Legislation and Administrative Rules: Raccoons/Doves and Other S trange H appenings

1. Legislation and Administrative Rules: Raccoons/Doves and Other Strange Happenings Julie Smith, Legislative and Regulatory Counsel, Iowa Association of municipal utilities 2012 Clerks Institute Ames, Iowa July19, 2012

2. Delectable For this presentation we will be discussing – Shooting, Poisoning, the Constitution, Magic, Law Suits, Allegations of Lying and Trickery … and you thought this would be dull…

3. Research FUN-magazines, websites, blogs Gun Dog Magazine NRA Hunters Rights Outdoor Pressroom Big Game Hunt Hunting Chatter American Hunter Hunt for the Truth Lead is Poison Coalition

4. Real Purpose of Presentation • How a Bill Becomes A Law (most bills) • How the Administrative Rules Process works (supposedly) • Allow me to use random cartoons and play Jeopardy

5. Who do I represent? City Utilities – Iowa Association of Municipal Utilities Local Government – League of Cities Solid Waste Agency – Metro Waste Authority Healthcare – Iowa Health System Drake Law School, Assistant Professor and Director of Legislative Practice Center

6. What Do I Do?

7. What Do I REALLY Do? • Work to pass legislation that clients want • KILL or amend legislation that clients don’t want • How does that happen? • Make sure I KNOW as much as possible about the process and the legislators so that information can be used to support municipal utilities • Daily routine – review ALL bills and amendments that are filed • Discuss with clients

8. Misunderstood Terms of the Legislative Process Sine Die – Sine Who? 110 days/100 days session – Why does this matter – they always go over? Per Diem – Per What and Who Cares Standing Committees Funnel Week Caucus Constitutional Majority Kill Bills/Dead Bills – seriously this is the terminology? Redistricting – HUH??

9. 2012 Session “Sine Die” – Latin “without day” – final adjournment Senate adopted SCR 102 at 5:23 p.m. BE IT RESOLVED BY THE SENATE, THE HOUSE OF REPRESENTATIVES CONCURRING, That when adjournment is had on Wednesday, May 9, 2012, it shall be the final adjournment of the 2012 Regular Session of the Eighty-fourth General Assembly. Sends to the House and they adopted it at 6:13 p.m Last year – 2011 GA adjourned sine die on June 30 – more than 7 weeks longer than this session 2010 session adjourned sine die on March 29

10. Legislative Pay • Members $25,000/ Leaders • President of the Senate $37,500 • President Pro Tempore $27,000 • Speaker $37,500 • Speaker Pro Tempore $27,000 • Senate Majority Leader $37,500 • Senate Minority Leader $37,500 • House Majority Leader $37,500 • House Minority Leader $37,500 • During the 100 or 110 days of session - members also receive per diem payments of $132/day tied to the federal rate • Plus mileage for one round-trip per week during session • Iowa Code section 2.10 only allows per diem for 100/110 days • After April 17, 2012 – legislators did NOT receive per diem for being in DSM

11. Legislative Framework • Why does the Legislature do things this way? • Article III of the Iowa Constitution vests the legislative authority of the State in the General Assembly • Iowa Code – Chapter 2 • Senate and House Rules • To almost every rule there is an exception • Masons Rules of Procedure

12. Article III- Iowa Constitution • Seat of Government is in DSM – Capitol used to be in Iowa City • Designates the number of members in the House (100) and Senate (50) • Sets terms for Senators/Reps, age limitations and residency requirements • Requires the annual sessions to begin on the 2nd Monday of January • Requires that sessions run in two-year cycles – next year will be the first year of the 85th General Assembly • The 24th amendment to the Constitution required that the first annual session be in 1969 – prior to that time session met every two years.

13. The Mystery of Bills • Where do ideas for bills come from? • Bad things that happen

14. How A Bill Becomes A Law • Very difficult to get a bill passed • Roughly 7 – 10 % of all bills filed actually pass • Much easier to kill a bill – 100 Ways to KILL A BILL • The “How A Bill Becomes A Law” flow chart makes it look so logical BUT, • Remember the system is set up so that bills DON’T pass • It is a lengthy and complicated system on purpose (not just so you have to have lobbyists to figure it out) • If every bill that every legislator wanted actually passed we would all be sorry

15. Where do bills come from? • First step is getting someone to sponsor a bill – • We don’t get to just say “hey we need a bill” • ONLY legislators, state agencies, or Governor can have an official bill drafted. • Two forms of bills: • Either by Committee Chair – which is a Committee bill – HSB/SSB • Individually sponsored bills – Each legislator can ask that bills be drafted – HF/SF • Dove Hunting bill – OLD issue – not allowed since 1918 (Senator Dearden’s Bucket List)

16. Customer Records Bill • Members requested that IAMU address the problem of requests for customer records. The bill protects customer records from requests by third parties – it doesn’t affect the ability of the city to use the record and doesn’t stop postcard billing. • It has been a discussion for many years and this year we moved forward to address it. • Once we have the idea – what is the next step? • House –Nick Wagner, Chair of Local Government Committee to sponsor the bill • Senate –Jeff Danielson, Chair of Senate State Government to sponsor the bill. Individually sponsored bill. SF 2058 • The Legislator sends the bill request to the Legislative Service Agency

17. Legislative Services Agency • Formerly Legislative Service Bureau - Drafts ALL Bills • Each bill is assigned to a drafter who specializes in bills in a particular subject area. In this case - Andrew Ward • The bill is drafted and goes through the process and then is sent to the Legislator for final approval • After Legislator Approves • If the bill is a Study Bill – the bill is given a number and is officially assigned to a subcommittee at the next Committee meeting. So, consumer records was given a HSB # and assigned a subcommittee • If the bill is an individually sponsored bill – the bill is officially read in by the Chief Clerk and the Majority Leader assigns it to a particular Committee. SF 2058 was assigned to State Government which is where ALL open meetings/records bills go in the Senate.

18. Standing Committees Senate House Agriculture Appropriations Commerce Economic Growth/Rebuild Iowa Education Ethics Government Oversight Human Resources Judiciary Labor and Business Relations Local Government Natural Resources and Environment Rules and Administration State Government Transportation Veterans Affairs Ways and Means Administration and Rules Agriculture Appropriations Commerce Economic Growth/Rebuild Iowa Education Environmental Protection Ethics Government Oversight Human Resources Judiciary Labor Local Government Natural Resources Public Safety State Government Transportation Veterans Affairs Ways and Means

19. Committees Cont. • Usually 21 members in House/15 in Senate • Meet once or twice a week during session • Every two years new Chairs are appointed to run Committees. Why? Because elections are held every two years and the Majority Party changes and because legislature functions on two year cycles • The power of a chair • Sponsor Study Bills • Assign subcommittees • Determine agenda– including killing bills • If your legislator is the Chair of a Committee municipal utilities work with – you may hear from me more – speed dial  • Burger King Story

20. Lobby the Lobby • At some point – either before or after getting a legislator to sponsor the bill • Important to share language and discuss legislation with other groups who have an interest in the bill. For instance, in the utility lobby, MEC, Alliant, RECs, IUA share information. • Example, I shared the language on the customer records bill with the lobbyist for the Iowa Newspaper Association. They originally filed against it, but once we corrected the language and I explained that we didn’t already have this protection – the lobbyist talked to them re: changing their registration. • That change helped the bill move through the process smoother – without any opposition. • You may have noticed that Rural Water has a section in the bill – that is because some of the rural water districts are subject to open records so they wanted to be added to the bill

21. Bill Registrations Anyone who lobbies a legislator or speaks at a subcommittee hearing MUST be registered (with some exceptions) FOR – AGAINST - UNDECIDED All electronically – NEW - can add comments Public – purpose is so that we can look at how other groups are registered - transparency Who decides for IAMU – typically L & R and usually done through email correspondence, biweekly conference calls or face-to-face meetings

22. Subcommittees • Each bill is assigned by the Chair and Ranking Member of the Committee – 3/5/7 member subcommittee • The Majority party appoints more people • Subcommittee Chairperson is also Floor Manager • Official rules require subcommittee meetings – used to be “walk around” subcommittees. • Increased importance in recent years - most work happens at this meeting • A subcommittee hearing is generally held in a fairly informal setting. It is the MAIN opportunity to • Request an amendment to a bill – clarifying language or agreed to changes • Try to KILL a bill by raising concerns • Answer questions from other groups regarding the impact of the bill • Sometimes bring in an expert to testify or member

23. Subcommittees, cont. • Each subcommittee member signs the subcommittee report – must be signed by a majority • If a majority of the members don’t like the bill – the bill won’t pass the subcommittee and will not be eligible for consideration by the full Committee • Customer Records bill was assigned to • Representative Jared Klein in the House • Senator Matt McCoy in the Senate. • (Bob and I met with Senator McCoy before session started. He is also the Chair of the Commerce Committee and is given all utility bills in other committees that he is on)

24. Committee Bill must be called up by the Chair and the Subcommittee Chair “runs” the bill in Committee. The Subcommittee Chair answers any questions that members may have and offers any amendments that have been agreed to in the subcommittee process. Other members may offer amendments. The bill must pass by a majority of all members of the Committee – NOT a majority of those members present – this can make a big difference Amendments can be adopted by a majority of those present

25. Committees • All bills must be voted out of the Committee of origin by the first Funnel week. What is FUNNEL? • Every two years dates are established in order to move bills through the process – or funnel the bills so that they are “whittled” down by the end of session • Usually an extremely hectic week – everyone is scrambling to have their bills considered and since all bills now have to have subcommittee meetings it is usually crush of meetings and people in limited space. There have been times when multiple subcommittees are meeting at one time.

26. Committees, cont. • New development in recent years – Committee “Caucus”. What is a caucus? • A way to get around Open Meetings requirements – where the Committee divides up into D’s and R’s and goes into a closed session to discuss bills and potential amendments. • With the advent of more advanced technology – legislators do more decisionmaking behind closed doors. A bill is not very often brought up for discussion if it is not going to pass. • The parties “go into caucus” all the time – the D’s go in one room and the R’s go in another room and they discuss issues, the daily calendar and anything else that comes up. Caucuses are CLOSED and supposed to be secret.

27. What happens to a Bill after it is voted out? • After a bill is “voted out” of Committee – if no amendment - House or Senate Calendar for Floor Debate • If amended, it is redrafted • You might wonder why do bills get new numbers on them? • A Committee bill – formerly a HSB or SSB becomes a HF/SF with a new number • An individually sponsored bills - some Committees have a rule that anything voted out of the Committee becomes a new bill that shows on the title page that it is actually sponsored by the Committee • Customer Records bill HSB 651 – became HF 2395 after it was voted out of Local Government Committee • SF 2058 stayed the same number because it was not amended

28. Floor Debate • Ensure that the Majority Leaders in both the House and Senate actually CALL the bill up for debate on the floor. • Bills can DIE here all the time. Just because a bill is voted out of Committee does NOT mean that it will be debated on the floor. • Many factors – how controversial is the bill? Who is registered against it? How much floor time will the bill take for debate– the closer to the end of session, the easier it is to kill a bill due to time constraints • Another FUNNEL deadline • Stage of death – bill can die because Majority Leader doesn’t bring it up – some groups wait until a bill is in the Majority Leaders office and then ask that it be killed (silent death) • For example, Nuclear Energy Bill

29. Floor Debate • I talked to both staffs for the House and Senate Majority Leaders about our bills - give them appropriate information and let them know if there is any controversy surrounding the bill • In the House, the Department of Public Safety decided they may have some concerns and expressed this right before the bill was to be called up on the floor. They wanted an amendment to say that you would have to disclose records to the police. Other utilities require a subpoena. I argued NO – that we don’t want to have more police influence by right just because we are municipal utilities than the other utilities have. One of our arguments for the bill was that municipal utility customers should have the same right to be protected as other utilities. • The Majority Leaders staff agreed that they wouldn’t run the public safety amendment and they moved the bill that afternoon.

30. Floor Debate • Must have a Constitutional Majority to pass a bill on the Floor • House – 51 • Senate – 26 • A week ago today – the Senate’s version of Commercial Property Taxes died on the Floor because the vote was 24-22. Even though a majority of the Senators voted for the bill, it wasn’t a Constitutional Majority of 26. • Rare to see a bill brought up and die on the floor.

31. Governor’s Signature Once a bill passes both the House and Senate, it is “enrolled” – this means that any amendments that have been adopted are incorporated into the bill and the final bill language is filed. The Governor can veto any bill or can “item veto” an appropriations bill – which means he can strike a part of the bill without vetoing the whole bill

32. Effective Dates All Bills go into effect on July 1 in the year they are passed, unless an immediate effective date is included in the bill

33. So,…how did the dove bill pass? SF 83 – Jan. 24, 2011 – Dove bill introduced – sent to Senate Natural Resources SF 464 – bill passes Committee is redrafted and filed – March 7, 2011 March 22, 2011 – passes Senate 30-18 March 23, 2011 – House takes up bill and substitutes raccoon bill (SF 130) that passed out of House Committee for Dove Bill. This is a tricky maneuver so that the dove bill moved extremely fast and didn’t have to be debated in Committee. Signed by Governor – March 24, 2011

34. Why did this go through so quickly? • 1st dove season Sept. 2011 since 1918 • 15 birds/day for 70 days • Senator Dennis Black: “Two issues create the greatest amount of debates – doves and fence law – Even more than gay marriage, death penalty and abortion.”

35. Authority for Rules • All authority for an agency to write rules comes from the legislature • Not all legislation requires adoption of rules. Why? • The executive branch is governed by Iowa Code Chapter 17A – called the Iowa Administrative Procedures Act (IAPA) • Over 100 rulemaking entities in the Executive Branch – 100 authors

36. IAPA – Chapter 17A • Main Purpose • Requires agency to publish a notice detailing intent to adopt a new rule or revise an existing rule • Provides opportunity for public comment • Limited opportunity for Gov. and G.A. to exercise oversight over the process • Publication process to distribute the final rule • In the last few years – legislative attention spent on impact of rules • Rules and Regulations Tour – Senate/House R’s • Senate R’s – comprehensive changes

37. Chpt. 17A 2012 Legislative Changes • The omnibus standings bill, HF 2465, included provisions relating to administrative rules. • Each executive branch agency must create a uniform, searchable, and user-friendly rules database published on an internet site. • The site must include a brief summary of the rulemaking process, forms for filing comments or complaints concerning proposed or adopted rules, forms for filling a petition for rulemaking, declaratory order or request for waiver of a rule. • Starting July 1, 2012 – an agency has 5 years to conduct an ongoing and comprehensive review of all the agency’s rules. • The goal of the review is to identify and eliminate all rules that are outdated, redundant, or inconsistent or incompatible with statutes and rules. An agency is required to develop a plan of review in consultation with major stakeholders.

38. How to find rules New rules are published every two weeks Index IAC arranged alphabetically by agency Table of reference – on GA website – Code section to Rules Citation: Agency identification number IAC specific rule section www.legis.state.ia.us

39. What does a rule look like? 199—20.1(476)General information.20.1(1)Authorization of rules. Iowa Code chapter 476 provides that the Iowa utilities board shall establish all needful, just and reasonable rules, not inconsistent with law, to govern the exercise of its powers and duties, the practice and procedure before it, and to govern the form, content and filing of reports, documents and other papers necessary to carry out the provisions of this law. Iowa Code chapter 478 provides that the Iowa utilities board shall have power to make and enforce rules relating to the location, construction, operation and maintenance of certain electrical transmission lines. The application of the rules in this chapter to municipally owned utilities furnishing electricity is limited by Iowa Code section 476.1B, and the application of the rules in this chapter to electric utilities with fewer than 10,000 customers and to electric cooperative associations is limited by the provisions of Iowa Code section 476.1A.

40. Substance of Rule • Dictated by authorizing legislation – rules cannot be adopted that are at variance with statutory provisions or that amend or nullify legislative intent • An agency cannot just exercise independent rulemaking • Limited by the terms of the statute • Constitutional delegation of power • 4 part test – • Statute must be constitutional • Statute must specifically authorize promulgation of rules • Procedure specified MUST be followed • Adopted rule must be within the authority of the agency and be reasonable

41. Who is involved in rulemaking • Executive Branch Agencies • Governor’s Office – Administrative Rules Coordinator • Filing point for all rulemaking – advises Governor • Legislators – Administrative Rules Review Committee • Legal Counsel, Administrative Rules Review Committee – Joe Royce • Legislative Services Agency – Administrative Code Editor

42. Agency Process • Docketing – list each rule and anticipated rulemaking procedure (IUB dockets) • Publication of Notice of Intended Action in the Iowa Administrative Bulletin • Notice contains basic information regarding the substance of the rule – when hearing, how to submit comments, explanation of why agency is submitting rule • MUST be published not less than 35 days before it is adopted in its final form • Rule must be adopted within 180 days of notice – usually rules adopted 45-90 days. If not, void

43. Impact of Rule • Fiscal Impact – agency must prepare impact analysis if rule has annual expenditure of $100,000 in one year or $500,000 in 5 years • Regulatory Analysis – evaluate short-term and long-term consequences • Can only be requested by ARRC or ARC – if made must issue analysis within 32 after notice is published – extends time period for rule to be implemented to an additional 20 days • Small Business Regulatory Analysis – if substantial impact on small business • Can be requested by ARRC, ARC, or 25 persons who qualify as small business or organization representing 25 people • Agency MUST reduce impact of rule that would have a substantial impact on small business • Jobs Impact Statement – Executive Order No.71 – ALL rules must evaluate impact on jobs

44. Public Input • Not less than 20 days to submit written comments to agency • All “interested persons” can offer any comments without regard to the nature of their interest • Notice must allow for opportunity for public presentation • Not a due process process – no rights to have witnesses, etc. • Agency prepares summary of hearing • Agency requested to consider fully ALL written comments and oral submissions and must give “fair and full consideration” (17A.4(1)(b))

45. Rule Changes • An agency can change the language of the rule based on public comment • Must renotice if changes exceed scope of original notice • Are changes a logical outgrowth of comments received

46. What if Agency doesn’t follow chapter 17A? • Rule is VOID unless “substantial compliance” • Did injury result from procedural defect? • Did defect deprive anyone from participation in the process • Is defect an isolated occurrence or part of an ongoing scheme to avoid rulemaking requirements? • Generally, “no harm no foul” standard • Procedural defects can be challenged for 2 years after rule is finalized. • Substance of rule can be challenged at any time a person is “aggrieved or adversely affected by the rule.

47. When is Rule Effective? Notice of intended action must be adopted in final form Adopted rule is filed with ARC Adopted rule is again published for 35 days in the Iowa Administrative Bulletin and indexed and codified in Iowa Administrative Code

48. Emergency Rules • Process that eliminates notification and public participation process • Can be used only if delay would be “unnecessary, impracticable or contrary to the public interest” • Immediate effective date is authorized by statute • Rules confers a benefit or removes a restriction • Necessary due to imminent peril to public safety, health or welfare • Only need one of these grounds to support emergency rulemaking • Agency required to make “reasonable efforts” to notify affected parties. • Double-barreled filing – allows for public participation under normal rulemaking process

49. Waiver of Rule • Any person may petition an agency for waiver or variance from rule • Agency has discretion to grant, but can do so only if ALL apply: • Undue hardship • Would not prejudice substantial legal rights of any person • Provisions of rule subject of waiver not mandated by statute or another law • Substantially equal protection of public health, safety, and welfare will be afforded by means other than the rule • Must evaluate on “unique individual circumstances”

50. How to Change a Rule • Petition for Rulemaking - Any interested person can request that an agency adopt, amend, or repeal a rule • Ex. IUA request IUB for pole attachment rulemaking • Agency must respond within 60 days, but is NOT required to make the changes – must give “fair consideration” to request • Process allows individuals to demand that agency reexamine its rules and respond to criticisms and suggestions • Gov. office can order review of rule