Lame duck session

There is a lame duck session next week, the first week of December. The Wheeler Report has the bills that will be passed.

These bills are a mess. The Legislative Reference Bureau evidently has been responding to multiple demands and then rushed all those demands together into these bills. As a result, the same changes are included in multiple bills. For instance, the elimination of the solicitor general’s office is in both LRB 17-6074 and 17-6071. Many other changes are double-listed in these bills.

The media is focusing on the simpler changes to when the 2020 Supreme Court election will occur and changes to WEDC appointments.

Those are small potatoes to what is going on with these bills, however. These bills represent a massive expansion of legislative oversight alongside sharp limitations on executive discretion and authority through administrative agency action.

In this light, the changes in unemployment law are relatively minor. They are included in both LRB-6073 and LRB-6074. In these provisions, the legislature is moving current work search and job registration requirements from Department of Workforce Development administrative rules into statutory language. It seems the legislature wants to take ownership of these changes. So, the hated 8+4 week limits on work search waivers, the requirement to register at the job center of Wisconsin website, and the requirement to provide job search verification will now be statutorily required. It seems that the legislators behind these changes do not understand how most employees and employers in Wisconsin dislike and even hate these requirements.

NOTE: This legislation still allows the Department to modify the availability of work search waivers and establish additional work search waivers. See, e.g., section 37 of LRB-6073 and section 113 of LRB-6074. So, the transfer of these rules into statutory language seems pointless, confusing, and ambiguous. The scope of these possible waivers also seems questionable in light of the other changes discussed below.

In regards to the Department of Workforce Development, these bills (see LRB-6074) also sharply curtail Fast Forward funding for job training. Under Gov. Walker, Fast Forward funding was provided in a lump sum and parceled out by the Department to awardees as needed. The Legislature now both designates where these funds are to go (teacher grants are zeroed out, for instance) and overall funding is cut immediately by $7,345,900.

But, these changes are minor compared to the other administrative changes being proposed.

The legislature is greatly expanding its role in legal oversight of the state’s laws. Lawyers in the state as well as its courts need to know that when a party claims a statute is unconstitutional, that party will not only need to serve the state Attorney General but now also the Speaker, the senate president, and the senate majority leader (and all three will have a right to appear and make legal argument in the case). The solicitor generals who, as noted above, are losing their jobs with the Attorney General are probably getting new jobs with the legislature.

Deference to administrative agencies is also greatly limited. First, there will no longer be a presumption that an agency has followed rule-making procedures for a rule in dispute. See LRB-6074. So, agencies will now need to demonstrate compliance with rule-making requirements whenever those rules are challenged.

Second, the legislature is going further than the Wisconsin Supreme Court in Tetra Tech, 2018 WI 75. In that case, the court allowed some deference for agency experience, technical competence, and specialized knowledge. Now, there is simply no deference whatsoever, and it is illegal for an agency to assert otherwise. See section 126 of LRB 6074.

Third, the legislature will mandate that “guidance” documents must be submitted for review and public comment and that the agency must keep those documents available for public comment when used by the agency. “Guidance” documents are a new category of legal documents that contain information for how or why a state agency acts a certain way but which are not a “standard, requirement, or threshold that is not explicitly required or explicitly permitted by a statute or a rule that has been lawfully promulgated.” LRB 6074/1 at 99 (new Wis. Stat. § 227.112(6)). In other words, guidance documents are the kind of internal manuals and public pamphlets an agency has to guide its own operations and educate the public about what it is doing.

The Department’s disputed claims manual, for instance, provides guidance to Department adjudicators for how to resolve unemployment claims. It would seem that this new statutory language would require the Department to make this document public and even include it in every unemployment hearing.

An agency that proposes to rely on a guidance document to the detriment of a person in any proceeding shall afford the person an adequate opportunity to contest the legality or wisdom of a position taken in the guidance document.

LRB 6074/1 at 98 (new Wis. Stat. § 227.112(3)).

NOTE: Guidance documents can also be transformed into rules per new Wis. Stat. § 227.112(5) by any group or five or more individuals.

Finally, these “guidance” documents must be properly enacted as guidance documents within six months of passage of this new law. LRB 6074/1 at 99 (new Wis. Stat. § 227.112(7)). It is unclear whether already existing “guidance” documents will be grandfathered in or if documents concluded to be “guidance” documents after the six month deadline will be considered legal nullities in some way.

There is much more in these bills. But, these four changes to administrative law represent a far-reaching change in how state agencies operate and what the public can expect from them. As written, there will be litigation and then more litigation just to figure out what all of these changes mean.

For instance, with no deference and the ability of any person to contest the “legality or wisdom” of a guidance document, could every action of a state agency be subject to heightened scrutiny and challenge? It seems so.

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