AB1070: Bill Text

The bill a) requires committees appointed by agencies to provide advice with respect to rule making to submit a list of the members of the committee to JCRAR; b) makes various changes with respect to the required content and preparation of statements of scope and EIAs for rules, including mandating minimum comment periods for EIAs for rules; c) prohibits an agency from submitting a statement of scope for a proposed rule to the LRB for publication in the register more than 30 days after the date of the governor's approval of the statement of scope without the approval of the governor; and d) codifies current practice by allowing an agency that intends to concurrently promulgate an emergency rule and a permanent rule that are identical in substance to submit one statement of scope indicating this intent.

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This bill 1) prohibits a court from according deference to agency interpretations of law in certain proceedings and prohibits agencies from seeking deference in any proceeding to agency interpretations of law; 2) establishes various requirements with respect to the adoption and use of guidance documents by agencies, including requirements that agencies must comply with in order to adopt guidance documents; and 3) provides that settlement agreements do not confer rule-making authority.

Generally under current law, when reviewing an agency decision in a contested case or other matter subject to judicial review under the law governing administrative procedure for state agencies, a court must accord due weight to the experience, technical competence, and specialized knowledge of the agency involved, as well as discretionary authority conferred upon it. Consistent with the Wisconsin Supreme Court's decision in Tetra Tech EC, Inc. v. Wis. Dep't of Revenue, 2018 WI 75, the bill limits this directive such that a court performing judicial review of such a decision must accord no deference to an agency's interpretation of law.

The bill also provides that no agency may seek deference in any proceeding based on the agency's interpretation of any law.

Subject to various exceptions, the bill defines “guidance document" as any formal or official document or communication issued by an agency, including a manual, handbook, directive, or informational bulletin, that 1) explains the agency's implementation of a statute or rule enforced or administered by the agency, including the current or proposed operating procedure of the agency; or 2) provides guidance or advice with respect to how the agency is likely to apply any statute or rule enforced or administered by the agency, if that guidance or advice is likely to apply to a class of persons similarly affected.

The bill requires each agency to submit each proposed guidance document to the Legislative Reference Bureau for publication in the register and to provide a period for persons to submit written comments to the agency on the proposed guidance document. The agency must retain all written comments submitted during the public comment period and consider those comments in determining whether to adopt the guidance document as originally proposed, modify the proposed guidance document, or take any other action. The bill allows for a comment period of less than 21 days with the approval of the governor. The bill also requires each adopted guidance document, while valid, to remain available on the agency's Internet site and requires the agency to permit continuing public comment on the guidance document. Each guidance document must be signed by the head of the agency below a statement containing certain certifications.

The bill provides that a guidance document does not have the force of law and does not provide the authority for implementing or enforcing a standard, requirement, or threshold, including as a term or condition of any license. An agency that proposes to rely on a guidance document to the detriment of a person in any proceeding must afford the person an adequate opportunity to contest the legality or wisdom of a position taken in the guidance document, and an agency may not use a guidance document to foreclose consideration of any issue raised in the guidance document. The bill also contains other provisions with respect to agency use of and reliance upon guidance documents, allows certain persons to petition an agency to promulgate a rule in place of a guidance document, and makes guidance documents subject to the same judicial review provisions as apply to rules.

The bill requires the Legislative Council staff to provide agencies with assistance in determining whether documents and communications are guidance documents as defined in the bill.

The bill provides that, as of six months after the bill's effective date, any guidance document that does not comply with the requirements in the bill is considered to be rescinded.

The bill provides that a settlement agreement, consent decree, or court order does not confer rule-making authority and cannot be used by an agency as authority to promulgate rules. The bill provides that no agency may agree to promulgate a rule as a term in any settlement agreement, consent decree, or stipulated order of a court unless the agency has explicit statutory authority to promulgate the rule at the time the settlement agreement, consent decree, or stipulated order of a court is executed.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB1070,1 Section 1 . 5.02 (6m) (f) of the statutes is amended to read:

AB1070,12,8 5.02 (6m) (f) An unexpired identification card issued by a university or college in this state that is accredited, as defined in s. 39.30 (1) (d), or by a technical college in this state that is a member of and governed by the technical college system under ch. 38, that contains the date of issuance and signature of the individual to whom it is issued and that contains an expiration date indicating that the card expires no later than 2 years after the date of issuance if the individual establishes that he or she is enrolled as a student at the university or college on the date that the card is presented.

AB1070,2 Section 2. 13.103 of the statutes is created to read:

AB1070,12,11 13.103 Joint committee on finance; state operations expenditures report. (1) In this section:

AB1070,12,14 (a) “State agency” means any office, department, or independent agency in the executive branch of state government, other than the Board of Regents of the University of Wisconsin System.

AB1070,12,16 (b) “State operations” means all purposes except aids to individuals and organizations and local assistance.

AB1070,12,22 (2) Quarterly, beginning in April 2019, each state agency shall submit a report to the joint committee on finance listing all state agency expenditures for state operations in the preceding calendar quarter. The report shall specifically detail all expenditures for administrative supplies and services that are made at the discretion of or to be used by heads of state agencies, secretaries, deputy secretaries, assistant deputy secretaries, and executive assistants.

AB1070,3 Section 3. 13.124 of the statutes is created to read:

AB1070,13,5 13.124 Legal representation. (1) (a) The speaker of the assembly, in his or her sole discretion, may authorize a representative to the assembly or assembly employee who requires legal representation to obtain legal counsel other than from the department of justice, with the cost of representation paid from the appropriation under s. 20.765 (1) (a), if the acts or allegations underlying the action are arguably within the scope of the representative's or employee's duties. The speaker shall approve all financial costs and terms of representation.

AB1070,13,11 (b) The speaker of the assembly, in his or her sole discretion, may obtain legal counsel other than from the department of justice, with the cost of representation paid from the appropriation under s. 20.765 (1) (a), in any action in which the assembly is a party or in which the interests of the assembly are affected, as determined by the speaker. The speaker shall approve all financial costs and terms of representation.

AB1070,13,18 (2) (a) The senate majority leader, in his or her sole discretion, may authorize a senator or senate employee who requires legal representation to obtain legal counsel other than from the department of justice, with the cost of representation paid from the appropriation under s. 20.765 (1) (b), if the acts or allegations underlying the action are arguably within the scope of the senator's or employee's duties. The senate majority leader shall approve all financial costs and terms of representation.

AB1070,13,24 (b) The senate majority leader, in his or her sole discretion, may obtain legal counsel other than from the department of justice, with the cost of representation paid from the appropriation under s. 20.765 (1) (b), in any action in which the senate is a party or in which the interests of the senate are affected, as determined by the senate majority leader. The senate majority leader shall approve all financial costs and terms of representation.

AB1070,14,8 (3) (a) The cochairpersons of the joint committee on legislative organization, in their sole discretion, may authorize an employee of a legislative service agency, as defined in s. 13.90 (1m) (a), who requires legal representation to obtain legal counsel other than from the department of justice, with the cost of representation paid from the appropriation under s. 20.765 (1) (a) or (b), as determined by the cochairpersons, if the acts or allegations underlying the action are arguably within the scope of the employee's duties. The cochairpersons shall approve all financial costs and terms of representation.

AB1070,14,15 (b) The cochairpersons of the joint committee on legislative organization, in their sole discretion, may obtain legal counsel other than from the department of justice, with the cost of representation paid from the appropriation under s. 20.765 (1) (a) or (b), as determined by the cochairpersons, in any action in which the legislature is a party or in which the interests of the legislature are affected, as determined by the cochairpersons. The cochairpersons shall approve all financial costs and terms of representation.

AB1070,4 Section 4. 13.127 of the statutes is created to read:

AB1070,14,22 13.127 Advice and consent of the senate. Any individual nominated by the governor or another state officer or agency, and with the advice and consent of the senate appointed, to any office or position may not hold the office or position, be nominated again for the office or position, or perform any duties of the office or position during the legislative session biennium if the individual's confirmation for the office or position is rejected by the senate.

AB1070,5 Section 5. 13.365 of the statutes is created to read:

AB1070,15,2 13.365 Intervention. Pursuant to s. 803.09 (2m), when a party to an action challenges in state or federal court 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:

AB1070,15,7 (1) The committee on assembly organization may intervene at any time in the action on behalf of the assembly. The committee on assembly organization may obtain legal counsel other than from the department of justice, with the cost of representation paid from the appropriation under s. 20.765 (1) (a), to represent the assembly in any action in which the assembly intervenes.

AB1070,15,12 (2) The committee on senate organization may intervene at any time in the action on behalf of the senate. The committee on senate organization may obtain legal counsel other than from the department of justice, with the cost of representation paid from the appropriation under s. 20.765 (1) (b), to represent the senate in any action in which the senate intervenes.

AB1070,15,18 (3) The joint committee on legislative organization may intervene at any time in the action on behalf of the state. The joint committee on legislative organization may obtain legal counsel other than from the department of justice, with the cost of representation paid from the appropriation under s. 20.765 (1) (a) or (b), as determined by the cochairpersons, to represent the state in any action in which the joint committee on legislative organization intervenes.

AB1070,6 Section 6 . 13.48 (24m) of the statutes is created to read:

AB1070,15,23 13.48 (24m) Repayment of principal on short-term commercial paper. (a) Definition. In this subsection, “commercial paper program" means a program authorized by the building commission for the issuance of short-term, general obligation debt in lieu of long-term, general obligation debt.

AB1070,16,4 (b) Amortization schedule required. For each commercial paper program, the building commission shall establish an amortization schedule for the repayment of principal on debt issued under the program so that a portion of the principal amount of each debt is retired annually over the life of the improvement or asset to which the debt is related. The commission shall provide each amortization schedule established under this paragraph to the joint committee on finance.

AB1070,16,6 (c) Schedule modification. An amortization schedule established under par. (b) may not be modified except as follows:

AB1070,16,10 1. Before the building commission modifies the amortization schedule, the commission shall notify the joint committee on finance in writing of the commission's intention to modify the amortization schedule. The notice shall describe each modification and the reasons for making the modification.

AB1070,16,18 2. If, within 14 working days after the date of the building commission's notice under subd. 1., the cochairpersons of the joint committee on finance do not notify the commission that the committee has scheduled a meeting to review the commission's proposal, the commission may make each modification as proposed in the notice. If, within 14 working days after the date of the commission's notice under subd. 1., the cochairpersons of the committee notify the commission that the committee has scheduled a meeting to review the commission's proposal, the commission may make each proposed modification only upon approval of the committee.

AB1070,7 Section 7 . 13.56 (2) of the statutes is amended to read:

AB1070,17,3 13.56 (2) Participation in certain proceedings. The cochairpersons of the joint committee for review of administrative rules or their designated agents shall accept service made under ss. 227.40 (5) and 806.04 (11). If the committee determines that the legislature should be represented in the proceeding, it shall request the joint committee on legislative organization to designate the legislature's representative for intervene in the proceeding as provided under s. 806.04 (11). The costs of participation in the proceeding shall be paid equally from the appropriations under s. 20.765 (1) (a) and (b), except that such costs incurred by the department of justice shall be paid from the appropriation under s. 20.455 (1) (d).

AB1070,8 Section 8 . 13.90 (2) of the statutes is amended to read:

AB1070,17,23 13.90 (2) The cochairpersons of the joint committee on legislative organization or their designated agent shall accept service made under s. ss. 806.04 (11) and 893.825 (2). If the committee, the senate organization committee , or the assembly organization committee, determines that the legislature should be represented intervene in the proceeding, that committee shall designate the legislature's representative for the proceeding. as provided under s. 803.09 (2m), the assembly shall represent the assembly, the senate shall represent the senate, and the joint committee on legislative organization shall represent the state. In an action involving the constitutionality of a statute, or challenging a statute as violating or preempted by federal law, if the joint committee on legislative organization determines at any time that the interests of the state will be best represented by special counsel appointed by the legislature, it shall appoint special counsel to represent state defendants and act instead of the attorney general and the attorney general may not participate in the action. Special counsel appointed under this subsection shall have the powers of the attorney general with respect to the litigation to which special counsel has been appointed. The costs of participation in the proceeding shall be paid equally from the appropriations under s. 20.765 (1) (a) and (b), except that such costs incurred by the department of justice shall be paid from the appropriation under s. 20.455 (1) (d).

AB1070,9 Section 9 . 13.90 (3) of the statutes is renumbered 13.90 (3) (c) and amended to read:

AB1070,18,7 13.90 (3) (c) The joint committee on legislative organization shall assign office space for legislative offices and the offices of the legislative service agencies as defined in sub. (1m). The joint committee may assign any space in the capitol not reserved for other uses under s. 16.835. Except as provided in ss. 13.09 (6) and 13.45 (4) (c), the joint committee may locate any legislative office or the office of any legislative service agency outside the capitol at another suitable building in the city of Madison.

AB1070,10 Section 10 . 13.90 (3) (a) and (b) of the statutes are created to read:

AB1070,18,10 13.90 (3) (a) In this subsection, “legislative service agency” has the meaning given in sub. (1m).

AB1070,18,13 (b) The cochairpersons of the joint committee on legislative organization shall lease or acquire office space for legislative offices or legislative service agencies under par. (c).

AB1070,11 Section 11 . 13.91 (1) (c) of the statutes is amended to read:

AB1070,18,17 13.91 (1) (c) Perform the functions prescribed in s. 227.15 for the review and resolution of problems ch. 227 relating to administrative rules and guidance documents.

AB1070,12 Section 12. 15.07 (1) (b) 24. of the statutes is created to read:

AB1070,18,20 15.07 (1) (b) 24. The 6 members of the group insurance board appointed under s. 15.165 (2) (j).

AB1070,13 Section 13 . 15.165 (2) of the statutes is renumbered 15.165 (2) (intro) and amended to read:

AB1070,18,25 15.165 (2) Group insurance board. (intro.) There is created in the department of employee trust funds a group insurance board. The board shall consist of the following members:

AB1070,19,1 (a) The governor, the or his or her designee.

AB1070,19,2 (b) The attorney general, the or his or her designee.

AB1070,19,4 (c) The secretary of administration, the director of the office of state employment relations, and the or his or her designee.

AB1070,19,5 (e) The commissioner of insurance or their designees, and 6 his or her designee.

AB1070,19,12 (j) Six persons appointed for 2-year terms, of whom one shall be an insured participant in the Wisconsin Retirement System who is not a teacher, one shall be an insured participant in the Wisconsin Retirement System who is a teacher, one shall be an insured participant in the Wisconsin Retirement System who is a retired employee, one shall be an insured employee of a local unit of government, and one shall be the chief executive or a member of the governing body of a local unit of government that is a participating employer in the Wisconsin Retirement System.

AB1070,14 Section 14 . 15.165 (2) (d) and (f) to (i) of the statutes are created to read:

AB1070,19,15 15.165 (2) (d) The administrator of the division of personnel management in the department of administration or his or her designee.

AB1070,19,16 (f) One individual appointed by the speaker of the assembly.

AB1070,19,17 (g) One individual appointed by the minority leader of the assembly.

AB1070,19,18 (h) One individual appointed by the majority leader of the senate.

AB1070,19,19 (i) One individual appointed by the minority leader of the senate.

AB1070,15 Section 15 . 16.42 (5) of the statutes is created to read:

AB1070,19,22 16.42 (5) (a) In this subsection, “fee” means any amount of money other than a tax that an agency charges a person other than a governmental entity.

AB1070,19,25 (b) Each agency required to submit a budget request under sub. (1) shall include with its request a report that lists each fee the agency is required or otherwise authorized to charge and that includes all of the following:

AB1070,20,2 1. The amount of each fee, or, if a fee does not have a fixed amount, the method of calculating the fee.

AB1070,20,3 2. An identification of the agency's statutory authority to charge each fee.

AB1070,20,4 3. A statement whether or not the agency currently charges the fee.

AB1070,20,6 4. A description of whether and how each fee has increased or decreased since the agency was first authorized to charge the fee.

AB1070,20,7 5. Any recommendation the agency has concerning each fee.

AB1070,16 Section 16. 16.84 (2m) of the statutes is created to read:

AB1070,20,18 16.84 (2m) Send notice to the joint committee on legislative organization of any proposed changes to security at the capitol, including the posting of a firearm restriction under s. 943.13 (1m) (c) 2. or 4. If, within 14 working days after the date of the notice, the cochairpersons of the joint committee on legislative organization do not notify the department that the committee has scheduled a meeting to review the department's proposal, the department may implement the changes as proposed in the notice. If, within 14 working days after the date of the department's notice, the cochairpersons of the committee notify the department that the committee has scheduled a meeting to review the department's proposal, the department may implement the proposed changes only upon approval of the committee.

AB1070,17 Section 17 . 16.84 (5) (d) of the statutes is repealed.

AB1070,18 Section 18. 16.973 (15) of the statutes is created to read:

AB1070,20,25 16.973 (15) By October 1 of each year, submit to the joint committee on finance and the legislature under s. 13.172 (2) a report on the administration of the information technology and communication services self-funded portal. The report shall include the following information regarding the portal for the immediately preceding fiscal year:

AB1070,21,1 (a) A financial statement of state revenues and expenditures.

AB1070,21,3 (b) A list of services available through the portal, identifying services added since the previous reporting period.

AB1070,21,4 (c) Fees charged for each service available through the portal.

AB1070,21,5 (d) The activity level of each service available through the portal.

AB1070,21,7 (e) Any other information the department determines to be appropriate to include.

AB1070,19 Section 19. 20.455 (1) (gh) of the statutes is amended to read:

AB1070,21,13 20.455 (1) (gh) Investigation and prosecution. Moneys received under ss. 23.22 (9) (c), 49.49 (6), 100.263, 133.16, 281.98 (2), 283.91 (5), 289.96 (3) (b), 291.97 (3), 292.99 (2), 293.87 (4) (b), 295.19 (3) (b) 2., 295.79 (4) (b), and 299.97 (2), for the expenses of investigation and prosecution of violations, including attorney fees, and for expenses related to s. 165.055 (3).

AB1070,20 Section 20. 20.455 (2) (gb) of the statutes is amended to read:

AB1070,21,19 20.455 (2) (gb) Gifts and grants. The amounts in the schedule to carry out the purposes for which gifts and grants are made and received. All moneys received from gifts and grants, other than moneys received for and credited to another appropriation account under this subsection, to carry out the purposes for which made and received shall be credited to this appropriation account.