Scope Statements
Administration
This statement of scope was approved by the Governor on October 8, 2013.
Rule No.
Relating to
Use of State Buildings and Facilities.
Rule Type
Emergency and Permanent.
1. Finding/Nature of Emergency (for Emergency Rule Only)
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. See
Wis. Stats. s.
16.84 (1). 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.
See
Wis. Stats. s.
16.845; Wis. Admin. Code s.
Adm 2.04.
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 to 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 issued 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 governmental 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 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 public safety and welfare.
Recently, the Department has engaged in mediation discussions with the American Civil Liberties Union as part of an on-going lawsuit related to the rules. Possible resolutions that would not compromise the ability of the Department to protect the core functions of the building have been discussed. This scope statement accounts for possible resolutions discussed with the ACLU, while still preserving the ability of the three Constitutional branches of government to function within the building. To that end, acoustical testing performed in preparation for litigation may provide input for balancing uses of the Capitol with the functioning of our representative democracy; the ACLU was informed of this possibility in the course of mediation.
2. Detailed Description of the Objective of the Proposed Rule
The objective of the proposed rule is to obtain greater compliance from user groups regarding facility use. This objective will be achieved by codifying historical Department practices, more clearly detailing certain provisions of the administrative code as informed by judicial interpretations and mediation discussions.
This proposed rule-making may do the following:
A. Codify the WSCP's historical practice of issuing permits to any person requesting such permits, rather than restrict permit requests to only a limited class of governmental officials, non-profit organizations, and the like.
B. Codify limits on the discretion of the WSCP currently found in the Department publication entitled, “Wisconsin State Facilities Access Policy" (WSFAP).
C. Codify historical practices and constitutional protections found in the Department's current facilities use policy manual, including, but not limited to, the appeals procedure.
D.
Adopt the historical interpretation of the WSCP, that persons may be cited for violations of Wis. Admin. Code s.
Adm 2.14 (2) for conduct occurring in rooms reserved for use by the Legislature.
E. Define terms such as “event," “exhibit," and “room," or others as deemed appropriate to increase the clarity of the code.
F. Codify alternative avenues for use of state facilities, including the “spontaneous event" exception developed as part of the facilities use manual, and the creation of a lesser category of “notice" use, which, could be superseded by a permitted event or by DOA-led tour groups.
G. Further clarify the distinction between an exhibit and signs and the like which are incidental to events.
H.
Further clarify that a person who creates a hazardous condition and refuses to cease doing so may be cited for such conduct under Wis. Admin. Code s.
Adm 2.14 (2) (zd).
I. Further clarify that even common materials can pose a hazard when used or deployed in a hazardous manner.
J. Further clarify that materials deployed in a hazardous manner may be disposed of by WSCP.
K.
Further clarify the appropriate interpretation of Wis. Admin. Code s.
Adm 2.14 (2) (v) by sub-dividing the text.
L. Codification of the ability of the Department to set specific decibel limits for events after considering the place where the event is occurring, the time the event is occurring, and the needs of other normal uses of the place; in the alternative, codification of specific decibel limits.
M. Codification of factors to be considered in setting limits on the number of persons who may attend events in or on state buildings or facilities, or in the alternative, codification of specific numerical limits by location, date, time, and other uses affected.
3. Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
Policies relevant to the rule are existing policies as found in Wis. Stats. ss.
16.84 and
16.845, Wis. Admin. Code ch.
Adm 2, and the historical interpretations of the law as found in WSFAP. Alternatives to codifying historical practice and further clarifying the existing administrative code include: a) terminating the use of the Wisconsin State Capitol as a designated public forum; b) restricting the manners of use of the designated public forum; or c) disposing of the permitting system in favor of a “voluntary permit system."
Terminating the use of the Wisconsin State Capitol building as a designated public forum is an alternative. The United States Capitol building and a substantial number of other state capitol buildings are not public forums. Employing this alternative is not desirable since the vast majority of users have demonstrated that they are capable of holding events or displaying exhibits without undue interference with the functions of the Legislature or the Department. Similarly, restricting the manner of use (e.g., prohibiting rallies and the like) in the Wisconsin State Capitol building is an alternative that is not recommended for the same reasons.
Allowing the free use of the Capitol building without need for a permit is not practicable. There is no known legal or factual precedent for this type of arrangement in any other state capitol buildings. More importantly, the potential for conflict between user groups is too high to make such an approach a realistic or practical alternative, as demonstrated by the issues cited in the finding of emergency.
4. Detailed Explanation of Statutory Authority for the Rule, Including the Statutory Citation and Language
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." Wis. Stats. s.
16.84 (1). “The department shall promulgate under ch.
227, and shall enforce or have enforced, rules of conduct for property leased or managed by the department." Wis. Stats. s.
16.846 (1). 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." Wis. Stats. s.
16.845 (1). 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."
Id.
5. Estimate of Amount of Time that State Employees Will Spend Developing the Rule and Other Resources Necessary to Develop the Rule
Excluding time spent reviewing existing rules, historical information, and other sources in the preparation of this scope statement, we estimate that completion of the Final Draft of this emergency rule will require an additional 80 hours of staff time.
6. List with Description of all Entities that may be Affected by the Proposed Rule
This proposed emergency rule will clarify and protect the rights of all of the hundreds of user groups who obtain permits to use State facilities each year, as well as the Legislature, Supreme Court, the Attorney General's Office, and the numerous citizens and school groups who visit or work in our State Capitol and other State facilities.
7. Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
Existing federal regulations allow no permitted activities inside the U.S. Capitol building. Existing federal regulations require permits of activities on the exterior grounds of the U.S. Capitol whenever 20 or more persons are involved. Existing federal regulations concerning other facilities vary widely by the nature and location of the facility.
8. Anticipated Economic Impact of Implementing the Rule. Also, Please Note if the Rule is Likely to have an Economic Impact on Small Businesses
None.
9. Contact Person
Andrew Hitt, Assistant Deputy Secretary
Department of Administration
P.O. Box 7864
Madison, WI 53707-7864
(608) 266-1741
Agriculture, Trade and Consumer Protection
This statement of scope was approved by the Governor on October 11, 2013.
Rule No.
