SB887: Bill Text

LRB-6079/1

ALL:all

2017 - 2018 LEGISLATURE

2017 Senate BILL 887

December 3, 2018 - Introduced by Joint Committee on Finance. Referred to Joint Committee on Finance.

SB887,3,4 An Act to repeal 6.34 (1) (b), 6.87 (4) (a) 2., 16.84 (5) (d), 20.395 (2) (fq), 49.79 (9) (d) 1., 165.055 (3), 227.20 (3) (c), 227.46 (3) (a), 227.46 (8), 230.08 (2) (sb), 238.399 (3) (e), 601.83 (1) (b) and 601.85 (4); to renumber 227.138 (1) (a) to (h); to renumber and amend 13.90 (3), 15.165 (2), 49.79 (9) (d) 2., 71.07 (7) (b), 71.365 (1), 108.04 (2) (a) 3. (intro.), 108.04 (2) (a) 3. a. to c., 108.04 (2) (b), 165.08, 165.25 (6) (a), 227.135 (2), 227.135 (4), 227.137 (3) (e), 227.138 (1) (intro.), 227.40 (3) (intro.), 227.40 (3) (a) and 343.50 (1) (c); to consolidate, renumber and amend 6.34 (1) (intro.) and (a) and 6.87 (4) (a) (intro.) and 1.; to amend 5.02 (6m) (f), 5.02 (21), 5.05 (13) (c), 5.05 (13) (d) 1., 5.60 (8) (am), 6.22 (2) (b), 6.22 (2) (e), 6.22 (4) (a), 6.22 (4) (c), 6.24 (2), 6.24 (4) (c), 6.24 (4) (d), 6.24 (4) (e), 6.25 (1) (b), 6.276 (1), 6.86 (1) (b), 6.865 (1), 6.87 (2), 6.87 (3) (d), 6.87 (4) (b) 1., 6.88 (1), 6.97 (1), 7.08 (2) (d), 7.15 (1) (cm), 7.15 (1) (j), 8.12 (1), 8.12 (3), 10.02 (3) (b) 3., 10.06 (2) (d), 10.06 (2) (g), 11.0101 (32), 13.56 (2), 13.90 (2), 13.91 (1) (c), 20.445 (1) (b), 20.455 (1) (gh), 20.455 (2) (gb), 20.455 (3) (g), 45.57, 49.175 (2) (a), 49.175 (2) (c), 71.05 (6) (a) 14., 71.07 (7) (c), 71.36 (1), 73.03 (71), 77.51 (13g) (intro.), 106.05 (2) (b) (intro.), 106.05 (3) (a), 106.13 (3m) (b) (intro.), 106.18, 106.26 (3) (c) (intro.), 106.272 (1), 106.273 (3) (a) (intro.), 106.273 (3) (b), 106.275 (1) (a), 108.04 (2) (a) (intro.), 108.04 (2) (a) 1., 108.04 (2) (a) 2., 108.04 (2) (bm), 165.10, 165.25 (1), 165.25 (1m), 227.01 (13) (intro.), subchapter II (title) of chapter 227 [precedes 227.10], 227.11 (title), 227.13, 227.135 (3), 227.137 (2), 227.137 (4), 227.138 (2), 227.185, 227.20 (3) (a), 227.24 (1) (e) 1d., 227.24 (1) (e) 1g., 227.40 (1), 227.40 (2) (intro.), 227.40 (2) (e), 227.40 (3) (b) and (c), 227.40 (4) (a), 227.40 (6), 227.46 (1) (h), 227.46 (2), 227.46 (2m), 227.47 (1), 227.57 (11), 238.02 (1), 238.02 (2), 238.02 (3), 238.399 (3) (a), 281.665 (5) (d), 343.50 (3) (b), 601.83 (1) (a), 601.83 (1) (g), 601.83 (1) (h), 801.50 (3) (b), 806.04 (11), 809.13 and subchapter VIII (title) of chapter 893 [precedes 893.80]; to create 5.02 (12n), 5.02 (15m), 13.103, 13.124, 13.127, 13.365, 13.48 (24m), 13.90 (3) (a) and (b), 15.07 (1) (b) 24., 15.165 (2) (d) and (f) to (i), 16.42 (5), 16.84 (2m), 16.973 (15), 20.445 (1) (bz), 20.445 (1) (cg), 20.445 (1) (dg), 20.445 (1) (dr), 20.445 (1) (e), 20.445 (1) (fg), 20.445 (1) (fm), 20.940, 35.93 (2) (b) 3. im., 49.45 (2t), 49.45 (23b), 49.791, 71.05 (10) (dm), 71.07 (7) (b) 3., 71.21 (6), 71.365 (1) (b), 71.365 (4m), 71.775 (3) (a) 4., 73.03 (71) (d), 77.51 (13gm), 84.54, 86.51, 108.04 (2) (b) 1. (intro.), 108.04 (2) (b) 2. to 6., 108.04 (2) (bb), 108.04 (2) (bd), 165.07, 227.01 (3m), 227.05, 227.10 (2g), 227.11 (3), 227.112, 227.135 (1) (g), 227.135 (1) (h), 227.135 (2) (a) 2., 227.135 (4) (a) 1. to 6., 227.135 (6), 227.137 (2m), 227.137 (3) (e) 1. to 4., 227.137 (3m), 227.138 (1g), 227.18 (3m), 227.26 (2) (im), 227.47 (3), 238.04 (15), 238.399 (3) (am), 301.03 (16), 343.165 (8), 343.50 (1) (c) 2., 343.50 (3) (c), 601.83 (1) (i), 803.09 (2m) and 893.825 of the statutes; and to affect 2017 Wisconsin Act 59, section 9145 (4w); relating to: legislative power and duties, state agency and authority composition and operations, administrative rule-making process, federal government waivers and approvals, unemployment insurance work search and registration requirements, and making an appropriation.

Analysis by the Legislative Reference Bureau

1.

Generally, under current law, an agency planning to promulgate an administrative rule, including an emergency rule, must first prepare a statement of the scope of the proposed rule (scope statement). A scope statement must be submitted to the Department of Administration for a determination as to whether the agency has the explicit authority to promulgate the rule as proposed in the scope statement. DOA must then report the statement and its determination to the governor who, in his or her discretion, may approve or reject the scope statement. Also under current law, after a proposed administrative rule, including an emergency rule, is in final draft form, the agency promulgating the proposed rule must submit the proposed rule to the governor, who may approve or reject the proposed rule. No agency may promulgate an administrative rule without the written approval of the governor.

In Coyne v. Walker, 2016 WI 38, the Wisconsin Supreme Court held that provisions requiring gubernatorial approval of scope statements and rules are unconstitutional as applied to the superintendent of public instruction.

Consistent with the result in Coyne, this bill exempts rules promulgated by the Department of Public Instruction from the requirements that a) a scope statement be submitted to DOA for a determination of authority and that the scope statement be approved by the governor and b) a proposed rule in final draft form be submitted to the governor and that the governor approve the rule in writing.

2.

This bill requires a state agency to provide a statutory or administrative rule citation for any statement or interpretation of law that the agency provides in its informational materials.

3.

This bill allows the legislature to request an independent retrospective economic impact analysis (EIA) for a rule.

Under current law, either cochairperson of the Joint Committee for Review of Administrative Rules may request an independent EIA for a proposed rule after an agency submits its EIA for that proposed rule. Such a request by the senate cochairperson of JCRAR requires approval by the Committee on Senate Organization, and a request by the assembly cochairperson requires approval by the Committee on Assembly Organization. Current law requires the requester to enter into a contract to perform the independent EIA, and requires the analysis to be completed within 60 days after entering into the contract. Under current law, an independent EIA is paid for by the agency if the independent EIA's cost estimate for the proposed rule varies by 15 percent or more from the agency's EIA, and is paid for by the legislature if the independent EIA's cost estimate for the proposed rule varies by less than 15 percent from the agency's EIA.

Also under current law, either cochairperson of JCRAR may request an agency to conduct a retrospective EIA for existing rules, which must contain certain information and analysis about the economic impact of the agency's existing rules. This bill allows either cochairperson of JCRAR to request an independent retrospective EIA for a rule within 90 days after an agency submits a retrospective EIA for the rule. The bill specifies that a request for an independent retrospective EIA for a rule follows the same procedure and payment method as a request for an independent EIA for a proposed rule.

4.

This bill allows pass-through entities to elect to be taxed at the entity level for purposes of the state's income and franchise taxes.

Under current law, pass-through entities, such as tax-option corporations and partnerships, are generally not subject to the income or franchise tax at the entity level. Rather, any item of income, loss, or deduction flows through to their shareholders, partners, or members, who are then subject to tax.

The bill allows tax-option corporations and partnerships, including limited liability companies and other entities that are treated as partnerships under federal tax law, to elect to be taxed at the entity level for purposes of the income and franchise taxes. An entity that makes the election is taxed at a rate of 7.9 percent on its net income that is reportable to Wisconsin, and the situs of income is determined as if the election was not made. The entity may not claim losses and tax credits except for the credit for taxes paid to other states. The bill also provides that the adjusted basis of the entity's partners, shareholders, or members is determined as if the election was not made. If the entity fails to pay the taxes due, the Department of Revenue may collect the amount from the entity's partners, shareholders, or members. Persons who hold more than 50 percent ownership of the pass-through entity must consent to the election and must consent to any revocation of the election. The bill allows the election to be made for taxable years beginning in 2018 for tax-option corporations and 2019 for other entities.

5.

This bill requires the Department of Veterans Affairs to submit to the Joint Committee on Finance a notification of any transfers of funds from the unencumbered balance of certain appropriations for veterans homes to the veterans trust fund or the veterans mortgage loan repayment fund. Current law allows those transfers to be made without any notification.

6.

Under current law, no later than September 15 of each even-numbered year, each executive state agency must file with DOA the agency's budget request for the succeeding biennium. This bill requires each agency to include with its biennial budget request a report that lists each fee the agency is authorized to charge. The report must also include the following:

1. The amount of each fee or the method of calculating the fee if there is no fixed amount.

2. An identification of the agency's statutory authority to charge each fee.

3. A statement whether or not the agency currently charges the fee.

4. A description of whether and how each fee has changed over time.

5. Any recommendation the agency has concerning each fee.

The bill defines “fee” as any amount of money other than a tax that an agency charges a person other than a governmental entity.

7.

Under current law, the Department of Transportation may make transfers of state and federal funding between highway programs. This bill eliminates this authority.

8.

This bill increases the size of the Group Insurance Board by four members. The new members are appointed, respectively, by the speaker of the assembly, the assembly minority leader, the senate majority leader, and the senate minority leader. The bill also provides that the six members appointed by the governor for two-year terms are subject to senate confirmation.

9.

This bill requires the Building Commission to establish an amortization schedule for each short-term, general obligation debt authorized by the commission. The amortization schedule must provide that a portion of the principal amount of the debt is retired annually over the life of the improvement or asset to which the debt is related. An amortization schedule established as required under the bill may not be modified except as authorized by JCF under passive review.

10.

Under current law, the Department of Children and Families is directed to allocate in each fiscal year specific amounts of money, including federal moneys received under the Temporary Assistance for Needy Families (TANF) block grant program, for various public assistance programs (commonly known as the TANF schedule). Under current law, DCF may reallocate funds that are allocated for one purpose in the TANF schedule for any other purpose in the TANF schedule if the secretary of administration approves the reallocation. Also under current law, if the TANF moneys received from the federal government are less than the amounts appropriated for the purposes under the TANF schedule, DCF is required to create a plan for reducing the amounts of moneys allocated under the TANF schedule and to carry it out if the secretary of administration approves the plan. This bill replaces the authority of the secretary to approve a reallocation or a plan to reduce the moneys allocated under the TANF schedule with passive review by JCF.

11.

This bill separates a single appropriation to the Department of Workforce Development for various workforce training programs, commonly referred to as the Fast Forward program, into a separate appropriation for each program. The bill appropriates the following amounts for each of the following programs for fiscal year 2018-19:

1. Career and technical education incentive grants — $3,500,000

2. Technical education equipment grants — $500,000

3. Teacher development program grants — $0

4. Apprenticeship programs — $225,000

5. Local youth apprenticeship grants — $2,233,700

6. Employment transit assistance grants — $464,800

7. Youth summer jobs programs in 1st class cities (currently only the city of Milwaukee) — $422,400

Under the bill, DWD may request that JCF transfer moneys from the Fast Forward appropriation account to the appropriation accounts for the teacher development program grants and local youth apprenticeship grants to fund those grant programs.

The bill also converts the Fast Forward appropriation from a continuing appropriation to an annual appropriation.

12.

Under current law, DOA contracts with a vendor to provide web-based technology services through a web portal to state agencies, state authorities, units of the federal government, local governmental units, tribal schools, individuals, and entities in the private sector. Revenue received from the fees charged for certain services provided through the self-funded web portal is disbursed as payment to the vendor.

This bill requires DOA to submit to JCF and the legislature by October 1 of each year a report on the administration of the self-funded portal. The report must include the following information: 1) a financial statement of state revenues and expenditures; 2) a list of services available; 3) fees charged for each service; 4) the activity level of each service; and 5) any other information that DOA determines is appropriate to include.

13.

This bill eliminates the power of the attorney general to appoint a solicitor general and up to three deputy solicitors general, each of whom must be licensed to practice law in this state. The effect of the bill is to eliminate the Office of the Solicitor General in the Department of Justice, which represents the state in certain cases on appeal in state and federal courts.

14.

Under current law, the board of directors of the Wisconsin Economic Development Corporation consists of 12 voting members as follows:

1. Six members are appointed by the governor subject to senate confirmation, to serve at the pleasure of the governor.

2. Three members are appointed by the speaker of the assembly, consisting of one majority and one minority party representative to the assembly and one person employed in the private sector, all of whom serve at the speaker's pleasure.

3. Three members are appointed by the senate majority leader, consisting of one majority and one minority party senator and one person employed in the private sector, all of whom serve at the majority leader's pleasure.

Under this bill, the board consists of 18 members. The speaker of the assembly and the senate majority leader each appoint five members to the board, and the appointees need not be members of the legislature nor employed in the private sector. Also, under the bill, the minority leader of each house appoints one member to the board. The membership appointed by the governor remains unchanged.

The bill further provides that the chief executive officer of WEDC is appointed by the board of directors of WEDC and serves at the pleasure of the board. Currently, the governor appoints the CEO.

15.

This bill requires the presidential preference primary to be held on the second Tuesday in March rather than the first Tuesday in April.

16.

Under current law, a qualified elector may apply for an absentee ballot in-person no earlier than the third Monday preceding the election and no later than the Friday preceding the election. Under this bill, a qualified elector may apply for an absentee ballot in-person no earlier than the third Saturday preceding the election and no later than the Friday preceding the election.

17.

This bill requires a party that alleges that a statute is unconstitutional, or in violation of or preempted by federal law, to serve the speaker of the assembly, the president of the senate, and the senate majority leader with a copy of the proceeding. The bill also requires that, in such cases, the assembly, the senate, and the Joint Committee on Legislative Organization (JCLO) are entitled to be heard, representing the legislature and the state.

Under current law, if a statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general must be served with a copy of the proceeding and be entitled to be heard. This requirement exists in the statutes for declaratory judgment acts under s. 806.04 (11). The Wisconsin Supreme Court has also extended the requirement to other types of actions involving claims that a statute is unconstitutional. See Kurtz v. City of Waukesha, 91 Wis. 2d 103, 280 N.W.2d 757 (1979). This bill incorporates the Kurtz rule into the statutes and extends both the current statutory and Kurtz requirements of service and an opportunity to be heard to the legislature when a statute is alleged to be unconstitutional or in violation of or preempted by federal law.

The bill also provides that when a party challenges the constitutionality of a statute, facially or as applied, or challenges a statute as violating or preempted by federal law, as part of a claim or affirmative defense, the assembly, the senate, and JCLO have the right at any time to intervene and participate in the action and may also retain legal counsel other than DOJ. Under the bill, the Committee on Assembly Organization may intervene in the action, as well as obtain legal counsel, on behalf of the assembly; the Committee on Senate Organization may intervene in the action, as well as obtain legal counsel, on behalf of the senate; and JCLO may intervene in the action, as well as obtain legal counsel, on behalf of the state. If JCLO determines that the interests of the state will be best represented by special counsel appointed by the legislature, JCLO must appoint special counsel to represent the state defendants and act instead of the attorney general. In these circumstances, special counsel has the powers of the attorney general with respect to the litigation to which special counsel has been appointed.

Under current law, DOJ deposits settlement funds that are not committed under the terms of the settlement into a DOJ appropriation and may spend the funds only after submitting a plan for the expenditure to JCF for passive review. If JCF does not schedule a meeting to review the proposed plan within 14 days, DOJ may expend the funds as provided in the plan. This bill requires that DOJ must deposit all settlement funds into the general fund. This bill also lapses all unencumbered settlement funds that are currently in the DOJ appropriation into the general fund.

Current law allows the attorney general to compromise or discontinue an action DOJ is prosecuting if the governor approves the compromise or discontinuance. This bill requires JCF to approve the compromise or discontinuance instead of the governor. Current law allows the attorney general to settle and compromise actions in which the attorney general is appearing for and defending the state as the attorney general determines to be in the best interest of the state. This bill requires that, if the action is for injunctive relief or there is a proposed consent decree, the attorney general must submit the settlement or compromise plan to JCF for passive review. If JCF does not schedule a meeting to review the plan within 14 days, the attorney general may proceed, but, if JCF does schedule a meeting, the attorney general may proceed only with the approval of JCF.

The bill further provides that the attorney general may not submit a proposed settlement plan to JCF in which the plan concedes the unconstitutionality or other invalidity of a statute without the approval of JCLO.

18.