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Administrative Rules Review Committee

             MINUTES OF THE
         ADMINISTRATIVE RULES REVIEW COMMITTEE
             Monday, May 18, 1998 - 9:00 a.m. - Room 305 State Capitol         

Members Present:
    Sen. Howard A. Stephenson, Cochair
    Rep. Martin R. Stephens, Cochair
    Sen. David L. Buhler
    Sen. Mike Dmitrich
    Sen. Craig A. Peterson
    Sen. Robert C. Steiner    
    Rep. John B. Arrington
    Rep. James R. Gowans
    Rep. John E. Swallow    

Members Absent:
    Rep. David Ure

Staff Present:

    Mr. Arthur L. Hunsaker,
     Research Analyst
    Ms. Esther D. Chelsea-McCarty,
     Associate General Counsel
    Ms. Barbara A. Teuscher,
     Committee Secretary

Note:    A list of others present and copies of materials distributed in the meeting are on file in the Office of Legislative Research and General Counsel.

1.    Call to Order and Approval of Minutes of Meeting Held May 18, 1998
                                                
    Chair Stephens called the meeting to order at 9:07 a.m.

     MOTION:    Rep. Gowans moved to approve the minutes of April 20, 1998. The motion passed unanimously. Sens. Peterson and Steiner were absent for the vote.

2.    R525-6 Weapons at the Utah State Hospital - (Sen. Stephenson)
        Sen. Stephenson distributed a handout and introduced this agenda item. He explained that the purpose of the hearing is to determine whether or not the rule has proper statutory authority. He reminded committee members of the weapons rule discussion in its November 3, 1997. At that time there were differences of opinion on the committee as to whether or not the rule complied with state statutes and whether there was authority for R477-9-1(5).

    Mr. Mark Payne, Superintendent, Utah State Hospital, distributed handouts from which he gave his presentation. He explained the various populations of people housed at the facility. He then discussed several case histories of patients housed at the facility and indicated that no weapons are allowed on the premises.

    Mr. Craig Bunker, Legal Counsel for the State Hospital, referred to Sections 76-8-311.1 and 62A-12-224, and indicated that they allow the hospital to prohibit weapons from the grounds as well as buildings.

    Mr. Payne expressed concern with having weapons on the grounds of the hospital and the

effect it might have on patient behavior.

    Chair Stephens said the law allows for the formal designation of a secure area at the state hospital, making it inaccessible to the public unless admitted, for instance, by a guard at the front gate . Perhaps Mr. Payne should make such a designation.

    Mr. Payne indicated that he didn't want to take the step of fencing in the entire facility due to its negative impact on the rehabilitative efforts of the hospital.
    
    Mr. Brian Miller, Associate Director, Division of Mental Health, distributed a letter from the Board of Mental Health supporting the rule.

    Chair Stephens said the committee is not arguing whether the rule is good public policy, but whether they can legally promulgate the rule.

    Mr. Joe Venus, representing the Utah Shooting Sports Council, said the council's interpretation is that they can restrict concealed weapons from the premises if they declare the entire facility a secure area. Until the department does this they are in violation.

    Sen. Stephenson pointed out that changes are needed in the rule. For example, presently it provides only for law enforcement personnel to secure their weapons upon arrival at the facility. This should be extended to private citizens as well. Mr. Payne agreed that a rewrite of the rule seemed appropriate.

     MOTION: Sen. Stephenson moved to go to the next agenda item and the committee will agendize the issue again when the rule is rewritten. The motion passed unanimously. Sen. Peterson was not present for the vote.

    Chair Stephens indicated that under the agency's current law the Legislature has been specific in stating that areas normally accessible to the public cannot be secure areas. Unless the agency is going to secure their facility, he personally would vote to not reauthorize the rule.                      
     Sen. Buhler referred to the minutes of the November 3, 1997 rules meeting and distributed to the committee. At that meeting he had asked Mr.Gary Doxey, General Counsel, Office of the Governor, some specific questions and he had replied that he would report back to the committee regarding the governor's policy. Mr. Doxey indicated that he had looked at this issue shortly after the meeting and indicated that he would write a letter to the committee.

3.    Grants of Rulemaking Power to State Agencies    

    a. Department of Insurance - Mr. Merwin Stewart, Insurance Commissioner, introduced

Mr. Neal T. Gooch, Deputy Commissioner, and Mr. John E "Mickey" Braun, Assistant Commissioner.

    Chair Stephens expressed his concern with agency rules that may go in a different direction than the Legislature intends. One of the reasons this happens is because the Legislature frequently grants rulemaking authority too broadly. Chair Stephens said each agency should have the rulemaking authority necessary to fulfill its responsibilities.

    Mr. Gooch's said the department's job is to determine what the Legislature's intent is in adopting the code and then enforcing those statutes. There are times when a broad grant of authority is necessary in dealing with the insurance industry.

    Mr. Gary Doxey, Legal Counsel, Office of the Governor, said usually there is a specific rulemaking grant for a rule, but where there isn't good law on the subject you need to rely on the general grant. Whenever the public health, safety, and welfare is concerned, it is good to have a broad grant. Perhaps there needs to be some provision explaining the intent of the broad grant.

     b. Division of Occupational and Professional Licensing (DOPL)
    
    Mr. Stewart introduced Mr. Ray Walker, General Counsel, Ms. Laura Poe, Bureau Manager, and Diane Blake, Assistant Director. Mr. Walker distributed handouts from which he gave his presentation. The department's statutes are organized with an umbrella chapter that addresses all of their occupations and professions and a specific licensing act for each of those professions. Mr. Walker said the concern of the committee is that rulemaking is expanding way beyond what the Legislature had intended because of the numerous references to rulemaking within each of the specific licensing acts.

    Mr. Walker indicated that the department has been before the committee in several occasions addressing whether the department had exceeded its authority. Those cases have been with a specific grant and not the broad grants that are under the department's umbrella title.

    Sen. Peterson suggested that if an agency is in need of a rule but has no corresponding statute to authorize it, they should consider coming before the committee prior to making the rule effective so the committee doesn't learn about the concern after the rule is already effective. Mr. Walker indicated the division would consider the suggestion.
    
    
4.    Committee Business    

     MOTION:    Sen. Buhler moved to have a letter sent out to the legislators informing them of the committee's mission and how it may help resolve issues of concern to them and their

constituents. The motion passed unanimously. Sen. Dmitrich and Rep. Swallow were absent for the vote.

     The next Administrative Rules Review Committee will be held:
    June 8, 1998, 9:00 a.m., Room 305

5.    Adjourn

    Rep. Arrington moved to adjourn the meeting at 11:05 a.m. The motion passed unanimously.
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