Legislature(2003 - 2004)
02/10/2004 03:30 PM Senate STA
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SB 287-REGULATION REVIEW
CHAIR GARY STEVENS announced SB 287 to be up for consideration.
He stated the committee was hearing the bill at the sponsor's
request, but he didn't intend to take action that day. He asked
Senator Therriault to step forward.
SENATOR GENE THERRIAULT, sponsor of SB 287, explained he
introduced this bill as a result of his work on a different
piece of legislation relating to regulations formation and the
public's perception of the regulatory process. That bit of
legislation deals with the standards citizens are held to when
they appeal a decision made under regulation. It's the end of
the process when the regulation is being implemented and is
having consequences for constituents, he said.
Because of that work, he began to look at how the Legislature
interacts with regulations as they are formed. He referred
members to the flow chart, "Steps in the Regulation Adoption
Process," and pointed out that sometimes there is a
misinterpretation of the legislative intent when an agency works
with legislators then proposes a regulation. It's upsetting for
constituents to work on legislation only to find that the
regulation has taken an unexpected turn. At that point, the
Legislature has the choice of working to change the direction
the regulation is headed through the public comment period or
pass another piece of legislation.
He and his staff began to explore formalizing the role of the
Legislature for input or notification. This is not to control
the process, he quickly insisted, because regulations are an
administrative function and with the separation of powers, the
Legislature has no constitutional power to control the
regulatory process. However, he would like to explore the early
input option so that if the body that passed the underlying
statute believed there was some misinterpretation, they could
take corrective steps early in the process.
SB 287 would insert legislative legal attorneys into the process
between step 4 and 5 in the flow chart. In step 4 the Department
of Law opens the file and in step 5 the agency publishes and
distributes public notice, additional notice information, and
regulations.
He admitted that Lt. Governor Leman and his staff have some
concerns with the separation of powers issue, but he
reemphasized it isn't his intent to insert the Legislature in
any controlling manner. It's an opportunity to work
cooperatively with the administration to avoid difficulties.
Legitimate concerns relate to the Board of Game and the Board of
Fish. If citizen groups are suggesting changes to regulations
the boards oversee, the board reviews and selects the proposals
they want to move forward. He clarified, "It certainly would not
be in my intent that our legislative legal attorneys review all
of those proposed regulations that are brought to the boards."
Specifically, he said, he was interested in addressing new
legislation that is implemented through the passage of
regulations. This is when the legislative attorneys would be
involved.
With regard to the fiscal impact of the bill as currently
structured, he said he expected to receive the same advice from
the Finance Committee co-chair that he used to dispense. That
is, "Great idea, cost's too much. Come back when you get the
cost down."
SENATOR THERRIAULT admitted that controlling costs might involve
a blend of the current system with the Administrative Regulation
Review Panel and early notification or solicitation of input
into the process.
SENATOR JOHN COWDERY questioned whether legislative legal has
sufficient staff to handle the additional workload or is extra
staff included in the fiscal note.
SENATOR THERRIAULT replied the expense of additional positions
is something that needs evaluation. He noted that the
legislative legal staff has slack time during the interim and
perhaps this function could be performed then.
SENATOR COWDERY asked how long it would take to review the
regulations and give the public time to comment.
SENATOR THERRIAULT opined the legal review could be completed in
a week or two. He pointed to the practice of one department
holding another hostage and stated with certainty that the
Legislature doesn't have the constitutional power to hold up the
process in that fashion. Ideally, the same attorney that worked
with legislators in drafting the bill would look at the
regulations and give an opinion as to whether they were backing
up the stated legislative intent in the new law that was passed.
Although it's not necessary, it's not uncommon for legislators
to solicit opinions from the Attorney General's Office (AG).
There's no requirement for legislators to follow that advice,
but they certainly do take it into consideration because it
doesn't make sense to take steps that would lead to certain
legal challenge. If the regulation writers got a memo from our
legislative legal shop saying, "You're missing the boat here."
They would listen in the hope that it would save headaches down
the line. It could avoid backlash from the public that thought
they knew what to expect when they supported a piece of
legislation, but the regulation went in a different direction.
SENATOR COWDERY asked how many regulations are established in a
year.
SENATOR THERRIAULT replied Mr. Stancliff could probably answer
that question.
DAVE STANCLIFF, staff to the Regulation Review Committee,
reported that Senator Therriault tasked him with finding a way
to bring about positive changes in the process through the
regulatory reform process. A good process works well for any
political persuasion and deals with the balance of power between
the Executive Branch of government and the Legislative Branch of
government.
MR. STANCLIFF reported that the regulatory process that Colorado
employs is one of cooperation. Their legal services aren't
adversarial with the Attorney General's Office and that's the
model in SB 287.
He suggested that the system in Alaska doesn't have the same
level of balance that other states have with regulatory review.
First, it's not uncommon to hear that an agency regulator told a
disgruntled citizen that if they didn't like a regulation they
should speak to their legislator because that's who passed the
bill that made the department establish the regulation. He
admitted that is sometimes valid, but many times it's not
because the regulation that's causing the heartburn has little
to do with the statute that was passed.
The other imbalance is that the Attorney General's Office isn't
involved until after the public comment period. Currently the
public is given an opportunity to comment on an agency's
proposed regulation after which it is sent to the Attorney
General's Office for review. If that office finds fault with the
regulation, it is remanded back to the agency for repair. After
the repair, the commissioner decides whether or not to send the
proposed regulation back through the public comment period.
Often the decision is to skip additional public comment so the
regulation continues through the process and becomes law. The
result is that the public sees a regulation that is different
than the one they commented on.
In response to Senator Cowdery's questions, he said the fiscal
note calls for three full time attorneys, which would be very
costly if you weren't sure of a good return. He estimated that
the number of regulations per year is well over 1,000.
In Colorado, regulation writers realized their work was going to
be screened by the Legislative Branch. Regulations were written
more carefully, there weren't as many. The process saved money
from the start to the end because they didn't send as many back,
they weren't adjudicated the same way because they were better
quality regulations. The investment climate in Colorado changed
significantly.
Using the fishing industry as an example he noted how much
impact one regulation can have in a sensitive and multimillion
dollar industry. Clearly, it's important to get it right the
first time.
With regard to costs he thought that they would come down
significantly if fish and game were left out. "I think you might
eliminate one of those positions," he said
DEBORAH BEHR, regulations attorney with the Department of Law,
said she and Annette Kreitzer were there to talk about
regulatory reform and better interactions with the Executive
Branch. She stated agreement with Senator Therriault's premise
that it's necessary to cooperate for regulations to be better
developed and more responsive to the public.
She expressed the opinion that everything that's in the bill
could be done without a statute and she firmly believes that if
a new statute isn't need, you shouldn't put a new one on the
books.
She said she would be working with Senator Therriault's staff to
determine whether they were looking for a policy review or a
lawyer's review. She has reviewed legislation and found it to be
perfectly legal, but then had to ask the commissioner which
policy direction he or she wanted to take. At that point, the
commissioner talks to policy experts who are usually not lawyers
and selects the policy direction.
MS. BEHR suggested that the committee decide whether they want
to invest expensive lawyer dollars in looking at all the
regulations in the state. Certainly, she asserted, there are
regulations such as local hire and complex tax regulations that
would require a lawyer, but some sort of prescreening by
legislative staff or other non-lawyers would make better use of
your legal services dollars.
She said she would talk to staff about the standards legislative
legal is supposed to be using as compared to the standards that
the Department of Law is supposed to use because they don't
mesh. For example, legislative legal doesn't look at compliance
with drafting legal styles.
Another concern is what happens when legislative legal is busy
and the provision is for a mandatory review and they don't have
the staff to conduct the review in a timely fashion. An
unintended consequence might be that a third party would charge
that the regulations are somehow flawed because the statute says
legislative legal shall review the regulations.
MS. BEHR noted that several agencies have expressed concern
about regulation delays so discussions should take place to
decide what to include. Certainly there's a difference in new
legislation and legislation that is for cost containment and
right now most of the bills she is reviewing deal with trying to
get the state statutes to match a pared down budget. She said,
I don't want to have the department waiting to hear
from legislative legal and then missing time - a month
or two - in implementing a policy call the Legislature
made to pare down a budget. This is of particular
concern in the understaffed areas of health and social
services. If you miss a month in Medicaid, you're
talking about millions of dollars.
She advised that the Department of Law has a budget request in
for a lawyer. It's much easier for the Executive Branch to
garner federal dollars for legal resources than it is for the
Legislative Branch. "So if you believe there is a need for more
legal resources, that certainly is a possibility and at any time
you found a regulation you were troubled with and wanted a legal
opinion, certainly the Department of Law is the resource for
you."
She then brought up a technical concern related to public
records. Because the attorneys at legislative legal aren't part
of the Executive Branch, there isn't a clear attorney-client
privilege. It isn't entirely clear that an opinion written by
legislative legal wouldn't be a discoverable document, which
could be very problematic on a complex oil regulation.
Next she brought up the applicability of regulations in process
pointing out that several industries are waiting for regulations
and there isn't a section in the bill to address that.
She concluded her remarks saying that it is important that the
Legislature wants to better interface with the Executive Branch
and she reemphasized that comments legislators make on
regulations are considered strongly and evaluated seriously.
ANNETTE KREITZER, chief of staff to Lt. Governor Leman, stated
that the Lt. Governor appreciates Senator Therriault's interest
in reviewing how regulations are promulgated and when and how
legislators have an impact on the process. That being said, she
admitted that she's a bit baffled when her office doesn't hear
from legislators during the public comment period because the
public includes legislators. The departments would absolutely
take those comments very seriously, she said.
She showed members a regulation packet and said it lists all the
legislators that got the notice about the regulations being
proposed in response to HB 271, which was passed last session.
There was ample opportunity to comment yet there is nothing in
the packet reflecting that a single legislator had a comment.
The Lt. Governor has assured Senator Therriault that if there is
something about the process that doesn't work, such as more
training for staff or new legislators, they're very willing to
work with him to accomplish his desire to ensure that
legislators are involved early on.
TAPE 04-4, SIDE A
5:00 pm
CHAIR GARY STEVENS asked Ms. Behr about her concern about delays
and whether she had considered what options might be available
to address the delay.
MS. BEHR clearly stated that this bill doesn't stop anyone from
going forward with a project while legislative legal is
reviewing. However, she said if she were commissioner of Revenue
and she knew that legislative legal was looking at regulations,
she'd probably wait for that legal review before proceeding.
She repeated that a screening process would help address the
issue of how quickly a review could be completed. Legislative
legal attorneys should neither spend time looking at minor
regulations that don't require an attorney's expertise nor spend
time doing legal research that the Department of Law isn't going
to use.
CHAIR GARY STEVENS thanked everyone for their comments and
announced SB 287 would be heard again in the future. With
nothing further to come before the committee, he adjourned the
meeting at 5:15 pm.
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