Many of Michigan’s rule sets contain “variances,” a method for allowing an exception to a specific rule. Sometimes the same statute that authorizes a department to write rules also requires the rules to allow for variances. Other times, statute even allows administrative agencies to create variances for statutory requirements. Administrative agencies also appear able to determine if they will allow any variances to exist. No matter who determines if variances are allowed, it is up to the administrative agency alone to determine if an individual is granted a variance from the rules.
The variances used in the rules about public swimming pools are illustrative. The department’s rules contain about 50 different sets of requirements for constructing and operating a public pool. They address topics such as the location of the pool; water slides; chemical usage; the number of toilets; placement and size of ladders; stairways and ramps; and the dimensions of the pool itself. But the rule set also says that the department can grant a variance if it “will not affect the safe and healthful operation of the swimming pool” and if “strict compliance will cause unusual practical difficulties and hardships or will conflict with a special purpose intended for the pool.” The end result seems to be that these rules are only required so long as the agency decides they are.
Variances to rules covering campgrounds is similar and provides broad discretionary power to the administrative agency. The agency may issue a variance to any of the rules when it “determines that strict compliance with these rules would cause unusual practical difficulties and hardships.” The variance cannot harm “the safe and healthful operation of the campground” or violate “the spirit and intent of the rules,” but the department will still determine if these imprecise stipulations are met.
The use of the term “strict compliance” in these regulations is surprising, as it suggests the department assumes that there are gradations to how one might comply with a rule. In other words, if there is “strict compliance,” there must be “less strict compliance” too, which makes determining when a rule is complied with even more difficult. Since these rules have the force of law and can result in criminal sanctions, one might think there should be clear lines for when violations have occurred.
A final example: Public Act 116 of 1973 created licensing requirements and regulations about child care facilities. The statute contains more than 60 sections, and the rules require 54 pages and contain more than 500 “shall” statements or commands. The department says in these rules that it will provide a variance to any of the administrative rules contained in those 50-plus pages, on the condition that “the health, welfare, and safety of children is protected.” The department is responsible for making that determination.
In short, the use of variances, expands the power of administrative agencies. Not only do they have the power to define criminally punishable behavior, but with variances, they get to determine who must comply with the rules and who need not. This power attracts the same kind of corruption that plagues the integrity of the work done by elected officials, whose capacity to be influenced by lobbyists and special interest groups is well-documented. Giving administrative agencies the power to waive compliance for certain rules makes them a target for this type of undue influence. Indeed, whenever it is less costly to persuade an administrative agency to grant a variance from a rule than it is to comply with it, this type of behavior should be expected.