A Former General Assembly Insider’s Viewpoint – An Interview with Recently Retired NCGA Division Director Karen Cochrane-Brown

By Nahale Freeland Kalfas

There are times when administrative lawyers wish they could get the “scoop” from General Assembly insiders – to help them understand how to improve why things happen and what can be done. This interview with recently retired General Assembly attorney Karen Cochrane-Brown may offer practitioners some of those wished-for, useful insights.

Karen Cochrane-Brown retired from the North Carolina General Assembly on August 1, 2020. This article is based on an interview conducted earlier this year. As Cochrane-Brown was one of the first legal leaders I met when coming into the practice of Administrative Law, I was particularly excited to spend some time chatting with her.

Background

Karen was born in Hickory but grew up in Beacon, New York. She  obtained her B.A. from Colgate University in 1977, and graduated from Albany Law School in 1980. Karen worked for 12 years in New York prior to moving to North Carolina. After a judicial clerkship with the New York Court of Appeals, she served as an Assistant Attorney General and also as Assistant Counsel to the New York State Teachers’ Retirement System.

Karen moved to North Carolina in 1993 and began her career with the General Assembly, which continued for 27.5 years until her retirement last year. Karen served as a Senior and Principal Legislative Analyst before becoming the Director of the Legislative Analysis Division in late 2015. Karen noted that she decided to stay at the North Carolina General Assembly because she enjoyed the collegial environment and found the work stimulating and challenging. When she joined the legislative staff, Sabra Faires was the resident expert on the Administrative Procedure Act (APA). Karen assisted Sabra on the 1995 revisions to the APA, which created the Joint Legislative Administrative Procedure Oversight (APO). Beginning in 1996, Karen served as counsel to APO until she became the Director of the Division.

What do you wish administrative lawyers knew about how the General Assembly members look at and approach administrative law issues?

Karen responded that you must think about who the legislators represent and particularly which constituency they represent. She stated that state agencies usually are not the constituency the legislator is representing. Thus, the state agency perspective may not be well understood. She agreed that explanation of agency process is often warranted.

Is there something regarding administrative law and improving it that you wished you could have accomplished and were unable to?

Karen says her answer to that question has changed over time. From a drafting standpoint, all of the changes to the APA made over the last 20 years or so have been inserted into the existing structure, especially within Article 2A, Rules. She believes that this has resulted in a somewhat convoluted and confusing structure. She thinks it could benefit from some reorganization and rewriting. Karen noted that this is not so much a criticism, but rather a wish for a structural change to make the law clearer.

What do administrative law practitioners do or say that really irritated you and other North Carolina General Assembly staff?

Karen responded that she frequently heard the complaint that “Rule making is so hard and it takes so long.” Between 1996 and 2003, the law provided that no rules could become effective until at least the 30th legislative day after being approved by the Rules Review Commission. This process resulted in the delay of many necessary and noncontroversial rules. In 2003, the law was changed so that only rules that received ten letters of objection were subject to legislative review. It seemed to Karen that administrative lawyers often repeated old notions about the old process, but after 2003, that was not the case. Karen stated that, from her observation, very few rules actually ever received ten letters of opposition, and so for most rules, the process was not unduly long.

Did you ever read agencies’ rules? 

Karen stated that she did read some agencies’ rules. Her reason to read those was only if her division was trying to solve a problem, or if a bill was introduced to disapprove the rule.

Did you ever attend an agency’s public rulemaking hearing, ever read public comments on an agency’s rules, or ever ask to sit in while an agency worked on drafting rules before publication? 

Karen was never asked to attend a rulemaking hearing. But she did go to some banking commission hearings due to her work with banking issues in the legislature. She never sat in while an agency was working on draft rules before publication. She didn’t believe that would have been appropriate. She emphasized that as a member of legislative staff, her participation might have given the wrong idea about what authority she held.

Have you ever been a member of the NCBA or ABA? 

Karen stated that while she had not joined the NCBA, she could imagine that the networking and collegiality would be helpful. She noted that she did attend several NCBA and ABA meetings and programs.

Did you deal with the public at all when they called the General Assembly with administrative law issues, questions, etc.? Were there commonalities? Is there anything you can share? 

Karen quickly responded “No.” She stated that she was very clear and conscientious regarding her position and appropriate authority. She suggested that members of the public contact their legislator. If a legislator purposefully referred a member of the public back to her, she would then communicate with members of the public on the legislator’s behalf.

What are your thoughts on the North Carolina Dental Board case?

Karen answered that, in her opinion, the North Carolina Occupational Licensing Board system was fine, even though the Dental Board’s response was not. She believes that North Carolina law had adequate state supervision in place. Unfortunately, the Dental Board did not use any of the available options, such as rulemaking or judicial review.

Tell me something about yourself that most people would be surprised to learn.

To my delight, Karen shared that she is quite the Anglophile and is a fan of all things Britbox, and thereafter, the interview turned into a discussion of British shows and series.

Nahale Kalfas is General Counsel for the North Carolina Board of Examiners for Speech and Language Pathologists and Audiologists and Legal Counsel to the Council of State Government’s National Center for Interstate Compacts and is incoming Chair of the NCBA Administrative Law Section.