In Case of Emergency, Break Rules
My first reaction to Steve Peoples’ story, yesterday, about legislation to expedite rules changes in light of fiscal emergency was that the day we listen to the Poverty Institute’s Linda Katz on the topic of “the way to run a business” is the day we ought to listen to her on the topic of “the way to run government.” My reaction upon returning to the story when time allowed this morning was to wonder why Peoples and the heavy-breathing Matt Jerzyk, while relying on usual suspects Linda Katz and ACLU-activist Steven Brown (as well as some anonymous “community leader,” in Jerzyk’s case), failed to point out the time-limited nature of the legislation and to explain explicitly what the bill does.
Here, offered with “partisan glasses” left on the endtable, is the bill under scrutiny:
35-3-16.1. Emergency rules and regulations required to address state fiscal crisis. – [Effective January 1, 2008 until August 1, 2008]. Any rules or regulations necessary or advisable to implement the reduction or suspension of appropriations to address a current or impending state fiscal crisis shall be effective immediately as an emergency rule upon the filing thereof on behalf of the sponsoring agency or department with the secretary of state and state agencies or departments related to such rules and regulations are hereby exempted from the requirements of subsections 42-35-3(b) and 42-35-4(b)(2) relating to agency findings of imminent peril to public health, safety and welfare and the filing of statements of the agency’s reasons thereof.
If an agency finds that an imminent peril to the public health, safety, or welfare requires adoption of a rule upon less than thirty (30) days’ notice, and states in writing its reasons for that finding, it may proceed without prior notice or hearing or upon any abbreviated notice and hearing that it finds practicable, to adopt an emergency rule. The rule so adopted may be effective for a period of not longer than one hundred twenty (120) days renewable once for a period not exceeding ninety (90) days, but the adoption of an identical rule under subdivisions (a)(1) and (a)(2) is not precluded. …
Subject to applicable constitutional or statutory provisions, an emergency rule may become effective immediately upon filing with the secretary of state, or at a stated date less than twenty (20) days thereafter, if the agency finds that this effective date is necessary because of imminent perils to the public health, safety, or welfare. The agency’s finding and a brief statement of the reasons therefor shall be filed with the rule in the office of the secretary of state. The agency shall take appropriate measures to make emergency rules known to the persons who may be affected by them.
So, in the timespan between the passage of this legislation and August 1 of this year, solely toward the end of “implement[ing] the reduction or suspension of appropriations to address a current or impending state fiscal crisis,” an administrative agency would be exempt from litigation claiming that “appropriate measures” were not taken to notify affected parties and could enact policies with a longer duration than 120 days. Explanations and statements are required, by other statutes, upon filing.
Unless I’m missing something, this legislation would — within the limited scope of appropriations — accomplish simply a flip of onus, from the executive authority attempting to reduce the budget to the interested parties attempting to expand or maintain it. All rules will be made public and will be amendable through the usual democratic means. Folks who want the money back will just have to bring their case to the public, rather than simply waiting for an expiration of the hold or turning to the courts on procedural grounds.