Evers’ Requests AG Opinion on State Agency Rule making

In July, Attorney General Josh Kaul instituted a new transparency measure at the Department of Justice (DOJ). When he is asked to give a legal opinion on a matter, he will offer the public an opportunity to comment on the topic before he issues his opinion. This new process and website “allows the public to provide information and perspectives.”

Thursday DOJ posted the first opinion the public can weigh in on. The request for an opinion letter came from Ryan Nilsestuen, chief legal counsel for Gov. Tony Evers, sent on the governor’s behalf.

For anyone interested in commenting on this particular issue, here’s some background:

Evers’ request involves a challenge to how the previous attorney general ruled on 2011 Act 21, which involves the rulemaking authority of state agencies and the scope of what the agencies are permitted to do. Wisconsin statutes require an agency to set rules for any policy or statute it governs or enforces. Often it comes down to procedures for administering programs or carrying out the department’s mandated duties.

What is noteworthy from the three-page letter from the governor’s office is that Nilsestuen says the former attorney general got it wrong with his “flawed analysis” when he took some rulemaking powers away from state agencies.

“On their face these statutes grant agencies with broad and explicit rulemaking authority,” he writes. “However in OAG-4-17 former Attorney General Brad Schimel opined that statues like these do not grant rulemaking power despite their plain language…this conclusion is erroneous because it ignores the plain text of the statute…which grants broad rule-making authority.” (OAG-4-17 was Schimel’s opinion that agency’s were more constricted in their ability to write administrative rules. This particular case involved telling the Department of Safety and Professional Services it could not require sprinklers in apartment buildings with four or more units, saying it was too burdensome for builders.)

Administrative rules spell out specific details for statutes and can impact just about any area of state business, from teacher licenses to black bear management to regulating restaurants. Currently pending rules can be found on this calendar.

So should administrative rulemaking authority be an area you find worth sending a comment to Kaul regarding, he makes it simple to do. Go to the public comment page where currently there is only that one opinion request listed. Click on the box that says comment. It asks for your name, phone number, email and gives a place to either write a comment or upload a file.

The public has until Oct. 26 to comment. “There is no set timeline for when the attorney general will rule,” says DOJ spokeswoman Gillian Drummond. “But we know it will be after that 30 days.”

But as the DOJ makes very clear — this is all about transparency and public access to government — so all input that is filed on this new website is open to public review via an open-records request, which DOJ will tell you how to properly do here.

Reprinted with permission of Wisconsin Examiner.