Rule-Making Notices
Notice of Hearing
Administration
NOTICE IS HEREBY GIVEN that pursuant to ss.
16.004 (1) and
227.11 (2) (a), Stats., the Department of Administration will hold a public hearing on the emergency rule and proposed permanent rule to amend Chapter
Adm 2 relating to use of state buildings and facilities.
Hearing Information
Date: Friday, July 12, 2013
Time: 2:30 p.m. to 4:30 p.m.
Location: St. Croix Room
WI Department of Administration Building
101 East Wilson Street, 1st Floor
Madison, WI 53702
Appearance at Hearing and Submission of Written Comments
Interested persons are invited to appear at the hearing and present comments on the proposed rule. Persons appearing may make an oral presentation but are also urged to submit facts, opinions, and arguments in writing as well. Facts, opinions, and arguments may also be submitted in writing without personal appearance. Written comments on the proposed rule may be submitted to:
Donna Sorenson
Department of Administration
P.O. Box 7864
Madison, WI 53707-7864
Fax: (608) 267-3842
The deadline for submitting comments to the Department is 4:30 p.m. on July 15, 2013.
Availability of Rules
Copies of this proposed rule and fiscal estimate are available upon request to Donna Sorenson, Department of Administration, P.O. Box 7864, Madison, WI 53707-7864, or by email at
donna.sorenson@wisconsin.gov.
Analysis Prepared by the Department of Administration
Statutes interpreted
Statutory authority
Explanation of agency authority
The Department is the managing authority of numerous state properties and is required to “Have charge of, operate and maintain...the state capitol building...and such other state properties as are designated by law." Section
16.84 (1), Wis. Stats. “The department shall promulgate under ch.
227, and shall enforce or have enforced, rules of conduct for property leased or managed by the department." Section
16.846 (1), Wis. Stats. Additionally, “the managing authority of any facility owned by the state...may permit its use for free discussion of public questions, or for civic, social or recreational activities." Section
16.845 (1), Wis. Stats. Further, “Whoever does or attempts an act for which a permit is required under this section without first obtaining a permit may be fined...or imprisoned...or both."
The Legislature has vested management authority over various state buildings and grounds, including those of the Wisconsin State Capitol, in the Department of Administration since 1979. Section
16.84 (1), Wis. Stats. Since 1979, the Department has permitted the use of these buildings and grounds for the free discussion of public questions and other purposes, so long as such uses did not interfere with the prime uses of these facilities, or otherwise infringe on interests of the state. Section
16.845, Wis. Stats., and s.
Adm 2.04, Wis. Adm Code.
Beginning February 2011, groups of persons began to occupy the Wisconsin State Capitol building without permits. This included appropriating rooms and hallways in the Capitol building for purposes such as camping and storage of bulk supplies. To restore order to the building and return the building to a point where the work of the Wisconsin State Legislature and the Supreme Court of Wisconsin could perform their constitutionally authorized functions without undue disruption, the Department expended funds in excess of $7,400,000 for law enforcement personnel. The continuous occupation of the State Capitol was formally terminated in March of 2011.
Groups of persons continue to occupy rooms in the Wisconsin State Capitol building without permits, including the Capitol rotunda. These groups constitute an exception to the norm. The Wisconsin State Capitol Police (WSCP) issue more than 400 permits annually for the use of various state facilities. Permits are used for a variety of purposes, whether political, non-political, charitable, or commercial. Permits are issued regardless of political party, affiliation, or content.
Occupation of the Capitol rotunda and other areas has caused disruptions to properly permitted events and normal government activities, including but not limited to, a Red Cross blood drive, a high school science exhibit, school group tours, general public tours, and legislative committee meetings and sessions. The State does not refuse permits for the lawful and safe use of the State facilities by any group or groups. Neither can the State allow any group to occupy the Capitol in disregard of the rights of permit holders, public employees, or visitors. It is imperative that the Department continue to gain greater compliance from user groups in order to protect the public safety and welfare.
The Department hereby proposes an order to repeal s.
Adm 2.14 (2) (vr) c.; to renumber and amend s.
Adm 2.14 (2) (vr) a. and b.; to amend ss.
Adm 2.02 (1) (a),
2.04 (1), ( 2), (3), (5) and (7), 2.07 (2), 2.08 (1) and (1) (d), 2.11, 2.14 (2), (2) (v), (2) (vm), and (2) (vm) 5.; and to create ss.
Adm 2.03 (3m),
(3r), and
(6m),
2.04 (1m) and
(1r).
Related statute or rule
Summary and plain language analysis
The objective of the rule is to obtain greater compliance from user groups regarding facility use. This objective will be achieved by codifying historical Department practices and more clearly detailing certain provisions of the administrative code as informed by judicial interpretations.
Section 1 — The proposed change, in combination with a change in Section 3, seeks to clarify the historical interpretation of the Wisconsin State Capitol Police, that the Administrative Rules can be applied in areas under the control of the Legislature, at the invitation of the Legislature.
Section 2 — The proposed changes incorporate definitions found in the Department's Facilities Access Policy, and harmonizes those definitions with existing rules.
Section 3 — There are three proposed changes occurring in this section. The first proposed change, in combination with the change in Section 1, seeks to clarify the historical interpretation of the Wisconsin State Capitol Police, that the Administrative rules can be applied in areas under the control of the Legislature, at the invitation of the Legislature. The second proposed change expands the types of persons who are allowed by rule to apply for a permit from only the listed persons (governmental bodies, non-profits, etc.) to any person, in accordance with the historical practice of the Wisconsin State Capitol Police. The third proposed change incorporates the use of the terms “event" and “exhibit," as found in Section 2 above.
Section 4 — There are two proposed changes in this section. The first proposed change codifies the ability of the Department to set reasonable time, place, and manner restrictions for particular buildings and facilities. Due to the fact that there are dozens of buildings and facilities under the jurisdiction of the Department, and due to the potential for changes to the use of those buildings and facilities, it would not be practicable to incorporate all such time, place, and manner restrictions into the Administrative Code. The second proposed change codifies additional restrictions on the exercise of discretion by the Wisconsin Capitol Police and creates a severability clause.
Section 5 — There are five proposed changes in this section. The first proposed change codifies the ability of the Department to waive the 72 hour application requirement on a neutral basis. The second proposed change removes from the code a provision giving the Department unlimited discretion to resolve conflicts between competing uses. The third proposed change allows the Department to provide additional explanation to the public regarding how costs are applied under the Administrative Code for informational purposes. The fourth change extends protection to persons based upon sexual orientation, which is not found in the existing rule. The fifth change incorporates the use of the terms “event" and “exhibit."
Section 6 — There are two proposed changes in this section. The first change incorporates the use of the terms “event" and “exhibit." The second seeks to further clarify the distinction between when a person is simply holding a sign as part of an event, as opposed to creating an exhibit, by creating a size distinction between the two.
Section 7 — There are two proposed changes to this section. The first change clarifies that a person who creates a hazard in a state building or facility may receive a citation if they refuse to correct or remove the hazard. The second change clarifies that the prohibition applies to all types of decorations and the like, and not simply holiday decorations.
Section 8 — The proposed change is meant to clarify what occurs with confiscated materials given that there are two administrative code provisions dealing with this topic; the clarification is intended to follow the cannon of construction that the more specific rule applies over the more general rule.
Section 9 — The proposed changes are organizational in nature, and are designed to clarify that there were multiple potential citations created under one administrative code subsection in the existing code, Wis. Adm. Code s.
Adm 2.14 (2) (v), in accordance with recent judicial interpretations of that subsection. By dividing the existing subsection into multiple pieces, and by arranging the use of some language more appropriately, the new code section should require less technical expertise to interpret. Additionally, defined terms are incorporated and used in the new code sections.
Section 10 — The proposed changes in this section again continue the clarification of Wis. Adm. Code s.
Adm 2.14 (2) by improving the organization of the subsection.
Section 11 — The proposed change eliminates language now rendered superfluous by improved organization of Wis. Adm. Code s.
Adm 2.14 (2).
Summary of and comparison with, existing or proposed federal regulations
Existing federal regulations vary by agency, state, and facility, and are too numerous to permit meaningful comparative analysis.
Comparison with rules in adjacent states
All adjacent states have similar administrative code provisions. Illinois requires permits for demonstrations or other events to be submitted at least 48 hours in advance of the use, unless the requestor can provide by a preponderance of the evidence that the cause of the event was unknown or resulted from changed circumstances. Michigan does not permit demonstrations or other activities without written authorization. Michigan also requires written authorization for displays, and requires that such requests “normally" be submitted 30 days in advance. Likewise, Minnesota requires a permit, with agreements to be reached regarding topics including, “security, police protection, liability for damages, and cleanup of areas" prior to issuance of a permit. Iowa also requires a written application and approval by written letter or a memorandum of understanding signed by the event director.
Effect on Small Business
The proposed rule changes will have no impact upon small businesses.
Initial Regulatory Flexibility Analysis
The proposed rule will not affect small businesses.
Fiscal Estimate
Modification of the existing rules should decrease the costs of gaining compliance with the rules by reducing the number of issues currently subject to litigation. In the long term, modification of existing rules to conform to practice and to expand the legally recognized categories of permitted users should increase the legitimacy of the permitting process for the general public, leading to greater voluntary compliance and reduced costs.
Summary of Economic Impact Analysis
The rule modifications are expected to have no economic impact. A copy of the Economic Impact Analysis may be obtained from the agency at no charge by contacting Donna Sorenson at:
Department of Administration
P.O. Box 7864
Madison, WI 53707-7864
Fax: (608) 267-3842
