete it?
The administrative agency could pick up where the state law left off, and determine this continuing education will be required every two years, with a total of 16 hours, 10 core subjects and 6 elective hours, live classes and/or online, and auctioneers need to send proof of completion with license renewal or risk license suspension.
Does a legislature do this because it thinks the administrative body is better equipped to resolve these details? Does the legislature do this because it doesn’t feel sufficiently able to resolve these details? For whichever reason, it sometimes works out and sometimes doesn’t, and if there are issues, the administrative agency blames the legislature and the legislature blames the administrative agency.
Administrative or regulatory rules (laws) have the effect of law and as such both the statutory and regulatory rules and laws have to be adhered to by licensed auctioneers wishing to avoid [prescribed] disciplinary actions. Essentially, the administrative body’s job is to interpret the statutes.
No more notable auction case exhibits the textual versus interpreted issues here than Richard T. Kiko Agency, Inc. et al., v. Ohio Department of Commerce, Division of Real Estate, 48 Ohio St. 3d 74 (1990). This case rested on what the statute said, versus how the administrative agency desired to interpret those same words including most notably the term “misconduct” which was undefined in state law.
The trial court held that Kiko’s acts were neither willful nor “synonymous with misbehavior.” Finding no definition of “misconduct” in R.C. Title 47, the court concluded that, as a matter of law, Kiko’s good faith acts did not amount to gross negligence, dishonest or illegal dealings as set forth in R.C. 4735.18. Consequently, the commission’s decision to suspend Kiko’s license was “arbitrary, unsupported by reliable, probative, and/or substantial evidence, and contrary to law.” The trial court vacated the commission’s fifteen-day suspension order.
Yes, auctioneers have to know what the administrative (regulatory) body thinks … and it’s not always delineated in the actual text. As many auctioneers are textualists, it is difficult for them to plan regarding a third party’s interpretation. Note that the above is the trial court’s more textual opinion prior to this case being heard by the Supreme Court of Ohio.
Do administrative agencies ever not disclose their interpretations? Do they ever not publish their “thoughts?” Yes, sometimes, as we wrote here: https://mikebrandlyauctioneer.wordpress.com/2016/05/11/auctioneer-regulation-authoritarianism/. This makes it even more difficult to follow the law when auctioneers can’t find out conclusively what the law is.
Finally, courts are often the last stop in the process of understanding what the laws and rules mean. We’ve advocated behaving in such a fashion to avoid court, which requires both reasonable behavior and knowledge of the laws of the industry. As we’ve noted, just because you can doesn’t mean you should, and just because you don’t have to, doesn’t mean you shouldn’t.
Mike Brandly, Auctioneer, CAI, CAS, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at Mike Brandly, Auctioneer, Brandly Real Estate & Auction, and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College, Executive Director of The Ohio Auction School, and an Instructor at the National Auctioneers Association’s Designation Academy and Western College of Auctioneering. He has served as faculty at the Certified Auctioneers Institute held at Indiana University and is approved by The Supreme Court of Ohio for attorney education.