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E-M:/ Michigan needs a rule like this....



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Enviro-Mich message from "Alex J. Sagady & Associates" <ajs@sagady.com>
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While cruising Minnesota's environmental statutes,
I came across a provision that is binding on the
Minnesota Pollution Control Agency that bans
"ex parte" communications....communications that
take place with agency decisionmakers off the record.

Given MDEQ Director Russell Harding's proclivities for
constantly meeting in private with industry representatives,
Michigan needs a rule like the following to curb such abuses.

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  7000.9100 PROHIBITED EX PARTE COMMUNICATIONS.

     Subpart 1.  Ex parte communication.  "Ex parte
  communication" means an oral or written, off-the-record
  communication made between an agency member and a person or
  party, without notice to other interested persons or parties,
  that is directed to the merits or outcome of a contested case
  proceeding or rulemaking proceeding after public hearing.  This
  term does not include procedural, scheduling, and status
  inquiries or other inquiries or for information that have no
  bearing on the merits or outcome of the proceeding.

     Subp. 2.  Communication with agency members.  An oral or
  written ex parte communication must not be made or attempted to
  be made either directly or indirectly between an agency member
  and a person or party concerning a material issue of fact during
  a pending contested case proceeding or rulemaking public
  hearing, from the date the agency decides to hold the contested
  case hearing or the date the rulemaking public hearing is
  ordered, until the agency issues its final order or makes a
  final decision.

     Subp. 3.  Disclosure of ex parte communication.  If a
  person or party makes a prohibited oral ex parte communication
  to an agency member, the agency member must advise the person or
  party who makes the communication that the communication is
  prohibited and shall immediately terminate the communication.
  If a prohibited written or oral ex parte communication is
  received by an agency member, that agency member must promptly
  disclose the following information to the commissioner or
  vice-chair prior to any decision regarding the contested case or
  rulemaking proceeding that is the subject of the ex parte
  communication:

       A.  to the extent known, the name and address of the
  person making the communication and the relationship, if any, to
  the parties to or interested persons in the pending matter or
  proceeding;

       B.  the date and time of the communication, its
  duration, and the means by and circumstances under which it was
  made;

       C.  a copy of the written document or a written
  summary of the matters discussed; and

       D.  whether the person or party making the prohibited
  communication persisted after being advised that the
  communication was prohibited.

     Subp. 4.  Record of ex parte communication.  The
  commissioner must make the tape recording or meeting transcript
  showing disclosure of ex parte contacts and all disclosed
  written ex parte communications part of the record of the
  proceeding to which those communications relate.

     Subp. 5.  Agency member abstention.  Any agency member not
  disclosing information regarding a prohibited ex parte
  communication may voluntarily abstain or may be required to
  abstain from voting on the matter that is the subject of the
  prohibited communication.  A determination of an abstention must
  be made by a majority of agency members, based on a finding that
  a prohibited ex parte communication with an agency member
  occurred and was not disclosed in accordance with subpart 3.

     STAT AUTH: MS s 14.06; 116.07

     HIST: 19 SR 1310; 20 SR 2629
Current as of 05/13/97
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Alex J. Sagady & Associates        Email:  ajs@sagady.com

Environmental Enforcement, Permits/Technical Review, Public Policy and
Communications on Air, Water and Waste Issues
and Community Environmental Protection

PO Box 39  East Lansing, MI  48826-0039
(517) 332-6971 (voice); (517) 332-8987 (fax)
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