Administrative Rules Review Committee
Members Present:
Sen. Howard A. Stephenson, Cochair Rep. John B. Arrington
Rep. Byron L. Harward, Cochair Rep. James R. Gowans
Sen. David L. Buhler Rep. Martin R. Stephens
Sen. Craig A. Peterson Rep. David Ure
Staff Present: Members Absent:
Arthur L. Hunsaker, Sen. Mike Dmitrich
Research Analyst
Esther D. Chelsea-McCarty, Members Excused
Associate General Counsel Sen. Robert C. Steiner
Barbara A. Teuscher,
Committee Secretary
1. Call to Order and Approval of Minutes of Meeting Held July 9, 1997
Chair Stephenson called the meeting to order at 9:10 a. m.
MOTION: Rep. Harward moved to approve the minutes of July 9, 1997. The motion passed unanimously.
2. R25-13 Payroll Deductions -- Chair Stephenson presented background information on this issue for the new members on the committee.
Ms. Kim S. Thorne, Director, Division of Finance, gave background information and the results of a survey that were taken. She indicated that a rule has been drafted that reflects the definition of a covered organization.
Chair Stephenson said part of the issue is the opportunity for coersion. If the employees' organization is one collecting the cards and submitting them, it is difficult for individuals to say they do not want to participate. If it is delivered by the employee to the employer, there is no opportunity for undue influence by a third party. The statute clearly shows that the relationship needs to be between the employee and employer and not a third party.
Ms. Thorne said the division realizes it is not in compliance with statute . She noted that there is a hearing scheduled for August 4 to address the rule. The intent of the hearing is to bring the rule in compliance with the statute.
Committee discussion followed the presentation.
3. R156-3a-102(13) Definition of "Unlicenced employee subordinates, associates, or drafters of a person licensed under this chapter"
Rep. Stephens explained an incident that involved Mayor Brent D. Hales, Pleasant View City, UT and the Division of Occupational and Professional Licensing (DOPL).
Mayor Hales distributed handouts to committee members, and presented background information regarding the drafting of architectual plans by himself and an architect for a new city building. The division sent them and the city's building inspector a warning letter regarding their actions in the matter. Mayor Hales referred to Section 58-3a-304. License Exemptions from a licensor and R156 -3a-102(13). Mayor Hales said the division is enforcing something that was not intended by the Legislature in the first place.
Mr. Craig Jackson, Department of Occupational and Professional Licensing, distributed a handout and discussed the rule. He emphasized that he will not be discussing specifics of the case. He summarized the law and the rule. He then introduced Mr. Robert Downer, Investigator, Mr. Steve Davis, in charge of investigations for DOPL, Mr. Ray Walker, Enforcement Counsel, Mr. David Fairhurst, Bureau Manager, Ms. Charlene Barlow, Attorney General's Office, Mr. Fred Montmorency, Utah Architect, Mr. Jim Szathowski, Chairman, Professional Land Surveyor Board, Mr. David Merrill, Utah Engineers Counsel, Mr. Dean Webb, Ethics Committee, and Ms. Elizabeth Mitchell, American Institute of Architects.
Referring to the statute 58-3a-301, Licensor required - License classifications -- Mr. Jackson defined exemptions from a licensor.
Sen. Peterson stated the intent of the statute and discussed contractual arrangements. He emphasized that the issue is "supervision."
Rep. Harward said the issue is whether the individual is under the direction of the architect.
Rep. Stephens asked Mr. Jackson what public good has been accomplished by this issue and are the citizens of the state more protected by what has taken place in Pleasant View City? He then discussed the negative impacts on the individuals involved.
Mr. Ray Walker, DOPL, clarified the definition of the word "supervision" and explained how the two terms interrelate. He also referred to Sections 602-1(b) Plans and specifications to be sealed. and 603-1(e) Seal - Authorized use in the code.
Mr. Walker said "supervision" means contact before hand under the direction of . . .
Sen. Peterson said whenever there is a disagreement in the law the argument can be made that there is a lack in clarity. It appears the committee is taking a specific case and attempting to try it in the meeting. He said it is inappropriate. Sen. Peterson stated that there has been a case made that clarification within the law, broader than what we presently have, is probably appropriate. He suggested if somebody has the clarification language, it needs to be discussed. If not, the committee should present it to the Business, Labor and Economic Development Interim Committee for further study.
Chair Stephenson said the committee needs to focus on the issue of "supervision" and try to decide, apart from the case being discussed, whether or not DOPL's interpretation of "supervision" is in compliance with statute.
Rep. Harward reminded committee members that the committee's focus is to try and determine whether the rules of this agency comply with the intent of the statute, and is the action of the agency, by its rules, in compliance with that intent or not.
Mr. Webb, P.E., Consulting Engineering Counsel, expressed that it is inappropriate to bring a specific case before the committee. He explained legal and nonlegal practices and indicated that he would like to see normal procedure used in the state.
Mr. Ken Martin, Building Official, said he approves plans only after they have been stamped by a licensed engineer.
Mr. David Fairhurst, Bureau Manager, explained that the law allows anyone preparing residential drawings to take them to a Utah licensed architect or engineer. He clarified the intent of R156-3a-102(13).
Sen. Peterson asked if it is the department's practice to use compensation as a determining factor in establishing a relationship between an employee and employer in a supervisory role? There has been a specific point made in the rule, and if it is not identified in the rule or statute, we need to be careful how we establish that relationship.
MOTION: Rep. Stephens moved for a letter to be drafted to the chairs of the Business, Labor and Economic Development Interim Committee explaining the difficulty on this issue and recommending they address it. Secondly, that the rule be scheduled for sunset during the next
legislative session.
Rep. Harward explained the purpose of sunsetting a rule. To the motion directly, Rep.
Harward gave his reasons for voting for the motion. He said he would like the committee to
review the rule for substance. In his view, he thinks the rule goes beyond the intent of the
statute.
Sen. Peterson requested that the motion be divided.
DIVIDED MOTION _ PART ONE
Committee members voted unanimously for the first half of Rep. Stephen's motion
which is to have a letter drafted explaining the difficulty on this issue to the chairs of the
Business, Labor and Economic Development Interim Committee for further study. The motion
failed in the Senate by a two to one vote.
SUBSTITUTE MOTION: Sen. Buhler moved for the committee to ask the division to take a look at this rule and then come back in the fall to determine whether the committee
recommends the rule be sunsetted or not. Sen. Buhler withdrew his motion.
Speaking to Rep. Stephen's motion, Sen. Buhler said he did not think the division has
exceeded the authority of the statute. For the record, he declared a conflict of interest.
DIVIDED MOTION _ PART TWO
Committee members voted on the second part of Rep. Stephen's motion which is to place
this rule on the sunset list, tentatively to be added to a bill that the committee would finalize, and
allow the division to come back later in the year if there are changes made.
Rep. Harward requested for staff to bring the issue up at the end of the year and if the agency would like to redraft the rule, they can come back for further discussion.
Sen. Peterson concurred with Rep. Harward's comment.
Rep. Stephens said he would hope the division would come back before January and look
at this rule for clarification.
4. Committee Business
a. Next Meeting - The next scheduled meeting will by held on August 13, 1997.
b. Items for Next Meeting - The committee discussed items to be put on the
August agenda.
5. Adjourn
MOTION: Rep. Ure moved to adjourn the meeting at 12:05 p.m. The motion passed unanimously.
F:\USERS\ADMRULES\WPFILES\7-23-97.MIN
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