Watching the Watchdogs : USD’s Public Interest Law Center Keeps Regulatory Agencies on Their Toes
John Moot was less than thrilled. It was his second year of law school at the University of San Diego, and Moot had been assigned as part of a class project to monitor an obscure regulatory agency--the State Board of Fabric Care.
Moot had never heard of the thing. What’s more, he hadn’t a clue what it did. Nonetheless, the aspiring attorney dutifully began attending the group’s meetings, determined to make the most of what seemed a dog of an assignment.
Before long, Moot had a fix on what the board was all about--and he didn’t like what he saw.
‘Board a Boondoggle’
“I soon figured out this board was a boondoggle, that they were simply there to protect their own and were of absolutely no value in protecting consumers’ rights,” Moot recalled recently. “This was a group that existed simply to exist.”
Eager to expose the effete agency, originally formed to license and regulate dry cleaners, Moot wrote a scathing article for a law journal. The piece--wittily titled, “The State Board of Fabric Care: It Doesn’t Care for You”--quickly caused a stir, sparking a legislative drive that ultimately abolished the board.
Moot’s accomplishment is one of a spate of such victories tallied over the past six years by an unusual program run by USD’s Center for Public Interest Law. Designed to provide law students with a dose of real-world experience not commonly found in the classroom, the program also serves as an unofficial watchdog over the maze of powerful agencies, boards and commissions that regulate every conceivable business and profession in California.
Under the tutelage of center Director Robert Fellmeth, students enrolled in the program monitor the activities of more than 60 regulatory agencies, everything from the influential Public Utilities Commission on down to the Board of Funeral Directors and Embalmers.
As second-year students, the monitors attend meetings, where they ask questions, testify and frequently challenge board procedures, and also write critiques chronicling the agencies’ actions for a quarterly journal published by the center--the only such publication of its kind in the country.
In their third year, they complete more in-depth articles for the journal and assist center attorneys with efforts--like lobbying and lawsuits--to win reforms making the agencies more responsive to the consumers they are chartered to protect.
According to Fellmeth, a former deputy district attorney in San Diego, the program’s goal is two-fold.
“I wanted first of all to give students some in-depth training in a particular area, which is something they rarely get in law school,” the bearded professor and veteran consumer advocate said.
But just as importantly, Fellmeth sought to use the program to focus a spotlight on the state’s network of regulatory agencies, which are armed with the authority to make crucial decisions but have historically been free of public scrutiny.
“The brunt of our economy is regulated by all these powerful little boards, but the fact is, most people--like 95%--have no idea that these things even exist,” Fellmeth said. “Before we started keeping an eye on them, everything was done behind closed doors, without visibility, without exposure. We’ve tried to give the public a voice in the process.”
Fellmeth believes that many of the agencies--like Moot’s Board of Fabric Care--are all but useless and could be abolished with no harm to the consumer. He contends that many of the various regulatory bodies--supposedly formed to safeguard the quality of a given profession and remedy the misdeeds of its members--actually benefit and protect the industries they ostensibly regulate.
‘Cartel System’
“These industries want regulation because they can control competition and avoid the marketplace,” Fellmeth said. “The boards become a sort of cartel system. They are dominated by members of the trade they are set up to regulate. They are funded by industry dues. So you get a very uncritical perspective that does not serve the public at all.”
The law students, Fellmeth says, can help alter that posture through the one-two punch provided by their presence at the boards’ meetings--where they are frequently the only public members in the audience--and their writings in the center’s thick journal, called the California Regulatory Law Reporter.
Anchored by the reputation of Fellmeth, a former “Nader’s Raider” who was appointed by the attorney general in January to analyze the State Bar’s discipline procedures, the program appears to have made quite a few waves during its short life.
Most recently, two students’ monitoring of the Board of Medical Quality Assurance stirred criticism of the board’s treatment of foreign medical school graduates, who some say have been unfairly denied licenses to practice medicine in California. The board, organized to protect consumers from negligent and incompetent physicians, has been charged with employing a double standard in evaluating medical school education in a deliberate effort to prevent the licensure of foreign graduates.
The students’ work, and subsequent research and lobbying by center attorneys, caught the ear of the state Senate Committee on Business and Professions, which last year issued a formal “accusation” of misconduct against the medical board and held hearings looking into the board’s activities.
Partial Victory
In September, the center claimed a partial victory when Gov. George Deukmejian signed a bill requiring the medical board to establish an advisory council to evaluate the applications from post-1975 Vietnamese graduates, who have had the most trouble winning licensure in the state.
Meanwhile, the center has filed a $13.3-million class-action suit against the medical quality assurance board, alleging numerous civil rights and procedural violations in its refusal to issue licenses to the Vietnamese graduates.
“The center has had a highly influential role to play on this issue and we have been very interested in what they have had to say,” said Steven English, senior consultant to the committee on business and professions. “The filing of the lawsuit was a really significant action . . . I think their approach is sincere and many of their criticisms of these agencies are valid.”
Julie Cardenas, a 1987 graduate of the program, was at the forefront of a campaign aimed at compelling the Department of Insurance to hold open meetings. Unlike most regulatory agencies, the department is run by a single commissioner, who wields considerable power in the licensing of agents and brokers.
Last year, pressure from the center and others prompted the creation of a Consumer Advisory Board allowing for public input into the department’s procedures. But when Cardenas attempted to attend its first meeting, she was barred. The center eagerly took up the challenge, filing a suit to force the department to open the meetings, and a settlement ultimately achieved that goal. Cardenas later was named chairwoman of the board.
“That was just another example of all these mini-battles we’ve been forced to fight to open up the state regulatory process even the slightest bit,” Fellmeth said. “These bureaucracies have been maintaining this status quo for years and when someone comes along and challenges them, you get real drama.”
Utility Monitor
In an episode with marked impact on the local front, a student’s monitoring of the mighty Public Utilities Commission laid the groundwork for the creation of the Utility Consumers Action Network (UCAN), which has been a leader in voicing the public interest at SDG&E; rate hearings. The student was Michael Shames, now executive director of UCAN.
“I’ll never forget my first meeting,” Shames said, recalling the 1981 experience. “I sat in the back row because I was embarrassed to be up front. There was hardly anyone else there. The commissioners all spoke a foreign language--something that sounded like a combination of Portuguese and Samoan--and I thought I’d never understand it.”
Before long, however, Shames began to catch on. And he soon realized that the PUC was routinely approving SDG&E; rate increases, largely because no one was making convincing arguments in opposition.
“There were angry ratepayers, but no one with the technical background necessary to sway the commissioners,” Shames recalled.
So Shames and the law center filed a petition asking the PUC for the right to place inserts in utility bill envelopes to present the consumer’s side. After a year of hearings, the commissioners agreed to allow a new, utility watchdog group to seek members and contributions through the SDG&E; billings. UCAN was born and has proven to be a dogged intervenor in rate hearings before the PUC, saving San Diego ratepayers millions of dollars in potential increases over the years.
“By the end of our first year we had 60,000 members and a budget of $330,000. It was clear we were onto something,” Shames said. “If not for the center, none of this would have been possible.”
Smaller Agencies, Too
Aside from these major battles, the center’s students have tangled with smaller agencies as well. There have been run-ins with the Board of Osteopathic Examiners and the Board of Chiropractic Examiners, as well as an ongoing tussle with the Contractors State License Board, which has drawn USD’s wrath because of its backlog of 14,000 consumer complaints.
Another dozen or so agencies should simply be eliminated, Fellmeth and his colleagues believe.
“You may have noticed that there hasn’t been a crisis in dry cleaning since the Board of Fabric Care was killed,” Fellmeth said. “So do we really need a Board of Landscape Architects? Do we need a Board of Barber Examiners and a Board of Cosmetology?”
At least one legislator and the state Legislative Analyst share Fellmeth’s view. Sen. Daniel Boatwright (D-Contra Costa) has introduced legislation that would abolish five agencies, and the Legislative Analyst last year issued a report listing about a half-dozen boards that could be eliminated without sacrificing public protection.
‘Out of the Wilderness’
Veteran consumer groups have high praise for the center and its achievements. Harry Snyder, West Coast regional director for the Consumers Union, said Fellmeth and his students have “brought us out of the wilderness in terms of what we did about the regulatory process in California.”
“They’ve made a terrific contribution,” Snyder said. “These boards are now aware they are being watched and there’s been a better following of procedure, like the noticing of public hearings, in general. The agencies realize this thorn in their side is not going to go away.”
Gene Erbin, legal counsel to the state Senate Judiciary Subcommittee, said the center “filled a big void” in the state regulatory arena by “creating a combative attitude and providing some public advocacy where there was very little before.”
Erbin, who once served as a lobbyist for the center, said its journal, the Reporter, “is read in legislative offices here and is even cited by courts in some cases. People have introduced legislation based on what they read in the Reporter.”
Still, Erbin added that the program needs a bigger presence in Sacramento. “There’s room for maturation,” he said.
Reaction Varied
As for the center’s targets, calls to a sampling of agencies elicited a variety of responses--from impartiality to resentment.
At the Board of Barber Examiners, executive director Lorna P. Hill had a rather ho-hum attitude, observing only that the student monitors “seem to ask a lot of questions at times when things seem to be the busiest around here.” Hill was surprised to learn the students view themselves as watchdogs: “Who are they watching? What’s their constituency? Where do they get their mandate?” she wondered.
Over at the Board of Osteopathic Examiners, awareness was somewhat higher. Executive Director Linda Bergmann said, “We all know when they’re there, but they make absolutely no contribution whatsoever, so we don’t pay much attention.”
But Ken Wagstaff, executive director of the Board of Medical Quality Assurance, is somewhat more attuned. After all, the center has filed a lawsuit against his agency.
“I think there are two centers--the one that reports on what we do and the one that brought this litigation,” Wagstaff said. “The first one seems to be helping people follow what’s going on with the various regulatory agencies. The other has chosen to accuse us of conspiracies and attack the policies and procedures of this board, and that’s been rather upsetting to me.”
In addition to its watchdog role, the center’s program provides students with invaluable practical experience often missing from a traditional legal education, participants say.
“You get an actual picture of what these agencies do, which is something you really don’t understand unless you deal with it,” said Sharon Kalemkiariana second-year student who monitors the California Energy Commission and the Department of Insurance.
Kate Turnbull, who is in her third year of law school and has worked on the lawsuit against the Board of Medical Quality Assurance, agreed.
“Before I got into this, I thought public interest law was working for the Sierra Club or something,” she said. “Without this experience, I would never have understood the power of these agencies and the fact that they are not accountable and can be very dangerous if they’re not watched.”
Fellmeth is clearly proud of the program, his students’ accomplishments and the growing reputation of the Reporter. And he is constantly thinking of new ways to make a mark on the regulatory law process. His next goal? To set up an institute on the legal rights associated with open meetings.
“I’m pleased with the impact we’ve made, but it’s only significant because things were so bad before,” Fellmeth said. “We’ve come a long way, but in reality, we’re only 10% of the way there.”
