Administrative Rules Review Committee

         MINUTES OF THE
            ADMINISTRATIVE RULES REVIEW COMMITTEE
             November 3, 1997 - 9:00 a.m. - Room 414 State Capitol

                            
Members Present:                         Members Excused:
    Sen. Howard A. Stephenson, Cochair         Rep. David Ure
    Rep. Byron L. Harward, Cochair             Sen. Robert C. Steiner
    Sen. David L. Buhler                    
    Sen. Mike Dmitrich                    
    Sen. Craig A. Peterson                
    Rep. Martin R. Stephens                    
    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 Meeting Held October 16, 1997 - Chair Harward called the meeting to order at 9:12 a.m.

     MOTION: Rep. Arrington moved to approve the minutes of October 16, 1997. The motion passed unanimously.

2.    Update: Current Status on R25-13 Payroll Deductions and Division of Finance Policies Slated for Rulemaking - Ms. Kim Thorne, Director, Division of Finance, reported that the division held a public hearing on August 4 and accepted comments up through August 11. They took into account the issues that were brought up regarding the rule. A proposed rule was redrafted and should be finalized next month. Ms. Thorne said the division decided to require employees to send the division written documentation authorizing the union to act as an agent in collecting deductions and dues. She indicated that the division is looking at updating the payroll and time attendance systems.

    Sen. Stephenson asked Ms. Thorne to describe the kinds of concerns that were expressed in the hearing. Ms. Thorne referred to a summary of comments and briefly discussed them.

    Sen. Stephenson said the statutory language intends for the employee to deliver changes, otherwise there is an opportunity for pressure and coercion. The statute is clear in defining that the communication is between the employee and employer and not the third party labor organization. There needs to be the freedom for an employee to make that choice without a middle man.

    Sen. Buhler asked Ms. Thorne if agencies perform duties on behalf of the Division of Finance as it relates to payroll? Ms. Thorne said it is like group insurance deductions. She then explained the process. Sen. Buhler wondered if some of the input from the employees could be shared with agency personnel. She indicated that it could be an option. Ms. Thorne then stated that she would like to take into consideration comments that have been made, the division attorney's concerns, and make sure the division feels comfortable with it. The time frame would be the end of November. She indicated that the committee also asked the division to look at their policies and procedures to see what items need to be in rule. Ms. Thorne said it will take until early1998 to complete the review.

    Chair Harward indicated that if you regulate your own department it is a policy, if you regulate employees outside your agency, the public, or if it confers a right or imposes a duty on a third person, it needs to be an administrative rule.

3.    Report (Continued from October 16 Meeting): Governor's Office - Process Leading to Promulgation of R477-9-1(5) Governing State Employees Carrying firearms When on State Business (Rep. Gowans) _ Chair Harward introduced this agenda item.

    Mr. Gary Doxey, General Counsel, Governor's Office, said that this was not an effort to ignore statute. There was all due respect given to the law and there were some challenges anticipated, but the statute in question is not the statute concerning guns in Utah, but governing work place safety. Mr. Doxey stated the basis in law to support the rule is the federal and state Occupational Safety Health Act (OSHA) requirements. It talks about each employer furnishing to each of his employees, employment which is free from recognized hazards that are likely to cause death or physical harm to his employees.

    Mr. Doxey referred to Section 34a-2-301. He indicated that there is tension between the apparent interpretation of the gun use law in Utah and the workplace safety law and that there is not a specific statute addressing the use of guns in the workplace. A cabinet subcommittee, lead by Commissioner Douglas Bodrero, Public Safety Commissioner from1994 through 1996 looked at what would promote safety in the workplace. It was not in reaction to the passage of a gun use law in Utah. Mr. Doxey emphasized that safety was the primary consideration. The legal grounds upon which the administration stood was to err on the side of safety because of the duty on employers to provide a safe work environment.
         
    It was the considered determination that guns in the workplace were not as safe as guns not in the workplace. Mr. Doxey then discussed liabilities and the broad latitude. He said we are wrong to assume that having a concealed weapon's permit is so pervasive that it overrides all kinds of uses of a weapon. He referred to Section 76 -10-504 listing the reasons why it is criminal to carry a concealed weapon. Section 76-10-505 suggests that a person may not carry a loaded firearm in a car, public street, or in a posted prohibited area. Mr. Doxey indicated that

our law on concealed weapons statutorily disavows responsibility for the actions of permit holders.

    In summary, Mr. Doxey reassured committee members that the Governor's Office is interested in responsible rulemaking and wants to insure it. There is a legal basis and a foundation for the rule, but in the interest of responsible rulemaking, they are willing to continue dialog. One remedy would be to modify the rule so that an employee desiring to carry a concealed weapon cannot conceal it on the job. Mr. Doxey indicated that he does not see anything in the law that says you have the right to conceal a weapon. He then said people need to live by the consequences of their decisions and that a permit does not give individuals freedom from consequences.

    Rep. Stephens stated that the committee is not arguing whether it is a good idea to have guns in the workplace. He asked Mr. Doxey what section of the code the Governor's Office relied on in granting them authority to issue the rule? In response, Mr. Doxey indicated that he cannot answer the question directly because he did not know what the division relied on to write the rule. There is a legal basis and the legal basis is found in the OSHA standards and laws in Section 67-19-18(4). He reiterated the governor's policy position which is the right to keep and bear arms being constitutionally protected. Mr. Doxey said he believes that right, like every other constitutional right, is not without limits. One of the rights that is of concern is property rights. The governor would support legislation and invites legislation to protect the rights of schools, churches, homeowners, and other private property owners, and in certain circumstances employers to deny access to their premises to those who wish to carry dangerous weapons.

    Chair Harward informed committee members that he came into this process thinking that he could not see any place where there was statutory authority for what the Governor's Office was doing. As he listened to what was said today, he said he concurred with Mr. Doxey's comments. He indicated that he could not find an explanation stating that when individuals have a permit they then have a right to carry it anywhere. Chair Harward said as a private property owner he has the right to say that no one can come onto his property carrying a concealed weapon. The statute states that an employer has to do everything necessary to make the workplace safe. If an employer concludes that having a weapon at work creates an unsafe workplace, even though it is not a violation of the law, the employer has the right to issue a rule that states it is not safe to have a gun at the workplace. In his view, he thinks the Legislature needs to take a hard look at this issue. Mr. Doxey indicated that it would be a good idea to have legislation drafted for clarity.

    Rep. Stephens explained his concern with the assumption that carrying a concealed weapon creates an unsafe work environment. He said if we say this, haven't we made a quantum jump as to the propriety of carrying concealed weapons at all and granting that privilege in the state?


    Rep. Harward responded to Rep. Stephen's question saying he did not think so. It only applies to the employer's employees and has nothing to do with whether people decide to carry guns or not.

    Mr. Doxey said that studies across the nation on guns in the work place are not exactly conclusive about whether guns promote or inhibit safety. It is a conclusion that was taken by a valid process and is an employment issue only. He said it would not be good for anyone to micro manage an employer's decision that went through a valid process over what is safe or unsafe.

    Sen. Buhler stated that it seems the correct legal basis for the rule wasn't disclosed to anyone. Mr. Doxey said he was told that there was a process and deliberations. Mr. Doxey said as far he knows the Attorney General's Office was not asked for an opinion. It is a good suggestion that we should consult risk management in reviewing this. He indicated that we should not lose sight of the fact that we are talking about a firearm's issue and not a concealed weapons issue. Mr. Doxey stated that the Governor's Office invites the committee's suggestions. Sen. Buhler asked Mr. Doxey if he would find out: 1) if the Attorney General's Office was consulted and if not why? 2) was leadership advised? and 3) how are employees advised of the rule? Mr. Doxey said he would find out and report back to the committee.
        
    Sen. Stephenson said the statute seems to deal with certain issues that could threaten the life and safety of employees. He indicated that to him it is a leap of logic to automatically assume that a firearm in the workplace threatens the safety of employees.

    Chair Harward said the committee requests that when a rule is written, proper authority be cited.

    Mr. Joe Venus, American Gun Review, referred to Section 76-10-501and indicated his association's opinion is that the administrative rule violates the state preemption law. He said, if you want to have state employers ban firearms, this rule needs to be changed.

    Mr. Doxey said the rule has to do with local versus state regulation. He reiterated that the Governor's Office desires to have some clarifying legislation and think they have the right to regulate workplace safety.

    Mr. Edward P. Powell, Utah Shooting Sports Council, referred to Section 53-4-5-704(1). He said that many people interpret the rule as stating that, if individuals have a permit, they have the right to carry a weapon any place they choose. In reply, Chair Harward said he does not think the rule states that and explained his reasoning.

    Sen. Stephenson indicated that in his vi ew a leap of logic has been taken and that the rule

should be repealed until the Legislature can act.

    Sen. Peterson said as a member of leadership, the committee would like the record to show that we invite the governor and his representatives to actively participate pro-actively in this discussion, and provide recommendations on how the governor would like to see the statute structured.

4.     R81-1-18 Prohibition of Gambling Devices - (Sen. Dmitrich) - Sen. Dmitrich introduced this agenda item. Mr. Scott R. Wangsgard, representing 20 coin operated machine distributers and operators, indicated proposed rule R81-1-18 from the Alcohol Beverage Control Commission appears to seriously affect their ability to do business. He said the purpose of the rule is to prohibit gambling devices on licensed alcoholic beverage control premises, but that the proposed rule is flawed. First, it attempts to assert legislative authority to legislate proscriptions respecting gambling devices in the area. Second, the rule attempts to improperly shift the burden of proof or change traditional motions of evidence with respect to proof of gambling. Third, that the commission does not have the authority. Four, the commission does not follow proper rulemaking procedures in proposing the rule. Mr. Wangsgard indicated that he has submitted written comments to the Alcohol Beverage Control Commission.

    Agency presentation. - Mr. Ken Wynn, Director, Alcohol Beverage Control, and Mitch Ingersoll, Utah Department of Public Safety, addressed the committee.

    Mr. Ingersoll explained the machines and the process the department has to use when referring to the criminal statute and explained the elements of the crime when possessing a gambling device in Utah. He referred to R76-10-105 and said that the rule is adding an administrative remedy.
    
    Sen. Petersen indicated that the definition within the statute is where the flaw exists. In his view, the constitutional problem is in the definition of a gaming device versus an amusement devise and suggested modernizing the statute reflecting both.

    Mr. Tom Roberts, Attorney General's Office, stated that the State of Pennsylvania conducted a study on a small vendor and a study on amusement devices versus video poker machines. They found that there were 300 video machines and 2,247 amusement devices. The amusement device revenue was $22,470 and the video poker machines' revenue was $75,000.

    Chair Harward said the concern of the committee is that if the statutes are not taking care of the problem, then the statute needs to be changed and not by administrative rule.
    
    Rep. Stephens indicated that he does not think the Liquor Control Commission has the authority to regulate gaming rules in Utah and that there is no statutory provision. He suggested

bringing it to the Legislature in the form of a statutory change.

    Mr. Tom Roberts, Attorney General's Office, addressed the gambling statutes. He said the gambling law has to be basically general and broad in order to criminally prohibit gaming. He then explained the purpose of the rule and the policy and discussed what the statute requires.

    Sen. Peterson indicated that the solution to the problem is a statute change rather than court action.
    
5.    Committee Business

    Sen. Peterson requested for staff to draft a letter from the committee to the Legislative Management Committee asking for permission to hold meetings in December and January.

    MOTION: Rep. Stephens moved for the committee to meet November 10 if the Fiscal Analyst's Office can be ready for their presentation. The motion passed unanimously. Rep. Arrington was absent for the vote.

6.     Adjourn - The meeting adjourned at 11:35 a.m.


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