Lawmakers recommend agency rule-making overhaul, with some misgivings

By: - October 6, 2022 6:30 am

George Angelone, executive director of the Indiana Legislative Services Agency, answers a question during an Administrative Rules Review Task Force meeting Sept. 22, 2022. (Indiana Capital Chronicle/Leslie Bonilla Muñiz)

A group of Indiana lawmakers on Wednesday voted overwhelmingly to recommend two sets of changes to state agencies’ rule-making powers – one with more controversy than the other.

No agencies testified specifically on those powers and the impact of the proposals, leading some task force members to express discomfort with the vote.

Sen. Chris Garten, R-Charlestown (Senate Republicans)

“The impetus of this entire bill and task force was to have these public conversations regarding agencies and from agency heads. We’ve found ourselves in a little bit of a predicament,” said Sen Chris Garten, R-Charlestown, who authored the 2022 law establishing the interim Administrative Rules Review Committee.

The group voted swiftly on an uncontroversial, six-item list of changes, which included recommendations of pro-transparency upgrades to the Indiana Register’s website; that the General Assembly be notified of new rules and re-adoptions and that emergency rules not allowed to be effective in perpetuity.

But discussion on a second list included more misgivings.

What went wrong

Garten’s predicament was a resolution adopted by the Legislative Council in May that he said stripped the task force of its power to compel agencies to testify.

Resolution 22-06 finalized the task force’s responsibilities, superseding an old list of study topics that specifically included the ability to “request information or testimony from department or agency heads.”

The new resolution didn’t repeat the provision.

“The idea that we come in here in January with a series of bills or proposals, and we haven’t heard from [the executive branch], strikes me as kind of disrespectful to them and us,” said Rep. Edward DeLaney, D-Indianapolis. “I could support these [recommendations] if we just make it an additional point that we’re going to forward this to these fine folks and invite them to meet with us and to testify.”

Task force Chair Rep. Steve Bartels, R-Eckerty, said he’d “consistently” met with Republican Gov. Eric Holcomb’s office, and that several agencies had been invited. Garten said he’d met with multiple agency heads privately, several of whom told him “they want to be part of the conversation.”

“Unfortunately, due to some legislative powers that were unbeknownst to us when we drafted this and came up with this, we just couldn’t do that, as far as … having them publicly testify,” Garten added.

Rep. Greg Taylor, D-Indianapolis, who is both a member of the task force and council, said he didn’t remember voting to effectively remove that power, and that the result was not his intention.

Some uncomfortable

Lawmakers of both parties remarked on the lack of agency input.

Proposed recommendations, list 2:

The General Assembly should consider:

  • Defining an emergency rule, or outline specific circumstances for when they’re appropriate and require pre-adoption review by the Office of Management and Budget
  • Giving the governor authority to end an agency’s emergency rule
  • Requiring agencies to submit information on rule alternatives, rule impacts on small businesses and more for public transparency in the Indiana Register
  • Requiring the Office of Management and Budget to review proposed rules before agencies submit notices of intent to adopt the rules
  • Restricting agencies’ ability to promote or favorably evaluate employees based on the fees and fines the employee has imposed
  • Reviewing laws that give agencies the power to impose fees and fines, set the dollar amounts and use the money
  • Capping agency accounts filled by fees and fines to a certain dollar amount

Source: Indiana General Assembly

A representative of the Indiana Economic Development Commission spoke in September, focusing on the agency’s own role in protecting small businesses in the rulemaking process. And the Indiana Department of Environmental Management submitted a written summary of its rulemaking procedures and adopted rules before Wednesday’s meeting.

But Bartels previously told the Capital Chronicle he’d also hoped to hear from the Department of Natural Resources, the Indiana Gaming Commission, the Indiana Alcohol and Tobacco Commission, and other agencies that interact more with everyday residents and businesses.

Some, mostly Democrats, expressed hesitance to recommend the General Assembly make specific changes in the next legislative session without hearing from agencies.

“We absolutely cannot go forward without having witnesses from the state administration to explain their policies and their procedures and whether our ideas are harmful to the agency,” DeLaney said. “Then, of course, the public has a right to come in and say that our policies, or our proposed changes, are good or bad for them.”

DeLaney emphasized that he’d support the recommendations given pre-session consultation with the agencies.

“The recommendations of the committee, to me, says we have done our due diligence in studying these issues very thoroughly,” said Rep. Chris Campbell, D-West Lafayette, later in the discussion. “But without — I would say — half of the information, I don’t feel comfortable making recommendations.”

Garten countered.

“I’m less concerned about what agencies want and more concerned about what my constituents expect,” he said. “For me, as elected officials in the positions that we hold, in my opinion, … when we’ve conceded power, given power, through legislative action to unelected officials, we have responsibility to sort of manage that to some extent.”

The task force adopted the recommendations on the second, more controversial list, on a vote of 7-1.

Taylor said his “no” was influenced by his new understanding of the Legislative Council’s actions.

“I don’t agree with a couple of [the recommendations],” he said. “I just don’t want it to go down — just like I’ve been put in this position now — that Sen. Taylor supported everything, all eight, on this task force recommendation list.”

Left unresolved: DeLaney’s request for specific fixes aimed at particular agencies, like to address the years-long delays in Indiana Professional Licensing Agency rule-making. Several industry groups told the task force in September that the delays were creating expensive headaches.

Also unresolved: How to foster accountability at agencies with those delays, whether through penalties, as Bartels floated, or a disclosure and reporting mechanism suggested by Sen. Eric Koch, R-Bedford.

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Leslie Bonilla Muñiz
Leslie Bonilla Muñiz

Leslie covers state government for the Indiana Capital Chronicle with emphases on elections, infrastructure and transportation. She previously covered city-county government for the Indianapolis Business Journal. She has also reported on local, national and international news for the Chicago Tribune, Voice of America and more. She holds an undergraduate degree in journalism from Northwestern University.

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