Administrative Rules Review Committee

    


                    MINUTES OF
        ADMINISTRATIVE RULES REVIEW COMMITTEE
         October 16, 1997 - 9:00A.M. - Room 305 State Capitol
    
Members Present:                         Members Absent
    Sen. Howard A. Stephenson, Cochair         Sen. Mike Dmitrich
    Rep. Byron L. Harward, Cochair
    Sen. Craig A. Peterson                 Members Excused
    Sen. Robert C. Steiner                    Sen. David L. Buhler
    Rep. Martin R. Stephens                    Rep. David Ure
    Rep. John B. Arrington        
    Rep. James R. Gowans
        
     Staff Present:                    
        Arthur L. Hunsaker, Research Analyst
        Esther D. Chelsea-McCarty, Associate General Counsel                
        Barbara A. Teuscher, Committee Secretary        
            
1.    Call to Order and Approval of Minutes of Meetings Held August 13, 1997 and September 30, 1977 - Chair Stephenson called to meeting to order at 9:11 a.m.

     MOTION: Sen. Peterson moved to approve the minutes with the recommended changes. The motion passed unanimously.

2.    Update: Driver License Database/Due Process (Rep. Ure) from October 22, 1996 and June 23, 1997 meetings - Mr. Skip Nielsen, Records Bureau Chief, Utah Driver License Division, and Mr. Tom Roberts, Attorney General's Office, addressed committee members. In Rep. Ure's absence, Chair Stephenson introduced this issue. Mr. Nielsen distributed a handout to committee members from which he gave his presentation. He informed the committee that the last several meetings have been insightful in making the division look at its process. As a result, the division has come to some conclusions and made changes. Mr. Nielsen indicated that his handout includes a brief summary of Mr. Hurd's case, his conclusions based on conversations he had with others, and recommendations for change which the division has already implemented. When doing checks, the division has decided to notify the person, give them the opportunity to be heard in order to identify whether they are the correct person, and to offer them a permit to drive for 30 days until they can clear up the problem. He then discussed the division's policy. Mr. Nielsen stated that the procedure does not require a rule change.

    Committee discussion followed.
    
    Rep. Harward asked whether a person's driving privileges are revoked while he awaits replacement of a lost license? Does the division have the right to deny the privilege or the duplicate evidence of that valid privilege before an action has been taken to suspend a driver license privilege?

    Mr. Nielsen said the division does do this. The individual is offered the opportunity for a hearing. The authority is there by virtue of compact to deny a license when licenses have been denied in other states. The license is only the evidence of the privilege to drive. Mr. Nielsen indicated that any time a person applies for a duplicate license or a renewal, and if something appears on the record where there is a sanction in another state, the division will refuse to issue a driver license until that issue is taken care of.

    Rep. Harward commented that until the right is revoked, an individual has the right to have an evidence of the right.

    Mr. Nielsen said that there is another statute that says, "we will refuse to issue a license certificate if the license is suspended or revoked."

    Mr. Richard North, Legislative Research and General Counsel, said if the Driver License Division would move toward the electronic driver license process it would simplify the process.

    Ms. Chelsea-McCarty, referred to Mr. Nielsen's comment on not needing a rule change and asked Mr. Nielsen if there is any information in rules? Mr. Nielsen said no. She indicated that there is a problem with using the federal statute as the basis. If it is not incorporated by reference, what happens when the federal government makes changes to it? Mr. Nielsen said when changes are made that require legislative changes, the division goes to the Legislature and asks for those changes.

    Mr. Tom Roberts, Office of the Attorney General, commented that the federal rule requires the National Database be checked to see if there is an outstanding action by another state. It is internal policy and does not particularly affect the rights of individuals with respect to driver license action.

    Ms. Chelsea-McCarty expressed concern with public notification.

    Chair Stephenson asked if there is any reference in the rule or statute to the federal rule? Mr. Nielsen stated not that he is aware of.

    Mr. Hunsaker indicated that a change in how the public is affected should be reflected somewhere or else there has been no notice that changes have occurred.

     Rep. Stephens urged the committee to go to the next agenda item and thanked the agency for their presentation.
    
    Chair Stephenson asked Mr. Nielsen when a person has their license revoked, what steps are taken in helping them to obtain a state identification photo card? Mr. Nielsen said the only time the division does that is in cases of age or infirmity or if the person voluntarily surrenders the license. At that time they are offered a free identification card.

3.     R477-9-1(5) Administrative Rule Governing State Employees Carrying Firearms     While on State Business (Rep. Gowans) - Rep. Gowans introduced this issue to the committee. Ms. Karen Suzuki-Okabe, Director, Department of Human Resource Management,
addressed committee members. Mr. Hunsaker presented background information to this issue and for clarification read the rule. He said it does not appear that this rule is supported by state statute.

    Ms. Suzuki-Okabe explained that a state employee who lawfully carried a concealed weapon left the loaded firearm in the men's bathroom. Another employee found the weapon and gave it to the supervisor at which time the supervisor took action because of this rule regarding the carrying of a firearm. The governor has a variety of sub-cabinet groups addressing specific issues and one of the groups addressed the issue of workplace safety. The drafting of the rule took place in one of the meetings. The rule prohibits employees from bringing firearms to the workplace. Ms. Suzuki-Okabe indicated that the cabinet knew at the time the rule was drafted that there were potential challenges. It was the decision of the group to write a rule prohibiting weapons in the workplace.

    Chair Stephenson asked Ms. Suzuki-Okabe if the executive branch considered calling a special session to make sure that the issue was debated by the legislative branch and that statutory authority was in place? She said to her recollection she does not remember any discussion surrounding convening a special session and that the group knew that statute supercedes rule. Ms. Suzuki-Okabe indicated that the responsibility of trying to create and support a safe work environment prompted the entire discussion.

    Chair Stephenson said it appears the executive branch wanted to change the law without legislative involvement, which is a dangerous precedent.

    Ms. Suzuki-Okabe said that the Cabinet Council did not say they were going to write a rule that was in direct contradiction.

    Chair Stephenson said if a safe workplace is so urgent that this procedure is in place then he would have thought it would require the urgency of a special session to accomplish it and stay within the statute. He indicated maybe the legislative response to prevent this kind of situation

from happening on other issues would be to give the Administrative Rules Committee authority to delay the effective date of a rule until the Legislature can meet in session.

    Rep. Stephens asked Ms. Suzuki-Okabe who sponsored the bill that the Governor's Office wanted to bring the rule into compliance during the '97 General Session? She said she was not aware of legislation designed to resolve the issue. Rep. Stephens said the committee is not challenging whether this is a good policy. What is upsetting is that the Governor's Office has made a public policy statement without any public input and basically changed state statute without legislative approval.

    Ms. Suzuki-Okabe said that it is also true of schools, Universities, and the Board of Regents who have acted in the same manner, but it does not make it right.

    Rep. Harward stated that the question is: "who sets the policy?" Is it the Executive Branch's responsibility to set policy in rule without statutory authority or is the administrative rule dependent upon legislative granting of that authority?

    Chair Stephenson said the committee may want to explore whether to seek additional authority from the Legislature to delay the effective date of a rule until the legislature can meet. With that authority, the committee could then debate whether the merits of suspending a rule outweighed public health and safety.

    Rep. Harward responded to Chair Stephenson's suggestion saying that it would require carrying a resolution that would amend the constitution.

    Sen. Peterson said his understanding has been that the reason we have rules is because the Legislature extends to the Executive Branch the opportunity and obligation to develop specific rules to implement the will of the Legislature. The point of law is thin in this case. He directed his comments to Ms. Suzaki-Okabe and said in her mind the state may be on thin ice in promulgating the rule in the first place. He said in terms of policy for the state, the rule seems to make sense, but if it does not have legal authority to do this in rule, it should be sunsetted.

    In closing, Ms. Suzuki-Okabe said that the group made a rule when it clearly knew that there would be challenges. She said that she wanted to make the statement that she is not sure what kinds of discussions or decisions were made in the Governor's Office with Mr. Robin Riggs, General Counsel, in terms of the legal aspect. They may have reviewed the climate, had some intensive discussions regarding the liability, or likeliness of the practicality of advancing legislation as to whether or not to choose to do it. This question belongs to the Governor's Office. The other side of the issue is the rule that she was asked to write and that is the obligation to create a safe work environment. Ms. Suzuki-Okabe stated that in the event an employee was shot by another state employee, and there was no prohibition on the part of the

employer, does the state then have exposure in terms of not creating some kind of prohibition. She indicated that it is a strong constitutional debate in terms of constitutional right to bear arms.

    Mr. Rich North, Legislative Research and General Counsel, indicated that his office responded to inquiries about the legality of the rule from Ms. Suzuki-Okabe. She was told that the statute only provides specific exemptions and to create this rule is in fact in violation of the statute. Now that this rule has been applied, we now have sanctioned state employees. The employee can now possibly go back and sue the state. Mr. North said that there is a liability issue once an improper rule has been used.

     MOTION: Rep. Stephens moved to carry this item over to the next agenda and to invite a representative from the Governor's Office to come and speak to the process behind the creation of this rule. The motion passed unanimously.

    Chair Stephenson thanked Ms. Susuki-Okabe for her candor and openness.

    Chair Stephenson informed committee members of a National Association on Administrative Rules Review Conference that will be meeting in conjunction with the Council of State Governments (CSG) Conference in Hawaii on December 5 through the December 9. He asked if there are any members who will be attending the conference? Sen. Peterson and Rep. Arrington said they will be attending. Chair Stephenson he asked them to attend the Administrative Rules Association meetings and report back to the committee.

4.    Application of Sales Tax to Publishers (Rep. Harward) Rep. Harward explained that this item is on the agenda to report, on record, some things that have taken place in the past. He reported that in 1988, Rep. Pat Nix brought one of her constituents to the committee meeting because the constituent felt that the Tax Commission was inappropriately interpreting a state statute that applied to the publishers of yellow pages. He emphasized the differences between his business and the yellow pages. The minutes of that meeting reflected that Chair Hal Hansen, Tax Commission, attended the meeting and made statements before the committee suggesting that he would see if he could work things out. Rep. Harward prepared a bill that would make clear the interpretation that Mr. Hansen was suggesting was appropriate. He prepared the bill and took it to the Revenue and Tax Committee where Mr. Hansen explained it, stating that a bill was not needed. The Revenue and Tax Committee passed the legislation out favorably, but Rep. Harward eventually withdrew the bill. On the same issue in '93, Chair Val Overson told Rep. Harward that he did not need a bill drafted. Rep. Harward has now sent the letter written by the Chair in 1990 and the present Chair confirming whether there was a need for a bill. He said assuming it is resolved, we will not be hearing it again.

5.    Notice of Fiscal Impact of Rules (Sen. Stephenson) - Sen. Stephenson indicated that while serving on the committee he has noticed that a rule has a fiscal impact on citizens and yet

on the rule analysis form, the impact is nearly always listed as "none."
    
    Mr. Kent Bishop, Governor's Office of Planning and Budget, and Mr. Ken Hansen, Director of the Division of Administrative Rules, addressed the committee. Mr. Bishop distributed a handout from which he gave his presentation. He reviewed the cost/savings impact of rules and discussed the following: I - Problems agencies have when trying to determine fiscal impact, II - Legal Requirements of Utah's Administrative Rulemaking Act, III - Fiscal Analyst Input, and IV - Cost/Savings of Compliance.
    
    Chair Stephenson emphasized that for an agency to say there is no fiscal impact when there is one is a disservice to the public.

    Rep. Harward stated that probably one of the most difficult and politically charged functions in the Legislature is the fiscal note on bills.             

    Mr. Ken Hansen distributed a handout and commented that he has extracted a copy of Section 63-46a-11. Administrative Rules Review Committee. He said it would be in his office's realm of regulatory authority to clarify the language in Section 4 that talks about anticipating costs or savings impact and define what an agency needs to be looking at. He indicated that it is something that the division could approach and have in place before the session starts.

    Note: A copy of Mr. Bishop's and Mr. Hansen's presentations are on file in the Office of Legislative             Research.

    Chair Stephenson asked what the fiscal note on a rule means in relationship to the statute that authorizes it. In other words, when a fiscal note has been identified in legislation, passed by the Legislature, and the agency writes a rule implementing the statute, what should the fiscal impact cost benefit analysis include?

    Mr. Bishop said that the statutes do not give guidance and that there is no guidance from other states in terms of practice. He indicated that we would be subject to whoever's opinion is out there.

    Rep. Harward indicated that it could be said that the cost of the rule is within the fiscal note of the legislation when it was passed or whether it is different from the original legislation's fiscal note.

    Mr. Hansen said the division is trying to get agencies to be more clear about where the costs are coming from, but he thinks it would be better to put it in rule.
    
    Chair Stephenson asked Mr. Bishop and Mr. Hansen if they would propose something that

would work and return back to the committee with a proposal. He indicated that he would be interested in taking a random sample of bulletins to see where "none" has been put and if it was used appropriately. He asked the Fiscal Analyst's Office to assess the adequacy of these responses on a sampling of recently proposed rules. Mr. Leo Memmott, Director, Office of the Legislative Fiscal Analyst, said his office would conduct the assessment and report.
    
6.    Committee Business

    The next meeting will be held: Monday, November 3, 1997.

7.    Adjourn

     The meeting adjourned at 12:05 p.m.

            
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