![]() Thus, an applicant has no idea when or under what circumstances a license may be granted even though he or she has paid the fee. Thus, this rule fails to give adequate notice to interested persons.Įven if the language contains specific criteria, the criteria may be effectively nullified by the word may, as in the following example: “The Commissioner may grant a license if the applicant has fully paid the fee.” Under this example, even if the applicant has fully paid the fee, the commissioner may still not grant the license. However, under this statute, the agency would not have the authority to adopt the following rule: “The Commissioner may grant a license if the applicant meets appropriate financial qualifications.” Under this example, the agency has set forth no specific standards whatsoever in regard to what constitutes “appropriate financial qualifications.” By failing to make specific discernible standards, the agency has not given applicants any information about or guide to how they may qualify for a license. In a typical statutory grant, the legislature instructs the agency as follows: “The Commissioner shall adopt rules to set standards for qualification and methods of calculation.” Under the legislative grant, the agency has considerable discretion in establishing the standards of qualifications or selecting the specific method of calculation. In discussing the unbridled discretion concept, it is useful to demonstrate the problem with examples. An unauthorized unspecific and ambiguous rule allows the administrative officer to create and apply qualification criteria without fulfilling the APA rulemaking procedures. Another reason for not permitting unbounded discretion is that such a grant authorizes the agency to circumvent the APA. In addition, requiring more specific language to avoid excessive agency discretion assures that the rule will be applied in a consistent manner. Īccordingly, in a rule that grants discretionary authority to the administrative officer, the issue is whether the rule furnishes a “reasonably clear policy or standard of action.” Thus, this discretion issue is closely related to the issue of vagueness and to the definition of a rule, which requires specificity (a rule must “implement or make specific the law enforced or administered”). This section will first discuss the source of this doctrine, then demonstrate by examples why such a rule delegating unbridled discretion is impermissible, and finally discuss the circumstances under which agency discretion is permissible.ĭiscretionary power may be delegated to administrative officersį the law furnishes a reasonably clear policy or standard of action which controls and guides the administrative officers in ascertaining the operative facts to which the law applies, so that the law takes effect upon these facts by virtue of its own terms, and not according to the whim or caprice of the administrative officers. ![]() ![]() The doctrine has been recognized as a separate concept because of its recurrence in administrative rules. ![]() The unbridled discretion doctrine is a doctrine closely related to other legal concepts, including delegation of authority and the constitutional prohibition against laws that are vague.
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