Hey, this is new to me! Senate State Affairs has proposed Senate Bill 186, a measure that amends not only state law but administrative rules on state employee leave policies.
There are three kinds of “law” in South Dakota. There’s the South Dakota Constitution, which sets the general principles of state government and which only we voters can change. There’s codified law, all 71 glorious titles of statutes that are mostly written by the Legislature, with occasional revision by us citizens through initiative and referendum. And then there are the administrative rules, all sorts of arcanities written by various state agencies to carry out what the constitution and codified law require. South Dakota Codified Law 1-26-1 defines “rule” as “each agency statement of general applicability that implements, interprets, or prescribes law, policy, procedure, or practice requirements of any agency.”
Until today, every bill I’ve ever read has dealt with codified law. But Senate Bill 186, the last bill in the Senate hopper, tinkers with five statutes and five administrative rules. The intent, it appears, is to allow new employees to take vacation time before they’ve accumulated six months of service and to move the rates at which employees accumulate vacation leave from statute to rule. I’m not an expert on personnel policies, but I don’t get the impression the Legislature is doing any harm here.
But the Legislative Research Council is sufficiently alarmed to place an asterisk next to the links to the text of SB 186 and provide this warning:
*The LRC has determined that this version of SB 186 does not meet the form requirements for a bill, owing to its directly amending administrative rules [LRC, note on 2020 SB 186, introduced 2020.02.07].
On the last page of its 2019 Guide to Legislative Drafting, the LRC recommends, “A bill designed to amend an agency’s rule should preferably amend the agency’s statutory authority to adopt rules to restrict or prohibit the agency from passing rules in the area of concern.”
SB 186 may violate more than form requirements. It may violate SDCL 1-26-4, which requires that changes to rules follow a very clear notice, service, and public hearing procedure that does not involve the Legislature until the very end, when the Rules Review Committee lives up to its name. Proposed rule changes must be served to the agency chief and published “by an organization which is not part of the state government and… is generally available to the public at a reasonable cost” at least twenty days before a public hearing along with notice of said public hearing. The agency chief and the Bureau of Finance and Management commissioner must also receive a fiscal note, small-business-impact statement, and notice of hearing. “All interested persons” get “reasonable opportunity to submit amendments, data, opinions, or arguments at a public hearing held to adopt the rule.” A majority of board or commission members authorized to pass rules must be present at that public hearing. The rulemaker is supposed to take written comment as well.
I don’t see a statute allowing the Legislature to make rules. SDCL 1-26-6.7 says the only way to amend a rule is through the above procedure… and in posting SB 186 on February 7, publishing its complete text nowhere but on the LRC website, and scheduling its first public hearing on February 19 before Senate State Affairs, just twelve days after introduction, the Legislature appears not to be following the law.
Now as I said, SB 186’s changes to leave policy doesn’t appear to hurt any state employees, but rules are rules and laws are laws and the Legislature can change one but not the other, at least not, apparently, by the normal lawmaking process.
Sounds to me like state employees need to organize and collectively bargain these issues.
If the only way to amend a rule is through the procedure Cory posted then House Bill 1288 from Representative Mary Duvall (R-24/Pierre) which adds disorderly conduct and protests to the conditions under which the Governor may suspend the rules of any state agency must be invalid.
Absent some state constitutional grant of independent authority, no agency has any greater authority to make or enforce rules than the authority delegated by the legislative branch. Indeed, one rather arcane but still potentially viable challenge to a statute is that the legislature delegated too much authority to any agency. See e.g.,
https://en.wikipedia.org/wiki/Nondelegation_doctrine
With that background it seems fundamental that the legislature may do whatever it chooses, subject only to the express or implied restrictions of the SD or US Constitution, to rewrite, repeal, interpret or otherwise affect any agency rule.
As for the notice requirements and due process, the legislative process of publicly introducing bills, holding hearings, and voting on them more than satisfies the currently accepted concept of federal and state constitutional due process requirements and moots (sorry David!) any statutory requirement that an agency give public notice and an opportunity to be heard on proposed rules or changes.
I really don’t understand where the LRC is coming from on this topic, as the above information is fundamental and taught to virtually all 1st years law students, as well as taught in many high school and college civics classes.
Old hat, Mr. H. Law bills have changed administrative rules for decades. Statutes thump rules as they say. And I like them to say that. Let this be a moment you learn a thing.
The process of the SDGOP ignoring laws as their whims dictate is continuing.
Grudz and Cory,
The LRC is right. That bill is one stinking mess of lawlessness.
Technically, the Legislature grants authority in statute to administrative agencies to promulgate rules. The rules have the force of law. In fact, they do that right in this bill! They can take away that authority, however, with a law, which they don’t do. What they can’t do is violate other statutes which govern how rules are made and amended.
It appears there is some time issue, otherwise they would just let the rules process run. Rules can be done on an emergency basis. Maybe there is some beef going on that we don’t know about. Who would know about the genesis of this bill? Where is the South Dakota Employee group on this?
They can toll the rules and put the changes they want in statute. Rules must ultimately comply with the statutes. That takes a little time. If they are concerned about time, rules can be done on an emergency basis.
One wonders if this is an end run around someone. I don’t know why they just don’t follow the law. Is there any opposition to the change?
I usually don’t find my analysis that far off from Don’s analysis on legal issues. Let me explain a bit further and see where Don thinks I have erred.
Cory’s post offers this apparent quote from the LRC:
South Dakota’s Administrative Procedures Act (APA) is codified at SDCL ch 1-26. The act begins with definitions. The definition of “Agency” explicitly excludes the legislature:
SDCL 1-26-1(1).
The APA sets forth the requirements for directly amending administrative rules. Without elaborating, it appears each section applies to an “Agency” rather than another legal body, such as the legislature.
SDCL 1-26-4.
These statutes combine to describe the procedure that an “Agency” must follow, and explicitly exclude the “legislature” from the defintion of “Agency.” They contain no explicit limitations on the authority of the legislature and I could find none throughout the entire SD APA. Indeed, as Cory points out ” SDCL 1-26-6.7 says the only way to amend a rule is through the above procedure,” and this statute specifically references only “compliance with § 1-26-4 or 1-26-5, and with § 1-26-6. . . ” (As with 1-26-4, sections 5 and 6 also explicitly only impose the procedural requirements on an agency rather than the legislature).
And referencing Cory’s comment, “I don’t see a statute allowing the Legislature to make rules,” I believe the state legislature, as opposed to the federal Congress, has plenary authority to do anything at all, including enacting rules, unless explicitly or implicitly restricted by the federal or state constitution. Hence there is no need for such a statute.
Finally, as to the bill’s form, I saw no statute cited that required a bill to an LRC “recommendation” from the 2019 Guide to Legislative Drafting.
I not saying this is good policy but I would sure appreciate Don’s explanation about what particular statutes or constitutional provisions make this particular bill unlawful. What am I missing or failing to understand?
Mr. Pay, your memory is as weak as your old aunt Marmis. Do you not remember HB 1035 from just the other year? Or dozens of other bills? Llet me recon your memory about the failures of the Council of the Legislatures and their repeated buffoonerism.
http://sdlegislature.gov/Legislative_Session/Bills/Bill.aspx?File=HB1035ENR.htm&Session=2018&Version=Enrolled&Bill=1035
this, young sir, is but one of hundreds of law bills run back when the Councils of the Research of Legislatures was much stronger, and less the mess that all agree it is today. Back then, those fellows did not have these young pups with no chops mucking about. Back then, things were solid and not buffoonish.
Back then, Mr. Pay, we were not run by buffoons.
In the debates, grudznick always wins. It does chafe the arses of the libbies, but grudznick still always wins.
Tomorrow, at the opening rant of the Conservatives with Common Sense, there will be a surprise presenter. Spoiler: it is not grudznick
What should I wear, g?
It’s a separation of powers argument. Executive agencies promulgate rules in the manner provided by the Legislature. As LRC noted, the Legislature can change how the administrative agencies go about rulemaking, it can change the underlying law that the rules are tied to, but it can’t reach into the Executive Branch and willy nilly amend those rules. To see that this is true, there is a very limited power provided to the Legislature by a Constitutional Amendment for a limited Legislative power in regard to rulemaking.
South Dakota Constitution Article 3 § 30. “Power of committee of Legislature to suspend administrative rules and regulations. The Legislature may by law empower a committee comprised of members of both houses of the Legislature, acting during recesses or between sessions, to suspend rules and regulations promulgated by any administrative department or agency from going into effect until July 1 after the Legislature reconvenes.”
The power is limited to one committee suspending rules and regulations for a specified period to allow the Legislature to clarify the law upon which the proposed rule was written. It says nothing about amending rules. In fact there is a process whereby a legislator or the Legislature as a body can comment on and affect a rule. That is the administrative process of 1-26. That is the process the Legislature has provided the rulemaking process.
There is no power given the Legislature to directly intervene in or interfere with the executive power, particularly of “faithful execution of the law.”
Constitution Article 4 § 3. Powers and duties of the Governor. The Governor shall be responsible for the faithful execution of the law. He may, by appropriate action or proceeding brought in the name of the state, enforce compliance with any constitutional or legislative mandate, or restrain violation of any constitutional or legislative power, duty or right by any officer, department or agency of the state or any of its civil divisions. This authority shall not authorize any action or proceedings against the Legislature.
The question I have is whether “He” in this article means that Governor Noem can’t actually exercise the powers of Governor. Maybe there should be an Amendment that deals with pronouns in the Constitution.
bearcreekbat is correct.
For what it is worth, the Legislature has amended and repealed Administrative rules many, many times in the past, without push back from LRC. For example, in 2019, SB1 and HB 1011 did so. Other bills proposed to do so, without any such notation (SB 144 and HB 1221), but failed on the merits. This is common every session.
This is a new interpretation by LRC without a valid basis.
That is an interesting perspective Don. Thanks for clarifying your analysis.
I agree that the executive branch is tasked with executing whatever silliness our legislature has decided to inflict upon us. And, of course, rule-making agencies are a part of the executive branch.
I am not sure I would agree, however, that “There is no power given the Legislature to directly intervene in or interfere with the executive power, particularly of “faithful execution of the law” when it comes to making or enforcing administrative rules enacted to implement legislative mandates.
Indeed, if such a proposition were correct, then it would invalidate the entire SD APA since that set of laws explicitly and directly intervenes and interferes with executive (agency) discretion on how to faithfully execute the law by significantly restricting agency rulemaking authority and procedures.
As noted earlier, subject to some explicit restrictions by the federal or state constitutions, state legislatures otherwise generally have what is considered a type of plenary legislative power.
https://fas.org/sgp/crs/misc/RL30315.pdf
Hence, there normally is no requirement for any particular explicit grant of power beyond the Article III, § 1 SD Constitution’s grant, which states “The legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives.”
Article 3 § 30 contains no such explict restrictions pertaining to rulemaking through bills or laws enacted by the typical legislative process that I can find, nor does it purport to be the exclusive method for a legislature to intervene in or interfere with delegated legislative rule-making executive authority. Instead, § 30 authorizes the legislature to delegate legislative authority to a legislative, rather than executive, committee to delay implementation of new rules until the legislature can meet and consider the rule in full. While this seems an odd constitutional provision, possibly even superfluous and unnecessary, it doesn’t otherwise purport to expand or contract the power of the legislature to intervene in or interfere with the delegation of legislative power to the executive branch.
Moreover, SB 186 doesn’t appear to do anything similar to § 30 that would intervene in or interfere with adminstrative rulemaking outside the more typical legislative process for enacting a law.
It will be fascinating to see how SD courts view this matter if this law passes and is challenged in court.
I think the point is that Article 3 30 had to be a Constitutional Amendment in order for the Legislature to have that power to impinge on Executive Branch rulemaking authority. You say they have the power to do about anything, and they do, but not once rules have been promulgated. Article 3 30 provides rather limited power that involves process, but not the rules. If the Legislature had the power to do anything at all to rules, then there would be no need whatsoever for that amendment. They could have delegated the power to the Rules Review Committee to write the rules.
I don’t think the maximum powers given in Article 3 30 have been used much since it was passed in 1980. I recall a few times when those powers were threatened, because a special interest lobbied the Rules Review Committee to do the bidding of the special interest. (As always, the powers given to the Legislature always accrue to special interest lobbyists.) The powers of Article 3 30 aren’t used often, but when they are, they are used more often as a way to negotiate with administrative agencies over certain language that special interests want.
I’d like to argue against setting precedents like this that will muck up the rulemaking process further than Article 3 30 already has. I’m not sure what’s behind this bill, but it does set a bad precedent in how it is written. I think its a sneak attack on our system of government that is very, very dangerous.
In my experience, rulemaking at the agency level is so much more professionally accomplished than in the Legislature. First, there is a 20-30 day notice for public comment period on rules. Second, the public can attend hearings and testify at length, and not be gaveled down by some grumpy legislator who had too much to drink the night before. Third, the people who write the rules generally have years of expertise and experience at the agency and know the details and nuances behind their words. In the agencies that I worked with, citizen boards listened attentively to the testimony on the rules and sometimes made a change here or there after citizens provide input. Was I always happy with the results? No. But agencies are much more respectful of public comments than the Legislature is.
Perhaps the lobbists are going to start getting more involved in pushing rules to get their things done without going through the legislatures. That will be a hard thing to stop.
Don, I fully agree with you about the quality of adminsitrative rulemaking versus legislative mandates, especially these days when so many of our current batch of legislators seem ignorant about the limits imposed by the US and State Constitutions and federal law. Add to that the apparent lack of good sense, empathy, and awareness of unintended consequences, and the old adage, “no one’s liberty or property is safe during the annual legislative session” rings true all too often.
I think one area where we differ is whether the Constitutional provision at Article 3 section 30 was necessary to permit the legislature to form and empower the relevant committees. As I noted in my earlier comment that section seems superfluous and unnecessary to me.
Grudz, Thanks for the link to 2018 HB 1035. As you know, I don’t follow the Legislature as much as I used to when I was a resident. I follow mostly environmental stuff, ballot measure stuff and whatever Cory throws up here on DFP.
That bill, I think, is unconstitutional in the form it is in. The fact that the bill was requested by the Department of Ag throws another loop into this twisted saga. It seems to be a way for executive agencies to violate 1-26.
Look, that bill was, apparently, not in the least controversial. It passed unanimously in both houses. No one testified against it. It was pretty much a bill to clean up some statutes and they threw in the associated rules just to save a few dollars and a few months time on 1-26 requirements to void the rules. The thing is, if the statute is repealed the underlying rules are automatically void. They stay on the books until they are cleaned up.
I suppose, since 2018 HB 1035 had the Department of Agriculture imprimatur and it had no opposition, no one thought about the reach into an executive branch power and the skirting of 1-26. I think what it shows is a Department of Ag too lazy to do its job and willing to unconstitutionally cede executive branch duties to the Legislature.
This never happened in the 1980s and 1990s, at least as far as I’m aware. The state has really gone downhill since I left, and it’s probably because I left.
I am so glad my kids moved out of State.Put up with these loony tune in the legislature is an embarrassment.
To a certain degree, Mr. Pay, your departure has been documented to be linked to a variety of hills.
Bear, thanks for finding that definition of agency excluding the Legislature. That alone inclines me to hold my fire; your sensible argument that rule-making power flows from the Legislature to those agencies makes me all the more comfortable retreating to a position that what the Legislature giveth, the Legislature may also taketh away, amendeth, and screweth aroundeth with all it wants.
But it doesn’t seem like the kind of thing legislators would want to make a habit. The rule-making process exists specifically to keep the Legislature from having to deal with all the details (since they are oh so busy with important things during their precious few weeks in Pierre).