Should There Be an Office of Regulatory Counsel?

Should There Be an Office of Regulatory Counsel? By Chris Micheli

            For those involved in the California legislative process, everyone is familiar with the outstanding work that is done by the attorneys and staff in the Office of Legislative Counsel (OLC). For those who are not regularly involved in the regulatory arena, you may not be aware that there does not exist a similar office to assist executive branch state agencies.

As a result, I am advocating for the creation of a new “Office of Regulatory Counsel,” (ORC) that should be houses in the Governor’s Office, similar to a handful of other offices based in the Governor’s Office, such as Go-Biz, Office of Tribal Adviser, etc.

            The ORC would be similar to the Office of Legislative Counsel, which drafts legislation for the Legislature and Governor, but the ORC would play a similar role for executive branch agencies. Why do I think this new entity is necessary?

            The first reason is that the staff of state agencies are generally not trained in the drafting of regulations. While some of the larger agencies and departments do have attorneys on staff, there should be central group of attorneys who are trained in drafting and who can assist to ensure clarity and consistency in regulatory drafting.

            The need for specialized drafting attorneys is borne out by the fact that the number one reason for the Office of Administrative Law (OAL) rejecting regulations is based on the lack of clarity. The lack of clarity can generally be addressed by good drafting attorneys. While the attorneys at OLC specialize in drafting statutes for the Legislature, California’s 200+ rulemaking entities also need attorneys in the same – those who specialize in drafting regulations.

            The second reason is, considering the volume of regulations being proposed every year (which is 600 to 700 per year), there should be a centralized location of attorneys trained to draft regulatory language. Just like OLC has developed an outstanding team of legislative attorneys, the executive branch needs a team of regulatory attorneys to drafting the language of regulations, as well as assist rulemaking entities in the preparation of documents that accompany regulations.

            This new Office of Regulatory Counsel could attract top-notch drafting attorneys, just like the OLC, with its focus on drafting those hundreds of regulations each year. Hopefully, the Governor and Legislature will give serious consideration to creating this new office during the 2024 Session.

 

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