J_LS_2017A 11/15/2017 09:07:36 AM Committee Summary

agenda20171115.pdf



Senator Cooke, chair, called the meeting to order and explained that the Committee was still waiting on a few of its members so it would proceed out of order to consider the uncontested rule issues under agenda item 1 first.



09:07 AM -- Rules of the Parks and Wildlife Commission, Division of Parks and Wildlife, Department of Natural Resources, concerning parks and wildlife procedures



170385JAB.pdf



09:07 AM -- Jennifer Berman, Senior Attorney, Office of Legislative Legal Services, testified before the Committee. Ms. Berman presented the Office's memorandum concerning the uncontested Parks and Wildlife Commission rule issues to the Committee and recommended that the rules listed in the memo not be extended.

09:12 AM -- Rules of the State Electrical Board, Division of Professions and Occupations, Department of Regulatory Agencies, concerning the regulation of electricians



170284JAB.pdf



09:13 AM -- Jennifer Berman, Senior Attorney, Office of Legislative Legal Services, testified before the Committee. Ms. Berman presented the Office's memorandum concerning the uncontested State Electrical Board rule issues to the Committee and recommended that the rules listed in the memo not be extended.



Representative Willett asked whether the departments that make rules have counsel or experts that they rely on in enacting the rules. Ms. Berman said the agencies work with the Attorney General's (AG) office in developing their rules.



09:16 AM -- Sharon Eubanks, Director, Office of Legislative Legal Services, testified before the Committee. She said in response to Representative Willett's question that due to separation of powers issues the Office does not advise departments when they are doing their rule making. She said that the departments have counsel through the AG's office, and it isn't until the rules are filed that the Office reviews the rules.



Representative Willett asked whether there is a group of people in the AG's office that advises all the departments on their rules. Ms. Eubanks said as far as she knows the opinions that are issued by the AG's office are from the deputy attorneys general who are working with specific agencies, and she doesn't know whether they have general oversight from a single person or group of people.



Senator Holbert asked if whether there is a separation of powers issue or any issue for members as policy makers if committees of reference were to invite regulated members of the public to comment about existing rules. Ms. Eubanks said that doing so would be permissible and that it already occurs when an industry or occupation feels that a rule isn't consistent with a statute and they come forward to members of the General Assembly with their concerns. Senator Holbert asked whether there is a limitation based on sunset review. Ms. Eubanks said that outside of a sunset review, having a joint meeting on any subject is always within the committees' prerogative. Ms. Berman said there is nothing in the sunset process that would limit hearings on these types of matters from occurring outside of the sunset process. Senator Holbert asked, if a committee were to find that a department had exceeded their authority, is there anything that would limit the committee's ability to discuss that with the department or ask them to change it or to consider corrective legislation. Ms. Eubanks said she doesn't believe that doing so would violate the separation of powers and that any member can request a bill dealing with rules. Ms. Berman said that any legislator who thinks there is an issue with a rule can ask the Office to conduct an out-of-cycle rule review which would then be presented to the Committee.

09:28 AM -- Rules of the Division of Professions and Occupations, Department of Regulatory Agencies, concerning Colorado midwives registration



170273CBC.pdf



09:28 AM -- Christy Chase, Managing Senior Attorney, Office of Legislative Legal Service, testified before the Committee. Ms. Chase presented the Office's memorandum concerning the uncontested Division of Professions and Occupations rule issues to the Committee and recommended that the rules listed in the memo not be extended.



Representative Willett asked whether agencies are trying to get the Committee's attention concerning gaps in the law by enacting rules that are outside of the law so that they will be caught and discussed, as opposed to using a legislative liaison to come to a member to propose legislation. Ms. Chase said that it was not her understanding that agencies were intending to specifically adopt a rule that violates the statute or is outside of their authority.

09:37 AM -- Rules of the Colorado Racing Commission, Department of Revenue, concerning human drug testing of occupational licensees



170180KRK.pdfAG Memo & Handouts.pdf



09:37 AM -- Kip Kolkmeier, Staff Attorney, Office of Legislative Legal Services, testified before the Committee. Mr. Kolkmeier said this is a rule that applies a human drug testing program for occupational licensees under the jurisdiction of the commission. The Office saw three issues with the rule: 1) there is no authority within the statute to conduct human drug testing; 2) the issue of a mandatory drug test raises a constitutional issue, which is a policy issue; and 3) the Committee has looked at the issue previously when there was an absence of authority for human drug testing in a state agency statute, and the Committee said it needed to explicitly be in the statute. The General Assembly (GA) has authorized some human drug testing by statute, but generally it has been in the context of individuals in the corrections system, voluntary testing of an individual to get a state benefit, or testing based on probable cause. An employer can require an employee to take a drug test but that is a private request by a private employer. The rule involves government action, and in that circumstance it must meet the US Constitutional requirements of the Fourth Amendment and the Colorado Constitutional requirements under section 7 of Article 2. The rule raises the issue of who should make the determination that there are special needs that override the restrictions against warrantless search. In 1991, the Public Utilities Commission (PUC) published a rule that required human drug testing of natural gas pipeline workers because of the physical danger of an explosion of a natural gas pipeline and because of a federal statute that required the drug testing. The Office suggested that there still needed to be a statutory provision that authorizes human drug testing. The PUC requested legislation. The statutory language was amended to require human drug testing, and a rule followed.



Senator Cooke asked if the horse racing facility could say that, in order to race there, people would be required to agree to random drug screenings. Mr. Kolkmeier said an employer can require an employee to take a drug test as a condition of employment.



Senator Gardner asked if the Office and the Committee raised this issue at all in 1999 or did it just get by everybody. Mr. Kolkmeier said he was not able to find a review of this rule by the Office and the Office did not object to it at that time. Senator Gardner said the commission wanted a rule that included the detection of masking agents so it amended the rule. If the rule isn't extended, is the prior rule restored or does the rule disappear? Mr. Kolkmeier said the Committee reviews the rule that the agency submits to the Office. The department submitted the whole rule as amended, and therefore if the Committee chooses not to extend it, the rule would not be extended and the program would cease to exist.



Representative Willett questioned whether, in reviewing a rule, the Office staff would question the constitutionality of the authorizing statute. Mr. Kolkmeier said that the role of the Office is to determine whether there is statutory authority in the first place. If the GA passed a statutory provision that allowed human drug testing and then a rule was promulgated that was within that authority, that would not be an issue brought to the Committee.



Representative Wist asked whether constitutional concerns independent of statutory scope are an appropriate reason for the Committee to strike down a proposed rule.



10:05 AM -- Sharon Eubanks, Director, Office of Legislative Legal Services, testified before the Committee. Ms. Eubanks said that a statute is presumed to be constitutional unless struck down by a court. The language in the State Administrative Procedure Act talks about how no rule should be issued except within the power delegated to the agency and as authorized by law. The Office interprets this to mean both statutory and constitutional law. In general, if there is just a constitutional issue, the Office may not bring it to the Committee, but in this case, the constitutional issue arises with the issue of lack of statutory authority.



10:07 AM -- Dan Hartman, Director of Colorado Division of Racing Events, testified before the Committee. Mr. Hartman said this rule has been in place since 1999 and was put in place for the welfare of those participating in the racing industry. The commission found impairment of the licensees working around these animals could bring harm or death to themselves or other participants or animals. The racing commission requested that the Committee extend the rule.



Senator Holbert and Mr. Hartman discussed whether the commission would have time to adopt new rules before the next racing season if the statute was amended during the 2018 legislative session.



Senator Gardner and Mr. Hartman discussed the commission's basis for claiming statutory authority. Senator Gardner expressed his opinion that there should be legislation giving the commission authority for the drug testing.



Representative Foote and Mr. Hartman discussed the level of national regulation by industry associations. Mr. Hartman explained that it was difficult to have continuity across race tracks nationwide. Based on a question from Representative Foote, Mr. Hartman explained that some Colorado race tracks impose their own requirements beyond state law or regulation.



Representative Wist and Mr. Hartman discussed whether less onerous options are available and the types of drug testing required under the rule.



Senator Guzman asked what happens if the Committee extends the rule and legislation passes next session. Ms. Eubanks said that if the Committee feels that an agency does not have the statutory authority for the rule the process is for the Committee not to extend the rule so that it is included in the Rule Review Bill. Then, if a bill is enacted to give statutory authority, the provision in the Rule Review Bill would be removed via amendment so the rule is no longer set to expire. If the Committee chooses to extend the rule and pursue a statutory change, that's also within the purview of the Committee.



10:41 AM -- Eric Meyer, Deputy Attorney General, testified before the Committee. Mr. Meyer asserted that the commission has broad authority for the rule and it is not ambiguous. An agency should consider the legislative purpose of the law when rule making and that is why the issues are left to agency expertise to solve problems. The rule is also constitutional under the special needs exception, which would be safety and protection of the participants.



Representative Weissman and Mr. Meyer discussed the constitutionality of drug testing in this situation regardless of whether there is statutory authority for the rule.



Mr. Meyer compared the racing rule to rules adopted under the statute authorizing rule making by the boxing commission. Representative Foote recognized that the boxing statute is different than the racing statute. Representative Foote and Mr. Meyer discussed the legislative declaration for the racing statute and the tests for determining whether there is a special need for testing that overcomes Fourth Amendment concerns.



Representative Willett asked Mr. Meyer to distinguish the 1991 PUC rule issue discussed by Mr. Kolkmeier. Mr. Meyer explained that safety precautions that were mentioned there are not the same as the critical safety needs that exist in the racing context.



Representative Wist asked whether the commission treats licensees and participants differently and whether there is legislative authority for the commission to issue regulations that would effect participants versus licensees. Mr. Hartman explained that there are registrants and licensees, and they all are licensed under the statute. The difference between the two is that they have a different background check done on their license.



Senator Holbert suggested asking whether the chairs of the judiciary committees would be interested in working on a bill to clarify the language. He supported the drug testing as it exists now, but stated that the special needs determination should be made by the GA.



Representative Weissman agreed with Senator Holbert, and supported not extending the rule and running a bill to establish the authority by statute.



Senator Gardner agreed saying that the question of who makes the decision of special needs is important to separation of powers.

11:27 AM -- Status Report on the Title 12 Recodification Project



Updated - Title 12 cols update memo 20171114.pdf



11:27 AM -- Christy Chase and Thomas Morris, Managing Senior Attorneys, Office of Legislative Legal Services, testified before the Committee. Mr. Morris said there were 15 bills enacted last year as part of the Title 12 Recodification Project. Mr. Morris requested authorization to draft Committee bills to relocate some of the articles in title 12 that are not under the department of regulatory agencies. For all of the articles that are administered by the DOR, Mr. Morris proposed the creation of a new title 44 that would consist of laws that are administered by the DOR, and Mr. Morris requested permission to draft a bill that deals with the reorganization of the marijuana and automobile dealership laws. Ms. Chase explained the impact that the Project had on the Office's workload during the 2017 interim and stated that the Office is concerned with the workload for the editorial and publications staff next interim. Ms. Chase asked the Committee to extend the project for another year and to extend the 0.5 FTE appropriation for the nonattorney staff person through the end of the Project.



Representative Willett expressed concern that the Project could go on indefinitely and said he did not feel prepared to authorize the drafting of the marijuana bill since the specifics had not been discussed.



Representative Herod asked if all the bills that are being suggested could be combined into one bill for the next session as opposed to multiple bills as was done last session. Ms. Chase said that's the Committee's decision. She estimated that if everything were combined into one bill it would be around 1,000 pages.

11:43 AM -- The Committee adjourned.