Administrative Rules Review Committee
ADMINISTRATIVE RULES REVIEW COMMITTEE
August 27, 1997- 9:00 a.m. - Room 305 State Capitol
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
Rep. David Ure
Staff Present: Members Absent:
Arthur L. Hunsaker, Research Analyst Sen. Mike Dmitrich Esther D. Chelsea-McCarty, Associate General Counsel Sen. Craig A. Peterson
Barbara A. Teuscher, Committee Secretary Sen. Robert C. Steiner
1. Call to Order and Approval of Minutes of Meeting Held August 13, 1997
Chair Stephenson called the meeting to order at 9:14 a.m.
MOTION: Because of the lack of a quorum, the minutes of August 13, 1997 will be approved at the next meeting.
2. R33-3-4 Sole Source Procurement -- (Existing Rule) -- (Rep. Harward) - Rep. Harward asked the department to help the committee understand what the process is regarding contracts and what the limits are in law or rule.
Mr. Richins, Director, Division of Purchasing, distributed a handout to the committee. He explained that the Procurement Code provides a framework and recognizes that there will be times when there is only one source available for a particular service. It empowers the State Procurement Policy Board to adopt rules articulating the appropriate uses for sole source procurement. The statutory provision is 63-56-23 - Circumstances justifying an award of a contract without competition. Mr. Richins stated that the rule the Policy Board adopted is
R33-3-4 - Conditions for the use of sole source procurement. With respect to the contracts being discussed, he indicated up until a year ago the governor had not used this type of method to provide a transition, however, it is within the governor's role to make this decision. The contracts were submitted with a "sole source" request and a recommendation from the department initiating the contract.
Committee discussion followed.
Chair Stephenson asked who has the authority to negotiate contacts? In response, Mr. Richins said the agency making the request to the Division of Purchasing has the authority to negotiate the contract.
MOTION: Rep. Stephens moved for the committee to go to the next agenda item.
Because of the lack of a quorum, motions on the issue will be voted on at the next meeting.
Rep. Harward said his concern is not so much the contracts but the policy. If the sole
source process can be used to get around the process that is set up for severance there is potential
for a problem. He does not see anything wrong with the contracts but sees an accounting system
that does not work well. Rep. Harward indicated that if there is a situation where the employer
negotiates the equivalent of a severance package, it should be reported to the Legislature. The
statutes do not work in terms of trying to segregate these two functions to have severance be
controlled by this policy and sole source contracts controlled by another.
3. Unemployment Compensation -- Update of "Fraud" issue from July 9, 1997 meeting
(Rep. Harward) _ Mr. Jim Finch, Unemployment Insurance Director, Department of Workforce Services, distributed a handout from which he gave his presentation. He introduced
Mr. Robert Harwood, the department's tax rate specialist. Mr. Finch said at the previous meeting
it was determined that even though we were discussing the issue of fraud, we were really talking
about a tax issue. Because Mr. Randy Russon's experiences were caused by a single claimant
filing for unemployment insurance benefits, the committee had concerns about how a single
claim could affect a person's tax rate. Mr. Finch explained the computation process and
discussed provisions of the Law in the Utah Code §35A-4-303,§35A-4-202, and §58-59-102. He then highlighted a tax and benefit summary of Mr. Russon's account and background information starting at the genesis of Mr. Russon's situation.
Mr. Finch then explained how the appeals process works. He stated when there is an
allegation of fraud, the department does a full investigation. If, at the end of an investigation,
there is no fraud charged, there is nothing for either the employer or claimant to appeal. Mr.
Finch indicated that the reason the department is continuing the investigation is because the
Administrative Law Judge referred it to the department's fraud unit. Based on the testimony of
the employer, the judge requested the department to further investigate the possibility of fraud.
The appeal that the employer has is through the tax rate.
Rep. Harward asked legal staff to do research on what the process is at the time there is
an allegation made by an employer of fraud by a benefit recipient. What are the employer's
appeal rights if it is determined that no fraud was committed? What are the appeal rights of an
individual if there is a determination of fraud?
Mr. Finch indicated he is quite sure that there are no appeal rights to a party that accuses
another party of fraud.
4. R307-20-2 Section 1, Municipal Solid Waste Landfills (Rep. Ure) _ Rep. Ure introduced this issue.
Ms. Jan Miller, Rules Coordinator, Division of Air Quality and Ms. Ursula Trueman,
Division Director, addressed the committee. Referring to the Bulletin, Ms. Miller explained that
when the division is incorporating material it enters the date of when the rule became effective in the Federal System which is required under law (R307-16). When post dating (R307-20-2), where the division is incorporating by reference a plan which is required by the Federal
Government, the Plan is not in effect until the Board finally adopts it. The date that is put in for
the effective date of the State Implementation Plan is the date on which the Board is expected to
adopt it. Ms. Trueman indicated that if there is a substantive change, then the division does
make sure that the people are aware of the change. The July 1 Bulletin reflects that the division
published changes in both the Landfill Plan (R307-20) and in (R307-21) which is the rule that enforces the Plan.
Ms. Shelly Cordon-Teuscher, Petroleum Association, indicated that this Plan is
frequently just a blueprint for rulemaking. She said she did not disagree that there may be a need
to publicize the Plan further.
Mr. Hunsaker expressed his concern about filing a rule change and not having appropriate
language published so people can see what changes were made.
Mr. David McNiel, Manager, Division of Air Quality, explained the Federal Ruling
Process and indicated that it is published in the Federal Register.
Ms. Teuscher suggested that the Board develop a rule that binds the division as to how it
does public notices.
Mr. Ken Hansen, Division of Administrative Rules, said there could be changes made to
the Rulemaking Act regarding incorporation by reference to improve clarity.
Chair Stephenson asked Mr. Hansen to work with staff on incorporation by reference
language.
5. Committee Business - Date of Next Meetings _
September 15 and September 30
Rep. Arrington requested putting the issue of child care on the agenda for the next
meeting.
6. Adjourn - The meeting adjourned at 11:00 a.m.
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