JULIE SMITH, LEGISLATIVE AND REGULATORY COUNSEL , IOWA ASSOCIATION

OF MUNICIPAL UTIL IT IES

2012 CLERKS INSTITUTEAMES, IOWA

JULY19 , 2012

Legislation and Administrative Rules: Raccoons/Doves and Other Strange Happenings

Delectable

For this presentation we will be discussing – Shooting, Poisoning, the Constitution, Magic, Law Suits, Allegations of Lying and Trickery … and you thought this would be dull…

Research FUN-magazines, websites, blogs

Gun Dog MagazineNRA Hunters RightsOutdoor PressroomBig Game HuntHunting ChatterAmerican HunterHunt for the TruthLead is Poison Coalition

Real Purpose of Presentation

How a Bill Becomes A Law (most bills)How the Administrative Rules Process works

(supposedly)Allow me to use random cartoons and play

Jeopardy

Who do I represent?

City Utilities – Iowa Association of Municipal Utilities

Local Government – League of CitiesSolid Waste Agency – Metro Waste AuthorityHealthcare – Iowa Health SystemDrake Law School, Assistant Professor and

Director of Legislative Practice Center

What Do I Do?

What Do I REALLY Do?

Work to pass legislation that clients wantKILL or amend legislation that clients don’t

wantHow does that happen?

Make sure I KNOW as much as possible about the process and the legislators so that information can be used to support municipal utilities

Daily routine – review ALL bills and amendments that are filed

Discuss with clients

Misunderstood Terms of the Legislative Process

Sine Die – Sine Who?110 days/100 days session – Why does this matter

– they always go over?Per Diem – Per What and Who CaresStanding CommitteesFunnel WeekCaucusConstitutional MajorityKill Bills/Dead Bills – seriously this is the

terminology? Redistricting – HUH??

2012 Session

“Sine Die” – Latin “without day” – final adjournment Senate adopted SCR 102 at 5:23 p.m.BE IT RESOLVED BY THE SENATE, THE HOUSE OF

REPRESENTATIVES CONCURRING, That when adjournment is had on Wednesday, May 9, 2012, it shall be the final adjournment of the 2012 Regular Session of the Eighty-fourth General Assembly.

Sends to the House and they adopted it at 6:13 p.mLast year – 2011 GA adjourned sine die on June 30 –

more than 7 weeks longer than this session2010 session adjourned sine die on March 29

Legislative Pay

Members $25,000/ Leaders President of the Senate $37,500 President Pro Tempore $27,000 Speaker $37,500 Speaker Pro Tempore $27,000 Senate Majority Leader $37,500 Senate Minority Leader $37,500 House Majority Leader $37,500 House Minority Leader $37,500

During the 100 or 110 days of session - members also receive per diem payments of $132/day tied to the federal rate

Plus mileage for one round-trip per week during sessionIowa Code section 2.10 only allows per diem for 100/110 days

After April 17, 2012 – legislators did NOT receive per diem for being in DSM

Legislative Framework

Why does the Legislature do things this way? Article III of the Iowa Constitution vests the legislative

authority of the State in the General Assembly Iowa Code – Chapter 2 Senate and House Rules

To almost every rule there is an exception Masons Rules of Procedure

Article III- Iowa Constitution

Seat of Government is in DSM – Capitol used to be in Iowa City

Designates the number of members in the House (100) and Senate (50)

Sets terms for Senators/Reps, age limitations and residency requirements

Requires the annual sessions to begin on the 2nd Monday of January

Requires that sessions run in two-year cycles – next year will be the first year of the 85th General Assembly The 24th amendment to the Constitution required that the

first annual session be in 1969 – prior to that time session met every two years.

The Mystery of Bills

Where do ideas for bills come from? Bad things that happen

How A Bill Becomes A Law

Very difficult to get a bill passed Roughly 7 – 10 % of all bills filed actually pass

Much easier to kill a bill – 100 Ways to KILL A BILL The “How A Bill Becomes A Law” flow chart makes

it look so logical BUT, Remember the system is set up so that bills DON’T

pass It is a lengthy and complicated system on purpose

(not just so you have to have lobbyists to figure it out)

If every bill that every legislator wanted actually passed we would all be sorry

Where do bills come from?

First step is getting someone to sponsor a bill – We don’t get to just say “hey we need a bill”ONLY legislators, state agencies, or Governor

can have an official bill drafted. Two forms of bills:

Either by Committee Chair – which is a Committee bill – HSB/SSB

Individually sponsored bills – Each legislator can ask that bills be drafted – HF/SF

Dove Hunting bill – OLD issue – not allowed since 1918 (Senator Dearden’s Bucket List)

Customer Records Bill

Members requested that IAMU address the problem of requests for customer records. The bill protects customer records from requests by third parties – it doesn’t affect the ability of the city to use the record and doesn’t stop postcard billing.

It has been a discussion for many years and this year we moved forward to address it.

Once we have the idea – what is the next step? House –Nick Wagner, Chair of Local Government Committee to

sponsor the bill Senate –Jeff Danielson, Chair of Senate State Government to

sponsor the bill. Individually sponsored bill. SF 2058 The Legislator sends the bill request to the Legislative Service

Agency

Legislative Services Agency

Formerly Legislative Service Bureau - Drafts ALL Bills Each bill is assigned to a drafter who specializes in bills in a

particular subject area. In this case - Andrew Ward The bill is drafted and goes through the process and then is sent

to the Legislator for final approval After Legislator Approves

If the bill is a Study Bill – the bill is given a number and is officially assigned to a subcommittee at the next Committee meeting. So, consumer records was given a HSB # and assigned a subcommittee

If the bill is an individually sponsored bill – the bill is officially read in by the Chief Clerk and the Majority Leader assigns it to a particular Committee. SF 2058 was assigned to State Government which is where ALL open meetings/records bills go in the Senate.

Senate House

Agriculture Appropriations Commerce Economic Growth/Rebuild Iowa Education Ethics Government Oversight Human Resources Judiciary Labor and Business Relations Local Government Natural Resources and Environment Rules and Administration State Government Transportation Veterans Affairs Ways and Means

Administration and Rules Agriculture Appropriations Commerce Economic Growth/Rebuild Iowa Education Environmental Protection Ethics Government Oversight Human Resources Judiciary Labor Local Government Natural Resources Public Safety State Government Transportation Veterans Affairs Ways and Means

Standing Committees

Committees Cont.

Usually 21 members in House/15 in SenateMeet once or twice a week during sessionEvery two years new Chairs are appointed to run

Committees. Why? Because elections are held every two years and the Majority Party changes and because legislature functions on two year cycles

The power of a chair Sponsor Study Bills Assign subcommittees Determine agenda– including killing bills If your legislator is the Chair of a Committee municipal utilities

work with – you may hear from me more – speed dial Burger King Story

Lobby the Lobby

At some point – either before or after getting a legislator to sponsor the bill

Important to share language and discuss legislation with other groups who have an interest in the bill. For instance, in the utility lobby, MEC, Alliant, RECs, IUA share information. Example, I shared the language on the customer records bill with the

lobbyist for the Iowa Newspaper Association. They originally filed against it, but once we corrected the language and I explained that we didn’t already have this protection – the lobbyist talked to them re: changing their registration.

That change helped the bill move through the process smoother – without any opposition.

You may have noticed that Rural Water has a section in the bill – that is because some of the rural water districts are subject to open records so they wanted to be added to the bill

Bill Registrations

Anyone who lobbies a legislator or speaks at a subcommittee hearing MUST be registered (with some exceptions)

FOR – AGAINST - UNDECIDEDAll electronically – NEW - can add commentsPublic – purpose is so that we can look at how

other groups are registered - transparencyWho decides for IAMU – typically L & R and

usually done through email correspondence, biweekly conference calls or face-to-face meetings

Subcommittees

Each bill is assigned by the Chair and Ranking Member of the Committee – 3/5/7 member subcommittee The Majority party appoints more people

Subcommittee Chairperson is also Floor Manager Official rules require subcommittee meetings – used to be

“walk around” subcommittees. Increased importance in recent years - most work happens at this

meetingA subcommittee hearing is generally held in a fairly

informal setting. It is the MAIN opportunity to Request an amendment to a bill – clarifying language or agreed to

changes Try to KILL a bill by raising concerns Answer questions from other groups regarding the impact of the bill Sometimes bring in an expert to testify or member

Subcommittees, cont.

Each subcommittee member signs the subcommittee report – must be signed by a majority If a majority of the members don’t like the bill – the bill

won’t pass the subcommittee and will not be eligible for consideration by the full Committee

Customer Records bill was assigned to Representative Jared Klein in the House Senator Matt McCoy in the Senate. (Bob and I met with Senator McCoy before session started.

He is also the Chair of the Commerce Committee and is given all utility bills in other committees that he is on)

Committee

Bill must be called up by the Chair and the Subcommittee Chair “runs” the bill in Committee.

The Subcommittee Chair answers any questions that members may have and offers any amendments that have been agreed to in the subcommittee process.

Other members may offer amendments. The bill must pass by a majority of all members of

the Committee – NOT a majority of those members present – this can make a big difference

Amendments can be adopted by a majority of those present

Committees

All bills must be voted out of the Committee of origin by the first Funnel week. What is FUNNEL?

Every two years dates are established in order to move bills through the process – or funnel the bills so that they are “whittled” down by the end of session Usually an extremely hectic week – everyone is scrambling

to have their bills considered and since all bills now have to have subcommittee meetings it is usually crush of meetings and people in limited space. There have been times when multiple subcommittees are meeting at one time.

Committees, cont.

New development in recent years – Committee “Caucus”. What is a caucus? A way to get around Open Meetings requirements – where

the Committee divides up into D’s and R’s and goes into a closed session to discuss bills and potential amendments.

With the advent of more advanced technology – legislators do more decisionmaking behind closed doors. A bill is not very often brought up for discussion if it is not going to pass.

The parties “go into caucus” all the time – the D’s go in one room and the R’s go in another room and they discuss issues, the daily calendar and anything else that comes up. Caucuses are CLOSED and supposed to be secret.

What happens to a Bill after it is voted out?

After a bill is “voted out” of Committee – if no amendment - House or Senate Calendar for Floor Debate

If amended, it is redrafted You might wonder why do bills get new numbers on them?

A Committee bill – formerly a HSB or SSB becomes a HF/SF with a new number

An individually sponsored bills - some Committees have a rule that anything voted out of the Committee becomes a new bill that shows on the title page that it is actually sponsored by the Committee

Customer Records bill HSB 651 – became HF 2395 after it was voted out of Local Government Committee

SF 2058 stayed the same number because it was not amended

Floor Debate

Ensure that the Majority Leaders in both the House and Senate actually CALL the bill up for debate on the floor. Bills can DIE here all the time. Just because a bill is voted out of

Committee does NOT mean that it will be debated on the floor. Many factors – how controversial is the bill? Who is registered against

it? How much floor time will the bill take for debate – the closer to the end of session, the easier it is to kill a bill due to time constraints

Another FUNNEL deadlineStage of death – bill can die because Majority Leader

doesn’t bring it up – some groups wait until a bill is in the Majority Leaders office and then ask that it be killed (silent death)

For example, Nuclear Energy Bill

Floor Debate

I talked to both staffs for the House and Senate Majority Leaders about our bills - give them appropriate information and let them know if there is any controversy surrounding the bill In the House, the Department of Public Safety decided they may

have some concerns and expressed this right before the bill was to be called up on the floor. They wanted an amendment to say that you would have to disclose records to the police. Other utilities require a subpoena. I argued NO – that we don’t want to have more police influence by right just because we are municipal utilities than the other utilities have. One of our arguments for the bill was that municipal utility customers should have the same right to be protected as other utilities.

The Majority Leaders staff agreed that they wouldn’t run the public safety amendment and they moved the bill that afternoon.

Floor Debate

Must have a Constitutional Majority to pass a bill on the Floor House – 51 Senate – 26

A week ago today – the Senate’s version of Commercial Property Taxes died on the Floor because the vote was 24-22. Even though a majority of the Senators voted for the bill, it wasn’t a Constitutional Majority of 26.

Rare to see a bill brought up and die on the floor.

Governor’s Signature

Once a bill passes both the House and Senate, it is “enrolled” – this means that any amendments that have been adopted are incorporated into the bill and the final bill language is filed.

The Governor can veto any bill or can “item veto” an appropriations bill – which means he can strike a part of the bill without vetoing the whole bill

Effective Dates

All Bills go into effect on July 1 in the year they are passed, unless an immediate effective date is included in the bill

So,…how did the dove bill pass?

SF 83 – Jan. 24, 2011 – Dove bill introduced – sent to Senate Natural Resources

SF 464 – bill passes Committee is redrafted and filed – March 7, 2011

March 22, 2011 – passes Senate 30-18March 23, 2011 – House takes up bill and

substitutes raccoon bill (SF 130) that passed out of House Committee for Dove Bill. This is a tricky maneuver so that the dove bill moved extremely fast and didn’t have to be debated in Committee.

Signed by Governor – March 24, 2011

Why did this go through so quickly?

1st dove season Sept. 2011 since 1918 15 birds/day for 70 days

Senator Dennis Black: “Two issues create the greatest amount of debates – doves and fence law – Even more than gay marriage, death penalty and abortion.”

Authority for Rules

All authority for an agency to write rules comes from the legislature Not all legislation requires adoption of rules. Why?

The executive branch is governed by Iowa Code Chapter 17A – called the Iowa Administrative Procedures Act (IAPA) Over 100 rulemaking entities in the Executive Branch

– 100 authors

IAPA – Chapter 17A

Main Purpose Requires agency to publish a notice detailing intent to

adopt a new rule or revise an existing rule Provides opportunity for public comment Limited opportunity for Gov. and G.A. to exercise

oversight over the process Publication process to distribute the final rule

In the last few years – legislative attention spent on impact of rules Rules and Regulations Tour – Senate/House R’s Senate R’s – comprehensive changes

Chpt. 17A 2012 Legislative Changes

The omnibus standings bill, HF 2465, included provisions relating to administrative rules. Each executive branch agency must create a uniform,

searchable, and user-friendly rules database published on an internet site. The site must include a brief summary of the rulemaking process,

forms for filing comments or complaints concerning proposed or adopted rules, forms for filling a petition for rulemaking, declaratory order or request for waiver of a rule.

Starting July 1, 2012 – an agency has 5 years to conduct an ongoing and comprehensive review of all the agency’s rules. The goal of the review is to identify and eliminate all rules that are

outdated, redundant, or inconsistent or incompatible with statutes and rules. An agency is required to develop a plan of review in consultation with major stakeholders.

How to find rules

New rules are published every two weeks Index IAC arranged alphabetically by agencyTable of reference – on GA website – Code

section to RulesCitation: Agency identification number IAC

specific rule sectionwww.legis.state.ia.us

What does a rule look like?

199—20.1(476)General information.20.1(1)Authorization of rules.Iowa Code chapter 476 provides that the Iowa utilities board shall establish all needful, just and reasonable rules, not inconsistent with law, to govern the exercise of its powers and duties, the practice and procedure before it, and to govern the form, content and filing of reports, documents and other papers necessary to carry out the provisions of this law.Iowa Code chapter 478 provides that the Iowa utilities board shall have power to make and enforce rules relating to the location, construction, operation and maintenance of certain electrical transmission lines.

The application of the rules in this chapter to municipally owned utilities furnishing electricity is limited by Iowa Code section 476.1B, and the application of the rules in this chapter to electric utilities with fewer than 10,000 customers and to electric cooperative associations is limited by the provisions of Iowa Code section 476.1A.

Substance of Rule

Dictated by authorizing legislation – rules cannot be adopted that are at variance with statutory provisions or that amend or nullify legislative intent

An agency cannot just exercise independent rulemaking Limited by the terms of the statute Constitutional delegation of power

4 part test – Statute must be constitutional Statute must specifically authorize promulgation of rules Procedure specified MUST be followed Adopted rule must be within the authority of the agency and be

reasonable

Who is involved in rulemaking

Executive Branch AgenciesGovernor’s Office – Administrative Rules

Coordinator Filing point for all rulemaking – advises Governor

Legislators – Administrative Rules Review Committee

Legal Counsel, Administrative Rules Review Committee – Joe Royce

Legislative Services Agency – Administrative Code Editor

Agency Process

Docketing – list each rule and anticipated rulemaking procedure (IUB dockets)

Publication of Notice of Intended Action in the Iowa Administrative Bulletin Notice contains basic information regarding the

substance of the rule – when hearing, how to submit comments, explanation of why agency is submitting rule

MUST be published not less than 35 days before it is adopted in its final form

Rule must be adopted within 180 days of notice – usually rules adopted 45-90 days. If not, void

Impact of Rule

Fiscal Impact – agency must prepare impact analysis if rule has annual expenditure of $100,000 in one year or $500,000 in 5 years

Regulatory Analysis – evaluate short-term and long-term consequences Can only be requested by ARRC or ARC – if made must issue analysis within

32 after notice is published – extends time period for rule to be implemented to an additional 20 days

Small Business Regulatory Analysis – if substantial impact on small business Can be requested by ARRC, ARC, or 25 persons who qualify as small

business or organization representing 25 people Agency MUST reduce impact of rule that would have a substantial impact

on small business Jobs Impact Statement – Executive Order No.71 – ALL rules

must evaluate impact on jobs

Public Input

Not less than 20 days to submit written comments to agency All “interested persons” can offer any comments without

regard to the nature of their interest Notice must allow for opportunity for public presentation

Not a due process process – no rights to have witnesses, etc. Agency prepares summary of hearing

Agency requested to consider fully ALL written comments and oral submissions and must give “fair and full consideration” (17A.4(1)(b))

Rule Changes

An agency can change the language of the rule based on public comment

Must renotice if changes exceed scope of original notice Are changes a logical outgrowth of comments

received

What if Agency doesn’t follow chapter 17A?

Rule is VOID unless “substantial compliance” Did injury result from procedural defect? Did defect deprive anyone from participation in the

process Is defect an isolated occurrence or part of an ongoing

scheme to avoid rulemaking requirements? Generally, “no harm no foul” standardProcedural defects can be challenged for 2

years after rule is finalized.Substance of rule can be challenged at any

time a person is “aggrieved or adversely affected by the rule.

When is Rule Effective?

Notice of intended action must be adopted in final form

Adopted rule is filed with ARCAdopted rule is again published for 35 days in

the Iowa Administrative Bulletin and indexed and codified in Iowa Administrative Code

Emergency Rules

Process that eliminates notification and public participation process

Can be used only if delay would be “unnecessary, impracticable or contrary to the public interest” Immediate effective date is authorized by statute Rules confers a benefit or removes a restriction Necessary due to imminent peril to public safety, health or

welfare Only need one of these grounds to support emergency rulemaking

Agency required to make “reasonable efforts” to notify affected parties.

Double-barreled filing – allows for public participation under normal rulemaking process

Waiver of Rule

Any person may petition an agency for waiver or variance from rule

Agency has discretion to grant, but can do so only if ALL apply: Undue hardship Would not prejudice substantial legal rights of any person Provisions of rule subject of waiver not mandated by

statute or another law Substantially equal protection of public health, safety, and

welfare will be afforded by means other than the ruleMust evaluate on “unique individual

circumstances”

How to Change a Rule

Petition for Rulemaking - Any interested person can request that an agency adopt, amend, or repeal a rule Ex. IUA request IUB for pole attachment rulemaking Agency must respond within 60 days, but is NOT

required to make the changes – must give “fair consideration” to request

Process allows individuals to demand that agency reexamine its rules and respond to criticisms and suggestions

Gov. office can order review of rule

Petition for Declaratory Ruling

A person can seek advice from an agency regarding application of a particular rule

Petition for Declaratory Ruling – based on specific facts contained in petition

Oversight of Administrative Rules Process

General Assembly – can reverse or modify a rule by amending underlying authority of agency

1984 – Constitutional Amendment article III, section 40 – nullify a rule by joint action of both chambers

Governor – Constitutional mandate to direct the operations of the Executive Branch – “Supreme Executive Power” (Art.IV, sec.1)

Administrative Rules Coordinator – provides Gov with oversight of process – created in 1978, ex officio member of ARRC

Administrative Rules Review Committee – established in 1963

Attorney General – give legal advice to agencies, can “object” (although this has never happened)

ARRC

Independent agency in Legislative Branch 10 members/ 5 House/5 Senate 4 year terms – 3 majority/2 minority party – appointed

by House Speaker and Senate Majority Leader Meets on 2nd Tuesday of each month

ARRC Members

Senate MembersWally E. Horn (D, District 17), ChairMerlin Bartz (R, District 6)Thomas G. Courtney (D, District 44)John P. (Jack) Kibbie (D, District 4)James A. Seymour (R, District 28)House MembersDawn E. Pettengill (R, District 39), Vice ChairDavid E. Heaton (R, District 91)Jo Oldson (D, District 61)Rick Olson (D, District 68)Guy Vander Linden (R, District 75)

ARRC Power

Objection – rule is “unreasonable, arbitrary, capricious, or otherwise beyond authority of agency” Action taken at Committee meeting – requires vote of 6 Subsequent legal action – presumption of validity of rule – Plaintiff has burden to

show that rule was not valid. This changes the presumption of validity – so that the agency bears burden of proving validity

Session Delay – postpones effective date of proposed rule until adjournment of next GA Concern over rule Must be delayed prior to effective date – doesn’t apply to emergency rulemaking Standing Committee must review a rule within 21 days after referral and must

take formal Committee action by sponsoring a joint resolution to disapprove the rule, by proposing legislation relating to the rule or by refusing to take action – IF no action taken, rule will go into affect upon adjournment of the session

Seventy Day Delay – delays rule for 70 days to allow further study General Referral – allows issue to be brought to GA without

impacting validity or implementation of rule

How Can Rules be Stopped?

Governor – limited opportunity to rescind a rule within 70 days of its passage (RICE) – Executive Order No. 72

Legislature – Nullify administrative rule through passage of a resolution (Doves)

Natural Resources Commission

May 2011 - initial rules filed (Handout)May 24, 2011 – public hearing – testimony

resulted in additional rule changesJuly 2011 – Unanimously adopted rule which

included an amendment to the initial rules to ban the use of lead shot (Handout)

What did ARRC do?

Many complaints to ARRC – lobbyists and others representing particular interest groups call legislators on Committee

Testimony before ARRC August 16, 2011 – ARRC voted 9-1 to delay

the rules Session Delay – referred issue to House and Senate

Natural Resources Committees Rule will go into effect if the Legislature does NOT act

Law Suit

March 2012, Sierra Club filed a lawsuit alleging that the ARRC acted unconstitutionally by delaying implementation of the rule

Governor filed an amicus brief – supporting ARRC – whether hunters should be able to use lead shot is the role of the Legislature and NOT an unelected Commission

What did Legislature do?

HJR 2001/SJR2001 – nullified lead shot portion of rule (Handout)

HJR 2001 passed House 73-27Senate did NOT take up the resolution before

session endedArguments FOR/AGAINST

Hunters – steel shot is more expensive and doesn’t work as well

Environmentalists – pellets contaminate the environment, lead is banned in paint, toys, gasoline

Governor

Rule was effective upon adjournment if Legislature didn’t act

Executive Order No. 77 – nullified the rule – can only be nullified within 70 days of the effective date (Handout)

What should you do?

Stay INFORMED about issues Read IAMU’s Capitol Links or League’s Legislative

Link Attend IAMU/League Meetings

Communicate with us We don’t always know how an issue may affect your

community Talk to your legislators – YOUR influence is AMAZING Even if NOT your legislators it is so helpful to take

one minute and say THANK YOU to legislators that help us!!

Participate in ELECTIONS

Contact Information

Julie Smith, jasmithlaw@mchsi.com 515.210.6616

Legislative Information, www.legis.state.ia.us