Lame duck session includes changes to LIRC Redux

As a followup to my previous post about the lame duck changes to the Labor and Industry Review Commission, I have some more information.

First, here is what we know about Commission appointments during the lame duck:

  • Laurie McCallum put in her retirement papers BEFORE the election.
  • In those papers, Jan. 6th was her designated last day.
  • Evers won the election.
  • Walker appointed Georgia Maxwell to McCallum’s seat on Nov. 30th (but formally indicated the appointment is for Jan. 6th).

Yes, you are reading this info correctly. It says on p.1 that the nomination is dated on Jan. 6th but the actual nomination letter is dated Nov. 30th. “Let’s do the time warp, yeaaahhh.”

  • The Senate approved her appointment and 80 others in its lame duck session.
  • The Maxwell for McCallum appointment is allegedly legal because: (1) the Senate can determine for itself what appointments are proper, and (2) an Atty Gen. opinion indicates that appointments in a current term are legit.
  • The Atty General opinion — 76 Op. Att’y Gen. 272 — is rather ambiguous on this appointment. The opinion is essentially saying that a governor and the senate cannot fill future positions. Here, the position does NOT become vacant until 1/6/2019, the last day of the current legislative session. The problem is that Maxwell’s “appointment” is occurring now, before the position is actually vacant. So, the appointment is for a future vacancy in the current (by one day) legislative session — a situation not quite covered by the AG opinion.

Second, the Commission is “securing” a job for its current general counsel.

Recall that the general counsel was previously a person hired by the Commission. When the Commission starting ruling against DWD over unemployment concealment, a provision in the budget was suddenly added to strip some funding from the Commission and make the general counsel an appointee of the governor (and, Senate confirmation for this appointment is not required).

Maria Gonzales Knavel served admirably as the first governor appointee, but she left the job when Gov. Walker proposed eliminating the Commission. When the Commission survived that attack, Gov. Walker appointed Georgia Maxwell as a Commissioner and Karl Dahlen as the new general counsel.

Apparently with the rush of new appointments during the lame duck session, Dahlen’s position was missed.

So, now the Commission has posted for one week, closing on Dec. 21st, a position for a new staff attorney that is apparently a way for Dahlen to remain at the Commission.

And, who thought Gov. Walker was not serious about creating jobs? Here, not even holiday breaks stop his administration from creating jobs for those who might be out of work soon. The big question remains, however: will Dahlen get to keep his six-figure salary of around $120,000 in his new job?

Lame duck session includes changes to LIRC

As there is now some time to review what has been happening with the lame duck session, there are more and more changes to figure out. Some of these changes are at the Labor and Industry Review Commission and involve the three Commissioners there.

Prior to the lame duck session, Georgia Maxwell’s appointment expired in March 2019, Dave Falstad’s appointment expired in 2021, and Laurie McCallum’s appointment expired in 2023.

NOTE: Falstad was appointed in 2015. McCallum was appointed in 2011 and then again in 2017. Bill Jordahl was appointed in 2013 for a term expiring in 2019. When he left LIRC in 2017 (when Gov. Walker proposed eliminating the Commission) for the Public Service Commission, Maxwell replaced him.

But, Laurie McCallum has indicated she is retiring from the Commission in very early January 2019. So, Gov. Walker apparently proposed and the Senate approved on Dec. 4th to appoint Maxwell to fill the remainder of McCallum’s term:

Executive Appointment: Maxwell, Georgia – Georgia E. Maxwell, of Madison, as Commissioner of the Labor and Industry Review Commission, to serve for the term effective January 6, 2019 and ending March 1, 2023.

How can Maxwell be re-appointed to a new term when her current term has not expired and McCallum’s term has not yet expired? And, how can all of this occur in a legislative session that ends this year for service in 2019? Good questions. I do not know the answers.

For comparison to these shenanigans, here is Governor-elect Walker’s letter to then Gov. Doyle. In this letter, Walker asks that political appointees be prevented from returning to their civil service positions. That is, Walker was asking Doyle to stop state employees from exercising their civil service rights under state law to serve in their civil service jobs outside of political influence. Wow.

Note: there was no request from Walker to NOT make any political appointments, because there were none at issue back then. How times have changed. As Bruce Murphy indicates, Doyle essentially did what Walker wanted other than try to get year-late 2009-2011 collective bargaining agreements enacted.

So, Governor-elect Evers will get one appointment to the Commission in 2019. That appointment will require Senate approval, and that person will need to leave that position immediately should the Senate reject him or her under lame-duck SB884 (LRB 6071/1 and 6076/1), if that specific provision is not vetoed by Gov. Walker.

And so, the cautionary notes from Bruce Thompson deserve repeating:

For Vos and Fitzgerald [democracy] is not a consideration: their answer is to establish two sets of laws, one for Republican administrations, a different set for Democrats. They neither understand nor support the concept embodied in John Adams’ comment “For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.”

They also undermine democracy by assuring that the democratically elected government is a weak government, a government unable to fulfill its promises to the electorate. They are doing their utmost to turn the Evers administration into a Republican administration when it comes to policy, in effect trying to annul the election. They want to force Evers’ first term to duplicate Walker’s intended third term.

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.