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MAKING GOVERNMENT WORK

Legislative Oversight Under Separation of Powers


PUBLISHED BY THE COMMON CAUSE EDUCATION FUND

245 Waterman Street/Suite 400A Providence Rhode Island 02906 www.CommonCauseRI.org November 30, 2005

Reality is that which, when you dont believe in it, doesnt go away.
Professor Peter Viereck of Mount Holyoke College in 1997
Quoted in The New Yorker, October 24, 2005.

MISSION STATEMENT
Common Cause of Rhode Island is a nonpartisan organization whose mission is to promote representative democracy by ensuring open, accountable, effective government processes at local, state and national levels by educating and mobilizing the citizens of Rhode Island.

RESEARCH WRITING
This study was researched and written by Peter Hufstader, Research Director for Common Cause of Rhode Island. Daniel G. Siegel, President of the State Governing Board, and H. Philip West, Jr., Executive Director, assisted with the editing.

ACKNOWLEDGEMENT
The Separation of Powers Task Force reviewed the contents of this white paper and suggested amendments to the recommendations that are incorporated in Chapter Seven. The State Governing Board reviewed the study and approved the recommendations. Throughout this two-year study, members of the Common Cause of Rhode Island State Governing Board provided valuable support and insight. Officers of the Board include: Daniel G. Siegel, President; Brian Heller, Vice President; Joan Temkin Gray, Treasurer; Burt Hoffman, Secretary Members of the Board: Greta Abbott, Jane Austin, Thomas R. Bender, Francis DiGregorio, Anne Ewens, Robert G. Flanders, Alan Flink, Doree Goodman, Donna Cameron Gricus, Susan L. Jordan, Kevin McAllister, Tory McCagg, Eugene B. Mihaly, James E. ONeil, Thomas H. Quill, Jr., Nancy C. Rhodes, Solangel Rodriguez, Helen Sebesta, Charles Sturtevant, Rob Walker

FINANCIAL SUPPORT
This study was underwritten by the Common Cause Education Fund in part with a contribution from the Rhode Island Foundation. The Common Cause Education Fund qualifies as a non-profit organization under 501(c)(3) of the Internal Revenue Service regulations. None of those who provided financial support were involved in the research, analysis or writing of this report.

DISTRIBUTION
The full report and its appendices are available for downloading at http://www.commoncauseri.org. Copyright November 30, 2005, by the Common Cause Education Fund.

MAKING GOVERNMENT WORK


The role of legislative oversight under Separation of Powers Introduction Election day, 2004, marked a watershed in Rhode Islands constitutional development. That November 2, the voters approved a Separation of Powers amendment to the Rhode Island Constitution. For the first time in the states history, this amendment brought true separation of powers to all three branches of government. The amendment: 1. Defined the three branches of Rhode Island government as separate and distinct. 2. Prevented legislators or their appointees from sitting on any state agency with the power to wield executive or administrative functions. 3. Conferred on the governor alone the power to appoint the members of state boards and commissions with executive powers. Senate confirmation would be required for those appointments. 4. Repealed Article VI section 10 of the constitution, the so-called broad powers clause, which the state Supreme Court had said permitted the General Assembly to exercise any power not expressly forbidden to it in the constitution.1 Even before the Separation of Powers amendment passed by 78.32 percent, lawmakers began to wonder how the Assembly would oversee the execution of the laws once lawmakers and their appointees could no longer sit on 73 boards with the power to implement the laws. Oversight2 is not, however, a new responsibility imposed on the General Assembly by the 2004 Separation of Powers amendments. It has always been a legislative responsibility. Moreover, the oversight challenge facing the state legislature goes far beyond those 73 boards. The budget enacted for FY 2006 authorizes 15,564.1 full-time equivalent positions in all three branches of government.3 In addition, Rhode Island government contains some 95 boards and 21 quasi-public corporations with extensive financial and regulatory powers. The legislature is responsible for overseeing the routine operations and long-range capital projects of all of these entities. The title of this report expresses the hope that the oversight system to be created under Separation of Powers will make Rhode Islands government more open and accountable than ever before in the states history. The oversight project: looking to the future In late 2003 the Common Cause of Rhode Island began to seek answers to three questions: 1. How extensive is the oversight challenge facing the General Assembly? 2. What legislative oversight mechanisms and assets presently exist in Rhode Island? 3. What can Rhode Island learn from oversight practices in other states and Congress? The results of this inquiry are contained in this report and its appendixes. Chapter Seven contains recommendations for effective legislative oversight.

Lincoln C. Almond, in his capacity as Governor of the State of Rhode Island et al v. The Rhode Island Lottery Commission, Newport Grand Jai Alai, LLC, and Burrillville Racing Association, d.b.a Lincoln Greyhound Park et al, No. 99-525 (July 27, 2000) 2 Actions taken by the legislature to ensure that the laws are being faithfully executed as the legislature intended. 3 An additional 785 FTEs are labeled Higher Ed Exempt on page 25 of the budget enacted for FY 2006.

Common Cause of Rhode Island

MAKING GOVERNMENT WORK


The role of legislative oversight under Separation of Powers Table of Contents Introduction Table of Contents Disclaimers Chapter One The Oversight Challenge Chapter Two Oversight Mechanisms and Assets available to the Rhode Island General Assembly Chapter Three Sources of the Rhode Island General Assemblys Powers: the State Constitution, the General Laws, and House and Senate Rules Chapter Four Oversight by Congress Chapter Five Legislative Oversight of Administrative Rule-making Chapter Six Statistics on State Legislatures Chapter Seven Comments and Recommendations Appendixes
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1 2 3 4

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42 59 64 106 118

A. Congressional Oversight Manual (from the Congressional Research Service) B. Hearings in the United States Senate: a guide for preparation and procedure (from the Congressional Research Service) C. Selected states legislative committees D. Oversight provisions in states general laws E. Thirty-seven states administrative procedures acts F. Eleven selected states administrative procedures acts G. Rule-making in Minnesota: a guide H. Arizona rule-making manual I. Table of Legislative Review of Administrative Rule-making J. Synopsis of a report on the Illinois Joint Committee on Administrative Rules K. Rule-making Provisions in State Constitutions L. A model legislative oversight bill M. A model quasi-public oversight bill N. Rhode Island study commission legislation enacted in 2005 O. Program Performance Measures used in the Governors Budget for FY 2006 P. Governors Fiscal Fitness Program Annual Report, March 1, 2005

Limited distribution on CD-ROM. The appendixes can be downloaded from the Common Cause of Rhode Island website: commoncauseri.org.

Making Government Work

Disclaimers
1. The statutes and other data cited in the body of this study and in the appendixes may have been amended or changed since acquisition. 2. On-line information about state agencies and quasi-public corporations can be found on at least three web sites: a. state.ri.us, provided by the secretary of state; b. info.ri.gov, provided by the Office of Library and Information Services; and c. ri.gov, the official Rhode Island government portal. The latter was developed and is operated by the state in cooperation with New England Interactive (NEI), a private corporation. The information about state government provided by these three sites is inconsistent and incomplete. While we used all three, readers should be aware of the difficulty of deriving a consistent and complete picture of state agencies from these sites.

Common Cause of Rhode Island

Chapter One

The Oversight Challenge


Definitions The Random House Dictionary of the English Language (unabridged), first published in 1967, contains three definitions of oversight. The first two are opposite in sense to the third: 1. failure to notice or consider . 2. an omission or error due to carelessness . 3. supervision; watchful care . When people refer to oversight in government, they almost always mean supervision or watchful care except when some error has been committed (Due to an oversight by the custodial clerk, the missing evidence was not noticed until yesterday morning.). Interestingly, the term legislative oversight occurs in seven opinions of the Rhode Island Supreme Court handed down in the 20th Century.5 In each case, the term is used in the sense of error by the legislature or the legislature overlooked something. Oversight is not defined in the abridged seventh edition of Blacks Law Dictionary. General purposes of legislative oversight (after the Congressional Oversight Manual; some of these overlap each other) 1. Ensure that the laws are being implemented as the legislature intended 2. Improve governmental efficiency 3. Evaluate the performance of agencies and their programs 4. Investigate waste, abuse, inefficiency, or fraud 5. Protect individual rights and liberties from the abuse of authority 6. Acquire information to inform policy-making 7. Investigate constituent complaints 8. Review agency rule-making The oversight challenge The officers and agencies which the General Assembly must oversee fall into six groups: 1. Five general officers elected by the people and the general officers departments 2. Fourteen departments within the executive branch 3. Twenty-one quasi-public corporations 4. Nine independent regulatory or financial agencies with significant powers operating outside the three branches of state government 5. The state judiciary and 19 miscellaneous agencies with a variety of functions funded by the state budget which do not appear in the first four categories 6. Fifty-four agencies with executive or administrative functions which do not appear in the state budget enacted for FY 2006

State v. DelBonis, 862 A.2d 760 (2004); Kaya v. Partington, 681 A.2d 256 (1996); Lawrence v, Anheuser-Busch, 523 A.2d 864 (1987); Langdeau v. Narragansett Insurance Co., 179 A2d 110 (1962); New England Die Co. v General Products Co., 168 A.2d 150 (1961); Capobianco v. United Wite and Supply Corp., 77 A.2d 534 (1950); and Nolan v. Representative Council of City of Newport, 57 A.2d 730 (1948).

Making Government Work

1. Five general officers elected by the people every four years Their powers and functions are established by the Rhode Island Constitution and state law. Figures for budget and personnel are taken from the state budget enacted for FY 2006. Personnel figures are full-time equivalents (FTE)6 which appear in the budget enacted for FY 2006. Unless otherwise indicated, descriptive text is taken verbatim from the secretary of states web site. Governor Annual budget for office of governor: $4,606,682 FTEs: 48.5
The chief executive power of this state is vested in the Governor. The Governor has the constitutional responsibility and authority to ensure that the laws of Rhode Island are faithfully executed. Responsibilities As chief executive, the Governor is responsible for public health, environmental management, human services, business regulation, workforce development and training, transportation, homeland security, emergency management, and law enforcement. The Governor also serves as the captain general and commander in chief of the military and naval forces of Rhode Island. The Rhode Island Constitution authorizes and requires the Governor to prepare and present to the General Assembly an annual, consolidated operating and capital improvement state budget. The Governor also has broad constitutional appointment power for judges, state officers and members of executive boards and commissions. He can exercise legislative veto and general pardon authority. The Governor also serves as Chair of the Board of the Economic Development Corporation.

Lieutenant Governor Annual budget $917,362 FTEs: 10


The Lieutenant Governor is elected by the voters of Rhode Island to serve as one of the five General Officers mandated by our states Constitution. The Lieutenant Governor may serve two, consecutive four-year terms. Under the Constitution, the Lieutenant Governor assumes the duties of the Governor during any vacancies in the Governors Office or in the event of the incapacitation of the Governor. The Lieutenant Governor also is designated by state law to serve in a number of other capacities and to chair several boards and commissions. Responsibilities: Under state law, the Lieutenant Governor is responsible for working on a number of policy areas in state government through the councils and committees he chairs. These include the Long-Term-Care Coordinating Council, Small Business Advocacy Council and the Rhode Island Emergency Management Advisory Council. The Long-Term-Care Coordinating Council was established in 1987 to bring together leaders from the private and public sectors with the task of coordinating the states long term care agenda to ensure quality, affordability and access to those with chronic illnesses. The 37-member Council includes elected officials, consumers, state agency directors, advocates, and providers of long-term care. The Emergency Management Advisory Council (RIEMAC) is Chaired by the Lieutenant Governor with the Adjutant General serving as Vice Chairman. The Council consists of 32 members, 17 exofficio members - with an additional 15 members appointed by the Governor. The Council is responsible for advising on emergency preparedness throughout the state. The Domestic Preparedness Subcommittee was formed in June 2001 to coordinate Rhode Islands homeland security efforts. The Small Business Advocacy Council (SBAC) was created to give small business a voice in government. Working directly with small business owners, Chambers of Commerce, and government and private organizations, the 20-member Council works to remove financial, regulatory and informational roadblocks that can hamper the creation and growth of small business. The Lieutenant Governors Office also takes a leadership role in the

The actual number of employees will be different from the number of FTEs. Ed.

Common Cause of Rhode Island areas of environmental protection and higher education as well as assisting members of the Rhode Island National Guard and their families. The Lieutenant Governor, by law, also appoints public members to numerous boards and commissions.

Secretary of State Annual budget: $6,267,053 FTEs: 59


The Office of the Secretary of State was established under the Rhode Island Constitution as one of the five general offices subject to voter election. The Secretary of State is the custodian of state records, charged with the collection, retention, and dissemination of those records on behalf of the citizens of Rhode Island. Responsibilities The Department has several programs. The Public Information Division provides public access to a wide variety of government information in both printed and electronic format. Services provided to the public include: legislative information, membership of government boards and commissions, and lobbyist registration. The Corporations Division maintains filings for active and inactive Rhode Island and foreign business corporations, nonprofit corporations, limited partnerships and limited liability companies. Corporations also administers the Uniform Commercial Code Program, the registration of Notaries and Trademarks, and the registration of Games of Chance. Corporations also includes the Fast Start online application for starting a new business and the Business Development Center where business owners can obtain federal tax identification numbers, information on required permits and licenses, and referrals to business development resources in the state. The Elections Division is responsible for preparation of both statewide and municipal elections, certifying all federal and state candidates, and ballot layout and preparation. Elections is also responsible for maintaining the Central Voter Registration System and for programs and publications that improve civic education and civic participation such as the publication of guides for candidates, elections officials and voters. The State Archives and Public Records Administration is responsible for comprehensive archives and records management services for all public records in the state, including all state rules and regulations. The State Library provides reference and research services in the areas of law, legislation, government reports and Rhode Island history.

Attorney General Annual budget: $20,522,639 FTEs: 234.5


The Attorney General is established under the Rhode Island Constitution as one of the five general officers subject to election by voters. The Office of the Attorney General was first created in Rhode Island in May 1650. Since its creation, the office has been an elected position, except for a brief period from 1740 to 1742 when the charter allowed for the appointment of a Kings attorney for each county. The office of the Attorney General was formally adopted under the Rhode Island State Constitution in 1842. The Department of Attorney General is divided into three distinct divisions; Criminal, Civil and Administration; each of which is responsible for several sub-units which together combine to meet the goals and the objectives of the Department. The Department is divided into four budget programs, Criminal, Civil, General, and the Bureau of Criminal Identification. Responsibilities The Department of Attorney General is the central legal agency of the State. The Department is responsible for prosecution of all felony criminal cases and misdemeanor appeals as well as prosecution of misdemeanor cases brought by State law enforcement action in the various district courts. Additionally, as chief legal officer of the State, the Attorney General has responsibilities beyond criminal prosecution. The Attorney General represents all agencies, departments, and commissions in litigation and initiates legal action where necessary to protect the interests of Rhode Island citizens. These matters range from gas, electric and telephone company rates before the Public Utilities Commission, health insurance rates cases, environmental issues, protecting the publics rights under the Open Meetings Act and the Access to Public

Making Government Work

Records Act, to protecting consumers from deceptive practices and antitrust violations. The Attorney General provides legal advice to state officers and state agencies whenever requested. The Department of Attorney General is also charged with operating and maintaining the State Bureau of Criminal Identification, which is the central repository for all criminal records in the State.

General treasurer Annual budget: $30,045,868 FTEs: 87.5


The General Treasurer is elected by the people every four years. The Treasury Department consists of the following divisions: Business Operations; Crime Victim Compensation; Employees Retirement System of Rhode Island; Finance and Investments including Cash Management, Debt Management, and Funds Operations Management; and Unclaimed Property. The annual budget for the General Treasurers office is $22 million. Finance and Investments manages approximately $7 billion, including $300 million in cash and $6.7 billion in pensions. The General Treasurer serves as Chair on various boards and commissions such as the RI State Investment Commission, RI State Employees? Retirement Board; RI Refunding Bond Authority; and RI Public Finance Management Board. He also serves as a Commissioner of the RI Housing and Mortgage Finance Corporation and a Director on the Rhode Island Higher Education Assistance Authority. Responsibilities: The Treasury Department is the custodian of State funds, charged with the safe and prudent management of the States finances. Under the control and guidance of the General Treasurer are: the State Employees Retirement System, the administrative unit for participating public employee groups including state, teacher and municipal employees; the Unclaimed Property Program collects both tangible and intangible abandoned property for the purpose of returning the property to its rightful owner; the Investments Division and Finance provides investment and cash management services to state government and issues and manages the states general obligation debt; the Business Office validates and distributes the states vendor and nonvendor check payments and reconciles the majority of the state accounts to the financial institutions and the State Controllers records; the Violent Crimes Victim Compensation Program compensates victims of violent crime. Other areas under the Treasurers responsibility include the care and management of the Abraham Touro Fund and the Childhood Disease Fund.

2. Fourteen executive branch departments Each department is headed by a director whom the governor appoints with the advice and consent of the Senate. Text is taken verbatim from the secretary of states web site unless otherwise indicated. Numbers come from the state budget enacted for FY 2006. Numbers of personnel are fulltime equivalents which appear in the FY 2006 budget. The actual number of individuals employed will be different. The Department of Administration
Annual Budget: $593,001,271 FTEs: 1,200.4 The Department of Administration was created in 1951 to consolidate central finance, purchasing and management functions of state government. Title 42, Chapter 11 of the Rhode Island General Laws establishes and provides for the organization and functions of the Department. Responsibilities: The Department of Administration provides supportive services to all Rhode Island departments and agencies for effective coordination and direction of state programs, within the framework of a changing administrative and fiscal environment. The Department also provides policy direction for executive leadership in a variety of financial and administrative matters and is responsible for the statewide implementation of policy decisions affecting the organization and delivery of state run and state supported services. The Department is headed

Common Cause of Rhode Island by the Director of Administration and has thirteen distinct programmatic functions. These include Central Management; Accounts and Control; Budgeting; Auditing; Human Resources; Taxation; Central Services; Purchasing; Central Mail Services; Planning; General Appropriations; the Personnel Appeal Board; and Internal Services.

Note: The budget enacted for FY 2006 has a separate entry for Boards of Design Professionals. This entity is apparently a part of the Department of Administration created to protect the public health, safety and welfare by licensing qualified individuals and firms who provide services to consumers and by fair and consistent enforcement of the statutes and regulations of the boards of registration. (From a statement posted in the link for Boards for Design Professionals on info.ri.gov.) The budget lists an appropriation of $359,516 and 4.0 FTEs. This entity within the Department of Administration regulates architects, landscape architects, professional engineers, and professional land surveyors. It has no statutory existence as far as we can tell. The separate boards for each design profession listed above do have their own statutes. Ed. The Department of Business Regulation
Annual Budget: $11,343,606 FTEs: 110 The Department of Business Regulation is an organization of dedicated professionals responsible for regulating and licensing a broad array of Rhode Island businesses in order to protect the public. The industries the Department regulates include insurance, banking, securities, liquor, real estate, racing and athletics, along with many others. The Departments mission is to assist, educate and protect Rhode Islanders through the implementation and enforcement of state laws mandating regulation and licensing of these industries and other activities while recognizing the need to foster a sound business environment in the state. Responsibilities: The Department of Business Regulations primary function is to implement state laws mandating the regulation and licensing of designated businesses, professions, occupations and other specified activities. The department is composed of five divisions and Central Management, which includes the budget, personnel, legal and computer operations. The respective divisions are: Banking, Securities, Commercial Licensing and Regulation, Racing and Athletics, and Insurance.

The Department of Children, Youth and Families


Annual Budget: $278,707,878 FTEs: 849.8 The Department of Children, Youth and Families is the state child welfare, childrens mental health and juvenile corrections services agency which promotes, safeguards and protects the social well being and development of children through a comprehensive support program of in-home and substitute care. The department also plans and implements support programs and service delivery systems which will achieve the goal of developing the full potential of children in care. The Department is the agency which serves families with children who have been or are at risk of being abused, neglected, wayward or delinquent. Responsibilities: CHILD PROTECTIVE SERVICES: 1) Investigation of reports of abuse and neglect; 2) Child Abuse and Neglect Tracking; 3) Intake and screening of neglect and abuse cases; 4) Referrals to community programs. FAMILY SERVICES: 1) Regionalized Family Service Units providing community-based in-home preventive services and reunification services for children in out-of-home care; 2) Foster Care; 3) Adoption services for special needs children; JUVENILE CORRECTIONAL SERVICES: 1) Non-residential services such as supervision, counseling and supportive services for youth on probation; 2) Rhode Island Training School; 3) Residential, treatment, educational and vocational services for adjudicated juvenile offenders and those awaiting trial or arraignment. BEHAVIORAL HEALTH SERVICES: 1) Emergency

Making Government Work

services; 2) Intensive community-based treatment; 3) Prevention services; 4) Residential programs; 5) In-patient hospital setting for assessment, diagnosis and treatment of mentally ill adolescents. LICENSING: 1) Foster Homes; 2) Residential Programs; 3) Outpatient childrens behavioral health.

The Department of Corrections Annual budget: $160,624,173 FTEs: 1,589.0 No information on budget, personnel, mission, or responsibilities was available on secretary of states web site. The following information comes from the departments web site through a link on info.ri.gov:
The mission of the Rhode Island Department of Corrections (RIDOC) is to contribute to public safety by maintaining a balanced correctional system of institutional and community programs that provide a range of control and rehabilitative options for criminal offenders. Our Guiding Operational Philosophy includes maintaining appropriate safe, secure, and humane correctional environments while providing for community-based management, supervision, and intervention services for criminal offenders.

The Department of Elderly Affairs


Annual Budget: $43,089,254 FTEs: 52 The Department of Elderly Affairs was established as the principal agency of the state to mobilize the human, physical, and financial resources available to plan, develop, and implement innovative programs to ensure the dignity and independence of elderly persons. Responsibilities: Provides assistance to communities in solving problems relating to the elderly; acts as a clearinghouse for information, data and materials relative to the elderly; carries out studies necessary for solving problems concerning the elderly; coordinates a variety of special supportive services including: Heating Assistance for the Elderly Program; Senior Citizen Transportation Program; Nutrition and Home Meals Programs; Home & Respite care for the frail elderly; Protective Services for the elderly; Prevention and Investigation in cases of abuse, Elderly Housing Security Program; Emergency Housing Assistance for the Elderly; (RIPAE) RI Pharmaceutical Assistance to the Elderly; Senior Employment Opportunities.

The Department of Elementary and Secondary Education This entity appears only as The Board of Regents for Elementary and Secondary Education on the secretary of states web site. The Board of Regents also functions as a quasi-public corporation. Though chock full of useful information, the web site of the Department of Elementary and Secondary Education, reached through info.ri.us, does not appear to offer any readily identifiable mission statement.
Annual Budget: $1,021,591,220 FTEs: 339.1 The Board of Regents for Elementary and Secondary Education consists of eleven members as follows: Eight public members appointed by the Governor; the Chair of the Board of Governors for Higher Education; the Chair of the Senate Finance Committee, or his/her designee; and the Chair of the House Finance Committee, or his/her designee. Responsibilities: As enumerated in R.I.G.L. 16-60-1; 16-60-6 and 16-60-7, The duties of the Board of Regents for Elementary and Secondary Education shall include: to approve a systematic program of information gathering, processing, and analysis addressed to every aspect of elementary and secondary education in the state; to approve a master plan defining broad goals and objectives for elementary and secondary education in the state; to formulate broad policy to implement the goals and objectives established and adopted by the board of regents from time to time; to

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Common Cause of Rhode Island adopt standards and require enforcement and to exercise general supervision over all elementary and secondary public and non-public education in the state; to allocate and coordinate the various educational functions among the educational agencies of the state and local school districts and to promote cooperation among them so that maximum efficiency and economy shall be achieved; to prepare with the assistance of the Commissioner of Elementary and Secondary Education and to present annually to the state budget officer a total educational budget for the elementary and secondary sector; to maintain a department of elementary and secondary education and to provide for its staffing and organization and to appoint a commissioner of elementary and secondary education pursuant to RIGL 16-60-6 who shall serve at its pleasure; to establish other educational agencies or subcommittees necessary or desirable for the conduct of any or all aspects of elementary and secondary education and to determine all powers and functions as well as composition of any agencies or subcommittees and to dissolve them when their purpose shall have been fulfilled; to establish rules for the approval and accrediting of elementary and secondary schools; to recommend to the general assembly from time to time, changes in the size and number of the school districts within the state; to exercise all other powers with relations to the field of elementary and secondary education within the state not specifically granted to any other department, board, or agency, and not incompatible with law; to exercise the authority heretofore vested in the board of regents for education with relation to adult education and to establish definitive goals for and operate a comprehensive delivery system for adult education programs and services; submit to the Governor and General Assembly an annual progress report on the condition of elementary and secondary education; to prepare with the assistance of the commissioner, a multi-year plan of priority educational goals and objectives.

The Department of Environmental Management Annual budget: $80,391,127 FTEs: 531.3 No information is posted about mission, budget, personnel, or responsibilities on the secretary of states web site. The departments web site contains this statement:
We are committed to preserving the quality of Rhode Islands environment, maintaining the health and safety of its residents, and protecting the natural systems upon which life depends. Together with many partners, we offer assistance to individuals, business and municipalities, conduct research, find solutions, and enforce laws created to protect the environment.

The Department of Health Annual Budget: $110,327,338 FTEs: 499.4


Public health agency Responsibilities The mission of the Department of Health is to prevent disease and promote the health and safety of the people of Rhode Island. This is a diverse and interactive state agency with broadranging public health responsibilities. The department works through staff and community agencies to promote lifestyle changes, environmental health, and health services delivery in a variety of initiatives to assure health promotion and disease prevention. The science of epidemiology is the common thread which links and guides all the Departments endeavors.

The Board of Governors for Higher Education There is no listing for this board on the secretary of states web site. The budget and personnel figures come from the state budget as enacted for FY 2006. The Board of Governors also functions as a quasi-public corporation.
Annual budget (includes both colleges and URI): $682,476,495 FTEs: 3589.7

Making Government Work Board of Governors mission statement from the boards web site: Approved: 08/06/1992 Amended: 06/15/1995, 09/25/1996, 06/28/2004

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The mission of the Rhode Island Board of Governors for Higher Education is to provide an excellent, efficient, accessible and affordable system of higher education designed to improve the overall educational attainment of Rhode Islanders and thereby enrich the intellectual, economic, social and cultural life of the state, its residents, and its communities. To fulfill this mission, the Board of Governors adopts and monitors policies to strengthen the quality of the public institutions of higher education and produce a system of higher education that: * * * * * * * Offers the highest quality academic programs from the community college through the graduate and professional school levels. Establishes high standards for student academic success and ensures that support services are in place to help students meet those standards and earn degrees, Provides multiple points of entry into a higher education system free of discrimination for students of all ages and backgrounds, Works to keep the price affordable and to make sufficient financial aid available to support students with financial need as they move toward achieving degrees, Establishes a clear, distinct mission statement for each of the three institutions with the goal of minimizing duplication and maximizing efficiency. Advances the cohesiveness and interdependency of the system, Provides residents with life-long learning opportunities to update their skills and knowledge continuously as they cope with rapidly changing living and work environments, Provides opportunities for cultural enrichment to add enjoyment to lives, Supports research that creates new knowledge and promotes economic development, Develops links with the states system of pre-K-12 education to ensure an integrated system of higher education that prepares quality teachers and ensures that K-12 students are properly prepared to succeed at college-level work. Fosters cooperation with the independent institutions of higher education, Encourages cooperative ventures with other education and training sectors and with institutions of higher education around the world.

* * *

* *

The web site lists 20 staff members in the Office of Higher Education. No budgetary information is posted. The Department of Labor and Training
Annual Budget: $445,950,069 FTEs: 512.7 The Rhode Island Department of Labor and Training offers a wide array of employment and training services to both the general public and to individuals with unusual barriers to employment. DLT is ready to assist any job seeker, whether the goal is a first job, a better job, or a career change. Rhode Islands work force is protected through the enforcement of labor laws, prevailing wage rates, and work place health and safety standards. Temporary income support is available to unemployed, sick, or injured workers and a comprehensive rehabilitation program is available to those injured on the job. DLT is dedicated to the growth and competitiveness of Rhode Island industry, administering a variety of training grants, tax credits, and apprenticeship programs to help employers. Economic indicators and labor market information are available for long-range planning. The Agency engages in active outreach, helping large and small employers retain their best workers or retrain their existing work

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Common Cause of Rhode Island force. At no cost to the employer, DLT will also screen job applicants, post job vacancies, and help businesses institute cost-sharing programs that can avert layoffs. Responsibilities: DLT administers the following programs: Workforce Investment Act; Employment and Training Services; Unemployment Insurance; Temporary Disability Insurance; Workers? Compensation and the Rehabilitation Unit at the Donley Center; Labor Market Information; Labor Standards; Occupational Safety; Professional Regulation. DLT staffs the following groups: Apprenticeship Council; Human Resource Investment Council; State Workforce Investment Office; Workforce Partnership of Greater RI (one of two Workforce Investment Boards); Board of Review; Labor Relations Board.

The Department of Mental Health, Retardation, and Hospitals


Annual Budget: $488,752,255 FTEs: 1,992.7 The Department of Mental Health, Retardation and Hospitals, through state Divisions and Programs established by Title 40.1, Chapters 1, 1.1, 2, 3, 5, 5.3, 5.4, 22, and 24, or the Rhode Island General Laws, as amended, is the Department in the Rhode Island State Government authorized by law and designations to: 1) Plan, design, and develop, 2) Fund, 3) Administer, coordinate and license a system of services for citizens of Rhode Island with developmental disabilities, behavioral healthcare needs, and those in need of the physical health and/or mental health services of the Eleanor Slater Hospital. The Department is dedicated to achieving the best possible results for its consumers and the taxpayers of Rhode Island. The Department will achieve these goals with the coordination of the following divisions: the Division of Developmental Disabilities, the Division of Behavioral Healthcare Services, the Eleanor Slater Hospital, the Office of Facilities and Programs Standards and Licensure. Responsibilities: The Department organizes, sets standards, monitors and funds programs primarily according to the needs of consumers based upon the nature of their disabling condition. The Department administers services which are organized and delivered through three major components: 1) a community based management system for those challenged by mental illness or problems of alcohol or substance abuse, 2) a system of community programs for persons with developmentally disabling conditions; and 3) hospital services for people in need of assessment and diagnostic evaluation, acute and long term medical care, and psychiatric care provided within the unified Eleanor Slater Hospital at locations in Cranston and Burrillville.

The Department of Human Services Annual budget: $1,781,887,713 FTEs: 1,174.4


Employing close to 1,100 people with the states largest operating budget of nearly $800 million [much larger for FY 2006. Ed.], the Departments mission is to provide a full continuum of quality services to those Rhode Islanders in need including children, adults, families, the disabled, the elderly and our states veterans. Once viewed as merely the states welfare agency, the Department has evolved into a fullservice agency offering a broad spectrum of high quality programs, services and benefits to help promote family and individual self-sufficiency and economic independence by maximizing opportunity and potential. The DHS makes top-notch health insurance universally available to all children and others in need, provides necessary child care subsidies to working Rhode Island families, and cares for and honors our states veterans. We also strive to improve long term care for our elderly, provide valued rehabilitative services to the disabled, and transition thousands of Rhode Islanders off the states old welfare system and into our new Family Independence Program (FIP) toward economic self-reliance.

The Department of Transportation


Annual Budget: $311,924,072

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FTEs: 810.7 The Department of Transportation is responsible for the implementation of both short and long-term transportation improvements for the State of Rhode Island. Included in this effort is the maintenance of over 1,300 miles of roadways, 750 bridges and over 800 traffic signalization systems. The Department is also responsible for maintaining a continuing comprehensive transportation program by coordinating and performing planning functions for all modes of transportation. Responsibilities: The mission of the Rhode Island Department of Transportation is to provide a safe, efficient, effective, environmentally, aesthetically and culturally sensitive intermodal transportation network that offers a variety of convenient, cost-effective mobility opportunities for people and the movement of goods supporting economic development and improved quality of life.

The Public Utilities Commission


Annual Budget: $6,420,340 FTEs: 46 The Public Utilities Commission comprises two distinct regulatory bodies: a three-member Commission (the Commission) and the Division of Public Utilities and Carriers (the Division). Section 39-1-14 of the General Laws of RI states, that two additional Commissioners shall be appointed to the RI Public Utilities Commission in January of 2004. These appointments have not yet been made. Responsibilities: The Commission serves as a quasi-judicial tribunal with jurisdiction, powers and duties to implement and enforce the standards of conduct under RIGL 39-1-27.6 and to hold investigations and hearings involving the rates, tariff, tolls, and charges, and the sufficiency and reasonableness of facilities and accommodations of railroads, ferry boats, gas, electric distribution, water, telephone, telegraph, and pipelines public utilities, the location of railroad depots and stations, and the control of grade crossings, the revocation, suspension or alteration of certificates issued pursuant to RIGL 39-19-4, appeals under RIGL 39-1-30, petitions under RIGL 39-1-30, and proceedings under RIGL 39-1-32. Through participation in the Energy Siting Board, the Commissions chair also exercises jurisdiction over the siting of major energy facilities, pursuant to Chapter 42-98.The Division is headed by an Administrator who is not a Commissioner, exercises the jurisdiction, supervision, powers and duties not specifically assigned to the Commission, including the execution of all laws relating to public utilities and carriers and all regulations and orders of the Commission governing the conduct and charges of public utilities. The Division has exclusive jurisdiction over the rates, tariffs, tolls and charges and the sufficiency, and reasonableness of facilities and accommodations of common carriers of property and passengers over the States public roadways, pursuant to Chapters 3912, 39-13 and 39-14. Additionally, the Division supervises and regulates Community Antenna Television Systems (CATV) in Rhode Island; certifies all public utilities; and has independent regulatory authority over the transactions between public utilities and affiliates, and all public utility equity and debt issuances.

Separately and together, these 14 executive branch departments wield statutory powers directly affecting the lives of Rhode Island citizens. Many of them can make and enforce regulations that have the force of law. 3. Twenty-one quasi-public corporations In addition to the executive branch departments described above, the General Assembly has enacted laws which establish hybrid entities which are not within state government yet which perform essential functions for the state. We have found 42 occurrences of quasi-public or quasi

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public in the Rhode Island General Laws. None of the statutes defines the term.7 In practice, quasi-public corporations run businesses or perform other operations for the state. Some of them receive appropriations from the General Assembly; others do not. These are the states 21 other quasi-public corporations (the Board of Governors for Higher Education and the Board of Regents for Elementary and Secondary Education, both quasi-public corporations, appear above under the states executive branch departments). Convention Center Authority The link in infor.ri.gov leads to the secretary of states web site, which leads to a page on the secretary of states web site which says The item you requested does not exist on this server or cannot be served. There is no entry for the entity on ri.gov. There are 24 occurrences of Convention Center in the budget enacted for FY 2006. The occurrences concern parking spaces at the center, the issuance of bonds, or debt service. There appears to be no appropriation for FTEs. The centers web site contains this explanation:
The Rhode Island Convention Center Authority was created in 1987 to construct, manage and operate a convention center and related facilities, including a hotel, parking facilities and office building, on a 7.7 acre site in downtown Providence. Construction was completed in 1993-94. The office space is fully leased, and the convention facility and Westin Hotel represent a key factor in the Providence downtown resurgence. The facilities are leased to the state and the authority manages them under a sublease agreement, contracting the actual facility management to third parties. The authority is governed by a ninemember board of directors chaired by David A. Duffy of North Kingstown.

Housing Resources Commission No information about mission, budget, responsibilities, or personnel is posted on the secretary of states web site. The commissions web site appears on info.ri.gov and on ri.gov. Three staff members are listed on the web site. The budget for FY 2001 is listed as $3,538,442.73. No more recent information is listed on the web site. This entity does not appear in Article 1 of the state budget for FY 2006. It appears once, on page 511, of the budget enacted for FY 2006 in connection with the reappropriation of $122,695 for lead abatement grant awards. From the commissions own web site:
Our Mission The Rhode Island Housing Resources Commission (the Commission) is the planning and policy, standards, and programs division of the Rhode Island Housing Resources Agency established by Chapter 128 of Title 42 of the Rhode Island General Laws. Its mission is to provide housing opportunities for all Rhode Islanders, to maintain the quality of housing in Rhode Island, and to coordinate and make effective the housing opportunities of the agencies and subdivisions of the state.

Narragansett Bay Commission This commission appears once in Article 1 of the state budget for FY 2006 in the Department of Administrations Debt Service section under Rhode Island Capital Plan Funds: $1,973,944 for DEM Narragansett Bay Commission. The line item is not explained, but more detail is provided in the budget enacted for FY 2006 (page 459 ff). NBC is currently well into a massive tunnels and tanks Combined Sewer Overflow project estimated to cost hundreds of millions of dollars to collect and treat storm water runoff. The funding listed on page 459 totals $654,605,000 from state revolving funds ($632,588,000), general obligation bonds ($15,000,000), and federal

The abridged seventh edition of Blacks Law Dictionary defines quasi-public corporation as a for-profit corporation providing an essential public service.

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funds ($7,047,000). The project is described inside a jazzy, animated link on NBCs web site.
Annual Budget: $458,419,277 (from the information posted on the secretary of states web site) Total Personnel: 233 (from the commissions web site. The number of personnel posted on the secretary of states web site is 250.) The Narragansett Bay Commission was created by the Rhode Island General Assembly in 1980 to reduce pollution and improve the quality of Narragansett Bay and its tributaries. The NBC, a non-profit public corporation regulated by the RI Public Utilities Commission, provides wastewater collection and treatment services to over 350,000 people in Providence, North Providence, Johnston, Pawtucket, Central Falls, Lincoln, Cumberland, East Providence, and portions of Smithfield and Cranston. Responsibilities: The Narragansett Bay Commission owns and operates RIs two largest wastewater treatment facilities--the Fields Point Wastewater Treatment Facility in Providence and the Bucklin Point Wastewater Treatment Facility in East Providence---and is responsible for 89 miles of interceptors, 8 pump stations, 32 tidegates and 66 combined sewer overflows.

Quonset Development Corporation No information about mission, budget, responsibilities, or personnel is posted on the secretary of states web site or on info.ri.gov or ri.gov. Quonset Point appears 27 times in the budget enacted for FY 2006. None of the entries authorizes money for FTEs. Most of them concern construction or other capital projects at the site. Nine of the occurrences appear under the Rhode Island Economic Development Corporation. Four of the occurrences appear under Military Staff (hangar, armory, door and window replacement). There is one entry in Article 1 of the state budget for FY 2006, in the Department of Administrations Debt Service section under Rhode Island Capital Plan Funds: DOA Third Rail Project Quonset Point - $1,367,030. From 4264.10-3:
42-64.10-3 Purposes. The corporation is authorized and established for the following purposes: (a) To develop, manage, and convey Federal land as defined in 42-64-3(9) on behalf of the state, consistent with base reuse plans and plans duly adopted and/or ratified as provided for in this chapter. (b) To undertake projects as defined in 42-64-3(20); provided, however, that the corporation shall not have the power to issue bonds or notes or exercise eminent domain, provided further that nothing herein shall be deemed to limit or otherwise restrict or diminish the powers of the economic development corporation, in accordance with chapter 64 of this title, to issue bonds on behalf of the corporation or for a project of the corporation or to exercise eminent domain on behalf of the corporation or in conjunction with a project of the corporation. (c) To establish, implement, and maintain high standards for design, improvement, operation, and use of property under its control in order to provide sites and related amenities for high quality businesses that create high value added jobs in Rhode Island. (d) To foster and maintain effective working relations with its host and surrounding communities. (e) To establish a professional capacity for the state to develop, manage, and market state lands for commercial purposes and to act as a subsidiary of the economic development corporation for this purpose.

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Rhode Island Airport Corporation No information about mission, budget, responsibilities, or personnel are posted on the secretary of states web site. There is no link to it on ri.gov.The link to the Airport Corporation on info.ri.gov leads to the web site of T. F. Green Airport. That site contains the following:
ABOUT RHODE ISLAND AIRPORT CORPORATION The Rhode Island Airport Corporation was formed on December 9,1992 as a semiautonomous subsidiary of the then Rhode Island Port Authority, now the Rhode Island Economic Development Corporation to operate and maintain the states airport system. The powers of the corporation are vested in its seven-member board of directors, six of whom are appointed by the governor, and one member appointed by the mayor of the City of Warwick. The Rhode Island Airport Corporation is responsible for the design, construction, operation and maintenance of the six state-owned airports; and the supervision of all civil airports, landing areas, navigation facilities, air schools and flying clubs. In addition to T. F. Green Airport, the Rhode Island Airport Corporation is responsible for five general aviation airports throughout the state: Block Island, Newport, North Central, Quonset and Westerly.

No information about budget or staff is posted on this web site. The term airport corporation occurs 13 times in the budget enacted for FY 2006. Page 453 describes $591,865,501 in funding for a variety of capital projects, including $141,800,000 for a Warwick Intermodal Train Station. Rhode Island Clean Water Finance Agency No information about mission, budget, responsibilities, or personnel is posted on the secretary of states web site. Page 455 of the budget enacted for FY 2006 explains some $1,229,573,274 in funding from a variety of sources for a five-year capital plan. Links on info.ri.gov and ri.gov lead to the agencys web site:
Established under Title VI of the Federal Clean Water Act and Chapter 46-12.2 of the Rhode Island General Laws, is a subsidized loan program for local government units to finance wastewater infrastructure projects. The purpose of this program is to provide financial assistance to local governmental units for water pollution abatement projects in the form of loans with below market interest rates or interest rate subsidies which reduce the cost of financing these projects by at least 33%. In order for a project to be eligible for funding, the project must be on DEMs Project Priority List (PPL) and have a Certificate of Approval (CA) from DEM. The PPL is updated on an annual basis. Since the inception of the CWSRF, loans have been made to various municipalities and NBC. Funding for the program is available from four sources: federal capitalization grants, state match monies, Agency revenue bonds, and revolved capital. The program works as follows: Federal Capitalization Funds. Federal funds are made available under Title VI of the Federal Clean Water Act that established the loan program. A state match of 20% of the total grant award is required. The annual grant award to the State of Rhode Island is based on a specific percentage of the total made available by Congress for the program. It is not based on project needs in any given year. The Agency has two years to apply for a federal grant after the funds have been appropriated. The Funds can be drawn down over a tenyear period of time. Recipients of loans must comply with all applicable state laws and regulations. Recipients of loans from the Water Pollution Control Revolving Loan Fund must also comply with all requirements of Title VI of the Federal Clean Water Act and regulations issued thereunder in addition to any other applicable federal laws and regulations.

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The 2004 annual report lists five staff members. More details about the agencys finances can be found site in this annual report on this web site.
Copyright 2004 Rhode Island Clean Water Finance Agency. All rights reserved.

Rhode Island Water Resources Board Corporate Annual budget: $2,803,450 FTEs: 9 No information about mission, budget, responsibilities, or personnel is posted on the secretary of states web site. Links on info.ri.gov and ri.gov lead to the boards web site:
The RI Water Resources Board and the RI Water Resources Board Corporate are established by Chapter 46-15 of the RI General Laws. The General Assembly recognized that Rhode Islands water resources are among the states most valuable-if not the most valuable-of all its natural resources. Together, these two agencies of government support the proper development, protection, conservation and use of the states water resources while providing for economic development and protection for the environment.

The 2004 annual report posted on the web site lists nine staff members. Readers interested in the agencys finances should consult this report. Page 451 of the budget enacted for FY 2006 explains some $45,099,325 in funding for a variety of waterrelated capital projects. Rhode Island Economic Development Corporation
Annual Budget: $18,300,000 (from the web site of the secretary of state) Personnel: 100 (from the web site of the secretary of state) The Rhode Island Economic Development Corporation (RIEDC) was created in 1995 with a mission to strengthen the Rhode Island economy through policies, programs, and projects, which enhance and enrich the business environment for public and private sectors in order to create prosperity for all Rhode Islanders. The RIEDC consolidated all economic development activities of the State of Rhode Island into one entity enhancing service delivery, performance, and accountability. The Corporation is authorized to acquire, contract and assist in the financing of its projects through the issuance of industrial development revenue bonds, which do not constitute any debt or liability of the state. Responsibilities: The Rhode Island Economic Development Corporation works with new and existing business to improve their competitiveness, train their workers, clear away barriers and provide the resources they need to grow and prosper. We research, introduce and promote legislation and programs to make Rhode Island a more hospitable state for starting and expanding a business. RIEDC also manages the state-owned Quonset/Davisville Port and Commerce Park in North Kingstown, a 3,000-acre facility offering intermodal transportation capabilities for manufacturing distribution and service businesses. RIEDC promotes Rhode Island as a tourism destination and works with local businesses to develop their tourism industry potential. RIEDC services include State sponsored financing, small business assistance, workers training programs, export assistance, real estate inventory, and government contract procurement.

Rhode Island Health & Educational Building Corporation


This entity appears only in the capital funding section of the budget for FY 2006. The following is from the secretary of states web site: Annual Budget: $493,439 Total Personnel: 3 Agency issues tax exempt bonds for nonprofit health and educational institutions and municipal school projects. The entity appears six times in the budget enacted for FY 2006. Most of the entries concern bonds issued for construction projects and related matters.

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Rhode Island Higher Education Assistance Authority


Annual Budget: $26,689,247 Total Personnel: 46 The Rhode Island Higher Education Assistance Authority (RIHEAA) is the state agency responsible for the administration of the RI State Grant Program, and the RI Scholar Recognition Programs. RIHEAA also sponsors the CollegeBoundfund program, Rhode Islands 529 Plan for college savings. Through the CollegeBoundfund program, RIHEAA is able to fund and administer the Academic Promise Scholarship Program and the 5&10 Matching Grant Program. The CollegeBoundfund is a savings vehicle for RI residents and citizens across the country who are concerned about their ability to meet the rising costs of post-secondary education. Investments in this program are governed under section 529 of the IRS code and the earnings are tax exempt under current state and federal law when withdrawn when used for qualified educational expenses. The Authority serves as the Guarantee Agency for the Federal Family Education Loan Program, encompassing the Stafford Subsidized and Unsubsidized and the Parent Loans for Undergraduate Student Programs. The Authority, with its loan programs, provides financial assistance to students and their parents who are restricted from participating in post-secondary education and meeting their educational goals due to insufficient financial aid. The Authority, in agreement with participating lending institutions and the Department of Education, insures loans against default and is subsequently reimbursed by the Department of Education for part of the default claims paid. Administrative and Collection costs are absorbed by the agency. Responsibilities: The Higher Education Assistance Authority was authorized to develop a system of financial assistance programs consisting of the Scholarship and Grant Program, Federal Loan Programs and College Savings programs and others. These programs are designed to promote access and choice to a post-secondary education for needy students, and their families who are restricted because of insufficient resources in meeting their educational/career goals.

Rhode Island Housing & Mortgage Finance Corporation No information about mission, budget, responsibilities, or personnel is posted on the secretary of states web site. Links on info.ri.gov and ri.gov lead to the corporations web site. From the general treasurers web site:
RIHMFC is a public corporation of the state created in 1973 to assist in the construction and financing of low and moderate-income housing and health care facilities in the State. In addition to its general powers, RIHMFC is authorized to issue revenue bonds and originate mortgage loans.

Neither the general treasurers web site nor the corporations web site contains any information about finances or staff. No annual reports are posted on the corporations web site, which contains much information for the consumer but nothing about the corporations board, staff, or finances. The budget enacted for FY 2006 contains seven occurrences of the entitys name, all dealing with the issuance and service of debt. Rhode Island Industrial Facilities Corporation No information is posted on secretary of states web site. There is no link for it on infor.ri.gov or on ri.gov. There are four occurrences of the entitys name on three pages in the budget enacted for FY 2006. None of them concerns budget or personnel. From state law:
45-37.1-4 Rhode Island industrial facilities corporation constituted public body corporate and agency of the state. (a) The Rhode Island industrial facilities corporation, previously created as a nonbusiness corporation, under and pursuant to chapter 6 of title 7, as amended by chapter 121 of the Public Laws of 1966, is constituted and established as a public body corporate and agency of the state for the purposes of acquiring,

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constructing, financing, and leasing projects, as defined in this chapter, within the state. The exercise by the corporation of the powers conferred by this chapter are deemed and held to be the performance of an essential governmental function.

Rhode Island Industrial-Recreational Building Authority The entity does not appear in Article 1 of the state budget enacted for FY 2006. It does not appear in the budget enacted for FY 2006. No information is posted on secretary of states web site. There is no link for it on ri.gov. The authority does not appear to maintain a web site. The link to it on info.ri.gov leads to an entry in the Rhode Island Government Owners Manual:
ANNUAL BUDGET: $0 DESCRIPTION The Rhode Island Industrial-Recreational Building Authority was created by the Rhode Island General Assembly in 1958. The Authority constitutes a body corporate and politic and a public instrumentality of the State having a distinct legal existence from the State. The Authority is empowered to insure contractual principal and interest payments required under first mortgages and first security agreements issued to private sector entities by financial institutions and the Rhode Island Industrial Facilities Corporation (local development corporation). MAJOR RESPONSIBILITIES The Rhode Island Industrial-Recreational Building Authority issues debt insurance on eligible projects. Project limit is $5,000,000; the aggregate portfolio insurance capacity of the Authority is $80,000,000. Maximum insured mortgage as a percentage of project amount is: Real Estate 90%, Machinery & Equipment 80% and Travel/Tourist Facilities 75% (Real Estate project amount is based on an as completed appraisal). The project term may not exceed twenty-five years for real estate, twenty-years for machinery and equipment, and must fully amortize over the term. Eligible projects are: manufacturing, processing, office, wholesale, retail and travel/tourist facilities. Approved uses of funds include: new building, acquisition, expansion/rehabilitation of existing buildings, new and used machinery and equipment. Mortgage insurance premiums are calculated on the outstanding principal balance of the mortgage: (at the time of publication) 1% to 3%, per annum. The Rhode Island IndustrialRecreational Building Authority must be in a first position on all projects. Projects are required to issue a first mortgage and first security agreement to the Rhode Island Industrial Facilities Corporation (in its capacity as a local development corporation).

From state law:


42-34-2 Purpose. (a) It is declared that a state-wide need exists for industrial buildings and the expansion, rehabilitation, renovation, and reconstruction of existing industrial buildings and additional machinery and equipment to provide enlarged opportunities for gainful employment by the people of Rhode Island and to thus insure the preservation and betterment of the economy of the state and its inhabitants. It is also declared that it is in the interest of the public welfare and purpose to promote the expansion and diversification of industry to increase employment, prevent or reduce unemployment, and to provide a larger taxable base for the economy of the state of Rhode Island, and to generally promote economic development in Rhode Island. Therefore, the Rhode Island industrial building authority is created to encourage the making of mortgage loans for the purpose of furthering industrial expansion in the state, and, thus, improve the welfare of the public for the foregoing reasons and, by the stimulation of a larger flow of private investment funds from banks, building and loan associations, credit unions, savings and loan associations, insurance companies, and other financial institutions, including pension, retirement and profit-sharing funds, meet the need of new industrial plant expansion, the expansion, rehabilitation and renovation of existing industrial plants, and the acquisition of new machinery and equipment.

Public Telecommunications Authority/Channel WSBE-TV


Annual Budget: $2,042,817 Total Personnel: 22

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Common Cause of Rhode Island The Rhode Island Public Telecommunications Authority is the owner and license holder for WSBE-TV/WSBE-DT Rhode Island PBS, Rhode Islands public television stations. WSBETV Rhode Island PBS broadcasts 105 hours per week and is headed by the President/CEO who is responsible for the operation of all station activities, including private fund raising which partially supports the Authoritys budget. Responsibilities: Rhode Island Public Telecommunications Authority is the governing body of Rhode Islands public television station, WSBE-TV Rhode Island PBS. WSBE-TV Rhode Island PBS is the states most accessible learning resource. Committed to the principle of life-long learning and responding to the identified needs and interests of its viewers, Rhode Island PBS enhances the quality of life of the residents in its viewing area by delivering programs and services that educate, inform, enrich, inspire and entertain its viewers of all ages, using the most advanced telecommunications technology available. Throughout the academic year, Rhode Island PBS Educational Services provides Instructional Television (ITV) programming that meets Rhode Island Department of Education curriculum standards. Rhode Island PBS also provides Video Streaming Curriculum, a real-time multimedia on-demand service over the Internet, to enhance the classroom learning experience. Rhode Island PBS is committed to promoting reading and learning readiness in young children through its Ready To Learn programming and training workshops for parents and caregivers. Rhode Islanders seeking a high school equivalency diploma benefit from the year-round convenience of GED Connection. A wide range of How-To programs enable adults to develop practical skills in computers, management, home and auto repair, as well as life-enhancing skills in sewing, cooking, painting and travel. The mandate to provide training in telecommunications is fulfilled through internship programs in the production and technical areas, and through professional development workshops for educators.

Rhode Island Public Transit Authority Budgetary information is not posted on the secretary of state web site. The links on info.ri.gov and ri.gov lead to RIPTAS web site, which contains links to financial statements for 2001 through 2004 and the names of 14 executives. The entity appears on many pages of the budget enacted for FY 2006. A notation on page 311 of the budget says that RIPTA receives its funds through the Department of Transportation We were unable to ascertain RIPTAs budget and total number of personnel from the budget enacted for FY 2006. From the secretary of states web site:
Total Personnel: 690 The Rhode Island Public Transit Authority provides mass transit service in 36 of the 39 cities and towns within the State of Rhode Island under the direction of a seven member Board of Directors. Its present fleet of 240 buses, 102 paratransit vehicles, 17 flex vehicles and 1 ferry, are operated and maintained by 734 employees. The main facility is located in the City of Providence with a satellite operation on Aquidneck Island. In FY 2004, more than 20 million passengers were serviced. Responsibilities: The Rhode Island Public Transit Authority is empowered to provide fixed route mass bus operations and complimentary paratransit service to ADA eligible Rhode Islanders within ? [sic; the number is not given] mile of fixed route which are deemed in the best interest of the people of the State of Rhode Island.

RIPTAs web site cites a total of 800 employees. The audited financial statement for 2004 is posted on that site and lists total assets of $87,600,098. Total operating expenses were reported as $80,024,717. Rhode Island Refunding Bond Authority No information is posted on the secretary of states web site. There is no link to it on ri.gov. The Rhode Island general treasurer chairs this authority. The link on

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info.ri.gov takes a visitor to the general treasurers web site, which contains this entry:
The General Assembly created this Authority in 1987 to refinance certain State general obligation debt at lower interest rates. In 1998, the Refunding Bond Authority completed its consolidation of the Public Building Authority. Included in the consolidation was the refinancing of certain outstanding debt of the Public Building Authority to reduce debt service payments.

Rhode Island Resource Recovery Corporation No information about mission, budget, responsibilities, or personnel is posted on the secretary of states web site. Info.ri.gov has a link for RIRRC, which leads to the corporations web site. From the corporations web site:
The Rhode Island Resource Recovery Corporation is the state environmental agency dedicated to providing the public with environmentally sound programs and facilities to manage solid waste. The agency funds and manages the states recycling program, and owns and operates the Central Landfill and Materials Recycling Facility in Johnston, Rhode Island. Created by the Rhode Island General Assembly in 1974 as the Rhode Island Solid Waste Management Corporation, the corporation changed its name in August, 1996. Although not a department of the state government, RIRRC is a public corporation and a component of the State of Rhode Island for financial reporting purposes. To be financially selfsufficient, the agency earns revenue through the sale of recyclable products, methane gas royalties and fees for its services.

The last annual report posted is for 2003. Reports of audits for 2003 and 2004 are also posted. The web site does not contain any information about staff. The corporation appears 17 times in the budget enacted for FY 2006. The entries concern the issuance of debt and other capital matters. There are no appropriations for FTEs in the enacted budget. Rhode Island Student Loan Authority No information about mission, budget, responsibilities, or personnel is posted on the secretary of states web site. There is no link to it on ri.gov. A link on info.ri.gov leads to the agencys web site:
The Rhode Island Student Loan Authority (RISLA), a non-profit State authority, provides affordable higher education loans. Since 1981, the Authority has provided over 200,000 loans, helping 100,000 students to achieve the education that they deserve. RISLA also offers students and parents free educational admissions and financial aid assistance through the College Planning Center of Rhode Island, conveniently located at the Warwick Mall. Come visit us and let us answer your questions, assist you in filling out your forms, and make the cost of an education not only more affordable, but more accessible and less time-consuming. We are here to help students and parents not only afford the education of their dreams, but to inform them of the many areas of assistance available to them, in the form of scholarships, loans, tax information guidelines and hands-on help that will make their dreams a reality.

The web site does not appear to contain any information about budget, finances, or staff. The authority does not appear in the budget enacted for FY 2006. Rhode Island Turnpike and Bridge Authority No information about mission, budget, responsibilities, or personnel is posted on the secretary of states web site. Links on info.ri.gov and ri.gov lead to the authoritys web site:
The Rhode Island Turnpike and Bridge Authority was created in 1954 by the Rhode Island General Assembly as a body corporate and politic, with powers to construct, acquire,

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Common Cause of Rhode Island maintain and operate bridge projects as defined by law. The Authority has no stockholders or equity holders. It is directed by a five member Board, four of whom are appointed by the Governor. The current Board members are J. Peter McGuirl, Chairman; David Darlington, Vice Chairman; Richard P. Eannarino, Board Member; Arthur H. Fletcher, Board Member and James R. Capaldi, P.E., Ex-officio. The Authority was responsible for the construction of the Claiborne Pell Bridge (formerly the Newport Bridge) which was opened for traffic on June 28, 1969 and has been responsible for the operation and maintenance of the Mount Hope Bridge between Bristol, Rhode Island and Portsmouth, Rhode Island and the Claiborne Pell Bridge between Newport, Rhode Island and Jamestown, Rhode Island since 1964 and 1969, respectively. No tax dollars, State or Federal, are funded for the operation and maintenance of the bridges. All expenses are met from revenues derived from toll revenues and investment income. The Authority is charged by the Trust Agreement to maintain and operate the bridges in an efficient and economical manner. From revenue the Authority at all times is to maintain the bridges in good repair and in sound operational condition and make all necessary repairs, renewals and replacements. The Authority is a component unit of the State of Rhode Island for financial reporting purposes and as such, the financial statements of the Authority will be included in the State of Rhode Islands Annual Financial Report. The Authority is exempt from federal and state income taxes.

The web site does not contain any information about staff or budget. The entity does not appear in the budget enacted for 2006. Rhode Island Underground Storage Tank Financial Responsibility Fund Review Board No information about mission, budget, responsibilities, or personnel is posted on the secretary of states web site. There is no link to it on ri.gov. A link in info.ri.gov leads to the boards web site:
The RIUST Review Board, directed by a Board comprised of 13 members, is responsible for overseeing the administration and implementation of the fund; reviewing submissions and claims received from eligible parities; and approving, modifying or denying claims to eligible parties. Additionally, the Board helps to insure that environmental and public health impacts of the underground storage tank (UST) leaks are addressed in an effective and timely manner. Owners/operators of certain USTs are required to demonstrate Financial Responsibility to clean up any potential release from their USTs, as regulated by the Environmental Protection Agency and adopted by the State of Rhode Island. RIUST Review Board provides a cost effective mechanism for these owners/operators to meet these requirements. Claims for reimbursement are made to the RIUST Review Board after costs have been incurred in the process of remediating a release from an eligible UST. Funding for these clean-ups is derived from a one cent (.01) per gallon surcharge on motor fuel to owners/operators of underground storage tanks and application fees. These monies are collected, managed and dispersed by RIUST Review Board. Disbursement of monies is generally conducted on a quarterly basis after a thorough review of the eligibility of each release and of the specific costs contained in each application. Reimbursement of 100% of the eligible costs is made (after demonstrating expenditure of the $20,000.00 deductible) based on regulations adopted by the State of Rhode Island and availability of funds. RIUST Review Board made its first payment in 1997 and has since reimbursed over $27 million directly to the clean-up of Rhode islands environment.

The web site does not contain any other information about budget and no information about staff, which in the past has consisted of one director. The entity appears 14

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times in the budget enacted for FY 2006. The entries concern funding for the boards clean-up operations. Tobacco Settlement Financing Corporation This entity does not appear on either infor.ri.gov or ri.gov. The information posted for this entity on the secretary of states web site contains only the names of the corporation members. No information about budget or personnel is posted. The entity does not appear to have its own web site, nor does it appear in the budget enacted for FY 2006. From the general laws:
42-133-2 Purpose. The purpose of this chapter is to authorize, create and establish a corporation empowered to acquire from the state that portion of the states tobacco receipts as the state is authorized to sell; to authorize the sale by the state all or a portion of the states tobacco receipts to such corporation; to authorize the transfer to and the receipt by such corporation of all or a portion of the states tobacco receipts; to authorize such corporation to issue bonds of the corporation for the purposes authorized in this chapter, payable solely from and secured solely by such portion of the states tobacco receipts as the corporation may designate and pledge to secure the bonds, together with the investment income thereon and any reserve fund created by the corporation from any portion of the proceeds of such bonds; and to authorize the corporation to manage and dispose of all or a portion of the states tobacco receipts for the purposes and in the manner authorized in this chapter.

4. Entities with significant financial and/or regulatory powers which are not in the executive branch and are not quasi-public corporations In addition to the executive branch departments and the quasi-public corporations, the Rhode Island General Assembly has established other boards and commissions empowered to implement a variety of state laws. These state entities are not within the executive branch, for which the governor is accountable, and they are not quasi-public corporations. They too constitute part of the General Assemblys oversight responsibility and challenge. These are the most significant of them. Text is taken from the secretary of states web site unless otherwise noted. Figures are taken from the state budget enacted for FY 2006. Coastal Resources Management Council
Annual Budget: $4,139,088 (approximately half is federal funds) Total Personnel: 30 The Councils primary responsibility is for the continued planning, management, and preservation, protection, development and where possible the restoration of the coastal areas of the state via the issuance of permits for work and the development of planning programs within the coastal zone of the state. Responsibilities: It is the responsibility of the Coastal Resources Management Council to: a. Preserve, protect, develop, and where possible, restore the coastal resources of the state; b. Maintain a balance between conservation and development and between conflicting private and public interests that will provide the greatest long term benefits to the people of Rhode Island; c. Protect and preserve valuable natural and cultural features such as historic sites, barrier beaches, coastal ponds, wetlands, and fishing grounds that are vulnerable to development and misuse; d. Protect and promote public access to the shore and provide high quality recreational opportunities to all who come to the Rhode Island shore; e. Provide suitable waterfront sites for industries and businesses that require direct access to coastal waters while directing other industries to suitable inland sites; f. Direct new development away from sensitive areas and into already developed area; g. Establish a working partnership among the public and local, state and federal governments that insures the efficient administration of the Coastal Management Program.

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Commission on Judicial Tenure and Discipline The secretary of state lists only an address for this entity, which appears to be inaccurate. There is no link to it on ri.gov. From the budget enacted for FY 2006: Budget: $106,650 FTE: 1.0 The link on info.ri.gov leads to the State Court systems web site, which in turn has a link for the entity. No budgetary or personnel information is listed. The commissions mission is described thus on this web site:
The Commission on Judicial Tenure and Discipline was created in 1974 to provide a forum for complaints against any judge or magistrate of the Supreme, Superior, Family, District, and Workers Compensation Courts, or the Traffic Tribunal. The commission, chaired by Superior Court Associate Justice Mark A. Pfeiffer, reviews allegations of serious violations of the Code of Judicial Conduct, including willful and persistent failure to perform judicial duties; disabling addiction to alcohol, drugs, or narcotics; conduct that brings the judicial office into serious disrepute; or a physical or a mental disability that seriously interferes with, and will continue to interfere with, the performance of judicial duties. Following a formal hearing, the commission determines whether the charges have been sustained. If eight members of the commission who were present throughout the hearing find that the charges have been sustained, the commission reports its finding to the Supreme Court and recommends either reprimand, censure, suspension, removal, or retirement of the judge. The commission may also recommen d immediate temporary suspension of the judge during the pendency of further proceedings. If charges have not been sustained, the complaint is dismissed, and the judge and the complaining party are notified. The fourteen-member commission represents a cross section of the population: six represent the State Bar Association and the public at large and are appointed by the Governor with the advice and consent of the Senate; one is appointed by the Senate Majority Leader; two are appointed by the Speaker of the House; and five judges are appointed by the Supreme Court. All appointments are for three-year terms.

I-195 Relocation Commission The secretary of states web site contains a listing for this entity but the link is empty. There was no money appropriated for FTEs for the entity in the FY 06 budget. There are six occurrences of the entity in the enacted budget, all dealing with bonds or other funds for the relocation project. One of the entries appears under the Department of Transportation. There is no link to the entity on info.ri.gov or on ri.gov. It does not appear to have a web site. The entity appears among the Assemblys list of commissions. From the general laws:
37-22-3 Declaration of purpose. It is declared that there exist certain state-owned properties which shall become available by relocation of Interstate Route 195 and its on and off ramps. The abandonment of these properties shall create substandard areas for appropriate urban planning and development purposes. This urban planning and development shall be consistent with and subject to the City of Providence comprehensive plan, pursuant to 45-22.2-1 et seq., City of Providence Zoning Ordinance, pursuant to 45-24-27 et seq. and the I-195 Old Harbor Plan (October 1992). As consistent with those plans, these properties can then be utilized for the expansion of institutional use. The clearance of highway structures, replatting, redevelopment and improvement of this land in recognition of the I-195 Old Harbor Plan (October 1992) shall spur the economic development and the improvement of public education, public services and infrastructure. Thus, this clearance of highway structures, replanning, redevelopment and improvement is hereby declared a public purpose. Therefore, the general assembly hereby establishes the I-195 redevelopment board to be responsible to supervise the replanning, replatting,

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redevelopment and improvement of this land through the solicitation, negotiation, execution and enforcement of comprehensive agreements for the redevelopment of this stateowned property through privately-funded qualifying projects. The board is hereby further authorized and directed to take advantage of private sector efficiencies in designing, developing and constructing qualifying institutional projects, which include components that specifically improve public education, public services and infrastructure. The board is hereby further authorized and directed to ensure that the state and its agencies permit and approve qualifying projects in an expedited fashion. In turn, the board shall exercise its authority in recognition of the plan objectives set forth in the I-195 Old Harbor Plan (October 1992).

Judicial Nominating Commission No money or FTEs were appropriated in Article 1 on the state budget for FY 2006. The budget enacted for FY 2006 does, however, contain the notation that the Department of Administration requested $24,889 from general revenues for the Judicial Nominating Commissions operations in FY 2006, which is $16,123 more than included in the FY 2005 enacted budget and the same level as requested by the Department in its FY 2005 revised request. In the FY 2005 revised request, due to the filling of additional judicial vacancies, additional paralegal expenditures, printing, postage and advertising expenses were requested. The Department requested the same level of funding for FY 2006 based on a similar expected workload. The Governor recommended funding as requested. The Assembly concurred. There is no link to this entity on ri.gov. The secretary of states web site contains a link to this entity. The only information posted refers to the commissions rules on uniform procedure. A link on info.ri.gov. leads to the commissions web site:
The Judicial Nominating Commission is charged with screening applicants for vacancies on all of Rhode Islands courts. Upon notification of a judicial vacancy, the Commission advertises for interested candidates, who then complete an extensive application. The Commission then selects candidates to be interviewed, solicits public comment, and conducts background checks. Based on the information developed throughout this process, the Commission votes and submits to the Governor a list of 3-5 highly qualified individuals for each vacancy. The Commission was created by statute in 19948 and comprises nine Rhode Island residents, of which five are lawyers. By statute, the Commissioners are appointed by the Governor and various legislative leaders. All Commissioners serve as volunteers. When there is a judicial vacancy, the JNC will advertise in a number of state newspapers (i.e. the Providence Journal, Rhode Island Lawyers Weekly, Pawtucket Times, etc.) and deadlines will be set out in the ad. If, at that time, you are interested in applying for the vacancy, please download the forms listed in the links box, fill them out and forward the documents (along with the required attachments) to the JNC at One Capitol Hill, Providence, Rhode Island 02908 where they will be kept on file in a locked cabinet. *Please remember that if your application is incomplete in any way, the Commission will not consider it. If, at the time you are interested in applying for a vacancy, you already have an application on file, please put your interest in writing (letter form to the JNC) and your name will be added to the list of candidates. However, if you believe you may need to update your information so that it is brought current, please indicate that in your letter and forward your updated materials within the time frame allowed in the ad.

The commission was first authorized by a 1994 constitutional amendment.

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Rhode Island Atomic Energy Commission The secretary of states web site places this entity at the Nuclear Science Building in Narragansett, presumably on the campus of URI. The site contains links to minutes submitted in 2005 but not to budgetary or personnel information. There is no link for the agency on info.ri.gov or on ri.gov. The budget enacted for FY 2006 places this entity among Education Agencies in the table of contents. Total Appropriation: $1,247,939 FTEs: 8.6 From the general laws:
42-27-2 Powers and duties of commission. (a) It shall be the duty of the Rhode Island atomic energy commission: (1) To make studies as to need, if any, for changes in laws and regulations administered by any agency of the state that would arise from the presence within the state of special nuclear materials and by-product materials and from the operation herein of production or utilization facilities, and, on the basis of those studies, to make such recommendations to the governor and the general assembly for the enactment of laws or amendments to laws or the promulgation of regulations as may appear necessary and appropriate; (2) To advise the governor and the general assembly with respect to atomic industrial development within the state; (3) To coordinate the development and regulatory activities of the state relating to the industrial and commercial uses of atomic energy; (4) To cooperate with the federal atomic energy commission and with like commissions or agencies of the other states in all matters relating to the purposes herein set forth; (5) To contract for, construct, and operate a nuclear reactor within the state for the purpose of research, experimentation, training personnel, testing of materials and techniques, and for such other purposes related thereto which the commission shall deem necessary for the health, welfare, and economy of the people of this state; and in this respect to cooperate with and make available, under proper safeguards, the use of the reactor by the colleges, universities, and industries of this state and to contract for and engage engineers, technicians, and other assistance. (b) The commission may select a director of the commission and may charge fees for the use of reactor facilities.

Rhode Island Ethics Commission


Annual Budget: $1,207,394 FTEs: 12 The Rhode Island Ethics Commission is a constitutionally mandated body authorized to adopt, administer, and enforce the states Code of Ethics. The Code sets forth standards of conduct for all public officials and employees. The Commission consists of nine private citizens appointed for 5-year terms. Responsibilities: The Commission assists state and municipal officials and employees in complying with the Code of Ethics and responds to questions about the Code posed by public officials and employees facing potential conflicts of interest. The educational program offers seminars and workshops and disseminates publications relating to the Code of Ethics. The Commission enforces the Code of Ethics through a combination of confidential investigations, closed meetings, and open hearings and public adjudications. Enforcement powers include civil penalties and, in some instances, the power to remove an official from office.

The link on info.ri.gov leads to the Ethics Commissions web site.

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State Board of Elections The secretary of states web site contains only links to recently promulgated regulations. The links on infor.ri.gov and ri.gov lead to the boards web site. The boards web site does not contain any information about budget or personnel. The state budget for FY 2006 contains this information:
Budget: $2,508,556 FTEs: 15

From the boards web site:


The mission of the Board of Elections is to protect the integrity of the electoral process and to effectively and efficiently administer the provisions of the election laws of the United States and the State of Rhode Island including, but not limited to, the governance and conduct of elections, voter registration, campaign finance, public funding of campaigns and any other duties prescribed by law.

State Investment Commission The secretary of states web site contains the names of two staff members but no other information. The commission does not appear to have a web site, nor does it appear in the budget enacted for FY 2006. There is no link to it on ri.gov. Info.ri.gov contains a link which leads to the web site of the Rhode Island general treasurer, who chairs the commission. That link contains this information:
The General Treasurer chairs the State Investment Commission. The nine voting members of the Commission oversee the investment of the States general fund and pension funds. With the assistance of an investment consultant, the Commission determines the pension fund asset allocation model, or optimal combination of investments. This combination includes both international and domestic equities, stocks, securities, fixed income and alternative investments. The objective of the asset allocation model is to maximize risk-adjusted investment returns in a manner consistent with the States longterm pension liabilities.

We infer that the commission has no separate budget and that staff support is supplied by the Treasury Department. State Retirement Board The secretary of states web site contains a link to the Employees Retirement System of Rhode Island but the link is empty. There is no link to to the board on ri.gov. A link on info.ri.gov leads to the systems web site, which lists 15 employee names but no budget information. The systems annual reports do not appear to be available on the web site. Article 1 of the state budget for FY 2006 places budgetary information for the system under the Treasury Department, as follows (these figures would be included in the total for the General Treasurer above):
Administrative Expenses - State Retirement System Retirement - Treasury Investment Operations Total - State Retirement System $4,521,572 $703,192 $5,224,764

The total figure just above appears on page 79 of the budget enacted for FY 2006. There is no information about FTEs for the retirement system in the budget for FY 2006. 5. The entire judiciary and 19 boards, commissions, and offices also appear in the state budget enacted for FY 2006. Some boards have executive powers; others are advisory or policy-

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making entities. All fall within the oversight responsibility of the General Assembly since they are funded by and expend tax dollars. 1. Rhode Island Judiciary Budget: $83,957,104 FTEs: 742 2. Rhode Island Commission on Women Budget: $86,557 FTEs: 1.0 3. Office of the Child Advocate Budget: $546,681 FTEs: 5.8 4. Commission on the Deaf and Hard of Hearing Budget: $352,942 FTEs: 3.0 5. Rhode Island Disabilities Council9 Budget: $511,924 (all federal funds) FTE: 2.0

6. Governors Commission on Disabilities Budget: $911,942 FTEs: 6.6 7. Commission for Human Rights Budget: $1,249,102 FTEs: 15 8. Mental Health Advocate Budget: $351,329 FTEs: 3.7 9. Rhode Island State Council on the Arts Budget: $3,982,358 FTEs: 8.0 10. Rhode Island Historical Preservation and Heritage Commission Budget: $2,231,145 FTEs: 17.6 11. Military Staff Budget: $30,032,698 FTEs: 103

12. E-911 Emergency Telephone System Budget: $6,046,223 FTEs: 53.6 13. Fire Safety Code Board of Appeal and Review Budget: $266,894 FTEs: 3.0 14. State Fire Marshall Budget: $2,722,739 FTEs: 38

15. Rhode Island Commission for Human Rights Budget: $1,249,102 FTEs: 15.0 16. Rhode Island Historical Preservation and Heritage Commission Budget: $ 2,231,145 FTEs: 17.7 17. Rhode Island Justice Commission Budget: $5,734,692 FTEs: 9.0 18. Municipal Police Training Academy Budget: $403,710 FTEs: 4.0 19. State Police Budget: $50,344,373
9

FTEs: 282

There is only one reference to this entity in the general laws. 40.1-21-12 says the Director of Mental Health, Retardation, and Hospitals must consult with this council before promulgating rules. We do not know the source of this entitys existence.

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20. Office of Public Defender Budget: $7,994,972 FTEs: 93.5 6. Fifty-four boards and commissions with state-level executive and administrative functions do not receive individual appropriations in the state budget. They may, however, be funded or supported by one of the executive branch departments. Those in bold type still had legislative participation as of October 1, 2005. Some may be inactive but still appear in the general laws. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. Agricultural Lands Preservation Commission. Board of Bank Incorporation Board of Examiners of Interpreters for the Deaf Budget and Review Commission (an ad hoc board created under certain conditions) Capital Center Commission Child Advocate Appointing Committee Childrens Crusade for Higher Education Disabilities Enterprise Committee (within Governors Commission on Disabilities) Disaster Emergency Funding Board (ad hoc entity) East Bay Economic Initiative Steering Committee East Providence Waterfront District Commission Energy Facility Siting Board Fire Education and Training Coordinating Board Fort Adams Foundation Health Professional Loan Repayment Board Historic District Commission (Providence) Housing Appeals Board Labor and Payment of Debt Appeals Board Library Board of Rhode Island Martin Luther King Jr. State Holiday Commission Milk Commission Mosquito Abatement Board Motor Vehicle Dealers Licensing and Hearing Board Motor Vehicle Inspection Commission Narragansett Indian Land Management Board Natural Heritage Preservation Commission Occupational Safety and Health Review Board Permanent Committee on Rhode Island Medal of Honor Recipients Persian Gulf War Information Relief Commission Pilotage Commission Prepurchase Firearm Safety Training Review Board Public Finance Management Board Rabies Control Board Rhode Island Economic Policy Council (established by executive order) Rhode Island Farm, Forest, and Open Space Land Value Subcommittee Rhode Island Greenways Council Rhode Island Housing and Conservation Board

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38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54.

Rhode Island Housing Resources Commission Rhode Island Human Resource Investment Council Rhode Island Information Resources Management Board Rhode Island Public Rail Corporation Rhode Island Rivers Council Rhode Island Real Estate Appraisers Board Rhode Island State Labor Relations Board Rhode Island Vehicle Value Commission Scenic Roadways Board Sinking Fund Commission State Building Code Standards Committee State Comprehensive Plan Appeals Board State Conservation Committee State Crime Laboratory Commission State Medical Examiners Commission State Properties Committee State Traffic Commission

The next chapter examines the assets and mechanisms currently available to the General Assembly to oversee the execution of state law.

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Chapter Two

Oversight mechanisms and assets now available to the Rhode Island General Assembly
The $64 question: Are the oversight mechanisms and assets available to the General Assembly sufficient to meet the oversight challenge described in Chapter One?

Mechanisms In the American system of democratic government, state legislatures can use an array of oversight mechanisms. Most of these mechanisms are formal. Oversight can be as informal, however, as a phone call to an executive branch official to alert him or her to a problem that might be solved without further intervention from the legislature. 1. The power to enact, amend, or repeal laws In 2005 the Rhode Island General Assembly introduced 2,914 public bills; it enacted 441 public laws. The power to create, amend, or repeal statutes is a powerful oversight mechanism. The legislature has the power to correct any agency of state government unless the constitution provides otherwise. This power includes the power to organize the executive branch departments and the lower courts of the judiciary The Rhode Island Supreme Court is established by the state constitution and therefore cannot be repealed by law. The constitution empowers the legislature to establish other courts as it deems fit. The departments of the executive branch, as well as all other boards and commissions, are established by law. 2. The power of the purse The Governor has the constitutional responsibility to submit to the General Assembly each February a consolidated budget for the next fiscal year. Only the Assembly can enact the budget into law, however. Each fiscal years enacted budget explains how the Assembly treated each one of the governors requests for appropriations (the Assembly concurred the Assembly did not concur ). Officials of state agencies and departments funded by the budget are well aware of the Assemblys control over their appropriations. 3. The power to impeach This important power is established by Article XI of the state constitution. The House brings impeachment charges. The Senate tries impeachments. 4. Legislative hearings and investigations All public bills, including the governors proposed budget, must be heard by one of the legislatures standing committees. House and Senate rules require 48 hours advance notice of these hearings. Routine hearings on legislation conducted by its standing committees are important oversight mechanisms. Sponsors and supporters of legislation as well as opponents have

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an opportunity to present their views. Committee members can question witnesses about their testimony. The Rhode Island House and Senate can also convene special committees and commissions to seek information, monitor government operations, and uncover and investigate problems. These entities can look both ways: they can react to problems that have surfaced, and they can make plans for a better future. In 1991, for example, the Rhode Island General Assembly created a Select Commission to Investigate the Failure of RISDIC-Insured Financial Institutions. The select commissions report, issued in December of 1992, led to badly needed reforms to the states banking laws after the damage had been done. Despite an aggressive effort to recover lost funds, the RISDIC collapse wound up costing the taxpayers about $290 million to restore the credit union depositors lost savings. In December, 1999, responding to a Providence Journal investigative report on the misuse of official credit cards by high officials at the Economic Development Corporation, then-Senate Majority Leader Paul S. Kelly impaneled a Senate select commission to investigate the governance and conduct of the states quasi-public corporations. Chaired by Sen. J. Michael Lenihan, the commission summoned corporation officials to account for their implementation of a range of state laws, including Chapter 20 of Title 35, the Public Corporation Financial Integrity and Accountability Act. The Lenihan Commissions report, issued in December, 2000, and still available on the Assemblys web site (rilin.state.ri.us), recommended changes to state laws to unify requirements binding on quasi-public corporations and strengthen oversight of them. These recommendations resulted in Senator Lenihans 2001 legislation called the Quasi-public Corporation Oversight Law. It was passed unanimously by the Senate but died in a House committee. Successor bills passed the Senate in 2002 and 2003 but died in the House. In 2004 the Rhode Island House and Senate impaneled a Permanent Joint Legislative Committee on Health Care Oversight to consider how to improve public health care and health insurance in Rhode Island. This entity is clearly looking at past and present problems and making plans for the future. The General Assemblys committees have the power of the subpoena ( 22-6-2.1). This power has rarely if ever been used in recent decades, but it is available if needed. House Rule (42) reads, All writs, warrants and subpoenas issued by order of the House shall be under the hand and seal of the Speaker, attested by either clerk. There is no parallel in the Senates rules. In addition to the well-publicized committees and commissions described above, the General Assembly annually creates or extends dozens of study commissions charged with investigating particular areas of concern and reporting at a certain date. These study commissions are little known. Some are created when it becomes clear that unresolved issues would cause a bill to be buried in committee (in 2000, for example, a bill to appoint magistrates through merit selection was transformed into a commission to study the issue). Some study commissions created by resolution are never impaneled and thus do no work. Others are created to address an urgent need (like the 2005 House commission to study the transportation of LNG). Some of them initially have multi-year lives (two or three years, or even more), and many have their lives extended beyond the original sunset date. The commission to study the depletion of fin fish in Narragansett Bay, for example, was created in 1998 and apparently still exists. During the 2005 legislative session, the General Assembly passed 37 resolutions and three public laws creating new study commissions or extending the lives of existing study

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commissions. In four cases these enactments created or amended joint study commissions. The rest were either House or Senate enactments. These enactments appear in Appendix N. The budget enacted for FY 2006 created a joint legislative oversight commission to study employee retirement benefits, including quasi-public agencies, the Judiciary, the State Police, and the Department of Corrections. This study commission did not appear on the Assemblys web site on October 31, 2005. We do not know if the members of the study commission have been appointed. While few study commissions appear to have submitted written reports and recommendations, a 1992 commission on the Future of the General Assembly filed a written report that became the basis for a proposed 1994 amendment to the Rhode Island Constitution. The General Assembly placed a question on the ballot, and voters approved it. See above for legislation enacted in 2005 that will require agencies submitting annual reports to post them electronically. That requirement does not apply to legislative study commissions. Chapter Six contains statistics on selected state legislatures, including size, session length, salary, and status (full-time, part-time). Appendix C lists state legislatures committee structures. We note that some state legislatures rules specify the jurisdiction of each standing committee. Others, like the rules of the Rhode Island House, simply name the committees with no amplifying detail. 5. Reports to the General Assembly required by statute A 2002-2003 study by Common Cause documented 289 statutes requiring reports of audits and other reports to be submitted at various intervals (bi-annually, annually, semiannually, quarterly, monthly) to various authorities. (There is no statutory requirement that the legislatures finances be audited.) The number of statutory requirements for reports has certainly increased since the study was done. In many cases, statutes mandating reports apply to a range of and, in some cases, all state departments, agencies, boards, commissions, etc. As a result, the actual number of audits and reports is greater than the number of statutes that require them. It is impossible to say what use the General Assembly makes of these reports, or even whether they are submitted as required. In 2005, two important developments occurred: a. The Assembly began to place much more specific reporting requirements in legislation restructuring boards and commissions to conform to the 2004 SOP amendments to the state constitution. b. The Assembly passed two bills which together will require state agencies subject to annual reporting requirements to post those reports electronically on the General Assemblys web site. The requirement will take effect on January 1, 2006. The new statute (PL 2005 Ch. 222 and 233) does not appear to cover audits of state agencies. A note on audits Audits are performed by three authorities: the Bureau of Audits within the Department of Administration (part of the executive branch; the web site lists one bureau chief and 17 staff); the Office of Auditor General (part of the legislative branch; the auditor general and 43.2 FTEs); or independent firms of accountants hired by state agencies to perform the audits required by statute. Independent auditing contractors will not release their reports to anyone but their clients.

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On October 3, 2005, we checked the web sites of the Bureau of Audits and the Office of Auditor General, with these results: 1. The Bureau of Audits listed the names of institutions audited, the kind of audit performed, and links to each report. Two reports had been completed in CY 2005 (to date) and 18 in 2004. The page lists reports as far back as CY 1999. We checked the most recent ten links. Two different computers and operating systems were used in the attempt to read these reports. The results were identical. Two of the links resulted in a scanned cover page for the reports but the rest of the pages of the reports were blank. The other eight PDF files were blank. 2. The Office of Auditor General listed seven audits or reviews completed in 2004 and three completed in 2005 to date. That was still the case on November 7, 2005. The links to these reports worked (if slowly). I.e., the public can read these reports on line or download them. For the most part, state agencies audited by independent contractors appear not to post the reports of these audits on their web sites. A few do, however. There does not appear to be any statutory requirement that reports of audits be posted electronically. 6. Program performance measures Beginning with the FY 1995 budget, the General Assembly has required the governor to provide performance objectives for each program in his or her budget along with data documenting the programs success in attaining those objectives ( 35-3-24.1). Performance measures for each program that has developed them appear in the Governors Budget for FY 2006. Some programs do not cite performance measures. Approximately 180 pages of the Technical Supplement of the Governors Budget for FY 2006 contain more detail about this data (p. 205 ff). Despite this enormous amount of information, there is no mention of these program performance measures in the state budget enacted by the General Assembly for FY 2006. (The budget document published by the General Assembly contains two occurrences of performance measure, but neither is a reference to the measures used by executive agencies.) It is not known at this writing (November 4, 2005) what use the General Assembly makes of the executive branchs performance measure data. See Appendix O for the program performance measures used in the Governors Budget for FY 2006. Chapter Seven contains questions, comments, and recommendations on this subject. 7. Advice and consent With the passage of the SOP amendments in 2004, the governors myriad appointments to executive agencies and to boards and commissions with executive powers require the advice and consent of the Senate. This is a powerful oversight mechanism. Advice and consent provisions vary from state to state. 8. Legislative oversight commissions and committees. Common Cause has counted eleven legislative commissions charged with oversight of some aspect of state government. At least one of them is defunct (ironically, the Legislative Oversight Commission). In addition, there are, as of November, 2005, two standing legislative committees listed on the Assembly web site with oversight responsibilities.10
10

The Permanent Joint Committee on Health Care Oversight, and the Senate Committee on Government Oversight

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Other entities with mixed membership, i.e. both legislative and non-legislative members, also have oversight responsibilities. See Chapter Three for more detail. The Permanent Joint Committee on Health Care Oversight has been active in recent sessions. So has the Senate Committee on Government Oversight. We have no information on the other legislative oversight entities we have discovered and discuss in Chapter Three. 9. Attendance at meetings of boards and commissions. Nothing in the 2004 separation of powers amendments prevents lawmakers and/or legislative staff from attending meetings of the boards and commissions on which they formerly sat, or to which they formerly appointed public members or indeed to attend meetings of boards with executive functions which appear never to have had any form of legislative participation. (A House staff member regularly monitors proceedings of the Rhode Island Ethics Commission, but such monitoring appears to be the exception rather than the rule.) 10. Oversight by the media It may seem odd to include media oversight as a legislative oversight mechanism. In modern memory, unfortunately, legislative oversight has been more honored in the breach than the observance. All too often the public learns of misdeeds in state government from the press, not from a legislative committee or commission. Rhode Islands newspapers, led by the Providence Journal, have provided important if not crucial oversight of state government. Many major reforms, resignations, or indictments would never have occurred had not reporters uncovered or reported on some misdeed or other. It must be stressed that these are all examples of reactive, not proactive, oversight. A few examples: a. The pension scandal of the 1990s whose roots ran at least as far back as 1964 is a good example of why oversight by the press is so important. In the case of state pensions (and we should add campaign finance contributions), legislators had everything to gain from using their powers for their own benefit. So long as no one was looking, the legislators the very branch of government supposed to oversee government could get away with flagrant abuse of their own powers. We may well echo Juvenal: Who will guard the guardians themselves?11 In late March of 1991, two months after the banking crisis swept over the state, the Providence Journal published a three-part series called Set for Life. Set for Life revealed how members of the legislature had, over the years, been using their law-making powers to enact special pension benefits for themselves and favored individuals and groups. After an enormous struggle, the states pension files were declared public records and thus open to inspection. The Access to Public Records Law was amended to state that with respect to employees, the name, gross salary, salary range, total cost of paid fringe benefits, gross amount received in overtime, and other remuneration in addition to salary, job title, job description, dates of employment and positions held . . . shall be public. (RIGL 38-2-2(4)(A)). With this, the enactment of special pension deals came to an abrupt halt. In 1994 the voters approved a package of amendments which raised legislative pay and ended legislative pensions. The Joint Committee on Retirement, where these private deals were worked out, was abolished.

11

In the Sixth Satire.

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b. Even when the press is vigilant, legislators can prove remarkably resistant to change. Over the last ten years the Providence Journal has periodically run reports on how legislative leaders, who typically raise the most campaign contributions, have spent tens of thousands of dollars in the aggregate on restaurant meals, tickets to sports events, gifts, airline travel to distant places, and, in one strange case, on an ambulance to transport the injured son of the constituent of a state representative from upper New England to Rhode Island. These expenditures are typically justified as necessary to the gaining or holding of public office, which is explicitly permitted by state law (RIGL 17-25-7.2(a)). The Assembly typically resists any attempts to tighten controls on campaign finance activities. The press has also reported malfeasance in the other branches of state government. c. A two-part Providence Journal series in 1997 revealed extraordinary patronage, a swollen payroll, inefficiency, and waste at the states traffic court. After an enormous struggle, the legislature demoted the traffic court to a tribunal within District Court. More investigation will be necessary to assess whether the new tribunal is operating more efficiently than its predecessor. d. In 1993 the Providence Journal reported that Supreme Court Chief Justice Thomas Fay and Court Administrator Matthew Smith, a former House speaker, had swollen the courts payrolls and misused their offices. Fay was subsequently convicted of felonies and lost his state pension. Smith was convicted of misdemeanors and kept his state pension. The Legislative Departments personnel assets The budget enacted for FY 2006 provides the Legislative Department with 289 full-time equivalent (FTE) positions, nine more than in FY 2004. The amount the legislature appropriated for itself for FY 2006 is $30,228,786. The total appropriations below for sub-parts of the legislature are taken from the budget enacted for FY 2006. The FTEs are taken from the Governors budget for FY 2006 budget. There is a difference of nine FTEs between the two budgets which is explained below. There is no personnel supplement for the budget enacted by the General Assembly and thus no way to find out how the General Assembly has allocated its 289 FTEs. 1. Fiscal Advisory Staff: supports the work of the House Finance Committee, whose most important task is shaping the state budget. 1 House fiscal advisor 1 deputy House fiscal advisor 1 legal counsel 2 principal legislative budget analysts 1 legislative budget analyst 2 fiscal analysts II (budget) 2 fiscal analysts (budget) 1 fiscal analyst 2 secretaries Total: 13 FTEs Total appropriation: 2.

$1,372,019

Legislative Council: charged with obtaining information on the operation of the state government and making a study of legislative problems. RIGL 22-8-1. The council itself is composed of four state representatives and three senators. 1 director

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1 chief assistant to the director 1 administrative coordinator 1 deputy director 1 research analyst 9 legal counsel 1.8 legislative legal counsel 0.6 legislative staff assistant 7 legislative aides 1 law clerk 2 researchers 4.6 secretaries 1 staff assistant 12.2 clerical (Legislative Council) 3 clerical 4 proofreaders Total 51.2 FTEs. Total appropriation:
12

$3,606,373

3. The Joint Committee on Legislative Services (JCLS) : composed of the majority and minority leaders of the House (three) and the Senate (two). See 22-11. JCLS is permanently chaired by the House Speaker. It controls the Assemblys budget, which is part of the overall state budget which the Assembly enacts; controls all appropriations and spending within the Assembly; controls all printing by and for the Assembly; procures all equipment and supplies used by the Assembly; controls all voting equipment used by the Assembly; controls the legislative departments web site; and controls the assignment of all space within the State House except that occupied by the Governor and the secretary of state. 1 chief legal counsel, House 1 chief of staff, Senate 1 Senate finance advisor 1 economist 1 chief of staff, House 1 senior legal counsel, Senate 1 chief legal counsel, Senate 1 chief policy advisor 1 executive director, JCLS 1 Senate rec. [sic; records or recording?] clerk 1 deputy chief of staff, Senate 1 budget analyst 1 director of communications, House 1 legis. personnel admin. [sic; administrator?] 1 House clerk 1 director internship office 1 deputy assistant to speaker 1 law revision officer 1 director of constituent services
12

Referred to as the Joint Committee on Legislative Affairs on page 71 of the enacted budget. That is its former title. It has been renamed.

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1 director of Senate admin. [sic; administration?] 1 chief of staff/HMO [sic] 1 deputy policy advisor 1 executive assistant 1 admin. comm. [sic] 7 legal counsel 1 director of communications 1 asst. law rev. offir [sic; law revision officer] 1 research analyst 0.6 health policy advisor 1 director of communications, Senate 1 admin. aide 1 assistant to counsel 2 fiscal analysts 7 administrative assistants 1 computer operator 1 Senate policy analyst 0.6 House parliament [sic; parliamentarian] 1 assistant to speaker 4 publicists 1 director of Senate services 0.6 policy aide 1 House finance policy assistant 1 associate policy advisor 1.6 policy analysts 1 legal coordinator 1 press foreman 2 clerks 5.2 legislative assistants 1 senior press operator 1 clerk acct. claim [sic] 1 research assistant 33.1 secretaries 1 sec/sr. deputy leader [sic] 10.8 clerical 1 Senate finance aide 1 constituent liaison 2 constituent services [sic] 1 legislative aide veterans affairs 1 House rec. [sic; records/recording?] clerk 0.6 leg. project coord. [sic] 5 press operators 0.6 researcher 14.6 legislative aides 1 clerk House Labor [Committee] 1 clerk House Corp. [sic; House Committee on Corporations] 0.6 clerk/Senate Educ. [sic; Senate Committee on Education] 0.6 legal counsel/House Corp. [sic; House Committee on Corporations]

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1 clerk/House Judic. [sic; House Committee on the Judiciary] Total FTEs: 147.5 Total appropriation: $15,903,346 4. Legislative Data Services: operates the General Assemblys web site, among other duties. 1 director 1 internet administrator 1 data program specialist 1 principal systems analyst 1.6 secretaries 1 data analyst 2 computer technicians 1 legislative researcher Total FTEs: 9.6 Total appropriation: No separate appropriation line in the enacted budget. Ed. Telecommunications Cable TV: broadcasts Assembly floor sessions and hearings on Interconnect TV. 1 acting director 1 engineering technician 1 TV director 8 TV technicians 1 TV engineer 1 secretary 1.5 work study interns Total FTEs: 14.5 Total appropriation: No separate appropriation line in the enacted budget. Ed. 5. The Office of Auditor General: under the direction of JCLS. 1 auditor general 1 assistant auditor general 1 training director/municipal training liaison 3 senior audit managers 1 information systems audit manager 4 audit managers 0.6 legal counsel 3 supervising auditors 1 supervising IT [sic; information technology?] auditor 1 principal IT auditor 11.6 principal auditors 5 senior auditors 6 auditors 1 data systems coordinator 1 assistant data systems coordinator 1 administrative officer 1 executive secretary 1 senior clerk receptionist Total FTEs: 44.2 Total appropriation: $4,392,409

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These FTEs taken from the governors budget add up to 280, not 289 as stipulated on page 71 of the state budget enacted for FY 2006. The budget enacted for FY 2006 contains this explanation of the additional 9 FTEs (page 72):
The legislatures budget included $27.5 million for personnel and operating expenditures and 289.0 full-time equivalent positions. The request included 9.0 additional full-time equivalent positions to assist the Assembly in implementing new oversight processes from the recent passage of the separation of powers constitutional amendment. The governor did not recommend the additional full-time equivalent positions and reduced the request by $0.3 million. The Assembly did not concur and provided the requested level of authorized positions and restored the $0.6 million in funding for this purpose. [Original emphasis removed and new emphasis added.]

Chapter Seven comments on this statement in our recommendation on funding and staff for oversight. The budget enacted for FY 2006 includes $4,930,951 for General Assembly and $23,388 for special legislative commissions.

Other thoughts on legislative oversight


The General Assemblys members and their legislative year The National Conference of State Legislatures (NCSL) describes Rhode Islands General Assembly as part-time with relatively low pay. NCSL notes that, like their counterparts in other parttime, low-pay legislatures, rank-and-file lawmakers in Rhode Island must share staff. Lawmakers who are not retired or independently wealthy must hold full-time jobs. The legislature comes into session on the first Tuesday in January and adjourns sometime in late June or early July. The legislature typically meets Tuesdays, Wednesdays, and Thursdays from four PM onward. In an exceptionally busy year the session has run into August, but that is rare. January through the end of June is the time when legislation is introduced, heard by committees, and either killed or brought to the chamber floors for debate and vote. The first two months of the session are generally inactive except for the introduction of legislation by the February deadlines. The pace then picks up somewhat, then becomes frenetic in the last days of the session, when hundreds of bills are rushed to the chamber floors and sessions run late into the night. This is also the time when special committees of the legislature hold hearings on their areas of concern. A good example would be the Permanent Joint Committee on Health Care Oversight, which met throughout the 2005 session on a variety of health care concerns. (On November 2, 2005, the General Assemblys web site listed 12 standing House committees, 11 standing Senate committees, and seven standing joint committees. The web site also listed 54 assorted boards and commissions that have been created by the General Assembly. Some have been inactive for years. Others meet more or less regularly. There are more legislative commissions than those that appear on the web site. We do not know why some appear and others do not.) For the rest of the calendar year, any legislative activity is completely behind the scenes, unseen and unheard by the public unless one of the states papers reports on some development. Any legislative activity that does occur after adjournment would typically involve only House and Senate leaders, not rank-and-file members. For this reports purposes, this annual cycle of a part-time legislature means that oversight activities would not fit easily with the current spring legislative schedule. More thorough watchful care over the execution of laws would require careful preparation by both staff and committee members. The obvious alternative would be to mount committee oversight hearings during the fall of non-election years.

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Oversight by the public Rhode Island abounds in public interest groups focused on a variety of specific concerns: civil rights (the organizations that form the Rhode Island Civil Rights Round Table), government process and accountability (Common Cause, the League of Women Voters, Operation Clean Government), the economy (the Rhode Island Public Expenditure Council), religious values and public policy (the Rhode Island Council of Churches, the Diocese of Providence), the environment (the many organizations forming the Environment Council of Rhode Island), and others. These groups publish newsletters; communicate with their memberships; issue press releases; and hold well-announced and publicized press conferences and other public events. In addition, the public writes op-eds and letters to editors and calls in to talk shows on a wide variety of topics. We include the publics activities in this catalogue of mechanisms and assets available to the General Assembly because, without the publics vigilance, the Assemblys motivation to oversee the execution of the laws will remain stagnant. The public elects lawmakers. Lawmakers know this well, and they also know that the publics interest in their track records on the issues can be a powerful force in biennial elections. As the public goes, so goes legislative oversight.

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Chapter Three

The Rhode Island General Assemblys Powers


Background In the democratic system of the United States, Congress and the legislatures of the 50 states have the power to ensure that the chief executive is indeed seeing that the laws are faithfully executed as the legislatures intended. This power is generally referred to as oversight or legislative oversight. The United States Constitution and the Rhode Island Constitution do not explicitly confer this oversight power on the legislative department. At the federal level, however, the courts have many times ruled that oversight is an implied power derived from the legislatures enumerated constitutional powers, the most basic of which is to enact the laws which will carry the constitution into action. The power to enact the laws would be incomplete unless Congress and the state legislatures also had the power to ensure that their intentions were being faithfully carried out.13 We now examine the Rhode Island Constitution for grants of power to the Assembly and then examine the Rhode Island General Laws to discover what part legislative oversight plays there. The Rhode Island General Assemblys constitutional powers The Assemblys basic legislative power derives from Article VI, Of the Legislative Power (All emphasis below has been added.)
Section 1. Constitution supreme law of the state. -- This Constitution shall be the supreme law of the state, and any law inconsistent therewith shall be void. The general assembly shall pass all laws necessary to carry this Constitution into effect. (Emphasis added)

(Article IX 1 requires the governor to take care that the laws be faithfully executed.) Other sections of Article VI confer specific legislative powers:
Section 2. Power vested in general assembly -- Concurrence of houses required to enact laws -- Style of laws. -- The legislative power, under this Constitution, shall be vested in two houses, the one to be called the senate, the other the house of representatives; and both together the general assembly. The concurrence of the two houses shall be necessary to the enactment of laws. Section 3. Sessions of general assembly -- Compensation of general assembly members and officers. - The general assembly shall regulate the compensation of the governor and of all other officers, subject to limitations contained in the Constitution.

Section 5 is not a power but an immunity. Entitled Immunities of general assembly members, Section 5 exempts members from arrest or any form of civil attachment of their property while the Assembly is in session and for two days before and after each session. Section 5 also prevents any Assembly member from being questioned in any other place about anything he or she said in any speech in debate in either house. Assembly members are immune, in other words, from any law suit or action relating to their statements on the floors of their chambers. Other sections of Article VI also confer explicit powers and responsibilities on the General Assembly. Note the limitation in section 16.
Section 12. Property valuations for tax assessments. -- The general assembly shall, from time to time, provide for making new valuations of property, for the assessment of taxes, in such manner as it may deem best.

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A preliminary search of 20th century decisions of the Rhode Island Supreme Court suggests that the court has not ruled on any dispute between the executive and legislative branches over legislative oversight.

Making Government Work Section 13. Continuance in office until successors qualify. -- The general assembly may provide by law for the continuance in office of any officers of election or appointment, until other persons are qualified to take their places.

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Section 14. General corporation laws. -- The general assembly may provide by general law for the creation and control of corporations; provided, however, that no corporation shall be created with the power to exercise the right of eminent domain, or to acquire franchises in the streets and highways of towns and cities, except by special act of the general assembly upon a petition for the same, the pendency whereof shall be notified as may be required by law. Section 15. Lotteries. -- All lotteries shall be prohibited in the state except lotteries operated by the state and except those previously permitted by the general assembly prior to the adoption of this section, and all shall be subject to the prescription and regulation of the general assembly. Section 16. Borrowing power of general assembly. -- The general assembly shall have no powers, without the express consent of the people, to incur state debts to an amount exceeding fifty thousand dollars, except in time of war, or in case of insurrection or invasion; nor shall it in any case, without such consent, pledge the faith of the state for the payment of the obligations of others. This section shall not be construed to refer to any money that may be deposited with the state by the government of the United States. Section 17. Borrowing in anticipation of receipts. -- Notwithstanding the provisions of section 16 of this article the general assembly may provide by law for the state to borrow in any fiscal year, in anticipation of receipts from taxes, sums of money not exceeding twenty percent of the receipts from taxes during the next prior fiscal year, and, in anticipation of receipts from other sources, additional sums of money, not exceeding ten percent of the receipts from such other sources during the said next prior fiscal year; provided, that the aggregate of all such borrowings shall not exceed a sum equal to thirty percent of the actual receipts from taxes during the said next prior fiscal year. Section 18. Redevelopment powers. -- The general assembly may authorize cities, towns, or local redevelopment agencies to undertake and carry out projects approved by the local legislative body for such uses and purposes including the acquisition in such areas of such properties as the local legislative body may deem necessary or proper to effectuate any of the purposes of this article, although temporarily not required for such purposes, and the sale or other disposition of any such properties to private persons for private uses or to public bodies for public uses. Section 19. Taking of property for highways, streets, places, parks or parkways. -- The general assembly may authorize the acquiring or taking in fee by the state, or by any cities or towns, of more land and property than is needed for actual construction in the establishing, laying out, widening, extending or relocating of public highways, streets, places, parks or parkways; provided, however, that the additional land and property so authorized to be acquired or taken shall be no more in extent than would be sufficient to form suitable building sites abutting on such public highway, street, place, park or parkway. Section 20. Local off-street parking facilities. -- The general assembly may authorize cities and towns to acquire property by eminent domain, or otherwise for the establishment and construction of offstreet parking facilities and to maintain and operate or lease the same.

In the post-9/11 world, the following constitutional legislative power may have to be implemented:
Section 21. Emergency powers in case of enemy attack. -- The general assembly, in order to insure continuity of state and local governmental operations, including the judicial functions, in periods of emergency resulting from disasters caused by enemy attack, shall have the power and the immediate duty to provide for prompt and temporary succession to the powers and duties of public offices, of whatever nature and whether filled by election or appointment, the incumbents of which may become unavailable for carrying on the powers and duties of such offices, to enact legislation permitting the convening of the general assembly at any place within or without the State of Rhode Island, and to adopt such other measures as may be necessary and proper for insuring the continuity of governmental operations during the period of said emergency. Any law enacted under this section shall apply to all cities and towns regardless of their form of charter. During said period of emergency the general assembly shall have the power to incur state debts exceeding the limitation set forth in sections 16 and 17

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Section 22 has been of interest in recent years because of strenuous, and unsuccessful, attempts to establish an Indian gambling casino in Rhode Island.
Section 22. Restriction of gambling. -- No act expanding the types of gambling which are permitted within the state or within any city or town therein or expanding the municipalities in which a particular form of gambling is authorized shall take effect until it has been approved by the majority of those electors voting in a statewide referendum and by the majority of those electors voting in a referendum in the municipality in which the proposed gambling would be allowed. The secretary of state shall certify the results of the statewide referendum and the local board of canvassers of the city or town where the gambling is to be allowed shall certify the results of the local referendum to the secretary of state.

Other articles of the Rhode Island Constitution also confer explicit powers and limits on the General Assembly. Article I, Declaration of Certain Constitutional Rights and Principles: Article I 4 entitles all persons in the state to find a remedy, by having recourse to the laws, for all injuries or wrong Article I 7 empowers the General Assembly to empanel grand juries with authority to indict for offenses committed any place in the state. Article I 9 provides that the writ of habeas corpus, surely one of the most basic rights in the American system of government, may not suspended unless when in cases of rebellion or invasion, the public safety shall require it; nor ever without the authority of the General Assembly. Article I 15 allows the General Assembly to set the size of a petit jury between 12 and 6 in civil cases. Article I 17 is entitled Fishery rights Shore privileges Preservation of natural resources. It contains the following provisions relating to the General Assembly:
and it shall be the duty of the general assembly to provide for the conservation of the air, land, water, plant, animal, mineral and other natural resources of the state, and to adopt all means necessary and proper by law to protect the natural environment of the people of the state by providing adequate resource planning for the control and regulation of the use of the natural resources of the state and for the preservation, regeneration and restoration of the natural environment of the state. (Emphasis added)

Article II, Of Suffrage Section 1 says the Assembly may provide by law for shorter state and local residence requirements to vote for electors for president and vice president of the United States. Emphasis added. This optional power is repeated in Arts. II 2 and III 1. Section 2, however, says the Assembly shall provide by law for the nomination of candidates; for a uniform system of permanent registration of voters; , and for a range of other election concerns, including the time, manner and place of conducting elections and for the prevention of abuse, corruption and fraud in voting Emphasis added. Article III Of Qualification for Office Section 8, enacted by the people in November of 1986, required the General Assembly to establish
an independent non-partisan ethics commission which shall adopt a code of ethics including, but not limited to, provisions on conflicts of interest, confidential information, use of position, contracts with government agencies and financial disclosure. All elected and appointed officials and employees of state and local government, of boards, commissions and agencies shall be subject to the code of ethics. The ethics commission shall have the authority to investigate violations of the code of ethics and to impose penalties, as provided by law; and the commission shall have the power to remove from office officials who are not subject to impeachment.

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The original ethics commission enacted in conformity with this constitutional provision was modified by statute in 1992. Its power to enact ethics regulations with the effect of law has been upheld by the Supreme Court. Article IV, Of Elections and Campaign Finance. Art. IV 1 concerns, among other things, the recall of a general officer who has been indicted or informed against for a felony, convicted of a misdemeanor, or against whom a finding of probable cause of violation of the code of ethics has been made by the ethics commission. The last sentence of section 1 empowers the Assembly to provide by statute for implementation of the recall process. Sections 3 and 4 of Article IV concern the General Assemblys power, meeting in Grand Committee (i.e., in a body, with both chambers present), to elect persons to fill vacancies in positions held by general officers (the governor, lieutenant governor, secretary of state, attorney general, and/or general treasurer). This power was implemented in 2001 when then-Secretary of State James Langevin resigned to take up the seat in the US House of Representatives to which he had been elected in 2000. The Assembly elected one of their own to replace James Langevin: state Representative Edward S. Inman, a protg of then-Speaker John B. Harwood. Article IV 5 empowers the General Assembly to provide by general law for special elections when a seat in either chamber of the General Assembly becomes vacant. Article IV 8 is a strange, ambiguous provision regarding voter registration lists. While it stipulates that cities and towns do not have to send the General Assembly a list of all persons voting for general officers, it empowers the Assembly to pass such laws on the subject as it may deem expedient, appoint a subcommittee of its own members to count any ballots delivered to it and report the result of such count. It is not clear from this language what ballots the section refers to (presumably ballots of votes cast for general officers) or why the Assembly would or should be in the business of processing the results of elections. Article IV 9 says that the General Assembly shall require each candidate for general officer in any sort of election to report to the secretary of state all contributions and expenditures made by any person to or on behalf of such candidate The Assembly can limit these disclosures to amounts which exceed any floor it establishes. Finally, Article IV 10 requires the Assembly to adopt limits on contributions to all candidates for state and local offices, as well as to establish a voluntary plan of public financing for governor and the other general officers. Article V, of the Distribution of Power Article Vs one sentence distributes the three powers of government into three departments: the legislative, executive and judicial. Passage of the separation of powers amendment in November, 2004, amended Article V so that it now reads three separate and distinct departments Article VI, of the Legislative Power Discussed above. Article VII, Of the House of Representatives, and Article VIII, Of the Senate Both articles contain identical language requiring the General Assembly to reapportion representation after each decennial census to conform to the Constitution of the state and the Constitution of the United States. Article IX, Of the Executive Power One of the basic elements of legislative oversight is the requirement that the Senate approve gubernatorial appointments before they can take effect - a power generally referred to as advice and consent. This power makes two appearances in the Rhode Island Constitution, as will be seen below. Otherwise, it is conferred by statute as will also be seen below.

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Section 5 originally read as follows:


Section 5. Authority to fill vacancies. -- The governor may fill vacancies in office not otherwise provided for by this Constitution or by law, until the same shall be filled by the general assembly, or by the people.

At the 2004 general election, an amendment to this section passed by the voters conferred more specific powers and limitations on both the assembly and the governor. The amended section now reads:
Section 5 Powers of appointment. The governor shall, by and with the advice and consent of the senate, appoint all officers of the state whose appointment is not herein otherwise provided for and all members of any board, commission or other state or quasi-public entity exercising executive power under the laws of this state; but the general assembly may by law vest the appointment of such inferior officers, as they deem proper, in the governor, or within their respective departments in the other general officers, the judiciary or in the heads of departments.

The amended section 5 (and the Amendment to Art. II section 6) effectively ends the General Assemblys power to appoint its members and others to state boards with executive power. While only the governor can appoint, the Senate must confirm those appointments, a classic case of constitutional checks and balances. Section 13 does mention the Senates advice and consent, but in the context of pardons. The governor alone is empowered to pardon officials, but only with the Senates advice and consent. The power to pardon does not extend to cases of impeachment, which is the subject of Article XI. Section 14 describes the governors power to veto legislation one of the basic checks designed by the Founding Fathers in 1787 and replicated in the Rhode Island Constitution. The Assembly may override the governors veto by a three-fifths vote of those present in both chambers. Section 15 contains the only constitutional reference to the General Assemblys most significant power, the power of the purse. It reads, in its entirety:
Section 15. State budget. -- The governor shall prepare and present to the general assembly an annual, consolidated operating and capital improvement state budget.

In 2004 the Assembly enacted a budget article which may violate this constitutional provision. Article 45 of the FY 2005 state budget prevents the governor from altering the budget he or she receives from the judiciary. In effect, this article makes the governors office a pass-through for the judicial budget. The Assemblys specific budgetary powers are contained in the general laws and in the rules of the House and Senate. Article X, Of the Judicial Power Section 1 vests the judicial power in a supreme court and in such inferior courts as the general assembly may, from time to time, ordain and establish. The General Assembly exercised this constitutional authority in the late 1990s when it demoted the states scandal-ridden traffic court to a tribunal within District Court. Section 2 empowers the governor and either house of the General Assembly to request an advisory opinion from the Supreme Court. Section 3 contains the second reference to advice and consent in the state Constitution. While this section confers on the governor the power to nominate judges of the Supreme Court and other courts, it requires the nomination of Supreme Court justices to be confirmed by both houses of the General Assembly. Nominations of judges to the lower courts require only the Senates advice and consent. Section 3 contains an oblique reference to another power which the Assembly has conferred upon itself. The section states that gubernatorial nominations of judges must come from lists of qualified persons submitted to the governor by a independent, non-partisan Judicial Nominating

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Commission. The statutes establishing this commission enacted in 1994 require the governor to appoint all its nine members. Five of the nine, however, must come from lists submitted by majority and minority legislative leaders, making those gubernatorial appointments effectively a rubber-stamp of legislative appointments. Interestingly, as the statute now reads, the governors four independent appointments to the commission do not require Senate confirmation. Article XI, Of Impeachments This articles three sections empower the General Assembly to conduct impeachments of the governor and all other executive and judicial officers. The House, by a two-thirds vote of the members, not of the members present as in the case of a veto over-ride, decides whether to impeach. Impeachments are tried by the Senate. Convictions require a two-thirds vote of the members elected, not of the members present as in the case of a veto over-ride. Article XII, Of Education Section 1 states that it shall be the duty of the general assembly to promote public schools and public libraries, and to adopt all means which it may deem necessary and proper to secure to the people the advances and opportunities of education and public library services. Section 2 stipulates that money appropriated by law for the establishment of a permanent fund for the support of public schools, shall be securely invested and remain a perpetual fund for that purpose. This is an oblique reference to one of the General Assemblys most significant powers, i.e. the power of the purse. Interestingly, this power does not appear explicitly in any of the three constitutional articles conferring powers on the assembly. It does appear by implication, however, in Article IX 15, as discussed above. Section 3 requires the assembly to apply donations received for public schools according to the terms prescribed by the donors. Section 4 contains both a power and a check on that power: The general assembly shall make all necessary provisions by law for carrying this article into effect. It shall not divert said money or fund from the aforesaid uses, nor borrow, appropriate, or use the same, or any part thereof, for any other purpose, under any pretence whatsoever. Article XIII, Home Rule for Cities and Towns Article 1 grants to the people of Rhode Islands cities and towns the right of self government in all local matters. Article 2 empowers cities and towns to adopt and amend their own charters not inconsistent with this constitution and laws enacted by the general assembly in conformity with the powers reserved to the general assembly. Article 4 contains both a legislative power and a check on that power:
Section 4. Powers of general assembly over cities and towns. -- The general assembly shall have the power to act in relation to the property, affairs and government of any city or town by general laws which shall apply alike to all cities and towns, but which shall not affect the form of government of any city or town. The general assembly shall also have the power to act in relation to the property, affairs and government of a particular city or town provided that such legislative action shall become effective only upon approval by a majority of the qualified electors of the said city or town voting at a general or special election, except that in the case of acts involving the imposition of a tax or the expenditure of money by a town the same shall provide for the submission thereof to those electors in said town qualified to vote upon a proposition to impose a tax or for the expenditure of money. (Emphasis added.)

Section 5 provides the General Assembly with considerable control over local affairs:
Section 5. Local taxing and borrowing powers. -- Nothing contained in this article shall be deemed to grant to any city or town the power to levy, assess and collect taxes or to borrow money, except as authorized by the general assembly.

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Article XIV, Constitutional Amendments and Revisions This article contains one of the Assemblys most significant powers. While Article I 1 ringingly affirms the peoples sole right to make and alter their constitutions, Article XIVs two sections put limits on how the people get to do that. Section 1 empowers the Assembly to place constitutional amendments on the ballot in a general election. Both Houses must approve such amendments. If a majority of voters approve the amendments, they become part of the constitution. This avenue to constitutional amendments has been used repeatedly since the last constitutional convention was held in 1986. The subtext of Section 1 is clear: the people can vote for or against a constitutional amendment only when the Assembly permits them to. There is no mechanism in Rhode Island (like initiative and referendum) for significant groups of people to place their own amendments on the ballot should the Assembly prove unwilling to do so. Section 2 presents a much more complex pathway to constitutional amendments: the constitutional convention. The Assembly may place a question on the ballot in a general election asking the people whether they want a convention to revise or amend the constitution. If the assembly does not ask this question at least once every ten years, the secretary of state is obligated by section 2 to place such a question on the ballot. According to section 2, before the people vote on the question, the Assembly must appoint a bipartisan commission to prepare information on issues that such a convention might deal with. Should the people vote for a convention, the Assembly must enact statutes for the holding of a special off-year election the following fall to select delegates to such a convention. Delegates are elected according to representative districts, of which there are currently 113. Any constitutional amendments or revisions that are approved by the convention cannot become effective until they appear on the ballot in a general election and are approved by a majority of the voters. Article XV, General Transition Three of Article XVs four sections ensured that Rhode Islands government would continue smoothly when the transition was made in 1843 from the old royal charter of 1663 to the new constitution. Laws would remain in effect, public bodies would continue unaffected, and all bonds, contracts, suits, actions, etc. would continue in effect as if no change had taken place. Section 4 emerged from the last constitutional convention to be held in Rhode Island (in 1986) and was ratified by the people that fall. It directs the General Assembly, on or before July 1, 1988 to adopt legislation to implement three other amendments which were also passed by the people at the 1986 general election. Two of those amendments (Article III 7 and 8) established the Rhode Island Ethics Commission. The third (Article IV 10) directed the Assembly to establish limits on campaign contributions and to establish a system of public financing for governor and any other general officers the General Assembly decided to include in such a system. Constitutional limitations on the General Assemblys powers The Rhode Island Constitution places relatively few restrictions on the General Assembly. The major restriction which appears in Article V (discussed above) distributes the powers of government into three separate and distinct branches. That provision, by itself, means that no single branch of government may perform the functions of either of the other two in itself a limitation on the powers of all three branches. In effect the Assembly may not execute its own laws, nor may it decide whether they are constitutional.

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Article I, Declaration of Certain Constitutional Rights and Principles Section 1 (as we have seen above) proclaims the right of the people to make and alter their constitutions. A limitation on the Assemblys power is implied in the next clause: but that constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. While the Assembly, and only the General Assembly, has the power to pass laws necessary to carry this Constitution into effect, those laws, by implication, must not violate the constitution. Section 1s limitation on the power of the Assembly will be enforced by the Rhode Island Supreme Court which, according to Article X 2, has the final revisory and appellate jurisdiction upon all questions of law and equity. While the Assemblys power to enact laws is supreme neither of the other two branches may do this it may enact only those laws which comport with the constitution, which is supreme even to the Assemblys law-making power. In disputes over the laws constitutionality, the judiciarys adjudicative authority is superior to the Assemblys law-making power. Section 2 implies a restriction on the Assemblys law-making power in that all laws should be made for the good of the whole. Other restrictions in this section extend this limitation in that persons may not be subject to discrimination by the state The implication here is that discriminatory laws would violate the constitution. Section 12 further limits the Assemblys law-making power in that no ex post facto law [a law made after the fact affecting that past fact], or law impairing the obligation of contracts shall be passed. Finally, with respect to Article I, section 12 bars the Assembly from passing any law abridging the freedom of speech Article III, Of Qualification for Office Section 6 originally read as follows:
Section 6. Holding of offices under other governments. -- No person holding any office under the government of the United States, or of any state or country, shall act as a general officer or as a member of the general assembly, unless at the time of taking such engagement that person shall have resigned the office under such government; and if any general officer, senator, representative, or judge shall, after election and engagement, accept any appointment under any other government, the office under this shall be immediately vacated; but this restriction shall not apply to any person appointed to take depositions or acknowledgment of deeds, or other legal instruments, by the authority of any other state or country.

On November 2, 2004, Rhode Island voters added the following language to Art. III 6:
No senator or representative shall, during the time for which he or she was elected, be appointed to any state office, board, commission or other state or quasi-public entity exercising executive power under the laws of this state, and no person holding any executive office or serving as a member of any board, commission, or other state or quasi-public entity exercising executive power under the laws of this state shall be a member of the senate or house of representatives during his or her continuance in such office.

This new language, coupled with the amendment to Article IX 5 discussed below, effectively ends the General Assemblys power to implement its own laws by placing its appointees on executive boards. Article V, Of the Distribution of Powers At the 2004 general election the voters amended the single sentence of Article V so that it now reads as follows:
The powers of the government shall be distributed into three separate and distinct departments: the legislative, executive and judicial. [Emphasis added]

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The three additional words constitute a check or limitation on all three departments in that each is now more specifically enjoined from infiltrating the territories of the other two. The real target of the amendment was, of course, the legislature.14 Article VI, Of the Legislative Power Section 4 prevents any member from accepting a fee or acting as counsel in any case pending before either house of the General Assembly In recent years the meaning of case in this section has been a source of disagreement. Section 9 prevents either house from adjourning for more than two days without the consent of the other house. The section also prevents either house from meeting anywhere other than their normal place of meeting, i.e. the State House. Section 10, which appeared in the states first constitution, originally read as follows:
Section 10. Continuation of previous powers. -- The general assembly shall continue to exercise the powers it has heretofore exercise[d], unless prohibited in this Constitution.

Heretofore meant before 1843, the year Rhode Islands first constitution was enacted. The Rhode Island Supreme Court ruled that this section of the constitution meant that the General Assembly could exercise any power whatever unless the constitution expressly forbade it.15 The voters repealed this section at the 2004 general election. That repeal constituted a major limitation on the Assemblys former power. Section 16 prevents the Assembly from borrowing anything over $50,000 without the express consent of the people, which means the peoples approval of a ballot question on a bond issue. Section 17 permits the Assembly to borrow money in anticipation of receipts but it also limits the amount of money that may be borrowed under these terms. Section 22 forbids the Assembly to expand the types of gambling permitted in Rhode Island unless a majority of the voters approve the expansion at a general election. Article IX, Of the Executive Power Section 2 reads, in its entirety:
The governor shall take care that the laws be faithfully executed.

By making the governor responsible for seeing that the laws are faithfully executed, the constitutional provision implies that the legislative branch is not so responsible. Section 14 provides the governor with a veto over the laws the Assembly passes. This classic American check upon the Assembly can be overridden, however: in Rhode Island by a threefifths majority of those present in both houses of the Assembly. So while Section 14 limits the Assemblys power to enact the laws, it also gives it an out. In a one-party state like Rhode Island, legislative leaders can easily summon a supermajority to override a gubernatorial veto. Section 15 implies another limitation on the Assemblys power of the purse:
The governor shall prepare and present to the General Assembly an annual consolidated operating and capital improvement state budget.

In other words, the Assembly cannot prepare the state budget and then pass it. It must first hold public hearings on the governors budget before adjusting it. The departments and personnel of the executive department represent the bulk of the states government. In 2004, however, the As-

14

In Federalist 48 James Madison warned that The legislature can mask, under complicated and indirect measures, the encroachment it makes on the co-ordinate departments. 15 Lincoln C. Almond, in his capacity as Governor of the State of Rhode Island et al v. The Rhode Island Lottery Commission, Newport Grand Jai Alai, LLC, and Burrillville Racing Association, d.b.a Lincoln Greyhound Park et al, No. 99-525 (July 27, 2000).

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sembly approved a budget article with the effect of law which would prevent the governor from altering the budgetary submission he or she receives from the judicial branch. This new wrinkle may result in a challenge. The question then arises, Who would adjudicate this dispute? The Supreme Court chief justice, who requested this provision, and his associate justices are scarcely impartial in the matter. Legislative oversight in the General Laws As of October 1, 2005, the term oversight appeared in 134 places in Rhode Islands General Laws. Eighteen of these occurrences appear in the heading for each section of Title 19 Chapter 4, which concerns regulatory oversight of financial institutions by the Department of Business Regulation. Another nineteen of these hits are duplicative of the others in that oversight occurs in the indexes of other chapters as well as in individual sections. The word oversee occurs 35 times. This is a summary of the statutory provisions bearing on legislative oversight, including statutes that contain oversee when the legislature is substantively involved. Laws which do not entail specific oversight activities by the General Assembly are not included in the summary. Those would include, for example, Chapter 19-4 entitled Regulatory Oversight which concerns oversight of financial institutions by the Department of Business Regulation and its director. Chapter 16-21.2 is entitled the Rhode Island Substance Abuse Prevention Act. 16-21.2-9 establishes The Permanent Legislative Oversight Commission on Substance Abuse Prevention. Five of its 12 members are state representatives appointed by the speaker; three are senators appointed by the Senate president. Two members are ex officio state government personnel with responsibilities in this area. Of the other two members, one comes from the general public and the other is a representative of the Rhode Island Substance Abuse Prevention Task Force appointed by this commissions chair. The commission is charged with meeting at least quarterly and reporting annually to the General Assembly on its findings and recommendations with respect to: (1) All existing substance abuse prevention programs; (2) All rules, regulations, and guidelines promulgated pursuant to the Rhode Island Substance Abuse Prevention Act; (3) Administration of the Rhode Island Substance Abuse Prevention Act; and (4) Any other matters relating to substance abuse prevention efforts in the state. In effect, this commissions intent is to provide legislative oversight both by personal involvement of legislators and by its annual report to the Assembly. This commission also oversees the provisions of 16-21.3, the Rhode Island Student Assistance Junior High/Middle School Act. 42-109-3 charges this commission with implementing and administering the chapter, entitled the Omnibus Substance Abuse Prevention Act. 42-109-4 requires the commission to review the award of funds by the Department of Mental Health, Retardation and Hospitals to persons chosen to establish model programs to promote drug-free communities. Other statutes in this chapter contain similar provisions. Title 22 contains laws pertaining to the General Assembly. Chapter 22-14 establishes a Legislative Oversight Commission empowered to conduct evaluations and reviews of statutes, statutory entities, and associated rules and regulations. The 14 members include four state representatives appointed by the speaker, three senators appointed by the Senate president, the Director of Administration, four members of the general public appointed by the governor, the fiscal assistant to the House Finance Committee, and the Auditor

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General, who is a legislative employee under the direct supervision of the Joint Committee on Legislative Services. As far as we can tell, the committee is defunct. A separate statute places review of the Committee on Naval Affairs with this commission. Other statutes contain similar review provisions, including that establishing The Intergovernmental Relations Council ( 42131-2). 22-14.1-1 establishes a Legislative Oversight Commission on Consulting Contracts. Its seven members include three members each of the House and Senate finance committees appointed by the majority (two appointees each) and minority leaders (one appointee each) of the two chambers. The seventh member is the auditor general. The commission is charged with conducting evaluations and reviews of all consulting contracts entered into by and or on behalf of the state or any of the subdivisions or entities of the state. This solitary statute contains no provisions for reporting findings or recommendations. 23-19 establishes and governs the Rhode Island Resource Recovery Corporation, one of the states active quasi-public corporations. The nine-member board includes three legislators: two from the House and one from the Senate. These three members are thus in a position to execute the laws the Assembly enacts governing the entity on which they sit. Section 34.1 requires RIRRC to oversee the removal of houses the corporation requires to create the Central Landfill buffer zone. It is probable that the meaning of oversee in this context is synonymous with implement. 27-29.1-11 requires the Department of Health to submit a report on the impact of nonrestricted pharmacy networks on health insurance costs in Rhode Island to the Joint Legislative Committee on Health Care Oversight on or before May 1, 2005. 28-21-21 establishes the Permanent Commission on Hazardous Substances in the Workplace. Five of the 17 members are legislators, three from the House and two from the Senate. The other 12 members, from various constituencies, are all appointed by the speaker. The commissions purpose is to study and oversee the implementation of this chapter. A variety of agencies and individuals appear to be responsible for implementation. 40-8-25 required the Department of Heath to report before March 1, 2005, to the Permanent Joint Legislative Committee on Health Care Oversight on its efforts to reduce the disposal of unused pharmaceuticals paid for by the medical assistance program for residents of nursing facilities. 40-8.4-7 requires the Department of Health to send a report on Rhode Islanders without health insurance to the Permanent Joint Legislative Committee on Health Care Oversight annually on or before February 15. 40-8.4-10 (Health Care for Families) requires the Department of Human Services to send copies of rules and regulations to the co-chairs of the Permanent Joint Legislative Committee on Health Care oversight. 40-8.4-14 establishes a Permanent Joint Committee on Health Care Oversight. The body of this section refers to this entity as a permanent legislative committee. Its 12 members are evenly divided between the House and Senate. The co-chairs are a state representative and a state senator. The committee is required to meet at least quarterly and to report its findings and recommendations as it deems appropriate. 40-8.4-15 requires the Advisory Commission on Health Care to invite members of the Permanent Joint Legislative Committee for Health Care Oversight to its meetings. 40.1-1-12 establishes a Permanent Legislative Oversight Commission on Substance Abuse Treatment. Its ten members include five state representatives appointed by the speaker, three senators appointed by the Senate president, the director of Mental Health, Retardation and Hospitals, and the director of Health. Like the Commission on Substance Abuse Prevention, above, this

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commission is directed to meet at least quarterly and report its findings and recommendations annually to the General Assembly. 42-26-13 establishes the Criminal Justice Oversight Committee within the Rhode Island Justice Commission. Four members of the General Assembly sit on the committee. Its purpose is to maintain secure facilities at the Adult Correctional Institute. Section 13.2 establishes the committees duties, among which are the responsibility to coordinate and oversee remedial measures needed to reduce overcrowding. Section 13.3 enjoins the committee to encourage, coordinate, and oversee a variety of efforts to address overcrowding. The same language is used twice more in this section with respect to other activities including release and bail. 42-26-18 establishes a permanent sub-committee of the Juvenile Justice Advisory Committee within the Rhode Island Justice Commission called the Gang Violence Prevention Advisory Committee. The sub-committees charge is to coordinate, review, purpose [sic; the intended word is almost certainly propose], and oversee state programs to prevent, intervene [in], and suppress gang activities. 42-66.2.1-5 Reporting requirements. The departments of human services and elderly affairs shall issue a report on April 15, 2005 to the Permanent Joint Legislative Committee on Health Care Oversight on the status of the prescription drug discount program design and implementation. 42-66.8-3 requires the departments of Human Services and Elderly Affairs to issue a joint report on April 15, 2005, on the status of the prescription drug discount program design and implementation to the Permanent Joint Legislative Committee on Health Care Oversight. 42-72.6 is entitled The Rhode Island Training School for Youth Comprehensive Educational Programming Act. Section one of this chapter refers to the findings of a permanent legislative oversight commission in this area but does not identify the commission by name. Section 3 refers to a Permanent Legislative Oversight Commission on DCYF, but we have so far found no statute which establishes this entity. 42-109-9 (The chapter is entitled Omnibus Substance Abuse Prevention Act) establishes the Legislative Oversight Commission on Special Substance Abuse Programs. Its purpose is to oversee the Benjamin Rush Detox Program, the Driving While Intoxicated Program, and the TASC program (the acronym is not explained). The five health professionals who constitute the commission are appointed by the speaker of the House (three) and by the Senate president (two). The statute states, no member of the General Assembly shall be appointed to the commission. The commission is directed to meet at least quarterly and report annually to the General Assembly on its findings and recommendations. 44-5-11.7 creates the Permanent Legislative Oversight Commission on Property Taxation. The chairs of the House and Senate finance committees are among its six members, who are charged with studying issues related to property taxation. The commission must meet at least three times a year and shall report its findings and recommendations annually to the General Assembly. 44-34.1-3 establishes a Permanent Oversight Commission on Inventory Taxes and Automobile Excise Taxes. The chairs of the House and Senate finance committees are among its nine members. The commission is to study and evaluate the phase out of the automobile excise tax and, when necessary, establish procedures to facilitate the phase out of the tax by July 1, 2005. 44-44-3.8 creates the Hard-to-dispose [sic] Material and Recycling Oversight Commission. Its nine members are all legislators or legislative appointees: three state representatives are appointed by the speaker; two state senators are appointed by the Senate president; the speaker appoints a public member and an industry representative; the Senate president appoints a public member and a representative of an environment group. The commission must meet at least once quarterly to review tax revenues collected and expended and to make recommendations to the governor and the legislature on pertinent issues.

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44-58 is titled The Streamlined Tax System. Section 7 creates a joint legislative oversight committee but does not otherwise identify it or what it is supposed to do. All six members are legislators, three from each chamber. Section 8 requires the state Tax Administrator to issue a report at no stated interval nor by any stated date to, among other recipients (governor, speaker, Senate president), this otherwise-unidentified joint legislative oversight committee. 45-13.1 establishes a State-Local Relations Commission. Its 17 members include five legislators, three from the House and two from the Senate. Four other non-legislative members are appointed by the speaker and the Senate president. The commission is charged with conducting study and review activities. The chapter authorizes the defunct Legislative Oversight Commission to review its activities. 45-53-9 establishes an oversight commission to be known as The Housing Act of 2004 Implementation Oversight Commission to consist of eleven (11) members: the chair of house corporations or designee; the chair of senate commerce, housing and municipal government or designee; two (2) members of the house appointed by the speaker, one of whom shall be from the minority party; two (2) members of the senate appointed by the senate president, one of whom shall be from the minority party; two (2) designees of the president of the league of cities and towns, one of whom shall be from a municipality under twenty-five thousand (25,000) population, and one of whom shall be from a municipality of twenty-five thousand (25,000) population or over; the executive director of Grow Smart Rhode Island; the executive director of the Housing Network; and the executive director of the Rhode Island Builders Association. The entity is listed on the Assemblys web site (Legislative Commission/Board Calendar link). 46-12.2 establishes the Rhode Island Clean Water Finance Agency. Two of its five public members are appointed by the speaker and the Senate president. Section 8 directs the agency and the Department of Environmental Management to establish and periodically amend an operating agreement whose terms, among other things, include procedures for the application, approval, and oversight of projects, financial assistance, and grants. 46-12.8-5 exactly replicates the language of 46-12.2-8 just above, but here with respect to the states Water Projects Revolving Loan Fund. 46-12.9-8 establishes the Rhode Island Underground Storage Tank Financial Responsibility Fund Review Board. The board, which was elevated to the status of a quasi-public corporation in 2002, has 13 members. Legislators and legislative appointees were removed in 2005. This section charges the board to oversee administration and implementation of the fund, to review submissions and claims received from eligible parties, and to proceed to approve, modify or deny disbursements to eligible parties and to have such other powers as are provided herein. The other powers are enumerated in section 8. They include the classic corporate powers found in most of the statutes establishing the other quasi-publics. The board is in effect an executive/administrative agency employing a staff and disbursing funds supplied by a gasoline tax. 46-28 creates the Rhode Island Rivers Council. The 15-member board includes both legislators and legislative appointees. Section 2 empowers the board to coordinate and oversee the clean up and preservation of the quality of rivers in Rhode Island. The agencys powers include studying, evaluating, assessing, and recommending programs and policies to the General Assembly. 46-31-1 e.s., the Rhode Island Rivers, Bays, and Watersheds Coordination Team. This legislative findings section proclaims the need for a structure and process that enhances the efficiency of the goal setting and oversight roles of the legislature including fiscal and performance accountability. 46-31-4 stresses the Assemblys oversight role in this area. 46-31-11 reads, All plans, reports, budgets or other documents required to be produced pursuant to this chapter shall be submitted to the speaker of the house of representatives, president of the senate, the chairpersons of the house of representatives and senate finance committees, and the chairpersons of the appropriate house of representatives and senate oversight entities; further, all plans, reports,

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budgets or other documents required to be produced pursuant to this chapter shall be considered by the house of representatives and senate finance committees in their current and future budget processes. Adherence to such plans, reporting requirements, and budgets and the timely achievement of goals contained therein shall be considered by the finance committees and the oversight entities of the house of representatives and senate, among other relevant factors, in determining appropriations or other systemic changes. Summary of commissions and committees with oversight in their titles or as their primary charge. (Other commissions and committees described above have oversight responsibilities
among other duties, e.g. the Underground Storage Tank Board. They are not listed below.) 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. Permanent Legislative Oversight Commission on Substance Abuse Prevention. 16-21.2-9. Legislative Oversight Commission. 22-14. Legislative Oversight Commission on Consulting Contracts. 22-14.1-1 Permanent Commission on Hazardous Substances in the Workplace. 28-21-21. Permanent Joint Committee on Health Care Oversight. 40-8.4-14. Permanent Legislative Oversight Commission on Substance Abuse Treatment. 40.1-1-12. Legislative Oversight Commission on Special Substance Abuse Programs. 41-109-9. Permanent Legislative Oversight Commission on Property Taxation. 44-5-11.7. Permanent Oversight Commission on Inventory Taxes and Automobile Excise Taxes. 44-34.1-3. Hard-to-dispose [sic] Material and Recycling Oversight Commission. 44-44-3.8. Joint Legislative Oversight Committee. 44-58. The statute does not otherwise identify it or what it is supposed to do. 12. The Housing Act of 2004 Implementation Oversight Commission. 45-53-9.

Caution The study in this section is confined to statutes that contain the words oversight or oversee. There may well be other statutes that deal with legislative oversight, however. A search for statutes containing the word review, for example, yields 500 hits, a sure indication that there are even more occurrences of review in the General Laws (the search engine is limited to 500 hits). Forty-four of the 500 hits occur in Title 5 (Businesses and Professions); 102 occur in title 42 (State Affairs and Government); 122 are in title 45 (Cities and Towns); 44 occur in Title 46 (Waters and Navigation). A random sampling of the 102 hits in Title 42 uncovered no statutes dealing specifically with legislative oversight of the execution of law that had not already been discovered. Legislative Oversight Powers in the House and Senate Rules The House and Senate are governed by elaborate sets of rules generally similar in outline but different in specifics. The rules govern such matters as the appointment of committees, the travel of legislation, and the conduct of floor sessions. Each chamber generally modifies its rules at the beginning of the legislative session by majority vote of the members. Senate rules The Senate oversight power is contained in Section 5 of its rules, Committees. The name of each committee is listed, and under the name of each committee (with the exception of the committee on rules) appears a sentence that begins as follows:
It shall be the duty of the committee on _______ to consider the appointments of the governor referred to it by the Senate which require the advice and consent of the senate and all legislation and matters relative to (the subject of the committee)

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The description of each committees functions is detailed as to its scope and authority. Some descriptions are longer than others. As of November, 2005, the Senate has standing committees on The Judiciary Finance Commerce, Housing, and Municipal Government Constitutional and Gaming Issues Health and Human Services Education Financial Services, Technology, and Regulatory Issues Environment and Agriculture Government Oversight Labor Senate Rules The main Senate oversight functions are two-fold, therefore: the power to approve or reject gubernatorial appointments of state officials; and the power to conduct public hearings on all bills on a wide variety of subjects. All of the thousands of bills introduced in both houses annually are referred to one or another of its committees. No bill may proceed to the Senate floor for a vote unless it has been given a public hearing by the committee to which it was assigned. The Senate Committee on Government Oversight deserves special consideration, in large part because it is the first legislative standing committee within memory to be impaneled for the main purpose of providing oversight of state government. It is specifically charged with the duty to 1. monitor and evaluate past, current and prospective performance of public bodies including quasi-public agencies (except public bodies and statutory entities of the legislative and judiciary branches of the state 2. consider all legislation and matters pertaining to past, current and prospective performance of the government functions of such public bodies 3. consider the organization, reorganization, creation or termination of such public bodies 4. review and consider the reports of the auditor general; 16 5. report its opinion and/or recommendation of legislation or action regarding the foregoing matters; 6. consider legislation that is designed to ensure the probity of public affairs, including, but not limited to, ethics, open meetings and access to public records; and 7. consider such other matters that are referred to it by the Senate. The Senate has one more oversight mechanism in its arsenal. Section 5.5 of the Senate Rules is titled Select Committees. This section reads, in its entirety,
The Senate may, from time to time, by resolution, provide for the establishment of select committees upon such subjects as it may deem proper, and upon the adoption of such resolution, the president of the Senate shall appoint the chair and members thereof, and shall provide for minority party representation.

16

The Auditor General is a legislative employee under the direction of the Joint Committee on Legislative Services

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The Senate, in other words, can mount ad hoc oversight investigations. It did this last in 2000, when a select commission investigated the governance and organization of quasi-public corporations (discussed in Chapter Two). House rules The fourth section of the Houses rules, entitled Of Committees, is much less specific than the Senates section on committees. It begins by saying that the following standing committees shall be appointed each year in the month of January or as soon as convenient after the adoption of House Rules These are the House standing committees as they appear in the House rules adopted in 2005 (from rule (25)(a)): A committee on corporations A committee on environment and natural resources A committee on finance A committee on health, education and welfare A committee on judiciary A committee on labor A committee on rules A committee on separation of powers A committee on veterans affairs. The rules simply name these committees. They say nothing about their scope and oversight focus, though these can be inferred from their names. Rule (25)(e), however, provides direction to the House Finance Committee:
(e) It shall be the duty of the committee on finance to take into consideration all propositions relative to the revenue, to inquire into the state of the public debt and to report from time to time their opinion thereon and such propositions relative thereto as to them shall seem expedient. Upon introduction of the annual state budget to the House on behalf of the Governor, the budget shall be referred to the finance committee. Within two (2) weeks following receipt thereof, the finance committees fiscal advisor shall provide to each member of the House a brief but thorough summary of budget issues. Within three (3) weeks following the receipt of the budget, the committee shall schedule such meetings as it deems necessary to receive comment on the budget as a whole from all House members who wish to appear before it for that purpose.

The rules say, later on,


(26)(a) Committees shall take into consideration all such petitions, resolves, bills, matters or things as may be referred to them by the House with power to report by bill or otherwise.

The House has also anticipated special ad hoc needs: The Speaker shall create such other subcommittees and committees as may be required from time to time and appoint thereto. In 2004 the House passed a bill establishing the House Oversight Committee, with extensive powers. From the bill:
The committee shall be empowered to conduct legislative oversight of the accountability and performance of all departments, boards, commissions, quasi-public corporations and statutory entities (hereinafter collectively referred to as entities) that exercise executive governmental functions dealing with or affecting operations, policies, statutes or regulations of the State of Rhode Island and to determine compliance with legislative intent, assess operational efficiency and recommend changes in the administrative structure of state departments, and engage in all other activities related to the discharge of its oversight responsibilities. The committee and the auditor general shall cooperate in performing their respective duties.

The bill contains a long list of the areas within state government that would be subject to its oversight. The committee would have, with the speakers written approval, subpoena powers.

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As of September, 2005, members of that committee had apparently not been appointed. As of October 31, 2005, the committee did not appear in the on-line list of House standing committees. Summary of the oversight function in the House and Senate rules 1. Both chambers have standing committees which consider legislation assigned to them. This power is exceptionally important with respect to the state budget, which is the primary responsibility of the House Finance Committee. This is an important oversight function in that the appropriations for all state agencies are dependent on legislative approval. 2. Only the Senate can approve or reject gubernatorial appointments. The one exception: both houses must approve a nomination to the Rhode Island Supreme Court before the nominee can be sworn in. 3. The Senate has a standing committee specifically dedicated to oversight.

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Chapter Four

Oversight by Congress
Background Congressional oversight of the executive branch began in 1792 with an investigation into a failed military expedition led by General Arthur St. Clair against hostile Indians in what is now Ohio. Although the word oversight does not appear anywhere in the United States Constitution, federal courts have consistently upheld Congresss right and duty to ensure that the laws are being administered as Congress intended, as well as to investigate a wide variety of concerns. Oversight was given additional status at the federal level with passage of the Legislative Reorganization Act of 1946. This act, according to the Congressional Oversight Manual, required House and Senate standing committees to exercise continuous watchfulness over programs and agencies within their jurisdiction. In 1978, the Congressional Research Service, an arm of Congress, prepared a Congressional Oversight Manual to help members of Congress and their committees carry out their oversight functions. The latest revision is dated January 17, 2002. Although the manual17 is intended for use in the infinitely larger federal sphere, the principles and practices which it presents are eminently applicable to Rhode Island state government. Those who study the complete text of this Manual will be well rewarded. The following is a summary of those practices and procedures that apply to Rhode Island state government. From The Congressional Oversight Manual Purposes of legislative oversight of the executive (p. 1 ff) 1. To ensure that the executive branch is complying with the legislatures intent when it passed the laws. 2. To improve the efficiency, effectiveness, and economy of operation of government. (At the state level, this effort could include the evaluation of the performance of programs established by the General Assembly and implemented by the executive branch as well as the performance of individual agencies and officials.) 3. To investigate reports of flawed administration, abuse of public office and authority, waste, dishonesty, duplication, and fraud. The Manual lists subordinate purposes of oversight: 4. To review the agency rule-making process 5. To monitor the use of contractors and consultants to perform government services 6. To encourage inter-branch cooperation 7. To examine agency personnel procedures 8. To pursue information which will assist on formulating policy 9. To investigate constituent complaints 10. To investigate media reports 11. To defend agencies and their officials from unjustified criticism.

17

Copies of the manual and other publications of the Congressional Research Service can be obtained from Penny Hill Press: http://pennyhill.com

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The constitutional and legal authority to conduct oversight (p. 5 ff) The Congressional Oversight Manual presents a detailed analysis of the sources of Congresss oversight power. These include the United States Constitution; federal statutes; and the House and Senate Rules. Chapter Three of this report discusses the sources of the Rhode Island General Assemblys powers in general and its oversight powers in particular. Who participates in Congressional oversight (p. 15 ff) 1. Individual members who investigate constituent complaints and who conduct their own inquiries with or without the assistance of staff or congressional support offices. 2. Committees of Congress. (Here the federal practice differs somewhat from Rhode Islands. With the exception of the annual budget process conducted by the House and Senate finance committees, the focus of the General Assemblys standing committees hearings is almost always the fate of individual pieces of legislation. The appearance at these hearings of executive branch officials is generally connected to the bill under consideration. Special legislative commissions, however, have conducted hearings on issues and concerns which are not related to particular legislative introductions (though they may result in such introductions). During the 2004 and 2005 legislative session, for example, the Special Joint Commission on Health Care oversight conducted a number of well-publicized hearings on the current health insurance crisis in the state and healthrelated issues.) 3. Staff, both of members and of committees. Their participation in oversight activities is central to the process. (See Chapter Two for an analysis of the Rhode Island General Assemblys staff.) Agencies and offices which support Congress (p. 17) These include the Congressional Budget Office (CBO); Congressional Research Service (CRS; an arm of the Library of Congress); The General Accounting Office (GAO); The House General Counsels Office; The Senate Legal Counsels Office; and the Senate Historians Office and the Senate Library. Although the Library of Congress is not specifically mentioned, it is an invaluable research aid, not only for Congress but for the public. Coordination of oversight efforts (p. 20) The Manual states that coordinating oversight efforts within and between the two chambers has become a persistent problem for Congress. The manual reports that inter-committee cooperation on oversight can minimize unnecessary duplication and conflict and inhibit [executive branch] agencies from playing one committee off against another. The Manual lists the following general techniques for ensuring the coordination of oversight efforts: 1. Using special or select committees to investigate issues and agencies, foster the publics understanding of critical issues, and coordinate oversight when issues or events overlap the areas overseen by several standing committees. 2. The US House of Representatives rules committees not only formulate oversight plans but also include in these plans ways to maximize coordination between and among committees that share jurisdiction over related laws, programs, or agencies. The Manual lists these specific techniques for ensuring the coordination of oversight efforts: 1. Joint oversight hearings. 2. Informal agreement among Congressional committees to oversee certain agencies and not others (The 9/11 Commission Report states that the leaders of the Department of Home-

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land Security now appear before 88 committees and subcommittees of Congress. According to one witness, this is perhaps the single largest obstacle impeding the departments successful development. P. 421.18). 3. Consultation between committees with overlapping or complimentary areas of responsibility. (See above) Oversight processes (p. 21 ff) The Congressional Oversight Manual lists the following oversight processes: 1. The budget process (much more complicated at the federal level. Rhode Islands budget process is found in the State Constitution, the General Laws, and the House and Senate rules.). 2. Congressional investigations, consistently upheld by the courts 3. The confirmation process 4. The impeachment process (Rhode Islands impeachment process is contained in Article XI of the Rhode Island Constitution) Investigative oversight (p. 32 ff) The Congressional Oversight Manual contains an extensive section on Investigative oversight (p. 32 ff). As with the rest of the Manual, while this section is written for Congress, its principles and practices should be very helpful in Rhode Island. The Manual discusses a number of Tools of oversight (p. 33): 1. The subpoena power (Rhode Island General Assemblys subpoena power is conferred by RIGL 22-6-2.1)) 2. Staff depositions, which the Manual asserts may assist committees in obtaining sworn testimony quickly and confidentially without the necessity of members devoting time to lengthy hearings that may be unproductive because witnesses do not have the facts needed or refuse to cooperate. 3. Grants of immunity The sub-section entitled Enforcement of the investigative power includes several mechanisms (p. 36): 1. The contempt power, which the Manual describes as the ultimate force in response to actions that obstruct the [investigative] process Several versions of the contempt power are discussed. See RIGL 22-6-2.1 for the Rhode Island analog. Ed. 2. Perjury and false statements prosecutions. Executive privilege and common law testimonial privileges (p. 38) This section is also extensive. Its applicability at the state level must be determined by legal professionals. Investigative oversight hearings (p. 45) This section stresses the importance of the rules under which the investigative hearings will be conducted. In Congress, a congressional committee can inquire into matters [only] within the scope of the authority that has been delegated to it by [its parent] body, i.e. either the House or the Senate. House and Senate rules have been very carefully and specifically crafted to confer jurisdiction on standing committees. The Manual says that sufficient models exist to avoid a
18

The 9/11 Commission report: final report of the national commission on terrorist attacks upon the United States. First edition published by W.W. Norton, New York and London. Undated but believed to be published in 2004.

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successful judicial challenge by a witness that his noncompliance was justified by the committees overstepping its delegated scope of authority. This section contains sub-sections on Rules applicable to hearings and Conducting hearings. Specialized investigations (p. 47) The Manual describes these as specialized, temporary investigations of a specific event or development. These are often dramatic, high profile endeavors, focusing on scandals, alleged abuses of authority, suspected illegal conduct, or other unethical behavior. These specialized investigations can lead to or induce resignations, firings, and impeachment proceedings Among the examples adduced here are the Senate Watergate Committee investigation during the Nixon administration, multiple investigations during the Clinton administrations, the Church Committee, and Iran-Contra in both House and Senate. This section includes photocopies of illustrative materials such as a subpoena, the verbatim instructions to the witness that accompany the subpoena, the general definitions that accompany the subpoena, a copy of the list of documents to which a subpoena issued to the Custodian of Documents of the International Brotherhood of Teamsters refers, and two memoranda, one issued by President Ronald Reagan in 1982 on Procedures Governing Responses to Congressional Request for Information, the other issued by Lloyd N. Cutler, special counsel to the president, on Congressional Requests to Departments and Agencies for Documents Protected by Executive Privilege. Selected oversight techniques (p. 70 ff) The manual says that while many oversight techniques are self-explanatory There are several techniques for which explanation or elaboration may prove helpful for a better understanding 1. Determine what laws, programs, activities, departments, agencies, etc. fall within each committees jurisdiction. This is essential if a committee is to know the full range of its oversight responsibilities. We might add, and to avoid conflict with other committees jurisdictions and activities. Ed. 2. Periodic hearings with agencies for orientation and review of functions, etc. Such hearings not only help committees understand agencies operations, they also noticeably influence agency officials because they know they will be expected to appear regularly before committees to account for their activities. The Manual warns that the ability of committee members during oversight hearings to focus on meaningful issues and to ask penetrating questions will be enhanced if staff have accumulated, organized, and evaluated relevant data about administration performance. That comment might be summarized as staff homework. Also: Ideally, each standing committee should regularly monitor the application of laws and implementation of programs within its jurisdiction. 3. Casework. By this the Manual means a members staff research on a specific problem, often brought to the members attention by a constituent. The example adduced here concerned a Congressmans constituent who had been denied Medicare for kidney dialysis because the Social Security Administration thought the constituent was dead. The Congressman reportedly said, Without difficulty, he convinced my staff that he was indeed alive, and we in turn convinced the Social Security Administration to resume sending him benefits. 4. Audits. This section is too extensive to replicate here but it will repay study. The thrust of the section is that useful audits go beyond the simple verification of financials into evaluation of whether claims of achievement are supported by evidence, whether resources etc. are used efficiently and effectively, and other good probing questions. The probing questions are listed in the Manual.

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5. Monitoring the Federal Register in which are published daily public regulations and legal notices. The analog in Rhode Island would the State Register as well as the Rhode Island Secretary of States web sites page of agency regulations. 6. Special studies and investigations by staff, support agencies, outside contractors and others. 7. Communicating with the media. The Manual has a great deal to say about this subject, which it considers to be an indispensable part of oversight. This section has subsections on how to communicate most effectively with wire services, daily newspapers, magazines, trade periodicals, television (the biggest sub-section), and radio (a much smaller sub-section). The section also has a subsection on press conferences dealing with time, place, notification, and form (A press conference should be viewed as an open house with everybody invited and everybody welcome. Original emphasis.). There is also a subsection on news releases and another on the internet and the media. Statutory offices of inspector general (p. 79 ff)) Major federal departments and agencies now have inspectors general established by statute with the authority to provide independent oversight of their agencies activities. Reporting, consultation, and other sources of information (p. 85 ff) This section is not particularly useful except insofar as it points to the extraordinary number of reports (approximately 4,000) which arrive annually on Capitol Hill. (Chapters Two and Seven of this report allude to Common Causes 2002-2003 study of 289 Rhode Island statutes requiring audits and reports to be submitted at various intervals. That number of statutory requirements has increased since the study was finished. The essential questions about these reports remain, however: 1) Are they submitted as required? 2) What use is made of them?) Legislative veto and advance notice (p. 94) Starting in 1932, Congress began to delegate authority to the executive branch while also requiring it to first submit proposed executive action to Congress. The proposed executive branch action could then be disapproved (or vetoed) by either house or both houses acting concurrently. This stratagem effectively allowed Congress to control executive actions without having to enact a law passed by both houses (bicameralism) which was then sent to the president (presentment) for signature or veto. In effect the legislative veto was a Congressional end run around the Doctrine of Separation of Powers and its checks and balances. The Supreme Court struck the practice down in INS v. Chadha, 462 US 919 (1983). Nonetheless, according to the Manual, Congress has continued to find ways to apply the legislative veto. The informal legislative veto occurs when an executive branch official promises to refrain from an action until Congress or one of its committees agrees to it. A final variant of the legislative veto (report and wait) occurs when a statute mandates that before an executive branch activity can occur or be funded, Congress must be notified of what is proposed. The statutes normally require a waiting period to give Congress time to prohibit the proposed action by statute should it wish to. Independent counsel or special prosecutor (p. 95) This section may or may not be useful for Rhode Island readers. The issue has popped up in the Ocean State in recent years when there has been reason to question whether the normal channels of investigation, generally the Department of Attorney General or the Ethics Commission, will be able to impartially investigate some matter because of conflicts of interest. At the federal level, when the president or the office of the president is to be investigated, a special prosecutor might be needed because the normal investigatory agencies within the Justice Department are headed by the US Attorney General, who is appointed by the president.

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Chapter Five

Legislative oversight of administrative rule-making


Introduction In the late 19th century, increasingly complex societal needs along with economic problems and technological advances placed demands on Congress and the state legislatures in many fields. Some of these fields were brand new (aviation; electricity and then electronics), while in others, like public health, lawmakers generally lacked the professional expertise to enact good laws. In response, Congress and the state legislatures set up departments of government in the executive branch to meet societys new challenges and needs. Among other new entities, we see departments of transportation and health; public utilities commissions; and departments of business regulation. Legislatures also established new entities that did not fit neatly into any of the three branches of American democratic government. Some of these are free-standing regulatory agencies, like Rhode Islands Costal Resources Management Council, which regulates the states waters and coastline. Others are quasi-public corporations, basically companies set up by the legislature to run businesses for the state. Examples would be the Narragansett Bay Commission (NBC), which runs a large sewage-treatment agency serving about a third of the state, and the Rhode Island Resource Recovery Corporation (RIRRC), which processes the collection and disposal of the states solid wastes. NBC and RIRRC are not funded by the state budget but by fees and fines; they have their own budgets and employees, who do not work for the state. While they are not official state agencies, they do perform essential services for the state. Legislatures also increasingly delegated to these executive entities the power to make rules in their areas of responsibility. The Department of Health, for example, has been delegated the power to enact rules governing a wide range of health concerns, from water quality to licensing of health care professionals and institutions to the handling and disposal of dead bodies. The Coastal Resources Management Council and the Department of Environmental Management have the power to make and enforce environmental rules that have the force of law. The Rhode Island Ethics Commission has the same general power, though in an entirely different area. As the delegation of rulemaking power became more common, concerns arose. 1. Were rules enacted by agencies serving the purposes for which the legislature delegated its power? 2. Was the public being afforded a chance to comment on these rules both before they took effect and after? In 1946 Congress enacted the Federal Administrative Procedure Act (APA) establishing uniform standards for how federal agencies empowered to make rules must do so. Most if not all states have their own APAs, which govern how agencies can propose rules or amend or repeal existing rules, how the public can comment on all three actions, and what part the legislature will play in the making and implementation of administrative rules. This chapter of the study examines seven key features of the administrative procedures acts of 11 selected states, including Rhode Island. The complete text of these 11 APAs can be found in Appendix F. The complete text of these 11 APAs plus the APAs of 26 other states can be found in Appendix E. Appendix I summarizes legislative review of rule-making for all 50 states.

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Common features of Administrative Procedures Acts


1. Statement of legislative intent or policy. 2. Definitions section. 3. Requirement that each agency subject to the act promulgate information about its mission and its rules, as well as how the public can contact it. 4. Provisions requiring the assignment of a rule-making coordinator, liaison, or the equivalent. 5. Requirement that rule-making or rule-repeal be reviewed and approved before adoption by an agency. Specification of the review process, including the governmental parties involved (any combination of executive branch, legislative branch, or judicial branch). 6. Provisions for legislative annulment or veto of regulations; or provisions for gubernatorial annulment of regulations. Some state APAs have both. 7. Prescribed style and format for rule language. 8. Requirement that the rule when promulgated cite the statutory authority for the agency to issue rules and/or the federal or state statute to be implemented by the rule. 9. Designation of state official or state office to record rules and rule repeals. 10. Requirements for publication (generally a state register) or archiving of rules. 11. Requirement that courts take judicial notice of duly filed rules and repeal of rules. 12. Provisions for rebuttable presumption of rules validity. 13. Requirement that proposed rules or fee increases be noticed to the public on line, in print, or both. Provisions often specify the information the public must receive, including dates, times, and places of hearings and in what form interested persons may participate. 14. Provisions requiring meetings and records to be open to public, as well as circumstances when meetings and records can be closed or kept confidential. 15. Provisions governing the effective date of rule or rule repeal. 16. Requirement for a fiscal note or the equivalent if the proposed rule would establish or increase state appropriations or have other significant financial impact. 17. Requirement that the agency proposing the rule keep a record of public comment. 18. Provisions for individuals to petition for or request rules or rules changes, including time limits for agency response. 19. Provisions specifying which rules are prospective and which are retroactive. 20. Provisions governing what materials may be incorporated by reference. 21. Provisions governing emergency regulations. 22. Provisions for hearing officers or the equivalent. 23. Provisions governing appeals and judicial review in contested cases. 24. Provisions for tailoring rules to fit needs of regulated entities (small businesses, etc.). 25. List of agencies subject to and exempt from the APA. 26. Provisions governing the issuance and revocation of licenses. Provisions for contested cases in license matters, including subpoenas, witness fees, evidence, etc. 27. Provisions governing how final decisions, orders, etc. are issued in contested cases, including provisions for appeals etc. 28. Judicial review of final administrative orders. 29. Provisions for negotiated regulation making or the equivalent terms vary among states (consensus-based rule development). 30. Provisions governing ex parte communications.

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An analysis of seven key provisions in 11 states APAs Taken from the list of common features above and rephrased as questions. These questions are printed together on this page and then are addressed state-by-state below. Ed. 1. Does the APA contain a requirement that each rulemaking agency adopt as a rule (or otherwise establish) a description of its organization, stating the general course and method of its operations and the methods whereby the public may obtain information or make submissions or requests; and obtain rules, final orders, and other information? See RIGL 42-35-2 for model language for this question. 2. Does the APA require each agency to appoint or designate a rules coordinator or similar title to generally oversee record-keeping for the agencys rules and serve as the official the public will contact with questions about agency rules? 3. Does the APA begin with or contain a statement of legislative policy, legislative intent, or purpose? 4. Does the APA require that rule-making or rule-repeal be reviewed and approved before an agency adopts a rule? Does the APA specify how the review process works, including the governmental parties involved (any combination of executive branch, legislative branch, or judicial branch)? 5. Does the APA contain any requirements, strictures, or standards for the language in which rules are written? 6. Does the APA require agencies to notify the public of their intent to adopt, amend, or repeal a rule? Is the notice specific as to the intended action? What is the time interval specified in the APA? 7. Does the APA contain any provisions for the electronic posting of rules or electronic notification of intended rule-making or other electronic communication to and between citizens and the rule-making agency? 1. Does the APA contain a requirement that each rulemaking agency adopt as a rule (or otherwise establish) a description of its organization, stating the general course and method of its operations and the methods whereby the public may obtain information or make submissions or requests; and obtain rules, final orders, and other information? See RIGL 42-35-2 for model language for this question. Delaware In part. 10112, Public information, does require each agency to make regulations, orders, decisions, opinions, licenses, and other information available to the public at a reasonable cost. The APA does not require each agency to publicly identify its mission and its procedures or explain how the public can acquire information about regulations, etc. Louisiana Yes. See 952, Public information; adoption of rules; availability of rules and orders. Maine Largely No. 8051, Adoption of rules of practice, does require each agency, in addition to any other requirements established by statute, to adopt rules of practice governing adjudicatory proceedings, licensing proceedings, and the handing down of advisory rulings. The statute is silent about publishing the agencys mission and other matters described above in the basic question.

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Massachusetts Yes. See section 6B of Chapter 30A. New Hampshire Yes. See 541-A:16, Rules; Filing required. New Jersey Yes. See 52:14B-3, Additional requirements for rule-making. North Carolina None found. Oregon Largely yes. See 183.330, Description of organization Rhode Island Yes. See RIGL 42-35-2. South Carolina None found. West Virginia In part yes. See 29A-3-3, Rules of procedure required. While this section does require each agency to adopt procedural rules governing the formal and informal procedures contained in Chapter 29A, the section does not cover the agencys mission nor does it require the agency to publish instructions as to how the public can acquire information. 2. Does the APA require each agency to appoint or designate a rules coordinator or other similar title to generally oversee record-keeping for the agencys rules and serve as the agency official the public will contact with questions about rules? Delaware None found. Louisiana Yes. 953. This individual is designated as a contact person only, not responsible for recordkeeping. Maine None found. Massachusetts None found. New Hampshire In part. See 541-A:6, Notice of rulemaking procedure. This section requires each agency to designate an official able to answer questions on the proposed rule. See also 541-A:19a, Expedited appeal of rules, which requires any agencys notice of intent to repeal a rule to contain the name and electronic address of an individual in the agency who can answer questions about the intended rule repeal. New Jersey None found.

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North Carolina Yes. See 150B-21, Agency must designate rule-making coordinator; duties of coordinator. This is a very detailed statute which places a good many specific duties and responsibilities on each agencys rule-making coordinator, among them: 1. Preparing notices of public hearings. 2. Coordinating access to the agencys rules. 3. Ensuring that an accurate fiscal note has been completed as required for all proposed rules prior to their publication in the North Carolina Register. 4. Consulting with the named authorities to determine which local governments will be affected by proposed rules. 5. Providing the named associations and leagues of counties and municipalities of copies of all fiscal notes. 6. Coordinating the transmittal of proposed rules to the governor as required by law. The coordinator has other duties which, on paper at least, make this position anything but a sinecure. Please see the statute for more details (Appendix E or F). Oregon Yes. See 183.330. Each agency must appoint a rules coordinator who has the following duties: 1. Maintain copies of all rules adopted by the agency and provide information to the public about the status of the rules. 2. Provide information to the public about the agencys rulemaking procedures. 3. Keep and make available the mailing lists required by 183.335 (discussed below in section 6). Rhode Island Yes. The section is quoted verbatim, along with the following section mandating that each agency keep a rule-making file:
42-35-2.1 Rules coordinator. Each agency shall, by January 2, 2002, designate a rules coordinator, who shall have knowledge of the subjects of rules being proposed, maintain the records of any rules action including the rule-making file required by 42-35-2.2, and respond to public inquiries about proposed rules and the identity of agency personnel working, reviewing, or commenting on them. The office and mailing address of the rules coordinator shall be published in the state register at the time of designation and in the first issue of each calendar year thereafter for the duration of the designation. The rules coordinator may be an employee of another agency. Nothing in this section shall be construed to explicitly or implicitly permit the hiring of any additional personnel to perform the duties and responsibilities of the rules coordinator designated in this section. 42-35-2.2 Rule-making file. (a) Each agency shall maintain an official rule-making file for each rule proposed or adopted after January 2, 2002. The file and materials incorporated by reference shall be available for public inspection. (b) The agency rule-making file shall contain all of the following: (1) Copies of all publications in the state register with respect to the rule or the proceeding upon which the rule is based; (2) Copies of any portions of the agencys regulatory agenda containing entries relating to the rule or the proceeding on which the rule is based; (3) All written petitions, requests, submissions, and comments received by the agency and all other written material regarded by the agency as important to adoption of the rule or the proceeding on which the rule is based;

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(4) Any official transcript of oral presentations made in the proceeding on which the rule is based or, if not transcribed, any tape recording or stenographic record of them and any memorandum prepared by a presiding official summarizing the contents of those presentations; (5) The concise explanatory statement required by 42-35-2.3; (6) All petitions for exceptions to, amendment of, or repeal or suspension of the rule; (7) Citations to data, factual information, studies, or reports in which the agency relies in the adoption of the rule, indicating where such data, factual information, studies, or reports are available for review by the public; (8) Any other material placed in the file by the agency. (c) Internal agency documents are exempt from inclusion in the rule-making file to the extent they constitute preliminary drafts, notes, recommendations, and intra-agency memoranda in which opinions are expressed or policies formulated or recommended, except that a specific document is not exempt from inclusion when it is publicly cited by an agency in connection with its decision. (d) Upon judicial review, the file required by this section constitutes the official agency rulemaking file with respect to that rule. Unless otherwise required by law, the official agency rulemaking file need not be the exclusive basis for agency action on that rule.

South Carolina None found. West Virginia None found. 3. Does the APA begin with or contain a statement of legislative policy, legislative intent, or purpose? Delaware Yes. It is brief and to the point:
10101. Policy. The purpose of this chapter is to standardize the procedures and methods whereby certain state agencies exercise their statutory powers and to specify the manner and extent to which action by such agencies may be subjected to public comment and judicial review.

Louisiana None found. Maine None found. Massachusetts None found. New Hampshire None found. New Jersey Yes. New Jerseys statement appears three pages into the Administrative Procedure Act. It is quoted here in its entirety:
52:14B-3.1. Findings, declarations 1.The Legislature finds and declares that: a. Under the provisions of the Administrative Procedure Act, P.L.1968, c.410 (C.52:14B-1 et seq.) all interested persons are afforded reasonable opportunity to submit data, views or arguments, orally or in writing, during any proceedings involving a permit decision;

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Common Cause of Rhode Island b. Persons who have particularized property interests or who are directly affected by a permitting decision have constitutional and statutory rights and remedies; c. To allow State agencies without specific statutory authorization to promulgate rules and regulations which afford third parties, who have no particularized property interests or who are not directly affected by a permitting decision, to appeal that decision would give rise to a chaotic unpredictability and instability that would be most disconcerting to New Jerseys business climate and would cripple economic development in our State; and d. It is, therefore, altogether fitting and proper, and within the public interest, to prohibit State agencies from promulgating rules and regulations which would allow third party appeals of permit decisions unless specifically authorized to do so by federal law or State statute.

North Carolina Yes.


150B-1. Policy and scope. (a) Purpose. This Chapter establishes a uniform system of administrative rule making and adjudicatory procedures for agencies. The procedures ensure that the functions of rule making, investigation, advocacy, and adjudication are not all performed by the same person in the administrative process.

Oregon Yes. The statement is found four pages into the act.
183.333 Policy statement; public involvement in development of policy and drafting of rules. (1) The Legislative Assembly finds and declares that it is the policy of this state that whenever possible the public be involved in the development of public policy by agencies and in the drafting of rules. The Legislative Assembly encourages agencies to seek public input to the maximum extent possible before giving notice of intent to adopt a rule. The agency may appoint an advisory committee that will represent the interests of persons likely to be affected by the rule, or use any other means of obtaining public views that will assist the agency in drafting the rule. (2) Any agency in its discretion may develop a list of interested parties and inform those parties of any issue that may be the subject of rulemaking and invite the parties to make comments on the issue.

Rhode Island
None found.

South Carolina
None found.

West Virginia Yes. This statute gives a very clear picture of how the West Virginia legislature views the relationship between the executive and legislative branches with respect to rule-making. The section is quoted in its entirety. Note particularly the reference to separation of powers in the first paragraph (emphasis added). 29A-1-1. Legislative findings and statement of purpose.
The Legislature finds and declares that administrative law and the administrative practice and procedure of the various executive and administrative officers, offices and agencies comprises a body of law and policy which is voluminous, often formulated without adequate public participation and collected and preserved for public knowledge and use in an unacceptable and essentially inaccessible fashion. The Legislature further finds that the delegation of its legislative powers to other departments and agencies of government requires of the Legislature that the rules and regulations of such other departments and agencies, which have the force and effect of law because of their legislative character, should be carefully and extensively reviewed by the Legislature in a manner properly respectful of the separation of powers but in keeping with the legislative force and effect of such rules and regulations. Accordingly the Legislature has and by this chapter intends to

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fix by law uniform and settled administrative practices and procedures, subject only to enumerated exceptions, for the exercise of executive rule-making authority and for the exercise by executive and administrative officers, offices and agencies of lawfully delegated legislative power, with appropriate legislative review of that exercise of such delegated legislative authority and with established procedures for legislative oversight of the exercise of executive rule-making authority. In that light chapter twenty-nine-a of this code establishes, with enumerated exceptions, procedures for rule making, declaratory rulings by agencies and the conduct of contested administrative cases, together with a plan for the systematic preparation, public consideration, orderly promulgation, preservation and public availability of the body of law, policy and administrative decisions within the purview of this chapter.

4. Does the APA require that rule-making or rule-repeal be reviewed and approved before an agency adopts a rule? Does the APA specify how the review process works, including the governmental parties involved (any combination of executive branch, legislative branch, or judicial branch)? Delaware Delaware does not appear to require rule-making agencies to submit proposed new rules or amendments to existing rules to any governmental body for approval prior to adoption. The Delaware Administrative Procedure Act does, however, require a rule-making agency to notify the public of any proposed rule-making activity and explain how, when, and where members of the public may present their views. The former Delaware Administrative Commission was repealed in 1994. Louisiana Louisiana statutes contain several provisions for the review of proposed rules, fee changes, etc. 1. An emergency rule or fee established by an agency may be nullified by an oversight subcommittee of either house of the legislature or by the governor as prescribed by 953. 2. 968 establishes a procedure whereby the legislature may review the exercise of rulemaking authority and the adoption, increasing, or decreasing of fees, extensions of the lawmaking function, which it has delegated to state agencies [sic]. This statute specifies to which committees of both houses each state agency subject to the Louisiana APA must submit their reports of proposed rule or fee changes at the start of each legislative session. Executive orders issued by the governor are exempt from the provisions of this section of the APA. If an oversight subcommittee of either house finds that a proposed rule change or fee is unacceptable, it must file a report to that effect with the agency, the governor, and the Louisiana Register. If the governor does not disapprove the subcommittees report within ten calendar days, then the rule or fee may not take effect. If, however, the governor disapproves the oversight subcommittees action, the rule may take effect. It will be noted that the executive has the upper hand in determining whether a legislative oversight committees findings may take effect. 3. A further provision ( 970) permits the governor to suspend or veto any rule or regulation adopted by a state department, agency, board or commission except as provided in 967 4. 971 permits the legislature to nullify a proposed fee adoption, increase, or decrease if oversight subcommittees of both houses concur. This provision does not apply to any state professional or licensing boards. Maine

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1. Maine requires rule-making agencies to notify the legislature, via the executive director of the legislative council, when it gives the required notice of rulemaking or it adopts an emergency rule ( 8053-A). 2. In addition each agency must submit a proposed rule to the attorney general for approval as to form and legality ( 8056) The original rule, as signed by the attorney general or an assistant AG and the agencys authorized representative, is then filed with the secretary of state on the form prescribed by the secretary of state. 3. Furthermore, each rule-making agency must issue to the appropriate standing committee or committees of the general assembly, between the start of the legislative session and 100 days after adjournment, a regulatory agenda ( 8053-A). The contents of the agenda are specified in the statute ( 8060) and include a list of rules the agency expects to propose during the current period, the statutory or other basis for adopting the rule, the proposed schedule for adoption, a list of those affected by the rules, and a list of emergency rules promulgated by the agency since the last report. 4. 8071, Legislative review of certain agency rules, which took effect on January 1, 1996, establishes a two-tiered process by which the legislature will review agencys proposed rules. Each new rule authorized by the delegation of legislative authority must be assigned by the legislature to one of two categories. Routine technical rules involve, as the label implies, standard procedures or agency forms or any matter that does not involve standard fees or is not a major substantive rule as defined in the statute. Major substantive rules require the exercise of significant agency discretion [or] are reasonably expected to result in a significant increase in the cost of doing business, a significant reduction in property values, the loss or significant reduction of government benefits or services, the imposition of state mandates on local government as defined in the Constitution of Maine, Article IX, section 21, or other serious burdens on the public or units of local government. Routine technical rules are subject to the general procedures outlined above in 1. to 3, which appear in Subchapter 2 of this chapter. Please see the statutes for more detail. Major substantive rules are subject to an increased level of rule-making requirements ( 8072). In effect, the authority to adopt major substantive rules is provisional, not final, subject to legislative review. Basically, an agency proposing to adopt a major substantive rule proceeds with the process applicable to routine technical rules up to the point of final adoption. At that point, called provisional adoption, the agency submits the proposed rule to the secretary of state (see 8056) and to the legislature for review and authorization for final adoption Once the required copies have been received, the executive director of the Legislative Council forwards them to the Senates secretary and to the clerk of the House. Those two officers jointly suggest referral of the proposed rule to the joint standing committee of the legislature having jurisdiction over the rules subject matter. Once the two chambers have approved this referral on their floors, the Senate secretary and the House clerk send copies of the proposed rule to all members of the joint standing committee. They must consider the proposed rule at a meeting of which the agency is notified. The committee may, but is not required to, hold public meetings on the proposed rule. If public meetings are held, they must be advertised in the same manner as legislative rules set down for hearings on legislation.

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The criteria governing the joint standing committees consideration of proposed rules are these (quoted in their entirety minus history):
A. Whether the agency has exceeded the scope of its statutory authority in approving the provisionally adopted rule; B. Whether the provisionally adopted rule is in conformity with the legislative intent of the statute the rule is intended to implement, extend, apply, interpret or make specific; C. Whether the provisionally adopted rule conflicts with any other provision of law or with any other rule adopted by the same or a different agency; D. Whether the provisionally adopted rule is necessary to fully accomplish the objectives of the statute under which the rule was proposed; E. Whether the provisionally adopted rule is reasonable, especially as it affects the convenience of the general public or of persons particularly affected by it; F. Whether the provisionally adopted rule could be made less complex or more readily understandable for the general public;

G. Whether the provisionally adopted rule was proposed in compliance with the requirements of this chapter and with requirements imposed by any other provision of law; and H. For a rule that is reasonably expected to result in a significant reduction in property values, whether sufficient variance provisions exist in law or in the rule to avoid an unconstitutional taking, and whether, as a matter of policy, the expected reduction is necessary or appropriate for the protection of the public health, safety and welfare advanced by the rule.

The joint standing committee can recommend four courses of action to the legislature (quoted verbatim minus history):
A. That the Legislature authorize the final adoption of the rule; B. That the Legislature authorize the final adoption of a specified part of the rule; C. That the Legislature authorize the final adoption of the rule with certain specified amendments; or D. That the final adoption of the rule be disapproved by the Legislature.

The committee shall notify the agency proposing the rule of its recommendation. When the committee makes a recommendation under paragraph B, C or D, the notice must contain a statement of the reasons for that recommendation. 5. Chapter 377-A (Ch. 377 was repealed) provides another avenue for the legislative consideration of agency rules. Any group of 100 or more registered voters with a substantial interest in a rule, or any single person who may be directly, substantially and adversely affected by a rule may file an application for review with the executive director of the Legislative Council. It is then up to the members of the joint standing committee to decide whether to review or not review the rule. If the decision is to review, the committee must include five criteria in its review: 1. Consistency with legislation. Whether the rule is consistent with and necessary to the intent of the statute which the rule implements; 2. Reasonableness of effects. Whether the effects of the rule are reasonable, including its benefits and costs, and including costs of compliance and administration; 3. Circumstances. Whether circumstances have changed since the passage of the statute which the rule implements; 4. Abuse of discretionary powers. Whether the rule may tend to promote abuse of discretionary powers of the agency; and

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5. Fee. Whether any fee established by rule is reasonable and whether the sums collected relate to the costs of administration. The joint standing committee may hold but is not required to hold public meetings and must make its final determination on the rule within 90 days of the chairs notification that the committee members have voted to review the rule. Massachusetts The administrative procedure act (Ch. 30A) does not appear to contain any requirement that agency rules be reviewed by any independent governmental committee or commission prior to enactment by the agency. The Massachusetts Act does contain provisions requiring agencies to conduct public hearings of proposed rules and provisions providing for adjudication and court action under certain circumstances, of which more below. New Hampshire 1. New Hampshires legislature has established control of administrative rule-making via a Joint Legislative Committee on Rule-making (JLCAR). 2. The committee is composed of five members of the House appointed by the speaker in consultation with the minority leader (not more than three from the same party) and five members of the Senate appointed by the Senate president in consultation with the minority leader (not more than three from the same political party); and five alternate members from each chamber appointed as the regular members are appointed. When regular members are unable to attend, the chair appoints an alternate to attend. The committee elects its chair and vice chair; the chair must rotate biennially between House and Senate members. The committee is required to meet at least monthly and more often if necessary. New Hampshire has an enormous House of Representatives (400 members) and a much smaller Senate (24 members). Ed. 3. The committee may hold public hearings on its own initiative on proposed rules or previously introduced rules. If it does hold hearings, it must give at least seven days public notice. The committee may consult with the standing committee having jurisdiction over the area of the rule to be reviewed. The committees other duties: a. Petition an agency under 541-A:4 to adopt rules if the agency has not used a clearly defined rulemaking authority. 541-A:4 permits any interested person to lodge the same appeal. b. Review statutes granting rule-making authority and recommend how such statutes can be clarified. c. Recommend improvements to legislative oversight of rule-making. d. Have final approval authority over the drafting and procedure manual developed by the director of legislative services and the commissioner of administrative services (see 541-A:8). e. Notify the chairs of the appropriate standing committees when the committee recommends changes to legislation as a result of reviewing proposed and adopted rules. f. Make recommendations as appropriate to the speaker, the Senate president, and the chairs of the appropriate standing committees concerning the amendment or repeal of an agencys rulemaking authority when it has not enacted rules as required by statute.

4. Once a final proposed rule has been filed, the committee may approve it or object to it. The agency may then file a proposed amended final proposal with a request for approval.

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In general, JLCAR may approve a rule as originally filed; approve the rule as amended; or inform the agency that it still objects to the amended final proposal. In general, JLCAR may object to a rule under four conditions: a. If it exceeds the agencys authority; b. If it violates the legislatures intent; c. If it is found to be harmful to the public interest; or d. If JLCAR determines that it will have a significant economic impact which is not contained in the required fiscal impact statement. 5. 541-A:13 contains an exhaustive explanation of the back-and-forth communications between JCLAR and an agency when the committee has objected to a final proposed regulation and/or to an amended final proposed regulation. Please see the text of this statute in Appendixes E or F for further details. The bottom line: if an agency is unable to satisfy JLCARs objections to its final proposed rule, it may go to court but the statute asserts that
the burden of proof shall be on the agency in any action for judicial review or for enforcement of the provision to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, is in the public interest, or does not have a substantial economic impact not recognized in the fiscal impact statement. If the agency fails to meet its burden of proof, the court shall declare the whole or a portion of the rule objected to invalid. The failure of the committee to object to a rule shall not be an implied legislative authorization of its substantive or procedural lawfulness.

Presuming the agency does not go to court but has not removed the basis for the committees objection to its proposed regulation in any subsequent amendment, the committee may recommend legislative action via a joint resolution to implement its (JLCARs) recommendation. Such a vote shall prevent the rule from being adopted and filed by the agency until the legislature acts on the joint resolution or the passage of 90 consecutive calendar days, either within that session, or if there are less than 90 days till the end of the session, then until 90 consecutive legislative days have passed presumably without any action on the joint resolution. In the final analysis, JLCAR has the upper hand here. If it continues to object to any subsequent amendment by the agency to its final proposed rule, the agencys only recourse is to go to court, where the burden of proof is upon it, or wait until the time limit for the assemblys action runs out without any resolution invalidating the final proposed regulation being passed. New Jersey 1. Administrative rule-making is under the supervision of both the Office of Administrative Law and the state legislature. 2. Every rule proposed by a state agency must be submitted to the Office of Administrative Law, which in turn must submit it within two business days of receipt to the Senate president and to the speaker of the General Assembly (the House of Representatives) ( 52:14B-4.1). 3. The director of the Office of Administrative Law has the power to refuse to accept an agencys proposed rule if it does not comply with interagency rules adopted by the director. The director may also reject a proposed rule which lacks a standard of clarity. The standard of clarity is set forth in 52:14B-4.1a and will be discussed below. 4. Article V (Executive) section 4 paragraph 6 of the New Jersey Constitution describes the legislatures and the executives role in rule making. It reads as follows:
No rule or regulation made by any department, officer, agency or authority of this state, except such as relates to the organization or internal management of the State government or a

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52:14B-4.3 provides that if the state legislature invalidates a rule or regulation as provided in the constitution (above), the presiding officer of the house of final adoption must send the concurrent resolution to the Office of Administrative Law to be published in the New Jersey Register and the administrative code as an annotation to the rule. North Carolina North Carolinas highly detailed Administrative Procedure Act (Chapter 150B) contains very specific procedures which must be followed before an agency can adopt a proposed rule. 1. The gatekeepers for agency rules are the Codifier of Rules, defined as the Chief Administrative Law Judge of the Office of Administrative Hearings, and the Rules Review Commission. The commission consists of 10 members to be appointed by the General Assembly, five upon the recommendation of the President Pro Tempore of the Senate, and five upon the recommendation of the Speaker of the House of Representatives. Its function: to review administrative rules in accordance with Chapter 150B of the General Statutes (see Appendixes E or F for this chapter; 143B-30.1). 2. Any agency wishing to promulgate an emergency rule under the terms defined in the statute must submit the rule to The Codifier of Rules. The codifier approves the rule if it meets the criteria set forth in 150B-21.1A. If it does not, the codifier notifies the agency, which may respond or not as it wishes. If the agency does not respond, or its response still does not satisfy the criteria for an emergency rule, the codifier (puzzlingly) must then enter the rule in the North Carolina Administrative Code on the sixth business day after receiving notice of the agencys decision. The codifier can reject any rule which does not comply with the statute governing the setting of fees. An agency can establish fees only if authorized by the general assembly. The codifier is also authorized ( 150B-21.20) to revise rules to rearrange the place of the rule in the code, provide headings, reletter or renumber the rule to conform to a uniform system, or make other changes that deal with arrangement or form but do not change the rules content or meaning. 3. Any agency must submit temporary rules, as defined in 150B-21.1, and permanent rules to the Rules Review Commission. The commission must decide whether a rule conforms to the following criteria: a. It falls within the authority delegated to the agency by the general assembly; c. It is clear and unambiguous;

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d. It is reasonably necessary to implement an enactment of the general assembly, or of Congress, or a regulation of of a federal agency; e. It is adopted in accordance with the provisions of the Administrative Procedure Act. The commission is not, however, empowered to consider the quality or efficacy of the rule but must restrict its review to determination of the standards set forth in this section [above]. 4. The North Carolina APA prescribes the timetable for the commissions actions as well as how it responds, both negatively and positively, to an agencys rule. The statute is equally specific as to the agencys response when the commission objects to a temporary or permanent rule. 5. The commission may call a public hearing when it extends the period for review of a rule under consideration. Other portions of the APA require the agency to conduct public hearings of rules it proposes. 6. The Rule Review Commission must make monthly reports to the Joint Legislative Administrative Procedure Oversight Committee. The committee is composed of 10 members, five each appointed respectively by the president pro tempore of the Senate and the speaker of the House. Its duties (quoted verbatim from 120-70.101):
(1. To review rules to which the Rules Review Commission has objected to determine if statutory changes are needed to enable the agency to fulfill the intent of the General Assembly. (2. To receive reports prepared by the Rules Review Commission containing the text and a summary of each rule approved by the Commission. (3. To prepare a notebook that contains the administrative rules that have been approved by the Rules Review Commission and reported to the Committee and to notify each member of the General Assembly of the availability of the notebook. (4. To review State regulatory programs to determine if the programs overlap, have conflicting goals, or could be simplified and still achieve the purpose of the regulation. (5. To review existing rules to determine if the rules are necessary or if the rules can be streamlined. (6. To review the rule-making process to determine if the procedures for adopting rules give the public adequate notice of and information about proposed rules. (7. To review any other concerns about administrative law to determine if statutory changes are needed. (8) To report to the General Assembly from time to time concerning the Committees activities and any recommendations for statutory changes.

Oregon The Oregon Administrative Procedures Act ( 183.310 e.s.) contains relatively mild procedures for the review of rules by independent state entities before their adoption by an agency. 1. 183.355 (15.(a) e.s. requires that an agency proposing a rule within two years of the passage of the enabling statute notify the sponsoring legislator as well as the chairs of the committees reporting the bill out. 2. The same statute provides that the if the rule does not result from legislation passed within the last two years, the agency proposing the rule must notify the chairs of any committee having jurisdiction over the subject matter of the rule.

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3. If something prevents giving notice as provided in 1. and 2. just above, then the proposing agency must give notice to the sitting speaker of the House and Senate president. 4. Committees receiving notice under the provisions summarized just above must review the proposed rule if requested by a member of the general assembly or by a person who would be affected by the proposed rule. The committees review would be limited to ensuring that the proposed rule was in compliance with the legislation authorizing the rule. Note that the review would not take place unless one or the other of the specified requests was made. 5. 183.355(11.(b) provides that no rule is valid unless submitted to the Legislative Counsel under 183.715. That statute requires each state agency adopting a rule to submit a copy to the Legislative Counsel within 10 days of filing the rule with the Secretary of State in the form described in the statute. The Legislative Counsel may review the rule at his or her discretion, or shall review the rule when directed to by the Legislative Counsel Committee. Further, the Legislative Counsel may review an adopted rule when requested in writing by any person affected by the rule, but shall review the rule upon the written request of any member of the legislative assembly. The Legislative Counsel must make two determinations when reviewing a rule: whether it lies within the scope of the authorizing legislation; and whether it raises any other constitutional issue other than that of authorization. If either problem is discovered, the Legislative Counsel must send a copy of that determination to the state agency. The counsel may require the agency to respond in writing or appear at a meeting of the Rules Review Committee to consider the counsels determination. The Rules Review Committee may, in turn, direct the counsel to send a copy of the determination to the presiding officer of a chamber of the legislature, who may refer the determination to the legislative committee(s) concerned. This conditional set of actions continues. A member of the state legislature may request the Legislative Counsel to prepare a report on any rule which the member asserts duplicates or conflicts with another rule. A person affected by a state agency rule may make the same request of the Legislative Counsel. Copies of the counsels responses to these must go to the parties concerned, including the state rule-making agency. 6. If the Legislative Counsel has determined that a rule is defective according to one of the two criteria outlined above, and has notified the agency of this determination, the agency must either respond in writing or appear at a meeting of the Legislative Counsel Committee at which the committee will consider the counsels determination. Should the committee remain dissatisfied with the agencys response to the counsels finding, it may request a further meeting of the agency, itself, and a representative of the state Department of Administration. The statute is unclear as to how disputes with agencies over rules will be resolved. 173.191 Membership; term; vacancies; advisory committees. (1. The Legislative Counsel Committee shall consist of the Speaker of the House of Representatives, the President of the Senate, five members of the House appointed by the Speaker, and four members of the Senate appointed by the President. The Speaker of the House of Representatives and the President of the Senate may each designate from among the members of the appropriate house an alternate to exercise powers as a member of the committee. The appointing authorities shall appoint members of a new committee within 30 days after the convening of the Legislative Assembly in regular session.

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Rhode Island Except for public comment and public hearings, the Administrative Procedures Act does not require any prior approval for administrative rule-making. South Carolina South Carolina provides for general assembly review of administrative regulations before they are promulgated by an agency. 1. Two members of the general assembly can request that any regulation which has a substantial economic impact have an assessment report prepared. Alternatively, a committee to which a regulation has been referred may by majority vote notify the promulgating agency that it cannot approve the regulation unless an assessment report is provided to the committee. A copy of such a preliminary report must go to the Division of Research and Statistical Services of the State Budget and Control Board. The division, in turn, prepares a final assessment report which may address 11 criteria specified in the statute, which include costs and benefits as well as the source of revenue to implement the regulation and its impact on competition and public health, both pro and con. 2. All regulations must be submitted to the general assembly for review. To initiate the process, the agency must file a copy of the regulations, a request for review, a synopsis of the regulations submitted, a copy of the final assessment report prepared by the division, a statement of rationale for the regulations in question, copies of fiscal impact statements, and other material as specified in the statute. 3. When such a request is received, a copy of the request and its supporting materials is submitted to the standing committees of both houses most concerned with the agencys operations. These committees have 120 days to take action. If no action occurs within the first 60 calendar days of receipt of the request, the request is automatically placed on the committees next agenda. If a joint resolution to approve is not enacted within 120 days, or a joint resolution to disapprove has not been introduced by a standing committee within the same time period, the regulation becomes effective upon publication in the State Register. 4. The 120-day automatic approval period stops when the first joint resolution to disapprove the regulation is introduced by a standing committee to which the regulation was referred. The period begins to run again if the joint resolution is voted down by either chamber. 5. The 120-day period includes only calendar days occurring during regular sessions of the legislature. 6. A legislative committee to which a regulation has been referred may introduce a resolution disapproving one or more of a group of regulations, approving others submitted at the same time, or deleting a separable portion of a regulation while approving the balance of the regulation. 7. If a committee majority cannot approve a regulation in the form submitted, it must notify the promulgating agency in writing of that fact, including its recommendation as to the changes that would merit committee approval. The agency has three possible reactions: it can withdraw the regulation and resubmit it with the recommended changes within thirty days; it can withdraw the regulation permanently; it can take no action and accept whatever action the general assembly imposes with regard to the regulation. The statutes contain further provisions regarding stopping and starting of the 120-day period during this process. West Virginia

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West Virginias legislature has enacted an Administrative Procedure Act (Ch. 29A) giving it a high degree control over administrative rule-making. The Legislative findings and statement of purpose above provide the rationale for that high degree of control. The definitions section defines three types of rules which are treated differently in the chapter. Interpretive rules are adopted by an agency, independent of any delegation of legislative power, to allow the agency to provide information or guidance to the public regarding the agencys interpretations, policy, or opinions with regard to the laws which the agency enforces or administers. Interpretive rules are not intended to affect or determine private rights, privileges or interests. Procedural rules establish rules of procedure, practice, or evidence for dealings with or proceedings before an agency, including its prescribed forms. Legislative rule means every rule which has the force of law, supplies the basis to impose civil or criminal liability, or grants or denies a specific benefit. Every rule affecting private rights, interests, or privileges is a legislative rule. A legislative rule has no force of law until specifically authorized by an act of the legislature. Agencies proposing any kind of rule must provide the prescribed public notice of such intentions and hold hearings as prescribed in the statute. 1. Agencies may adopt or withdraw a procedural or interpretive rule not more than six months after the close of the period for public comment. They must file a notice of withdrawal or adoption with the secretary of state within that six-month period. Failure to file that notice constitutes withdrawal. Agencies may file amended rules without further public hearings so long as the amendment does not change the main purpose of the rule. 2. The statute states that agencies proposing legislative rules are applying to the legislature for permission, which must be granted by law, to promulgate such a rule either as approved by the agency or as amended and authorized by the law enacted by the legislature. Agencies, in this case, proceed as with procedural or interpretive rules up to the point of final adoption. At that point, the agency approves its rule for submission to the legislature and files notice of approval in the state register and with the Legislative Rule-making Review Committee within 90 days of the end of the period for public comment as established by the statute. 3. The Legislative Rule-making Review Committee consists of six members of the Senate appointed by its president and six members of the House of Delegates appointed by the speaker. The Senate president and the speaker are non-voting members and designate the co-chairmen. Not more than four voting members of each house shall be from the same political party. 4. The statute specifies the information that must be provided to the committee by the secretary of the executive department which administers the agency promulgating the rule. The specified information includes not only the complete text of the proposed rule but also a fiscal note that specifies the economic impact on the state or its residents. 5. The committee may hold public hearings on the proposed legislative rule. Its review must include the following criteria: a. Whether the agency has exceeded the scope of its statutory authority in proposing the rule; b. Whether the proposed rule conforms to the legislative intent of the statute which the rule is intended to implement;

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c. Whether the proposed rule conflicts with any statute or other rule; d. Whether the proposed rule is necessary to implement the statute; e. Whether the proposed rule is reasonable, with specific regard to the publics convenience; f. Whether the rule could be made less complex or more readily understandable;

g. Whether the proposed rule was proposed in compliance with the Administrative Procedure Act. 6. The committee can take four actions: authorize the promulgation of the legislative rule; authorize promulgation of part of the rule; authorize promulgation of the rule with amendments; or recommend that the proposed rule be withdrawn. 7. If authorization in whole or in part is recommended, the committee directs staff to draft a bill to that effect. If the committee recommends that the rule not be authorized, its report to that effect must contain a draft of a bill authorizing promulgation of the bill together with a recommendation. This may mean that the committee is suggesting to the agency the form of the rule that would win the committees approval. Ed. 8. 29A-3-12 outlines the timetable by which the Legislative Rule-making Review Committee transmits its deliberations on proposed rules to the two chambers. It appears that the committee co-chairs send their report to their respective chambers clerk in the middle of the current session, and the clerk then transmits the report to his or her house at the beginning of the next session. The bills authorizing the promulgation of rules may be referred by the speaker and the Senate president to the appropriate standing committees of the two chambers for consideration. Once an act authorizing the promulgation of a rule is passed, the clerk of the house in which the bill originated files a copy of the enacted law with the secretary of state and with the originating agency. The statute empowers the legislature to combine bills of authorization under certain circumstances. Any number of provisions may be included in a bill of authorization, but the single object of the bill shall be to authorize the promulgation of proposed legislative rules. 9. If the legislature disapproves all or part of any legislative rule submitted to it by the committee, the rule cannot be implemented. The originating agency can, however, resubmit the rejected rule to the committee as prescribed in the statute. 10. Authorized rules take effect 30 days after they are filed in the state register. 11. Emergency rules are covered by 29A-3-15. In effect the secretary of state has the power to approve or disapprove an emergency rule, which, if approved, is effective for not more than 15 months. Grounds for disapproval: a. If the emergency rule exceeds the scope of the law which authorizes it; b. An emergency does not exist justifying the rule; c. The emergency rule was not promulgated in compliance with this section. The secretary of states decisions may be reviewed by the Supreme Court of Appeals. A proceeding to review may be instituted by the issuing agency, a member of the legislature, or any person whose personal property interests would be significantly affected by the approval or disapproval of the rule by the secretary of state. The attorney general may also review and nullify a rule approved by the secretary of state.

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The Legislative Rule-making Review Committee may also review interpretive and procedural rules as well as any legislative rules currently in effect and make recommendations to the legislature, the agency, or both. Articles 3A and 3B of the Administrative Procedures Act contain similar provisions binding on Higher Education Rule-making (Article 3A) and the West Virginia Board of Education (Article 3B). While these two articles have been tailored to fit the specific missions of the two boards of education (some provisions present in the general rule-making article are absent; others have been added here), the provisions governing rule-making by these two boards are virtually identical to those binding on other state agencies. In both cases - higher education and elementary-secondary education - educational rule-making is overseen by the Legislative Oversight Commission on Education Accountability, which is identical in size and composition to the Legislative Rule-making Review Committee. The statute does not explain why the West Virginia legislature has enacted separate and nearly identical rule-making oversight provisions for the two educational systems. Ed. 5. Does the APA contain any requirements, strictures, or standards for the language in which rules are written? Delaware None found. Louisiana 955, Adjudication; notice; hearing; records, requires the notice to parties in a hearing to provide a short and plain statement of the matters asserted. We have not, however, found any statement governing the language in which administrative rules are written by the promulgating agency. Maine 8056-A3 requires the secretary of state to develop uniform drafting instructions for use by all agencies that propose rules and shall compile those instructions in a drafting manual. The subsection provides no further details. Note, however, the following, quoted in its entirety:
8061. Style All rules and any other materials required by this subchapter to be provided to the public or to the Legislature shall, to the maximum extent feasible, use plain and clear English, which can readily be understood by the general public. The use of technical language shall be avoided to the greatest possible extent.

Massachusetts None found. New Hampshire In 541-A:2, which governs the Joint Legislative Committee on Administrative Rules (JLCAR), the committee is directed to review statutory passages granting rule-making authority. As part of its review, the committee is enjoined to make written recommendations to the president of the Senate and the speaker of the house as to how such passages should be amended to eliminate confusing, inefficient, or unnecessary statutory language. Note also the following sections:
541-A:7 Style of Rules. Rules shall be written in a clear and coherent manner using words with common and everyday meanings, consistent with the text of the rule, except when technical language is necessary.

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541-A:8 Drafting and Procedure Manual. Each agency shall conform to a drafting and procedure manual for rules, developed by the director of legislative services and the commissioner of administrative services, subject to amendment and final approval by the committee. The manual shall be submitted for approval by the committee no later than March 31, 2000. If no manual is submitted by such date, the committee shall have the authority to develop, amend, and approve the manual. In either case, the committee shall provide final approval of the drafting and procedure manual no later than June 30, 2000. After June 30, 2000, the committee may propose further amendments to the manual. Any further amendments shall be subject to final approval by the committee. The director may require any agency to rewrite any rule submitted for filing to conform to this manual until that rule is adopted and filed under RSA 541-A:14 or RSA 541-A:19.

New Jersey 52:14B-4 requires agencies promulgating rules to provide for the State Register a clear and concise explanation of the purpose and effect of the rule Note, also the following statute (copied verbatim, exactly as found in the on-line version):
52:14B-4.1a. Compliance with interagency rules required; OAL review for clarity b. The Office of Administrative Law, upon its review and determination, shall not accept for publication any notice of intention to adopt, readopt or amend a rule or regulation, a proposed rule, summary of the proposed rule, regulatory impact analysis, or other accompanying materials which lacks a standard of clarity. As used in this section, standard of clarity means the document is written in a reasonably simple and understandable manner which is easily readable. The document is drafted to provide adequate notice to affected persons and interested persons with some subject matter expertise. The document conforms to commonly accepted principles of grammar. The document contains sentences that are as short as practical, and is organized in a sensible manner. The document does not contain double negatives, confusing cross references, convoluted phrasing or unreasonably complex language. Terms of art and words with multiple meanings that may be misinterpreted are defined. The document is sufficiently complete and informative as to permit the public to understand accurately and plainly the legal authority, purposes and expected consequences of the adoption, readoption or amendment of the rule or regulation.

North Carolina
150B-21.9. Standards and timetable for review by Commission. (a) Standards. The Commission must determine whether a rule meets all of the following criteria: (1) It is within the authority delegated to the agency by the General Assembly.

(2) It is clear and unambiguous.


150B-21.23. Rule publication manual. The Codifier of Rules must publish a manual that sets out the form and method for publishing a notice of rule-making proceedings and a notice of text in the North Carolina Register and for filing a rule in the North Carolina Administrative Code.

Oregon
183.341 Model rules of procedure; establishment; compilation; publication; agencies required to adopt procedural rules. (1. The Attorney General shall prepare model rules of procedure appropriate for use by as many agencies as possible. Except as provided in ORS 183.630, any agency may adopt all or part of the model rules by reference without complying with the rulemaking procedures under ORS 183.335. Notice of such adoption shall be filed with the Secretary of State in the manner provided by ORS 183.355 for the filing of rules. The model rules may be amended from time to time by an adopting agency or the Attorney General after notice and opportunity for hearing as required by rulemaking procedures under this chapter.

Rhode Island None found.

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South Carolina None found. West Virginia 29A-3-11 establishes the criteria for the review of proposed rules by Legislative Rulemaking Review Committee. Among the criteria: Whether the proposed legislative rule could be made less complex or more readily understandable by the general public The same language is repeated in Articles 3A and 3B governing rulemaking by the Higher Education Policy Commission or the Chancellor of Higher Education and the West Virginia Board of Education. Additional state Although Kentucky is not one of the eleven states selected for close examination in this section of the report, its requirements for the format and language in which administrative rules must be written are so specific, indeed exhaustive, that they are presented here in their entirety. Clearly, there is a Usage-Nazi somewhere in the bowels of Kentucky state government.
13A.220 Compliance with KRS 13A.222 and 13A.224 required Filing with compiler Format. All administrative regulations shall comply with the provisions of KRS 13A.222 and 13A.224. (1) An administrative body shall file with the regulations compiler: (a) The original and five (5. copies of an administrative regulation; and (b) At the same time the original and five (5. copies are filed, an electronic version, if available, of the administrative regulation and required attachments on a diskette or by e-mail in an electronic format approved by the regulations compiler. (2) The original and each copy of each administrative regulation shall be stapled in the top left corner. The original and the five (5) copies of each administrative regulation shall be grouped together. (3) An amendment to an administrative regulation shall not be made on a copy of the administrative regulation reproduced from the Kentucky Administrative Regulations Service or the Administrative Register. It shall be a typed original in the format specified in subsection (4. of this section. (4) The format of an administrative regulation shall be as follows: (a) An administrative regulation shall be typewritten on white paper, size eight and one-half (81/2. by eleven (11) inches and shall be double-spaced through the last line of the body of the administrative regulation. The first page shall have a two (2. inch top margin. The administrative regulation shall be typed in a twelve (12. point font approved by the regulations compiler. The lines on each page shall be numbered, with each page starting with line number one (1). Pages of an administrative regulation and documents attached to the administrative regulation shall be numbered sequentially. Page numbers shall be centered in the bottom margin of each page. Copies of the administrative regulation may be mechanically reproduced; (b) The regulations compiler shall place a stamp indicating the date and time of receipt of the administrative regulation in the two (2) inch margin on the first page; (c) The cabinet, department, and division of the administrative body shall be listed on separate double-spaced lines two (2) inches from the top in the upper left hand corner of the first page. This shall be followed on the next doublespaced line by (New Administrative Regulation), (Amendment), (Amended After Comments), (Repealer), (New Emergency Administrative Regulation), (Emergency Amendment), or (Emergency Repealer), whichever is applicable; (d) The notation shall be followed by the number and title of the administrative regulation on the next double-spaced line. The promulgating administrative body shall contact the regulations

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compiler prior to filing to obtain an administrative regulation number for a new administrative regulation; (e) On the next double-spaced line following the number and title of an administrative regulation, after the words RELATES TO:, the administrative body shall list all statutes and other enactments, including any branch budget bills or executive orders, to which the administrative regulation relates or which shall be affected by the administrative regulation. After the words STATUTORY AUTHORITY: the administrative body shall list the specific statutes and other enactments, where applicable, authorizing the promulgation of the administrative regulation. Federal statutes and regulations shall be cited in the RELATES TO: and STATUTORY AUTHORITY: sections as provided by KRS 13A.2261; and (f) Following the citations provided for in paragraph (e) of this subsection, and following the words NECESSITY, FUNCTION, AND CONFORMITY: the administrative body shall include a brief statement setting forth the necessity for promulgating the administrative regulation, a summary of the functions intended to be implemented by the administrative regulation, and, if applicable, the statement required by KRS 13A.245(2.(b). (5) The numbering within the body of an administrative regulation shall be the responsibility of the promulgating body, subject to the authority of the regulations compiler to divide or renumber an administrative regulation. The following format shall be used by the administrative body in the numbering of each administrative regulation. Each section shall begin with the word Section followed by an Arabic number, and titles of sections shall be initially capitalized. Subsections shall be designated by an Arabic number in parentheses. Paragraphs shall be designated by lower case letters of the alphabet in parentheses (e.g., (a), (b), (c), etc.). Subparagraphs shall be designated by an Arabic number followed by a period (e.g., 1., 2., etc.). Clauses shall be designated by lower case letters of the alphabet followed by a period (e.g., a., b., c., etc.). Subclauses shall be designated by lower case Roman numerals in parentheses (e.g., (i), (ii), (iii), etc.). (6) After the complete text of an administrative regulation, on the following page, the administrative body shall include the following information: (a) If the provisions of KRS 13A.120(3. are applicable, a statement that the official or the head of the administrative body has reviewed or approved the administrative regulation; the signature of such official or head; and the date on which such review or approval occurred; (b) The authorizing signature of the administrative body promulgating the administrative regulation, and the date on which the administrative body approved the promulgation; (c) Information relating to public hearings as required by KRS 13A.160 and 13A.270 and the public comment period required by KRS 13A.270; and (d) The name, position, address, telephone number, and facsimile number of the contact person of the administrative body. The contact person shall be the person authorized by the head of an administrative body to: (1) Receive information relating to issues raised by the public or by a subcommittee prior to a public meeting of the subcommittee; (2) Negotiate changes in language with a subcommittee in order to resolve such issues; and (3) Answer questions relating to the administrative regulation. (7) The format for signatures required by paragraphs (a) and (b) of subsection (6. of this section shall be as follows: (a) The signature shall be placed on a signature line; and (b) The name and title of the person signing shall be typed immediately beneath the signature line. Effective: June 20, 2005 13A.222 Drafting rules. (1) In a new administrative regulation, there shall be no underlining or bracketing.

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Common Cause of Rhode Island (2) In an amendment to an administrative regulation, the new words shall precede the deleted words. Exceptions may be permitted by the regulations compiler. The administrative body shall: (a) Underline all new words; and (b) Place the deleted words in brackets and strike through these words. (3) (a) An administrative regulation shall not be amended by reference to a section only. An amendment shall contain the full text of the administrative regulation being amended. (b) A section of an administrative regulation shall not be reserved for future use. (4) In drafting administrative regulations, the administrative body shall comply with the following: (a) The administrative body shall use plain and unambiguous words that are easily understood by laymen. The administrative body shall avoid ambiguous, indefinite, or superfluous words and phrases; (b) A duty, obligation, or prohibition shall be expressed by shall or shall not. Should, could, or must shall not be used. The future tense shall not be expressed by the word shall. A discretionary power shall be expressed by may; (c) The words said, aforesaid, hereinabove, hereinafter, beforementioned, whatsoever, or similar words of reference or emphasis shall not be used. Where an article may be used, the administrative body shall not use the word such. It shall not use the expression and/or and shall not separate alternatives with a slash. It shall not use contractions. When a number of items are all mandatory, the word and shall be used. When all of a number of items are not mandatory, the word or shall be used; (d) Certain words are defined in the Kentucky Revised Statutes. Where applicable, these definitions shall be used. Definitions appearing in the Kentucky Revised Statutes shall not be duplicated in a proposed administrative regulation. A reference shall be made to the chapters and sections of the Kentucky Revised Statutes in which the definitions appear; (e) If definitions are used, they shall be placed in alphabetical order in the first section of an administrative regulation or in a separate administrative regulation. The section or administrative regulation shall be titled Definitions. If definitions are placed in the first section of an administrative regulation, the definitions shall govern only the terms in that administrative regulation. If definitions are placed in a separate administrative regulation, that administrative regulation shall be the first administrative regulation of the specific chapter of the Kentucky Administrative Regulations Service to which the definitions apply. The title of the administrative regulation shall also contain the number of the chapter of the Kentucky Administrative Regulations Service to which the definitions apply. In the text of an administrative regulation, the word defined in the definitions section, rather than the definition, shall be used. Definitions shall be used only: 1. 2. 3. When a word is used in a sense other than its dictionary meaning, or is used in the sense of one of several dictionary meanings; To avoid repetition of a phrase; or To limit or extend the provisions of an administrative regulation;

(f) If a word has the same meaning as a phrase, the word shall be used; (g) The present tense and the indicative mood shall be used. Conditions precedent shall be stated in the perfect tense if their happening is required to be completed; (h) The same arrangement and form of expression shall be used throughout an administrative regulation, unless the meaning requires variations; (i) If or except shall be used rather than provided that or provided, however. If shall be used to express conditions, rather than the words when or where; (j) A word importing the masculine gender may extend to females. A word importing the singular number may extend to several persons or things;

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(k) Any reference in an administrative regulation to medical doctor, M.D., or physician shall be deemed to include a doctor of osteopathy or D.O., unless either of those terms is specifically excluded. (l) An administrative body shall use the phrases specified in this subsection: Do Not Use: And/or Any and all As provided in this administrative regulation At the time And the same hereby is Either directly or indirectly Except where otherwise provided Final and conclusive Full force and effect In the event that; In case Is authorized; Is empowered Is defined and shall be construed to mean Is hereby required to It shall be lawful Latin words Null and void and of no effect Order and direct Provision of law Until such time Whenever Use: and for a conjunctive or for a disjunctive either word --When Is --State specific exemption Final force or effect If May Means Shall May Do not use unless medical or scientific terminology. Void Either word Law Until If

(m) 1. Unless the authority for an administrative regulation is an appropriation provision that is not codified in the Kentucky Revised Statutes, the specific chapter and section number of the Kentucky Revised Statutes authorizing the promulgation of an administrative regulation shall be cited. 2.a. If an act has not been codified in the Kentucky Revised Statutes at the time an administrative regulation is promulgated, or if the authority is any branch budget bill, the citation shall be as follows: (year) Ky. Acts ch. (chapter number), sec. (section number). When an act has been codified, the administrative body shall notify the regulations compiler of the proper citation in writing. Upon receipt of the written notice, the regulations compiler shall correct the citation. b. For acts of extraordinary sessions, the citation shall be as follows: (year) (Extra. Sess.) Ky. Acts ch. (chapter number), sec. (section number). If there is more than one (1. extraordinary session of the General Assembly in the year, the citation shall specify the specific extraordinary session, as follows: (year) (2d Extra. Sess.) Ky. Acts ch. (chapter number), sec. (section number). When an act has been codified, the administrative body shall notify the regulations compiler of the proper citation of the Kentucky Revised Statutes in writing. Upon receipt of the written notice, the regulations compiler shall correct the citation.

3.

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Common Cause of Rhode Island 4. a. If the statutory authority is an appropriation act, the citation shall be as follows: (year) Ky. Acts ch. (chapter number), Part (part and subpart numbers). b. 5. If appropriate, the citation of an appropriation act shall include a citation to the appropriate part of the budget memorandum. If the authority is an executive order, the citation shall be as follows: EO (year executive order issued)-(number of executive order). United States Code (U.S.C.), if it has been codified; or Public Law (Pub. L.) and official session laws, if it has not been codified.

(n) If the statutory authority is a federal law, the citation shall be the: 1. 2.

(o) 1. If the statutory authority is a federal regulation codified in the Code of Federal Regulations, the citation shall include the title, part, and section number, as follows: (title number) C.F.R. (part and section number). 2.a. If the statutory authority is a federal regulation that has not been codified in the Code of Federal Regulations, the citation shall be to the Federal Register, as follows: (volume number) Fed. Reg. (page number) (effective date of the federal regulation) (section of Code of Federal Regulations in which it will be codified). b. When the federal regulation is codified, the citation shall be amended to read as provided by subparagraph 1. of this paragraph.

3.a. If the statutory authority is a federal regulation that has been amended, and the amendment is not reflected in the current issue date of the volume of the Code of Federal Regulations in which the federal regulation is codified, the citation shall be to the Federal Register as follows: (federal regulation that has been amended), (volume number) Fed. Reg. (page number) (effective date of the amendment). b. When the amendment is codified in the appropriate volume of the Code of Federal Regulations, the citation shall be amended to read as provided by subparagraph 1. of this paragraph.

(p) Citations of items in the RELATES TO paragraph of an administrative regulation shall comply with paragraphs (m), (n), and (o) of this subsection. (q) An administrative regulation may cite the popular name of a federal or state law if the popular name is accompanied by the citation required by this paragraph. Effective: June 20, 2005

6. Does the APA require agencies to notify the public of their intent to adopt, amend, or repeal a rule? Is the notice specific as to the intended action? What is the time interval specified in the APA? Delaware 10114 requires any agency proposing to formulate, adopt, amend, or repeal a regulation to file a notice and the full text of any such proposals along with the text of the current regulation with the Registrar for publication in the Register of Regulations. This notice must be posted in the Register at least 20 days before any hearing is scheduled. It must specify the nature of the intended proceeding and include a synopsis of the intended subject, a reference to the legal authority for the agencys action, and reference to any other regulations that might be affected by the proposed action. The notice must state how persons may present their views: if in writing, where and when such views may be submitted; if at a public hearing, the time, date, and place of the hearing. Hearings are apparently held if required by law, but the APA does not indicate what laws make that requirement. Our assumption is that statutes establishing agencies and their duties will contain such requirements if they exist. Ed.

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In addition, the agency must publish a notice of the time, date, place, and a summary of the proposal in at least two Delaware newspapers of general circulation at least 20 days before any hearing required by law hearing. The notice must also be mailed to all persons who have requested advance notice of the agencys regulation-making procedures. Louisiana Any agency intending to adopt, amend, or repeal a rule must give notice of its intention at least 90 days before taking such action. Among other things, the notice must contain a) the terms or substance of the intended action or a description thereof; b) a statement approved by the legislative fiscal office of the fiscal impact of the intended action. If no impact is intended, the statement must so state; c) the time, place, and manner in which interested persons my present their views; and d) a statement that the intended action complies with the laws which the agency implements, including a citation of the enabling legislation. This notice must be published at least once in the Register, initially at least 100 days before the date the agency intends to take action on the rule. After the notice is published, the agency must provide the full text within two working days upon written request. In addition, notice of the intended action and all supporting materials must be mailed to all persons who made such a request to the agency. The material must be mailed as soon as possible, but not later than ten days after the proposed action was submitted to the Louisiana Register. Copies of the intended action must also be available to interested persons from the time the notice is published in the Register. Any hearing held according to the provisions of the statute must be held no earlier than 35 days and no later than 40 days after the notice of action is published in the Louisiana Register. Please see the statute in Appendixes E and F for further details. Maine Before it adopts a rule, an agency must give notice. The statutes governing these matters are 8052 e.s. These statutes are poorly organized and written. Interested readers should consult the actual statutes in Appendixes E and F. When an agency proposes to adopt or amend or repeal a rule without hearing, it must, least 20 days before the comment deadline, deliver or mail written notice, or, with the written agreement of a party, provide electronic notice of its intent to the following: any person specified in the authorizing statute; any person who has filed a written or electronic request with the agency within the last year; any trade, industry, professional, interest group or regional publication that the agency considers effective in reaching persons that might be affected by the rule. The secretary of state must also be notified. If a hearing is to be held, the same notice requirements pertain. Others are added. Hearings are held if otherwise required by statute or requested by five interested persons ( 8052). If is not clear what otherwise required by statute means. In both cases (rule-making with and without a hearing) the notice must contain the following: 1. The statutory authority under which the rule is proposed. 2. The time and place of any scheduled public hearing or the manner in which a hearing may be requested.

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3. The manner in which data, views, or arguments may be submitted, whether or not a hearing is held. 4. The express terms of the proposed rule, if possible, or a description of the substance of the proposed rule, along with the subjects and issues involved; and an explanation of where a copy of the proposed rule may be obtained. 5. A reference to the state or federal law to be implemented by the proposed rule. The agency must make copies of the proposed rule available in writing or, with the agreement of the requestor, electronically to persons upon request at least 20 days prior to a hearing and at least 20 days prior to the comment deadline of any rule without a hearing. Agencies are empowered to charge fees for copies of notices and rules requested by any person who has filed a written or electronic request for a notice of rule-making. See section 2 above for the required notice to legislative committees. When hearings are held, certain requirements must be observed: 1. When a rule is adopted by more than one agency member, at least one-third of the agency members must be present. 2. When a rule is adopted by a single agency member, either the agency member (who must be a person in a major policy-influencing position listed in chapter 71) or a designee of that person who has responsibility over the subject matter which the rule concerns must hold and conduct the hearing ( 8052). Written statements and arguments addressing the proposed rules may be filed with the agency within 10 days of the close of the public hearing, or later if the agency so directs. Before adopting any rule, the agency must consider all relevant information, including but not limited to economic, environmental, fiscal and social impact analyses. When it adopts a rule, the agency must issue a written statement explaining the factual and policy basis for the rule. This statement must provide the names of persons who commented on the proposed rule, including in oral testimony at hearings, the organizations these witnesses represent, and summaries of their comments. The agency is further directed to comments and concerns about the proposed rule and explain why it adopted any changes to the proposed rule, failed to adopt suggested changes to the proposed rule, or differed from opinions expressed about the proposed rule. Other Maine statutes govern notice to the public about adjudicatory proceedings related to rule-making. Massachusetts Section 2 of Chapter 30A requires a public hearing prior to the adoption, amendment, or repeal of any regulation under three circumstances: 1. If a violation of the regulation is punishable by fine or imprisonment. 2. If a public hearing is required by the enabling legislation of the agency or by other law. 3. If a public hearing is required as a matter of constitutional right. When an agency is required to hold a hearing, it must give public notice at least 21 days prior to a public hearing as follows: 1. By publishing a notice of the hearing as required by law; or if not otherwise required by law, in the newspapers and trade, industry, or professional publications the agency selects.

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2. By notifying any person to whom notice must be given by delivering or mailing a copy of the notice to the last known address. 3. By notifying any person or group filing a written request for notice of such hearings. Requests must be renewed annually in December. These notices must be delivered or mailed to the last known address. 4. By filing a copy of the notice with the secretary of state. The notice must contain: 1. The statutory authority under which the action is proposed. 2. The time and place of the public hearing. 3. The express terms of the proposed action, or a description of its substance. 4. Any additional matter required by law. The hearing must be conducted as required by law. The chapter is no more specific. Section 3 governs rule-making when a hearing is not required as in Section 2. In such cases, the agency is still required to give notice of its intentions and to provide interested persons an opportunity to present data, views, or arguments. The following provisions govern public notice when no hearing is required: 1. The agency must publish notice of its intended action within the time specified by law, or if not specified, at least 21 days prior to its proposed action. 2. The notice must be published as required by law. If there are no such requirements, the notice must be published in the newspapers and the trade, industry, or professional publications selected by the agency. 3. The agency must notify any person to whom notice must be given by delivering or mailing a copy of the notice to the last known address. 4. The agency must notify any person or group filing a written request for notice of such hearings. Requests must be renewed annually in December. These notices must be delivered or mailed to the last known address. 5. The agency must file a copy of the notice with the secretary of state. The notice must contain: 1. The statutory authority under which the action is proposed. 2. The time and place of the public hearing or if no hearing the anticipated time of the agency action. 3. The manner in which data, views, or arguments may be submitted to the agency. 4. The express terms of the proposed action or a description of the substance of the proposed action. 5. Any additional matter required by law. The section, interestingly, requires that each agency provide interested persons an opportunity to present views, data, etc. orally or in writing. If the agency finds oral presentations impractical, it may require written presentations. The state secretary is required to publish notices required by Sections 2 and 3 in the Massachusetts Register (see Section 6 for details) no later than one week prior to any hearing or action to which the notices relate Chapter 30A Section 11A e.s., untitled, governs open meetings and hearings. New Hampshire An agency may adopt a rule by following these procedures:

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1. Filling a notice of the proposed rule, along with a fiscal impact statement and a statement that the rule does not violate the New Hampshire Constitution Part I Article 28-a.
[Art.] 28-a. [Mandated Programs.] The state shall not mandate or assign any new, expanded or modified programs or responsibilities to any political subdivision in such a way as to necessitate additional local expenditures by the political subdivision unless such programs or responsibilities are fully funded by the state or unless such programs or responsibilities are approved for funding by a vote of the local legislative body of the political subdivision. November 28, 1984

2. Providing notice to occupational licensees or those who have made a timely request for notice. 3. Filing the text of the proposed rule. 4. Holding a public hearing and receiving comments. 5. Filing a final proposal. 6. Responding to the committee (JLCAR) when required by law. 7. Adopting and filing a final rule. The notice must be given at least 20 days before a public hearing and must also provide the cut-off date for submitting written testimony. The notice period begins the day after the notice is published in the rule-making register. The notice must include: 1. The name and address of the agency. 2. The statutory authority for the rule. 3. A statement of whether the proposed action is an adoption, amendment, repeal, readoption, or readoption with amendment. 4. The rule number and title. 5. The date of the first agency public hearing and the cutoff date for submission of written materials to the agency. 6. A concise summary of the effect of the rule. 7. A list of the people, enterprises, and government agencies affected by the rule. 8. The name, address, and telephone number of an individual in the agency who can answer questions on the proposed action. 9. A fiscal impact statement completed by the legislative budget assistant. 10. A statement, with details and supporting data, that the proposed action does not violate New Hampshire Constitution Part I Article 28-a (quoted above). The director of legislative services can refuse to publish the notice if it does not meet these requirements. The agency must send the notice with its prescribed contents to the director of legislative services; to all persons regulated by the proposed rules who hold occupational licenses issued by the agency; and to all persons who have requested advance notice of rule-making proceedings. If requested, the agency will send the notice to the Senate president, the House speaker, the chair of the fiscal committee, and the chairs of the legislative committees having jurisdiction over the subject matter of the intended regulation. Notice to licensees may be made by USPS or by the agencys bulletin or newsletter; public notice shall be made by advertisement in a daily statewide publication, or in any other manner deemed sufficient by the committee (JLCAR).

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The text of the proposed regulation must be filed with the director of Legislative Services when the notice is filed as required above. Note that there are no provisions for electronic publication of the required notices. Ed. Each agency must hold at least one public hearing under the terms of 541-A:11. Note that during the pubic hearing and comment phase, the office of legislative services will provide oral or written comments to provide a potential basis for committee objection under 54A:13, IV. After fully considering public opinion and any JLCAR comments or comments by the office of legislative services, the agency establishes the text of the final proposed rule, which it will file no earlier than 21 days and no later than 150 days after the notice of intent was published in the rule-making register. Final proposed rules are then scheduled to be heard by JLCAR. Please see section 2 above for a description of how JLCAR deals with final proposed rules. New Jersey Before an agency adopts, amends, or repeals a rule, it must take a number of specified actions ( 52:14B-4): 1. Give at least 30 days notice of its intended action. The notice must include the following: a. A statement of the terms of the intended action or a statement explaining the substance of the intended action or a description of the subjects and issues involved; b. The time when, the place where, and the manner in which interested persons may present their views there. The notice must be mailed to all persons who have requested from the agency advance notice of its rule-making proceedings. In addition to any other legal requirements, the notice must be published in the New Jersey Register. It must also be distributed to the news media maintaining press offices in the State House Complex as well as made available electronically through the largest nonproprietary cooperative public computer network. The statute further enjoins each agency to publicize the intended action and adopt rules prescribing the manner in which it will do so and inform those persons most likely to be affected by or interested in the intended action. The statute suggests ways an agency may fulfill that latter requirement including notices in newspapers of general circulation, notices in trade or professional publications, press releases distributed to the news media, and posting of notices in appropriate locations. The rules must state when and how each additional method shall be employed. 2. At the time the notice appears in the New Jersey Register, the agency must prepare for public distribution a statement which summarizes the proposed rule, a clear explanation of its purpose and effect, the specific legal authority for the rule, a description of the anticipated socio-economic impact of the rule, a regulatory flexibility analysis, or a statement that a regulatory flexibility analysis is not required (the statute which explains the term is C.52:14B-19), a statement about the impact of the rule on jobs gained or lost, and an agricultural industry impact statement (4:C-10.3. 3. Provide interested persons a reasonable opportunity to present data, views, or arguments, orally or in writing. The agency is directed to consider fully all written and oral submissions on the proposed rule. If sufficient public interest is manifested within 30 days of the publication of the proposed rule, the agency must provide an additional 30 day period for interested persons to submit their views. The agency cannot adopt the proposed rule until the expiration of the 30 day extension.

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4. Conduct a public hearing on the proposed rule at the request of one of the following: a. A committee of the legislature; b. A governmental agency or subdivision. The agency must also hold a public hearing if sufficient public interest is shown, provided such request is made to the agency within 30 days [of] publication of the proposed rule in the Register. The agency must provide 15 days notice of such a hearing. Hearings are conducted according to subsection (g) of this section. The head of each agency is directed to adopt as part of its rules of practice definite standards of what constitutes sufficient public interest for conducting a public hearing and for granting an extension pursuant to this paragraph. 5. Prepare for public distribution a report which lists all the parties who have provided written or oral testimony concerning the proposed rule and which summarizes the content of the testimony and provides the agencys response to the testimony. 6. Prior to the publication of the formal notice described above, an agency may file with the Office of Administrative Law a notice of intent to proceed with a rule-making process. This preliminary filing is to allow interested parties to express their views prior to formal notice of the proposed rule. The agency is empowered to hold informal conferences and consultations to obtain preliminary views. It may also appoint committees of experts or interested persons to advise it. 7. Any interested person may petition an agency to adopt a new rule or amend or repeal an existing rule. The statute specifies the content of such a petition. The agency must respond to the petition one way or another within 60 days of receipt of the petition, or defer a decision for another 90 days, at the end of which period a decision must be rendered. Please see the statute in Appendixes E and F for further details of this stage in the rulemaking process. 8. Hearings must be conducted hearing officer, who must be one of the following: a. an official of the agency; b. a member of the agencys staff; c. a person on assignment from another agency; d. a person from the office of administrative law assigned pursuant to 52:14F-5; or e. an independent contractor. A verbatim record of the hearing must be maintained and copies of the record made available to the public at actual cost to the agency. North Carolina The long and complex North Carolina Administrative Procedure Act, Chapter 150B, contains separate provisions for adopting temporary and emergency rules, as defined in the statute. Please see the act in Appendixes G and H for further details. This analysis will focus on the procedure for adopting permanent rules ( 150B-21.2). Before an agency can adopt a rule, it must take these steps: 1. Publish the text of the rule in the North Carolina Register. 2. When required by 150B-21.4, q.v., prepare or obtain a fiscal note for the proposed rule. 3. Hold a public hearing if the agency receives a written request for a public hearing within 15 days of publication of the notice in the Register ( 150B-21.2(e)). Note that

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the onus is on the public to request a hearing. Ed. This subsection also states that an agency may hold a public hearing under other circumstances, but it does not explain what those circumstances are. The date of any hearing must be at least 15 days after the notice is published. 4. Accept comments on the proposed rule for at least 60 days after the text of the rule is published or until the date of any public hearing, whichever is longer. An agency must consider fully all written and oral comments received ( 150B-21.2(f)). Notice of the proposed rule must include the following: 1. Text of the proposed rule. 2. A short explanation of the proposed rule. 3. A citation of the law which authorizes the agency to adopt the rule. 4. The proposed effective date of the rule. 5. The date, time, and place of any public hearing on the rule. 6. Instructions on how a person may request a public hearing if the notice does not schedule a hearing and subsection (e) requires the agency to hold a hearing if the public so requests. 7. The interval during which written comments may be submitted, along with the person to whom written comments may be submitted. 8. A statement that a copy of any fiscal statement prepared for the rule may be obtained from the agency. 9. The procedure by which a person can object to a proposed rule and the requirements for subjecting the proposed rule to the legislative review process. The agency must maintain a mailing list of all persons who have requested that they be notified of rule-making. Furthermore, the agency must mail a copy of the notice or text to each person on that mailing list. The agency is also empowered to charge an annual fee to each person on its mailing list to cover its copying and mailing costs. It is noteworthy that the statute does not provide for electronic posting of notices, rules, and procedural matters but does permit the agency to charge the public for mailing notices of public information. Ed. An agency may not adopt a rule until the period for public comment has expired, nor shall it adopt a rule if more than 12 months have passed since the time for public comment has expired. An agency must issue a concise written statement explaining why the agency adopted a rule if it receives a request to that effect within 15 days of adoption. The explanation must contain the principal reasons for and against adopting the rule and must discuss why the agency rejected arguments made or considerations urged against the rule. The agency must keep a record of the rule-making procedure including all written comments received, a transcript or recording of any public hearing on the rule, and written explanations made by the agency for adopting the rule. 150B-21.5 explains the circumstances when a notice and rule-making hearing is not required: 1. When the action re-codifies the rule or its subparts. 2. When it substitutes a new name when an organization or position is renamed. 3. When it corrects a citation within the rule to another rule or law. 4. When it changes information readily available to the public such as an address or a telephone number. No standard of readily available is provided. Ed.

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5. When it corrects a typo. 6. When it changes a rule in response to a request or an objection by the [Rules Review Commission; see section 2 above], unless the Commission determines that the change is substantial. An agency is not required to publish a notice in the Register or hold a public hearing if: 1. The law under which the rule was promulgated is repealed. 2. The law under which the rule was promulgated, or the rule itself, is declared unconstitutional. 3. The rule is declared to exceed the agencys statutory authority. The statute does not define what authority is empowered to make such a declaration; presumably the Rules Review Commission. Ed. Oregon Before an agency adopts, amends, or repeals a rule, it must notify the public of its intentions as follows: 1. It must adopt rules of procedure which provide a reasonable opportunity for interested persons to be notified of the agencys intention to adopt, amend or repeal a rule ( 183.341(4)). Before it adopts, amends, or repeals a rule, an agency must notify the public of the intended action according to the applicable rule of procedure. 2. It must publish the intended action in a monthly bulletin published by the secretary of state. 3. At least 28 days before the effective date of the intended action, it must notify all persons who have requested the agency, in writing, to mail them notices of an intended rule-making action. The agency must acknowledge, in writing, all such requests and then establish a mailing list and a record of all mailings pursuant to such requests. The agency is further authorized to charge such persons fees necessary to defray the costs of mailings and maintenance of the lists. Note that there are no provisions for electronic notification of intended rule-making action. Ed. 4. At least 49 days before the effective date of the intended rule-making action, notify the following persons: a. Persons who have requested notification as explained in paragraph 3. just above. b. In the case of legislation authorizing the proposed adoption enacted within two years of the date of the notice, to the legislator who introduced the bill subsequently enacted as well as to the chairs of all committees that reported the bill out. c. In the vase of legislation authorizing the proposed adoption which was not enacted within two years of the notice, to the chairs of committees with jurisdiction over the subject area of the proposed action. d. If notice cannot be issued to the foregoing, then notice must be issued to the sitting House speaker and the Senate president The notice must contain the following: a. The statutory or other legal authority authorizing the proposed rule. b. The statute or other law the rule is intended to implement. c. A statement of the need for the rule and how it will meet the stated need.

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d. A list of documents reports, or studies which the agency has prepapred or relied on in preparing the rule and an explanation of where whose documents can be inspected by the public. If the list is abbreviated, the notice must state where the complete list is located. e. A fiscal impact statement. Please see the statute for a discussion of the fiscal notes contents. f. A statement of why no advisory committee was appointed to assist the agency in drafting the proposed rule as authorized by 183.333 (please section 1 above for the text of that section).

g. A request for public comment on whether other options should be considered for achieving the rules stated goals while reducing any harmful fiscal impact of the rule on business. When mailing a notice of this intended action to the persons who have so requested, the mailing must include a copy of the intended action or an explanation of how the person may acquire a copy of the rule. Any copy of an amended rule must differentiate typographically between the present and the proposed text as specified in the statute. An agency must give interested persons reasonably opportunity to submit data or views before the earliest date the proposed rule could take effect after giving notice as required in the statute. An oral hearing must be granted if requested by: a. Ten persons. b. An association having no fewer than 10 members If an agency is requested to hold a hearing as requested above, it must notify the following of the hearing at least 21 days beforehand: a. Those who have requested the hearing. b. All persons who have requested the agency, in writing, to mail them notices of an intended rule-making action. c. In the case of legislation authorizing the proposed adoption enacted within two years of the date of the notice, the legislator who introduced the bill subsequently enacted as well as to the chairs of all committees that reported the bill out. d. In the vase of legislation authorizing the proposed adoption which was not enacted within two years of the notice, the chairs of committees with jurisdiction over the subject area of the proposed action. e. If notice cannot be issued to the two foregoing legislators, then notice must be issued to the sitting House speaker and the Senate president. The agency must also publish notice of the hearing in the monthly bulletin published by the secretary of state at least 14 days before the hearing. The agency is directed to consider fully any written or oral submission. The agency is directed to hold the hearing in any geographical area to which the rule applies for the convenience of that areas residents. At least 14 days before the hearing is conducted, the agency must publish a notice of the hearing in the following: a. The monthly bulletin published by the secretary of state.

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b. A newspaper of general circulation published within the geographical area affected by the rule, or the nearest such publication if the geographical area has no newspaper published therein. 5. An agency receiving data or views from interested persons is directed to maintain a record of those data and views. The contents of the record are specified. Please see the statute in Appendixes G and H for the specifics. 6. When requested by an interested person before the earliest date at which the rule could become effective after the required notice has been given, an agency must postpone its intended action for no less than 21 days but no more than 90 days to allow the requesting person to submit data, views, or arguments. Such a delay for comment shall not prevent the agency from adopting a temporary rule. 7. An agency is empowered to adopt, amend, or suspend a rule without prior notice or hearing, or with abbreviated notice and hearing, if it prepares these statements containing: a. A statement that failure to act will result in harm to the public interest or parties concerned, The agency must explain the reasons for its findings to that effect. b. A citation of the statutory or other legal authority for the agencys action. c. A statement of need for the action and how the action will meet the need. d. A list of documents, reports, etc. which the agency has prepared or relied on and an explanation of where those documents can be inspected. Oregons APA is intricate. Please consult its text in Appendixes E or F. Rhode Island 42-35-2 requires each agency to adopt a rule describing its organization and how the public may obtain information from it or make submissions or requests to it. No agency rule, order, or decision can take effect until it has been made available for public inspection. 42-35-2.1 requires each agency to designate a rules coordinator whose responsibility, among other things, is to respond to public inquiries about proposed rules. 42-35-2.2 requires each agency to maintain a rule-making file for each rule proposed or adopted after January 1, 2002. The rule-making file must contain all of the following (copied verbatim):
(1) Copies of all publications in the state register with respect to the rule or the proceeding upon which the rule is based; (2) Copies of any portions of the agencys regulatory agenda containing entries relating to the rule or the proceeding on which the rule is based; (3) All written petitions, requests, submissions, and comments received by the agency and all other written material regarded by the agency as important to adoption of the rule or the proceeding on which the rule is based; (4) Any official transcript of oral presentations made in the proceeding on which the rule is based or, if not transcribed, any tape recording or stenographic record of them and any memorandum prepared by a presiding official summarizing the contents of those presentations; (5) The concise explanatory statement required by 42-35-2.3; (6) All petitions for exceptions to, amendment of, or repeal or suspension of the rule; (7) Citations to data, factual information, studies, or reports in which the agency relies in the adoption of the rule, indicating where such data, factual information, studies, or reports are available for review by the public; (8) Any other material placed in the file by the agency.

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When an agency files an adopted rule with the secretary of state, 42-35-2.3 requires it to place a concise explanatory statement about the rule in the rule-making file and file the explanatory statement with the secretary of state. The statement must explain the agencys reasons for adopting the rule and a description of any substantive difference between the text of the proposed rule as published in the register and the text of the rule as adopted, stating the reasons for the change. Prior to the adoption, amendment, or repeal of any rule, an agency must follow a number of required procedures ( 42-35-3): 1. Give at least 30 days notice of its intended action. The notice must include the following: a. A statement of either the terms or the substance of the intended action or a description of the subjects and issues involved. b. A statement of the time when, place where, and the manner in which interested persons may present their views. The notice must be mailed to all persons who have asked the agency for advance notice of rule-making proceedings. The notice must also be published in a newspaper or newspapers having general circulation in the state. Advance notice by the Department of health may be provided by electronic means on a website maintained by the secretary of state between July 1, 2005, and June 30, 2006. It is not clear why the DOH permission to use electronic notification is restricted to the secretary of states website or is effective for only one year. It is not clear why all agencies are not empowered if not directed to post electronic notification of intended rule-making. Ed. 2. Provide all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing. An oral hearing must be granted if requested by 25 persons, a governmental subdivision or agency, or an association having at least 25 members. The agency is directed to consider fully all written and oral testimony submitted on the proposed rule. If requested by an interested person prior to the adoption of a rule or within 30 days of adoption, an agency must promulgate a concise statement of the principal reasons for and against the adoption as well as its reasons for overruling testimony against its adoption. 3. Demonstrate the need for the adoption, amendment, or repeal of any rule in the record of rule-making proceeding. The agency must demonstrate that there is no other approach to that adopted among the alternatives considered during the proceeding as effective and less burdensome to affected private persons as the approach adopted. The agency must also identify any other state regulation which is overlapped or duplicated by the proposed regulation and justify the overlap or duplication. 4. Comply with 42-35-3.3. That section concerns small businesses, particularly whether the proposed rule would place inordinate burdens on them. That section will not be analyzed here. 5. Provide that changes to rules and regulations be clearly marked, South Carolina Before an agency promulgates, amends, or repeals a regulation, it must follow a number of steps: 1. Publish a notice of a drafting period in the State Register. The notice must include: a. The address to which interested persons may submit written comments during the initial drafting period, i.e. before the regulations are submitted as proposed.

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b. A synopsis of what the agency plans to draft. c. The agencys statutory authority for promulgating the regulation. 2. Submit to the Division of Research and Statistical Services in the State Budget and Control Board a preliminary assessment report prepared in accordance with 1-23115 on regulations which have a substantial economic impact. This report must be submitted at the same time the agency publishes notice of a hearing at which it will receive data, views, or arguments. 3. If requested by 25 persons, by a governmental subdivision or agency, or an association with 25 or more members, publish in the state register a notice of a public hearing at which the agency will receive data, views, and arguments, orally and in writing, from interested persons on proposed regulations. This notice must include (copied verbatim):
(a) the address to which written comments must be sent and the time period of not less than thirty days for submitting these comments; (b) the date, time, and place of the public hearing which must not be held sooner than thirty days from the date the notice is published in the State Register; (c) a narrative preamble and the text of the proposed regulation. The preamble shall include a section-by-section discussion of the proposed regulation and a justification for any provision not required to maintain compliance with federal law including, but not limited to, grant programs; (d) the statutory authority for its promulgation; (e) a preliminary fiscal impact statement prepared by the agency reflecting estimates of costs to be incurred by the State and its political subdivisions in complying with the proposed regulation. A preliminary fiscal impact statement is not required for those regulations which are not subject to General Assembly review under Section 1-23-120; (f) a summary of the preliminary assessment report submitted by the agency to the division and notice that copies of the preliminary report are available from the agency. The agency may charge a reasonable fee to cover the costs associated with this distribution requirement. A regulation that does not require an assessment report because it does not have a substantial economic impact, must include a statement to that effect. A regulation exempt from filing an assessment report pursuant to Section 1-23-115(E) must include an explanation of the exemption; (g) statement of the need and reasonableness of the regulation as determined by the agency based on an analysis of the factors listed in Section 1-23-115(C)(1) through (11). At no time is an agency required to include items (4) through (8) in the reasonableness and need determination. However, comments related to items (4) through (8) received by the agency during the public comment periods must be made part of the official record of the proposed regulations. (h) the location where a person may obtain from the agency a copy of the detailed statement of rationale as required by this item. For new regulations and significant amendments to existing regulations, an agency shall prepare and make available to the public upon request a detailed statement of rationale which shall state the basis for the regulation, including the scientific or technical basis, if any, and shall identify any studies, reports, policies, or statements of professional judgment or administrative need relied upon in developing the regulation. This subitem does not apply to regulations which are not subject to General Assembly review under Section 1-23-120.

These notices must be mailed by the agency to all persons who have requested advance notice of proposed promulgation of regulations. The agency must consider fully all written and oral testimony on proposed regulations.

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The following section is quoted verbatim from the South Carolina Administrative Procedure Act. Ed.
SECTION 1-23-111. Regulation process; public hearings; report of presiding official; options upon unfavorable determination. (A) When a public hearing is held pursuant to this article involving the promulgation of regulations by a department for which the governing authority is a single director, it must be conducted by an administrative law judge assigned by the chief judge. When a public hearing is held pursuant to this article involving the promulgation of regulations by a department for which the governing authority is a board or commission, it must be conducted by the board or commission, with the chairman presiding. The administrative law judge or chairman, as the presiding official, shall ensure that all persons involved in the public hearing on the regulation are treated fairly and impartially. The agency shall submit into the record the jurisdictional documents, including the statement of need and reasonableness as determined by the agency based on an analysis of the factors listed in Section 1-23-115(C)(1) through (11), except items (4) through (8), and any written exhibits in support of the proposed regulation. The agency may also submit oral evidences. Interested persons may present written or oral evidence. The presiding official shall allow questioning of agency representatives or witnesses, or of interested persons making oral statements, in order to explain the purpose or intended operation of the proposed regulation, or a suggested modification, or for other purposes if material to the evaluation or formulation of the proposed regulation. The presiding official may limit repetitive or immaterial statements or questions. At the request of the presiding official or the agency, a transcript of the hearing must be prepared. (B) After allowing all written material to be submitted and recorded in the record of the public hearing no later than five working days after the hearing ends, unless the presiding official orders an extension for not more than twenty days, the presiding official shall issue a written report which shall include findings as to the need and reasonableness of the proposed regulation based on an analysis of the factors listed in Section 1-23-115(C)(1) through (11), except items (4) through (8), and other factors as the presiding official identifies and may include suggested modifications to the proposed regulations in the case of a finding of lack of need or reasonableness. (C) If the presiding official determines that the need for or reasonableness of the proposed regulation has not been established, the agency shall elect to: (a) modify the proposed regulation by including the suggested modifications of the presiding official; (b) not modify the proposed regulation in accordance with the presiding officials suggested modifications in which case the agency shall submit to the General Assembly, along with the promulgated regulation submitted for legislative review, a copy of the presiding officials written report; or (c) terminate the promulgation process for the proposed regulation by publication of a notice in the State Register and the termination is effective upon publication of the notice.

West Virginia 29A-1-4 provides that all meetings of any state agency or of the Legislative Rule-making Review Committee to consider any matters relative to rules are subject to the Open Governmental Proceedings Law (Ch. 6 Article 9a) except as otherwise provided. Please see section 2 above for a discussion of the three categories of rules established by this act: interpretive rules, procedural rules, and legislative rules. 29A-3-5 requires that an agency proposing to promulgate any rule other than an emergency rule must file with the secretary state for publication in the state register a notice of its action. The agency must also file at that time a copy of the full text of the proposed rule and a copy of the required fiscal note in the rules economic impact. Alternative draft proposals may also be included.

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If findings and determinations are a condition for final approval by the agency of a proposed rule, the notice must set a date, time, and place for the receipt of oral comment as well as written statements and documents bearing on those findings and determinations. If findings and determinations are not a condition for final approval of a rule, the notice must establish the date, time, and place for the receipt of public comment on the proposed rule. This section goes on to say, To comply with the public comment provisions of this section, the agency may hold a public hearing or schedule a public comment period for the receipt of written statements and documents, or both. If findings and determinations are a condition for the promulgation of a rule, the agency must provide an opportunity for public comments thereon after they are made. In that case, a notice of the hearing or the period for receiving public comment on the proposed rule must be attached to the findings and determinations filed in the state register. Agencies are permitted to limit public comment in any hearing to written material. The date time and place of the hearing in the notice are the last opportunity for anyone to submit written material. After the public hearing or the close of the public comment period, whichever is later, the agency is forbidden to consider or receive any ex parte communications directed to it as additional comments. An agency is required to keep all transcripts of evidence and public comment for five years. They are classified as public records. Notices of hearings must be filed in the state register not less than 30 nor more than sixty days before the date of the hearing or the last day scheduled to the receipt of written material. See section 2 above for the differences in procedure for the adoption of interpretive and procedural rules and the adoption of legislative rules. The latter must be approved by the legislature before they can take effect. 7. Does the APA contain any provisions for the electronic posting of rules or electronic notification of intended rule-making or other electronic communication to and between citizens and the rule-making agency? Note: done by a search for electro in the 11 states administrative procedures acts. Ed. Delaware None found. Louisiana None found. Maine Yes. 8053, Notice of rule-making with hearing, permits an agency to deliver electronic notice of the deadline for comment in the case of rule-making without a hearing to any party who has so requested in writing or electronically. 8056, Filing and publication, requires the Maine secretary of state to Codify all current state agency rules in an electronic text file data base, in consultation with affected state agencies and in accordance with subsections 7 and 8, as available resources permit. Subsections 7 and 8:
7. Codification of rules. The Secretary of State, in consultation with affected state agencies, shall develop a plan to codify all current rules of state agencies within its available resources. The codified rules must be maintained on an electronic text file data base. To develop the electronic text file data base, agencies may refile an existing rule or parts of an existing rule. If an agency refiles a rule or portion of a rule:

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A. The agency may not make at the time of refiling any substantive changes in that rule or portion of that rule; and [1991, c. 554, 2 (new).] B. The refiled rule or portion of the rule must be adopted in accordance with the Maine Administrative Procedure Act except that public comment on the refiling under section 8057-A, subsection 3 is limited to documenting where the refiled rule or portion of the rule is substantively different from the existing rule. [1991, c. 554, 2 (new).][1991, c. 554, 2 (new).] 8. Electronic text file procedures. Under subsection 1, the Secretary of State may establish by rule in accordance with the Maine Administrative Procedure Act procedures and criteria for the filing of rules in electronic text file format. [1991, c. 554, 2 (new).]

8056A, Technical assistance; annual report, requires the Maine secretary of state, to issue an annual report on rule-making which will include, among other criteria, the impact of the electronic text file data base on state agencies and users of the rules. Massachusetts None found. New Hampshire Yes. 541-A:11, Public Hearing and comment permits witnesses to submit comments to an agency on a proposed rule-making action in electronic format if practicable for the agency. The same phrase, if practicable for the agency, is used in language requiring an agency to transfer any information received electronically to hard copy 541-A:15, Publication of Rules, requires the director of legislative services to assist the agencies in developing a publicly accessible electronic rules database. 541-A:19-a, Expedited repeal of rules, requires an agency to give notice of its intent to repeal a rule. That notice must contain, among other things, The name, address, electronic address, and telephone number of an individual in the agency able to answer questions about the proposed repeal and to arrange for reasonable accommodation for persons with disabilities wishing to attend the public comment hearing. New Jersey Yes. 52:14B-4, Adoption, amendment, repeal of rules, requires each agency intending to adopt, amend, or repeal a rule to give notice of that action. That notice may be made available electronically through the largest nonproprietary cooperative public computer network. North Carolina No. The only occurrence of electro in North Carolinas APA is in 150B-33, Powers of administrative law judge, which empowers that official to determine whether the hearing shall be recorded by a stenographer or by an electronic device. Oregon Yes. 183.365 Publication of administrative rules in electronic form:
183.365 Publication of administrative rules in electronic form.(1) Pursuant to ORS 183.360, the Secretary of State shall publish in electronic form administrative rules adopted or amended by state agencies and make the information available to the public and members of the Legislative Assembly. (2) The Secretary of State shall determine the most cost-effective format and procedures for the timely release of the information described in subsection(1) of this section in electronic form. (3) Pursuant to ORS 183.360(2)(b), the Secretary of State shall establish requirements for filing administrative rules adopted or amended by state agencies for entry into computer networks for the purpose of subsection(1) of this section. (4) Although each state agency is responsible for its information resources, centralized information resource management must also exist to:

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Rhode Island Yes. A special clause in 42-35-3, Procedures for adoption of rules, applies to the state Department of Health:
in lieu of newspaper publication, advance notice of proposed rulemaking by the Department of Health may be provided via electronic media on a website maintained by the office of the secretary of state. Authorization for such electronic notice shall commence on July 1, 2005 and shall expire on June 30, 2006. Copies of proposed rules shall be available at the agency and by mail to any member of the public upon request.

It is not clear from the statute why this capability is restricted to this department and not extended to other agencies, nor is it clear why this capability is granted for one year only. 42-35-3.1, Form for filing Failure to properly file, permits but does not direct the secretary of state to authorize the filing of rules and regulations by or through electronic data or machine readable equipment in such form and manner as may be determined by the secretary of state. South Carolina None found. West Virginia Yes. 29A-2-6, Format and numbering of agency rules filed in state register, reads in part as follows:
(e) The secretary of state shall also prescribe by procedural rule a uniform system for the electronic filing of a proposed rule or emergency rule or a modification thereof, or a legislatively authorized rule, either (1) by the direct electronic transmission of data to a terminal in the office of the secretary of state, or (2) by the delivery to the secretary of state of a machine-readable copy of the filing on a medium such as magnetic tape or disk, or the like, which system shall be used in the process of filing proposed rules, emergency rules, modifications and authorized rules with the secretary of state. The secretary of state may grant exceptions to the requirement for electronic filing in the case of agencies, boards or commissions which do not have reasonable access to a compatible electronic transmission system or a means of creating a machine-readable copy, but, if an exception is granted, the secretary of state shall create a machine-readable copy of the proposed rule, emergency rule, modification or authorized rule. The electronic filing required by the provisions of this section shall not obviate any requirement for the filing of printed papercopies of the proposed rule, emergency rule, modification or authorized rule as may be required by this chapter.

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Summary of 11 selected state APA responses to seven key questions19


State Agency info. required? Rules coordinator required? Policy statement? Approval required before rules adopted?20 No No Some rules No Can prevent a rule from taking effect No Yes (temp. & permanent rules) No No No Yes for leg. rules Standards for language? Public notice required + opportunity to be heard? Yes Yes Yes Yes, if hearing required Yes Electronic posting & notification of rules? No No Yes No Yes

Delaware Louisiana Maine Massachusetts New Hampshire

In part Yes No Yes Yes

No Yes No No In part

Yes No No No No

No In part Yes No Yes

New Jersey North Carolina Oregon Rhode Island South Carolina West Virginia

Yes No

No Yes

Yes Yes

Yes In part

Mostly yes Yes No In part

Yes Yes No No

Yes No No Yes

No No No In part

Yes Yes; hearing only if requested Yes Yes Yes Yes

Yes Yes

Yes Yes, via Sec. State No Yes

19 20

Appendix I summarizes legislative review of agency rules for all 50 states. Some states have procedures to review rules before promulgation but do not require approval before promulgation. The variables are many and difficult to summarize in one word. See Appendix I for a summary of legislative review of agency rules for all 50 states.

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Chapter Six

Statistics for selected state legislatures


Sources (except as noted below) 1. Legislatures size, salaries, and sessions: The Book of the States, 2005 edition published by the Council of State Governments (CSG). 2. Legislative staff and status: National Conference of State Legislatures (NCSL), table dated 2004, checked on September 29, 2005. 3. Population and land area (in sq. miles): US Census Bureau 2004 estimates for population. Introduction A legislatures ability to conduct oversight will depend on some objective factors, primarily the length of the legislative session and its members status. Full time legislatures with large staffs will be better able to conduct oversight than smaller, part-time legislatures with smaller staffs. This chapter analyzes the status of selected state legislatures, including the 11 discussed in Chapter Five (oversight of administrative rule-making). Definitions of legislatures status (adapted from NCSL) NCSL has divided the 50 state legislatures into three groups. The following explanations are taken directly from the NCSL web site. We emphasize that the color designations used by NCSL have nothing to do with the color labels used during the 2004 election to identify states political orientation. The color labels below are politically neutral.
Red Legislatures Red legislatures require the most time of legislators, usually 80 percent or more of a full-time job. They have large staffs. In most Red states, legislators are paid enough to make a living without requiring outside income. These legislatures are most like Congress. Most of the nations largest population states fall in this category. Because there are marked differences within the category, we have subdivided the Red states. Those in Red generally spend more time on the job because their sessions are longer and their districts larger than those in Red Lite. As a result, they tend to have more staff and are compensated at a higher rate. Within subcategories, states are listed alphabetically. Blue Legislatures In the Blue states, average lawmakers spends the equivalent of half of a full-time job doing legislative work. The compensation they receive for this work is quite low and requires them to have other sources of income in order to make a living. The blue states have relatively small staffs. They are often called traditional or citizen legislatures and they are most often found in the smallest population, more rural states. Again, NCSL has divided these states into two groups. The legislatures in Blue are the most traditional or citizen legislatures. The legislatures in Blue Lite are slightly less traditional. States are listed alphabetically within subcategories. White Legislatures Legislatures in the White category are hybrids. Legislatures in these states typically say that they spend more than two-thirds of a full time job being legislators. Although their income from legislative work is greater than that in the Blue states, its usually not enough to allow them to make a living without having other sources of income. Legislatures in the White category have intermediate sized staff. States in the middle of the population range tend to have White legislatures.

The following table is adapted from the NCSL web site.

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Table 1. Red, White and Blue Legislatures Red


California Michigan New York Pennsylvania

Red Lite
Alaska Illinois Florida Ohio Massachusetts New Jersey Wisconsin

White
Alabama Arizona Arkansas Colorado Connecticut Delaware Hawaii Iowa Kentucky Louisiana Maryland Minnesota

White (cont.)
Missouri Nebraska North Carolina Oklahoma Oregon South Carolina Tennessee Texas Virginia Washington

Blue Lite
Georgia Idaho Indiana Kansas Maine Mississippi Nevada New Mexico Rhode Island Vermont West Virginia

Blue
Montana New Hampshire North Dakota South Dakota Utah Wyoming

Source: NCSL web site, checked on September 29, 2005. NCSL posted the table in 2004. Table 2 shows the average scores for the Red, White and Blue states for time on the job, compensation and staff size.
Category of Legislature Red White Blue Time on the Job (1) 80% 70% 54% Compensation (2) $68,599 $35,326 $15,984 Staff per Member (3) 8.9 3.1 1.2

Notes: 1. Estimated proportion of a full-time job spent on legislative work including time in session, constituent service, interim committee work, and election campaigns. 2. Estimated annual compensation of an average legislator including salary, per diem, and any other unvouchered expense payments. 3. Ratio of total legislative staff to number of legislators. Source: NCSL web site, September 29, 2005. NCSL posted the table in 2004. The study below uses the term full-time for Red and Red Lite states; hybrid for all white states; and part-time for all Blue and Blue Lite states. 1. Full-time: longer sessions, large staff, relatively high legislator pay, stable membership. 2. Hybrid: in between full-time with high pay, large staff, and part-time with low pay and small staff. 3. Part-time: relatively low legislator pay, small staff, higher member turnover.

ARKANSAS House of Representatives: 100 Senate: 35

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Legislatures status: part-time Salary: $13,751 plus per diem & mileage. Session information: meets each odd year for 60 calendar days, which may be extended. Legislative staff: year-round, shared only in Senate and House. Population: 2,752,629 Area: 52,068

CALIFORNIA Assembly: 80 Senate: 40 Legislatures status: full-time Salary: $99,000. Maximum allowable per diem is paid. Session information: two-year. Organizational session after the general election in the even year, Convenes January of odd year, recesses on 11/30 of even year. Legislative staff: year-round personal in Senate and Assembly both in Sacramento and district. Population: 35,893,799 Area: 155,959 COLORADO House of Representatives: 65 Senate: 35 Legislatures status: hybrid Salary: $30,000 plus per diem Session information: meets annually for 120 calendar days. Legislative staff: majority and minority leaders have YR secretarial staff. YR shared for others. Legislators are allocated $1,000 for personal staff assistance. Population: 4,601,403 Area: 103,718 CONNECTICUT House of Representatives: 151 Senate: 36 Legislatures status: hybrid Salary: $28,000. No per diem. Legislative session: Meets annually. The second year of each two-year cycle is limited to fiscal bills, emergency legislation, and bills raised by committees. The legislature recesses not later than the Wednesday after the first Monday in June in odd years and not later than the Wednesday after the first Monday in May in even years. Legislative staff: year-round personal and shared. Each senator is assigned one constituent case worker. Members of both houses receive support from a centralized caucus staff. Population: 3,503,604 Area: 4,845 DELAWARE House of Representatives: 41 Senate: 21 Legislatures status: hybrid

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Salary: $36,500. No per diem. Legislative session: meets annually; adjourns June 30. Legislative staff: Personal staff seasonal only in the Senate and House. Year-round staff are shared in both Senate and House. Personal and district staff are the same. Population: 830,364 Area: 1,954 House of Representatives: 120 Senate: 40 Legislatures status: full-time Legislative salary: $29.916 plus per diem. Legislative session: meets annually for 60 calendar days; may be extended. Legislative staff: year-round personal in the Senate. Year-round personal and district in the House. A note says that the majority and minority leaders provide the year-round staff, which are the same both for Tallahassee and the district. Population: 17,397,161 Area: 53,927

FLORIDA

GEORGIA House of Representatives: 180 Senate: 56 Legislatures status: hybrid Salary: $16,200 plus per diem. Legislative session: meets annually for 40 legislative days. Session may be extended by 3/5 vote and governors approval. Legislative staff: year-round shared only (3 legislators per staff in Senate, 5 in House). Population: 8,829,383 Area: 57,906 ILLINOIS House of Representatives: 118 Senate: 59 Legislatures status: full-time Salary: $55,788 plus per diem tied to federal rate. Legislative session: annual. No limit to length of session. Legislative staff: year-round, personal and shared, in both capitol and district. Population: 12,713,634 Area: 55,584 INDIANA House of Representatives: 100 Senate: 50 Legislatures status: hybrid Salary: $11,600 plus per diem tied to federal rate. Legislative session: meets annually; in odd years 61 calendar days or April 29; in even years 30 calendar days or March 14.

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Legislative staff: year-round shared only in both chambers ( 2 legislators per staff in the Senate, 3 in the House). Population: 6,237,569 Area: 35,867

KANSAS House of Representatives: 125 Senate: 40 Legislatures status: hybrid Salary: $78.75 per calendar day plus per diem tied to federal rate. Legislative session: meets annually. No limit in odd years. Even years limited to 90 calendar days which may be extended by 2/3 vote. Legislative staff: seasonal only; personal in Senate; shared in House (3 members per staff). Population: 2,735,502 Area: 81,815 KENTUCKY House of Representatives: 100 Senate: 38 Legislatures status: hybrid Salary: $166.34 per calendar day plus per diem tied to federal rate. Legislative session: meets annually for 30 legislative days in odd years (session may not extend past March 30) and 60 legislative days in even years (session may not extend past April 15). Legislative staff: year-round shared. Population: 4,145,922 Area: 39,728 LOUISIANA House of Representatives: 105 Senate: 39 Legislatures status: part-time Salary: $16,800 plus per diem tied to federal rate. Legislative session: meets annually; for 60 legislative days in 85 calendar days in odd years; and 30 legislative days in 45 calendar days in even years. Legislative staff: year-round; shared and district. Note says, Each legislator may hire as many assistants as desired, but pay from public funds ranges from $2,000 to $3,000 per legislator. Population: 4,515,770 Area: 43,562 MAINE House of Representatives: 151 Senate: 35 Legislatures status: part-time Salary: $11,384 for the first session, $8.302 for the second. Mileage or per diem for housing.

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Legislative session: two-year cycle beginning December of even-numbered years. Adjournment the 3rd Wednesday of June the first year, the 3rd Wednesday of April the second year. Legislative staff: seasonal only; shared; 15 legislators per staff member in the Senate, 45 per staff member in the House Population: 1,317,263 Area: 30,862 House of Delegates: 141 Senate: 47 Legislatures status: hybrid Salary: $31,509 plus per diem for lodging/meals. Legislative session: meets annually for 90 calendar days (may be extended by 3/5 vote for a maximum of 30 calendar days). Legislative staff: year-round personal in House & Senate; SO shared in House. A note says, Varies from year to year; it is up to legislator whether to have staff in capitol, district office, or elsewhere. Population: 5,558,058 Area: 9,774 House of Representatives: 160 Senate: 40 Legislatures status: full-time Salary: $53,379.93 plus variable per diem. Legislative session: two year cycle. Adjournment November 15th of the first session and July 31 of the second session. Legislative staff: year-round personal staff in both chambers. Population: 6,416,505 Area: 7,840 House of Representatives: 110 Senate: 38 Legislatures status: full-time Salary: $79,650 plus $12,000 yearly expense allowance and mileage. Legislative session: meets annually with no limit on length of session. Legislative staff: year-round personal staff in both chambers. Population: 10,112,620 Area: 56,804

MARYLAND

MASSACHUSETTS

MICHIGAN

MINNESOTA House of Representatives: 134 Senate: 67 Legislatures status: hybrid Salary: $31,140 plus per diem.

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Legislative session: meets in odd years for 120 legislative days or until the 1st Monday after the 3rd Saturday in May. Notes in Book of the States say legislature has met in even years as well. Legislative staff: Year-round personal in the Senate and shared in the House (three legislators per staff member). During the interim, shared in the Senate (two legislators per staff member). Population: 5,100,958 Area: 79,610

MISSISSIPPI House of Representatives: 122 Senate: 52 Legislatures status: part-time Salary: $10,000 plus per diem. Legislative session: meets annually for 125 calendar days in the first year of a governors term. Thereafter for 90 calendar days. Legislative staff: year-round shared in both chambers. No ratios provided. Population: 2,902,966 Area: 46,907 MONTANA House of Representatives: 99 Senate: 50 Legislatures status: part-time Salary: $76.80 per legislative day plus per diem. Legislative session: meets in odd years for up to 90 legislative days. Legislative staff: seasonal only shared. No ratios provided. Population: 926,865 Area: 145,552 NEBRASKA (the only state in the Union with a unicameral legislature) Legislature: 49. Legislators are called senators. Legislatures status: hybrid Salary: $12,000 plus per diem. Legislative session: meets annually for 90 legislative days in odd years and 60 legislative days in even years. Legislative staff: year-round personal. Population: 1,747,214 Area: 78,872 NEVADA Assembly: 42 Senate: 21 Legislatures status: part-time Salary: $130/day for 60 days plus per diem. Legislative session: meets biennially in the odd year for 120 calendar days. Legislative staff: personal seasonal only and shared year-round. Population: 2,334,771

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Area: 109,826

NEW HAMPSHIRE Assembly; 400 Senate: 24 Legislatures status: part-time Salary: $200 per year. No per diem. Legislative session: Meets annually for 45 legislative days. May be extended upon petition of two-thirds of the members of each chamber. Legislative staff: shared seasonal only in Senate; shared year-round in House. Population: 1,299,500 Area: 8,968 NEW JERSEY House of Representatives: 80 Senate: 40 Legislatures status: full-time Salary: $49,000. No per diem. Legislative session: Meets annually. No limit on session length. Legislative staff: year-round personal in both chambers. Population: 8,698,879 Area: 7,417 NEW MEXICO House of Representatives: 70 Senate: 42 Legislatures status: part-time Salary: No salary. $146 per diem tied to federal rate. Legislative session: Meets annually for 60 calendar days in odd years and 30 calendar days in even years. Legislative staff: Seasonal only personal and shared in both chambers. No further details are provided. Population: 1,903,289 Area: 121,356 NEW YORK Assembly: 150 Senate: 62 Legislatures status: full-time Salary: $79,500 plus variable per diem. Legislative session: Meets annually. No limit on length of session. Legislative staff: year-round personal and district in Senate. Year-round personal and shared in the House. Population: 19,227,088 Area: 47,214

NORTH CAROLINA
House of Representatives: 120

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Senate: 50 Legislatures status: hybrid Salary: $13,951 plus per diem and monthly expense allowance. Legislative session: Meets in odd years. No limit on length of session. Notes in Book of the States say that the legislature has met in even years as well. Legislative staff: Seasonal only personal and year-round shared. No further details. Population: 8,541,221 Area: 48,711 House of Representatives: 99 Senate: 33 Legislatures status: full-time Salary: $54,942. No per diem. Legislative session: Meets biennially in the odd years. No limit on length of session. Legislative staff: year-round personal and shared. A note reads, Some legislators have established district offices at their own expense. Population: 11,459,011 Area: 40,948

OHIO

OKLAHOMA House of Representatives: 101 Senate: 48 Legislatures status: hybrid Salary: $38,400 plus per diem. Legislative session: meets annually for 160 calendar days. Legislative staff: year-round personal in Senate. Seasonal only and interim only shared in the House. The ratio during the interim in the House is seven legislators per staff member.Population: 3,523,553 Area: 68,667

OREGON
House: 60 Senate: 30 Legislatures status: hybrid Salary: $15,396. Per diem $36 per day unvouchered, tied to federal rate. Legislative session: Meets biennially in the odd year. No limit. Session may be extended by majority petition of both chambers. Legislative staff: year-round personal in both chambers. Population: 3,594,586 Area: 95,997

PENNSYLVANIA
House of Representatives: 203 Senate: 50 Legislatures status: full-time Salary: $66,203.55 plus per diem or actual expenses. Legislative session: meets from January of odd years to November 30 of even years.

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Legislative staff: year-round personal and shared plus district in Senate. Year-round personal and shared in House. No figures are provided. Population: 12,406,292 Area: 44,817

RHODE ISLAND House of Representatives: 75 Senate: 38 Legislatures status: part-time Salary: $12,285.53. No per diem. Legislative session: Meets annually for 60 legislative days. Legislative staff: year-round shared. Eight legislators per staff in Senate, seven legislators per staff in House. Population: 1,080,632 Area: 1,045 SOUTH CAROLINA House of Representatives: 124 Senate: 46 Legislatures status: hybrid Salary: $10,400 plus per diem. Legislative session: meets annually until the first Thursday in June. Session may be extended by 2/3 vote. Legislative staff: year-round personal and shared in the Senate. Seasonal only personal and shared in the House. Population: 4,198,068 Area: 30,109 TENNESSEE House of Representatives: 99 Senate: 33 Legislatures status: hybrid Salary: $16,500 plus per diem. Legislative session: meets annually for 90 legislative days. Legislative staff: year-round personal in Senate. Year-round personal and district in House. No figures are provided. Population: 5,900,962 Area: 41,217 TEXAS House of Representatives: 150 Senate: 31 Legislatures status: hybrid Salary: $7,200 plus per diem set by Ethics Commission. Legislative session: meets biennially in odd years for 140 calendar days. Legislative staff: year-round personal and district in both chambers. A note reads, A member may employ, within the limits of the budget, staff as the member considers necessary. Salary limit of $3,500 applies in the House.

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UTAH

Population: 22,490,022 Area: 261,797 House of Representatives: 75 Senate: 29 Legislatures status: part-time Salary: $120 per calendar day plus lodging allotment. Legislative session: meets annually for 45 calendar days. Legislative staff: seasonal only shared. The majority and minority leaders have yearround secretarial staff. Legislators are supplied student interns during the session. Population: 2,389,039 Area: 82,144

VERMONT House of Representatives: 150 Senate: 30 Legislatures status: part-time Salary: $589 per week plus per diem for lodging and a per diem for meals for noncommuters. Legislative session: Meets in odd years and may meet in even years. No limit on length of session. Legislative staff: year-round shared (15 legislators per staff member in the Senate; 90 legislators per staff member in the House). Population: 621,394 Area: 9,250 VIRGINIA House of Delegates: 100 Senate: 40 Legislatures status: hybrid Salary: Senate $18,000; House $17,640. No per diem. Legislative session: Meets annually for 30 calendar days in odd years and 60 calendar days in even years. Legislative staff: Seasonal only personal in the Senate. Seasonal only personal and shared in the House. A note says that full-time staff may move to the district office during the interim. Population: 7,459,827 Area: 39,594 WEST VIRGINIA House of Representatives: 100 Senate: 34 Legislatures status: part-time Salary: $15,000 plus per diem. Legislative session: meets annually for 60 calendar days. Session may be extended by 2/3 vote or by governor if budget bill has not been enacted.

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Legislative staff: Seasonal only personal in the Senate. Seasonal only shared in the House (17 legislators per staff member). Population: 1,815,354 Area: 24,078

WISCONSIN Assembly: 99 Senate: 33 Legislatures status: full-time Salary: $45,569 plus per diem. Legislative session: meets annually. No limitation on length of session. Legislative staff: year-round personal and shared in both chambers. A note says that some staff may work in the district. The Senate has set limits on how much may be spent on staff assistance. Population: 5,509,026 Area: 54,310 WYOMING House/Assembly: 60 Senate: 30 Status: part-time Salary: $125 per legislative day plus $80 a day per diem, which includes travel days for legislators from outside Cheyenne. Legislative session: meets annually for 40 legislative days in odd years and 20 legislative days in even years (the latter limited to budget matters). Legislative staff: none cited in the CSG study. Population: 506,529 Area: 97,100

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Chapter Seven

Recommendations by Common Cause of Rhode Island for effective legislative oversight of the implementation of Rhode Island laws
Oversight = Accountability If there is a single over-riding reason for providing legislative oversight of executive agencies, it is to make them accountable for their performance. The following recommendations are intended to help the Rhode Island General Assembly provide that oversight. Executive Summary of Recommendations 1. Finish restructuring Rhode Island boards and commissions to comply with the Separation of Powers amendment enacted in 2004. 2. Leave Rhode Islands Administrative Procedures Act intact. 3. Increase accountability of state agencies and quasi-public corporations and their employees: a. Establish sound performance measures for state agencies and measure their performance, both during the budget process and throughout the year. b. Establish a legislative oversight review process to evaluate the performance of state agencies and quasi-public corporations. c. Mandate legislative evaluation and follow-up on all audits and annual reports. d. Begin the process of requiring personnel performance evaluations for state employees. e. Explore establishing a government waste hotline. 4. Appropriate money and staff for oversight only after the General Assembly has established the oversight process through amendments to the Rhode Island General Laws and in the Rules of the House and Senate. 5. Modify the General Assembly schedule to provide for effective oversight. 6. Improve the publics access to electronic information about all state agencies and their performance. a. Require that basic, accurate, and consistent electronic information be provided to the public about all state agencies and quasi-publics b. Require all state agencies which are audited, either by the states auditors or by independent auditors, to submit their audit reports electronically for posting on the General Assemblys web site. 7. Subject the Joint Committee on Legislative Services to the auditing and reporting requirements now binding on all other administrative agencies.
Discussion of these recommendations begins on the next page.

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Discussion of Recommendations 1. Finish restructuring Rhode Island boards and commissions to comply with the Separation of Powers amendment enacted in 2004. While some defunct boards have been abolished and other boards restructured, there is still no agreement on several of the most important and biggest boards (e.g. Narragansett Bay Commission; Coastal Resources Management Council). Notwithstanding the good work of House and Senate committees that held countless hearings and exhausted themselves in this effort, the General Assemblys continuing failure to restructure these powerful bodies in accord with the Constitutional mandate by state voters constitutes an embarrassment for Rhode Island. Until all executive and quasi-public boards where lawmakers or their appointees have served are restructured, it will be impossible for the General Assembly to undertake true legislative oversight of their work. The following boards with executive-administrative functions and with some form of legislative participation21 have not yet been restructured. Those with their enabling statutes cited were the subject of 2005 legislation that either did not pass, was vetoed, or was recommitted to committee and must now be addressed in the 2006 legislative session. Those with no citations were not addressed by any 2005 legislation.
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27.
21

Rhode Island Water Resources Board. 46-15. Board of Examiners of Interpreters for the Deaf. 5-71. Library Board of Rhode Island. 29-3.1. Fire Education and Training Coordinating Board. 23-28.2. Child Advocate Appointing Committee. 42-73. Motor Vehicle Inspection Commission. 31-38. Permanent Committee on Medal of Honor Recipients. 30-31. Public Telecommunications Authority. 16-61. Quasi-public corporation. State Conservation Committee. 2-4. Farm, Forest, and Open Space Land Value Subcommittee. 2-4-3.1. Rabies Control Board. 4-13. Mosquito Abatement Board. 23-7. Agricultural Lands Preservation Commission. 42-82. State Greenways Council. 42-125. East Bay Economic Initiative Steering Committee. 42-126. The Rhode Island Rivers Council. 46-28. Board of Governors for Higher Education. 16-59. Quasi-public corporation. Board of Regents for Elementary and Secondary Education. 16-60. Quasi-public corporation. Board of Bank Incorporation. 19-1. State Investment Commission. 35-10. Sinking Fund Commission. 35-8. Higher Education Assistance Authority. 16-57. Quasi-public corporation. Refunding Bond Authority. 35-8.1. Quasi-public corporation. Public Finance Management Board. 42-10.1. State Crime Laboratory Commission. 12-1.1. State Medical Examiners Commission. 23-4. Health Professional Loan Repayment Board. 23-14.1.

Defined as having one or more of the following as members: lawmakers; legislative appointees; legislative employees; gubernatorial appointments from legislative lists.

120 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51.

Common Cause of Rhode Island State Building Code Standards Committee. 23-27.3. State Traffic Commission. 31-13. State Properties Committee 37-6. Rhode Island Public Transit Authority. 39-18. Rhode Island Resource Recovery Corporation. 23-19. Capital Center Commission (quasi-public corporation). Childrens Crusade for Higher Education. Coastal Resources Management Council (regulatory agency). Commission on Judicial Tenure and Discipline. Disaster Emergency Funding Board (ad hoc entity). East Providence Waterfront District Commission. Fort Adams Foundation. I-195 Relocation Commission. Judicial Nominating Commission (constitutional entity). Martin Luther King Jr. State Holiday Commission. Narragansett Bay Commission (quasi-public corporation). Narragansett Indian Land Management Board. Persian Gulf War Information Relief Commission. Prepurchase Firearm Safety Training Review Board. Rhode Island Economic Policy Council (established by executive order). Rhode Island Ethics Commission (constitutional entity). Rhode Island Human Resource Investment Council. Rhode Island Vehicle Value Commission. State Comprehensive Plan Appeals Board. 52. State Retirement Board.

2. Leave Rhode Islands Administrative Procedures Act intact. Rhode Islands APA appears to contain and to lack the following features:
Contains A definitions section A statement defining what agencies are and are not covered by the act A requirement that each agency must adopt a rule describing its organization and how the public may acquire information about the agency and its rules Requirements that each agency designate a rules coordinator and maintain a rule-making file A requirement that each agency seeking to adopt, amend, or repeal a rule follow detailed procedures as to public notification of the intended action A detailed check list requiring each agency to certify that its deliberations have included enumerated concerns such as intrusiveness, effect on small businesses, etc. Lacks A statement of legislative intent or purpose A procedure for legislative review of agency rule-making Standards for writing rules in clear English

Making Government Work Designation of the secretary of state as the official with whom rules must be filed and by whom rules will be codified and published Detailed definitions of when and how a rule can take effect Requirements that rules be refiled every five years with the secretary of state A requirement that each agency file a regulatory agenda twice a year with the governor, secretary of state, Senate president, and House speaker A provision allowing an interested person to petition an agency for the promulgation, amendment, or repeal of a rule, along with a requirement that the agency respond within 30 days Provisions for declaratory rulings by an agency and by Superior Court Detailed provisions for handling contested cases Provisions allowing aggrieved parties to appeal a contested ruling all the way to the Supreme Court

121

Given the thoroughness of Rhode Islands Administrative Procedures Act, we recommend leaving it substantially as it is. The APA contains ample guarantees that rule-making will remain accountable to legislative intent and that the public will be informed about and involved in rule-making. It also embodies clear statutory protections for due process to protect individuals and businesses. Common Cause suggests only two possible additions to the APA: 1. A statement of legislative intent or purpose (See Appendix E for examples from other states). 2. Standards for writing rules in clear English. We counsel vigorously against emulating other states which have enacted provisions for aggressive legislative review and, in some cases, repeal of administrative rules. The reason has been eloquently stated by Roger Williams University Law Professor Carl Bogus, an expert on administrative law:
Aggressive rules review often yields political results with legislators weakening regulations to curry favor with constituents and contributors. Moreover, the more legislatures acquire control over regulatory agencies, the more they weaken executive power and inflate their own. When legislative oversight of agencies drifts into supervision, legislative control becomes dominant, for the agency must look to the legislature not only for funding but also for continuing and specific approval of its work product. In practice, this means the legislature will dictate the agencies work product.22

Appendix J contains a synopsis of a monograph on Illinois experience with its Joint Committee on Administrative Rules which will further sustain this recommendation.

22

The Battle for Separation of Powers in Rhode Island. Administrative Law Review, Winter 2004.

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We point out that while the Rhode Island General Assembly has the power to abrogate any agency rule via the legislative process enactment by majorities in both chambers, with the votes recorded in House and Senate Journals; and presentment to the governor for signature or veto the Assembly cannot delegate the power to do so to one of its committees. We add that a legislative attempt to seize control of administrative rule-making, as has been bruited in recent sessions, will almost certainly be challenged in the courts as a violation of the state constitutions Separation of Powers provisions as amended in 2004. Such an attempt would violate not only the constitution but also the Assemblys statement of intent in placing the amendment on the ballot. That statement of intent was contained in five whereas clauses that served as the preamble to the legislation containing the amendment:
WHEREAS, The proposed amendments to Article III, section 6, Article V, Article VI, and Article IX, section 5 of the Constitution of the state are intended to have the collective effect of ensuring the separation of governmental power among the three distinct branches of state government: the legislative branch, the executive branch, and the judicial branch; and are not intended to diminish or affect the nature and scope of each branchs inherent power but, rather, to ensure that, absent express and lawful delegation, one branch does not exercise the power of another branch; and WHEREAS, The addition of the words separate and distinct to Article V of the Constitution affirms that the three branches of government are and shall be separate from each other and distinct in the nature of the power exercised by each; except insofar as the general assembly chooses to delegate, according to law, certain of its legislative powers to the executive branch; and WHEREAS, The deletion of Article VI, section 10 from the Constitution eliminates the provision pursuant to which the general assembly has historically exercised power, executive in nature and in excess of its legislative power; but does not diminish or affect, in any way, the legislative power of the general assembly, which power the general assembly retains in full; and WHEREAS, The amendment to Article III, section 6 of the Constitution, by providing expressly that no official or member of one branch of government shall hold simultaneously a position in another branch of government, further ensures the separation of governmental power among the three branches of state government; and WHEREAS, The amendment to Article IX, section 5 of the Constitution vests in the governor, by and with the advice and consent of the senate, the power to appoint persons exercising executive power; except insofar as the general assembly may by law vest the power to appoint such inferior officers, as it deems proper, in the governor or in other specified officials of the department in which the appointment is to be made; and does not affect the appointment powers of the lieutenant governor, the treasurer, the attorney general, or the secretary of state; be it hereby resolved

3. Increase accountability of state agencies and quasi-public corporations and their employees: a. Establish sound performance measures for state agencies and measure their performance, both during the budget process and throughout the year. 35-3-24.1 requires the governor to submit, with his or her annual budget, performance objectives for each program within the budget, along with measures to assess the extent to which those goals were achieved. These measures appear in the Governors Budget for FY 2006 and on approximately 180 pages in the Technical Supplement to the Governors Budget for FY 2006. There does not, however, appear to be any mention of the performance objectives or their supporting data in the state budget enacted by the General Assembly for FY 2006. It is unclear what use the General Assembly makes of the program performance measures in the Governors Budget. The performance measures without performance data appear in Appendix O.

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An examination of the program performance measures used in the Governors Budget for FY 2006 raises questions. Is the accountability of state agencies for their performance enhanced when they establish their own performance goals and measures? The Technical Supplement to the governors budget contains approximately 65 references to standards established by national authorities in certain areas.23 Some of these occurrences duplicate each other. In many other cases, however, we gather, from the discussion of this matter in the governors budget, that state agencies establish their own performance objectives and measures. It is not clear to what extent the governors office supervises or directs this process. Are these the right objectives for the programs in the budget? 35-3-24.1 says that the performance measures should be stated in terms of results rather than effort That appears to translate into what happened, not explain how it happened. That may explain why some of these performance measures measure things that happened rather an agencys performance, or how the agencys performance contributed to a result. We also noted that some agencies had no performance goals or measures in some crucial areas among their responsibilities. Two of these crucial areas lacking performance measures, both in the same agency, were especially noticeable since they had been topics of recent major news reports.24 It seems imperative that agencies with life-and-death responsibilities have performance objectives and measures in those areas. Should the General Assembly be taking a more proactive part in assessing the performance of state agencies in general, and not just those it funds? If the General Assembly is going to require agencies to establish performance objectives and measures (as opposed to amassing statistics about events over which they have no control), should the Assembly take a more active part in assuring that these objectives and measures are useful?

We note that performance measures alone do not explain the reasons for the performance. If the General Assembly is going to continue to require these performance objectives and measures to be submitted in the governors budget, we recommend that the General Assembly define what it means by meaningful performance objectives and measures and then require the executive branch and independent state agencies with executive functions (see Chapter One for details) to do the following: 1. Establish and justify meaningful performance goals; 2. Report their success in meeting those goals; and 3. Explain periodically any results that exceed or fall short of the goals by significant amounts. These results and explanations for them should be invaluable during budget hearings and at other times during the year.
23

On page 224, for example, the section on the Public Defenders Office cites Percentage by which Attorney Caseload Exceeds National Standards for Felonies and Percentage by which Attorney Caseload Exceeds National Standards for Misdemeanors. On page 248, in the section on unclaimed property returned to rightful owners, the discussion cites data from the National Association of Unclaimed Property Administrators. 24 The Department of Health; nursing home inspections and the performance of the Office of Medical Examiner.

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We recommend that the Assembly and its staff become proactive as to the worth of performance measures established by state agencies and not hesitate to require better ones where needed. Performance measures should measure quality as well as quantity. The National Conference of State Legislatures has published a helpful manual on this general subject entitled Legislating for Results. It contains examples of how other state legislatures are requiring and using meaningful performance measures. It is full of practical suggestions. We agree with NCSLs recommendation that state legislatures conduct periodic reviews of agencies performance rather than wait for the budget hearings in and after March every year (as in Rhode Island). Performance measures should prove useful during the legislative oversight review process which we recommend in 3b below. b. Establish a legislative oversight process to evaluate the performance of state agencies and quasi-public corporations. We recommend an ongoing program of legislative oversight of state agencies designed to assess their performance according to criteria to be established by the legislature. Such criteria should certainly harmonize with the improved performance measures we recommend in 3a above if those are to be continued. In both cases, the ultimate goal is to make state agencies and quasi-public corporations accountable for their performance. We envision legislative oversight for each state agency every set number of years on a rotating basis, as is done for schools and colleges (which undergo an exhaustive accreditation process every ten years). Appendix L contains model legislation to accomplish this end.25 We recommend that the term Sunset not be used in its title or anywhere in its content. We recommend that the title Legislative Oversight Act or a comparable title be used instead. A well-designed, constructive legislative oversight program would be proactive rather than reactive. The very fact that agencies with executive/administrative functions, including the states free-standing regulatory boards and its quasi-public corporations, would have to account for their performance on a set schedule would provide a powerful stimulus for efficiency. If properly and wisely administered, a program of legislative oversight would be an excellent way to make state agencies accountable to the peoples representatives.26 Legislation enacting such an oversight program would empower the reviewing committee to recommend one of four decisions to the legislature regarding each state agency and quasi-public corporation undergoing review: 1. Continue it; 2. Amend or revise it (to include adjusting its funding and authorized FTEs); 3. Merge it with an existing agency when there is duplication; 4. Abolish it.
25 26

Modeled on 2005-H 5255, by Rep. Peter Kilmartin et al. The Governors Fiscal Fitness Program Annual report, March 1, 2005, reports on an impressive number of measures either taken or underway to improve efficiency and save money in the executive branch departments for which the governor is responsible. The report states that 17 percent of these initiatives are dependent upon legislative approval, personnel/labor issues, or working through issues with other branches This report is provided as Appendix Q.

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We stress that the legislative oversight program we are recommending is not predicated upon the termination of agencies. It is predicated upon review to enforce accountability, with subsequent action flowing from the results of the review. Legislation approved in connection with Separation of Powers abolished nine boards that were not functioning and apparently were not needed. 27 We suggest that there are numbers of state agencies described in Chapter One to which options 2) through 4) might apply after their performance is reviewed. Implementing a well-designed legislative oversight program will place an added burden on legislators and staff, but the payoff for Rhode Island could be more productive agencies and less governmental waste. We have provided a model quasi-public corporation oversight bill in Appendix M.28 c. Mandate legislative evaluation and follow-up on all audits and annual reports. A 2002-2003 Common Cause study documented the existence of hundreds of statutory requirements for audits and annual reports binding on state agencies. As of the date of this study, very few of these reports were accessible to the public on any state web site, nor were there statutory provisions requiring electronic or hard-copy accessibility. With the exception of 22-13-4, which requires the Office of Auditor General to follow up on audits of state agencies, there have been, until recently, few criteria for the contents of annual reports or for evaluation of their contents by the receiving authorities generally the House speaker, the Senate president, and the governor. The General Assembly took an important step forward in 2005 with the restructuring of boards and commissions to conform to the Separation of Powers amendment to the state constitution passed in 2004. The template for all of the amended statutes passed in 2005 specifically tailors each report to the agencys mission and requires specific contents in the report. It is not enough, however, for an agency to deliver its annual report as required. Oversight occurs only when both those executive branch officials responsible for faithfully executing the law and those in the legislative branch who are responsible for providing oversight actually use the report, as is done now with the decennial self-studies done by schools and colleges around the country. Such agency reports provide the basis for conversation between those responsible for implementing the laws and those responsible for oversight. And, as with schools and colleges, remediation must be required when necessary. Another major step forward was taken this year with the enactment of legislation29 requiring agencies to submit their annual reports in electronic format for posting on the General Assemblys web site. That provision takes effect on January 1, 2006. For the first time ever, the public will now be able to assess whether and how well reporting state agencies are fulfilling their requirement to be accountable to the public.

27

PL 2005 Ch. 027/05-H 5817 by Rep. Elaine Coderre, et. al. and PL 2005 Ch. 0967/05-S 0967 by Sen J. Michael Lenihan abolished the Central Falls Review Commission, the Jamestown Ferry Commission, Board for the Classification of Motion Pictures, the Committees for Civil and Criminal Information Systems, the Socially Responsible Corporations Commission, the Administrative Committee of the State Register, the Board of Curators, and the Drivers Training School Licensing Board. 28 2005-S 0848 by Sen. J. Michael Lenihan. 29 PL 2005 Ch. 222

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We recommend that this statute be amended to require study commissions to post their reports electronically. We recommend that the General Assembly require state agencies audited by independent auditors to post their audit reports electronically. It remains now for the state legislature to make good use of these reports, beginning with validating their accuracy. It may well be that this recommendation could be combined with the recommendation relating to legislative oversight review in 3b above. d. Begin the process of requiring personnel performance evaluations for state employees. So far as we can tell, there are no personnel performance evaluations required anywhere within the executive branch. That is to say, there appears to be no requirement that supervisors and directors evaluate the performance of those who work for them. The absence of any evaluation system for state workers seems remarkable. Personnel performance evaluation is a highly technical subject which will require research and discussion before decisions can be made about the kinds of evaluations to require. Performance evaluations will certainly be resisted by a highly unionized work force.30 Yet 42 of the 50 states have grasped this nettle. Here are the results of a 2004 study by the Council of State Governments (the executive summary above the table is based on the information in the table).

Personnel Performance Evaluations in the 50 states


Source: 2004 Book of the States published by the Council of State Governments (CSG) CSG asked states, Is employee evaluation in your state mandatory? NA = the state did not respond to CSG

Executive Summary Number of states that mandate personnel performance evaluations by law
Alabama, Alaska, California, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Washington, West Virginia, Wisconsin

29

Number of states that do NOT mandate personnel performance evaluations by law


Arizona, Illinois, Minnesota, Missouri, Montana, Nebraska, New York, Pennsylvania, South Dakota, Texas, Utah, Vermont, Wyoming

14

Number of states which do not mandate personnel performance evaluations by law but which conduct them anyway
Arizona, Illinois, Missouri, Montana, Nebraska, New York (see footnote below in the table), Pennsylvania, South Dakota, Utah, Wyoming

10 3

Hybrid states conducting evaluations mandated by different methods


Connecticut. See footnote 2 below. Minnesota (see table below). Texas (see table below).

30

The February 2005 issue of Governing magazine reported, [Rhode Island] faces an obstacle to progress in its rigid civil service structure and reform-resistant unions. Sensible management practices that are routine elsewheresuch as systematic evaluation of employee performanceare next to impossible in Rhode Island.

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Number of states which responded NO to all four questions below (excluding Connecticut, which responded No but does conduct evaluations)
Vermont

1 6 1

Number of states which did not respond to CSG request for information
Arkansas, Indiana, New Hampshire, Rhode Island (see footnote below in the table), South Carolina, Tennessee

Number of states for which no information is entered in the CSG table


Virginia

Number of states conducting personnel performance evaluations, whether mandated by law or otherwise
State Mandated by law? Annual Evaluation? Separate evaluations for managers and workers? No No No NA Yes No No No No No Yes

42

Alabama Alaska Arizona Arkansas California Colorado 31 Connecticut32 Delaware Florida Georgia Hawaii

Yes Yes No NA Yes Yes No Yes Yes Yes Yes

Yes Yes (by merit anniversary date) Yes NA Yes Yes No Yes Yes Yes Yes

Agency heads allowed to customize evaluations? No No Yes NA Yes No No Yes Yes No Generally no unless special circumstances dictate Yes Yes NA Yes33 Yes No Yes No Yes No Yes Yes

Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota
31

Yes No NA Yes Yes Yes Yes Yes Yes Yes Yes No

Yes Yes NA Yes Yes Yes Yes Yes Yes Yes Yes No

Yes Yes NA No No Yes Yes No No Yes Yes Yes

Agencies must use the statewide core competencies and number of rating levels. Agencies develop their own forms and descriptive labels for the ratings levels. They develop performance objectives and additional competencies if desired. 32 Managers are covered by statute; labor units are covered by separate bargaining agreements. 33 Alternative systems must be reviewed by Dept. of Management for adherence to the States Accountable Government Act. Department directors and governors staff are reviewed on alternate systems, as are Highway Patrol Division and Division of Criminal Investigation within the Dept. of Public Safety.

128 State Mandated by law? Annual Evaluation?

Common Cause of Rhode Island Separate evaluations for managers and workers? No Yes No No No NA Yes No Yes No No Yes No Yes See footnote39 NA NA No NA No No No Agency heads allowed to customize evaluations? No Yes Yes Yes Yes NA Yes No Yes Yes Yes No No Yes See footnote40 NA NA Yes NA Yes Yes No

Mississippi Missouri34 Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York 36 North Carolina North Dakota Ohio38 Oklahoma Oregon Pennsylvania Rhode Island 41 South Carolina South Dakota Tennessee Texas Utah 42 Vermont Virginia Washington West Virginia

Yes No No No Yes NA Yes Yes No Yes Yes37 Yes Yes Yes No NA NA No NA No No No No information recorded Yes Yes

Yes Yes Yes35 Yes Yes NA Yes Yes Yes Yes Yes Yes Yes Yes Yes NA NA Yes NA No Yes No

Yes Yes43

Yes Additional criteria for managers

NA Yes

34

Missouri has begun to shift from performance evaluation, which looks backward, to performance management, a more forward outlook incorporating effective communications, shared knowledge of organizational objectives, performance expectations, and development opportunities. 35 By rule. The notation is not explained. Ed. 36 Usually annually. Each bargaining unit has its own program. They generally involve development of a performance plan by employees and supervisors, review of performance, recognition of accomplishments, and suggestions for improvement. 37 Administrative rule. 38 Ohio uses standard evaluation forms that vary by 9 classification groupings (clerical, trades/technical, professional/paraprofessional, etc.) 39 Managers and supervisors are rated on additional supervisory criteria. 40 Most agency evaluations are standard. A few agencies use customized forms. 41 While CSG records Rhode Island as not responding, Common Cause understands that there are no personnel performance evaluations anywhere in the executive branch. We do not know about the quasipublics. 42 The Dept. of Human Resources Management has adopted a statewide policy that gives agencies flexibility to adopt different approaches to performance evaluation.

Making Government Work State Mandated by law? Annual Evaluation? Separate evaluations for managers and workers? No No

129 Agency heads allowed to customize evaluations? Yes See footnote44

Wisconsin Wyoming

Yes No

Yes Yes

State agencies will never achieve a high level of accountability until agency directors and supervisors are required to hold their employees accountable for their performance. e. Explore establishing a government waste hotline Rhode Island government, both state and local, abounds in telephone hotlines whereby citizens can get help and receive information. The best single source for these state and local contacts appears to be the web site of the Rhode Island Emergency Management Agency (RIEMA), best reached through info.ri.gov (a different, less complete collection of numbers can be reached through ri.gov). We wonder if there is a way to make RIEMAs information more accessible to citizens. (Please see Recommendation 6 below re electronic information about state agencies.) We note also that many state agencies maintain web sites which contain useful information. There does not appear to be, however, any hotline or other mechanism whereby citizens can report suspected cases of waste, inefficiency, mismanagement, or fraud. We recommend that the General Assembly explore establishing such a hotline or mechanism. Oregons legislature has done so. This is from the web site of the Oregon secretary of states Audits Division:
The Audits Division also conducts special investigations regarding potential misuse of state resources. These investigations may occur at state agencies, or may involve local governments or contractors receiving state or federal funds from state agencies. Citizens and government employees with concerns about government waste and efficiency now can make their thoughts known. The Secretary of State Audits Division has established a citizens hotline as part of a Citizens Awareness Program. The Government Waste Hotline (1-800-336-8218) was authorized by the state legislature in 1995 to provide public employees and citizens an avenue for reporting waste, inefficiency, or abuse in state programs. The law provides confidentiality for any person making a report through the hotline. Furthermore, the report and any resulting investigation remains confidential unless it is substantiated. Upon completion of an investigation that does substantiate a callers report, the division is required to prepare a written report, which becomes a public record. The divisions report, in accordance with the confidentiality provision, does not include the callers identity. If you prefer to mail your concerns, you may mail them, along with any related documentation, to: Oregon Audits Division Government Waste Hotline 255 Capitol Street NE, Suite 500 Salem, Oregon 97310
43 44

By rule. The notation is not explained. Ed. Agency directors are not evaluated.

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Common Cause of Rhode Island The envelope should be clearly marked confidential.

This web sites URL is www.sos.state.or.us/audits/fraud/fraud.shtml. The pertinent statutes are ORS 177.170 and 177.180. The Oregon chapter of Common Cause reports that this service is in active use. 4. Appropriate money and staff for oversight only after the General Assembly has established the oversight process through amendments to the Rhode Island General Laws and in the Rules of the House and Senate. The legislative oversight mechanisms outlined in Chapter Two are common to all fifty state legislatures and Congress. They already exist in Rhode Island. While some of the structures described in Chapter Two may need to be modified, particularly the committees that conduct oversight, we doubt that any new mechanisms need to be created. Oversight will begin to happen on a comprehensive basis only when the Rhode Island General Assembly fully embraces its mission to oversee the efficiency and performance of state agencies which execute the laws the Assembly passes. The legislative oversight assets described in Chapter Two may or may not be sufficient to sustain a comprehensive oversight process. The only way to tell if more personnel and more money are needed is to design the oversight process first and then decide what resources it will need. That has apparently begun. The state budget enacted for FY 2006 contains the following note (p. 72):
The legislatures budget included $27.5 million for personnel and operating expenditures and 289.0 full-time equivalent positions. The request included 9.0 additional full-time equivalent positions to assist the Assembly in implementing new oversight processes from the recent passage of the separation of powers constitutional amendment. The governor did not recommend the additional full-time equivalent positions and reduced the request by $0.3 million. The Assembly did not concur and provided the requested level of authorized positions and restored $0.6 million in funding for this purpose. [Original emphasis removed and new emphasis added. Ed.]

The preposition from in the bolded section above implies that the 2004 separation of powers amendment created new oversight processes. It did not. We reaffirm here what we affirm in the introduction to this report: that oversight is not an additional burden imposed by the 2004 Separation of Powers amendment. It has always been a responsibility of the legislature. The 2004 Separation of Powers amendment does not mention oversight. It does not mandate it. It does not create new oversight processes. If there are any new oversight processes - and there is every reason to welcome the right ones - they must have been designed and put in place by the legislative department since, and perhaps because of, passage of the amendment. We look forward to learning what they are. The budget enacted for FY 2006 does not include a Personnel Supplement (as the governors budget does), so there is no way to tell how these nine additional FTEs have been allocated. In Recommendation 3b, above, we urge the Assembly to consult a publication of the National Conference of State Legislatures entitled Legislating for Results. It contains helpful information as to how other state legislatures handle oversight of state programs.

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5. Modify the General Assembly schedule to provide for effective oversight. While legislative oversight includes investigative hearings to discern what may have gone wrong in a particular program or agency, the broader aim of legislative oversight is to exercise highly public watchful care over the execution of laws. Such systematic hearings require careful preparation by both staff and committee members. The General Assembly has conducted oversight hearings during its spring legislative session, but a part-time legislature like Rhode Islands will find it difficult to conduct proactive and thorough oversight entirely during its pressured spring legislative session. Effective oversight hearings might better be mounted during the fall of non-election years. 6. Improve the publics access to electronic information about all state agencies and their performance. a. Require that basic, accurate, and consistent electronic information be provided to the public about all state agencies and quasi-publics. The publics main electronic access to general information about state government appears to be three URLs: 1. the secretary of states web site (state.ri.us); 2. info.ri.gov, which is maintained by the Office of Library and Information Services;45 and 3. ri.gov, which bills itself as the official web site of the state of Rhode Island. Information about state government presented by the three web sites is inconsistent and incomplete. Chapter One describes what we found as we moved among the three sites. While info.ri.gov, copyrighted by the Office of Library and Information Services (OLIS), within the Department of Administration, had links to every agency we looked for, the links led in many cases to particular agencies web sites (when they had them) rather than to an objective source of information about the agency. Some of these proprietary web sites are designed to enhance an agencys image with the public or ensure its heads reelection or reappointment and contain little if any basic informational content. We found the same general situation in ri.gov, though the latter was less complete than infor.ri.gov in that it did not have some of the information we found on info.ri.gov. We note, as well, that info.ri.gov was last updated on July 8, 2004, according to a footnote to the site last observed on November 2, 2005. In either case, basic information about these agencies on the three web sites was presented in different ways (and sometimes not at all). Different sites were lacking current lists of board members, annual budgets, total numbers of employees, and mission statements. The picture of state government presented electronically is, therefore, a patchwork of mismatched information riddled with holes.46 In many cases (see Chapter Two) we were unable to fill out our picture of some state agencies unless we contacted them directly. We stress that we were not seeking any esoteric or sensitive information, just the basics: mission, responsibilities, annual budget, board members, and staff size.
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A link on the General Assemblys home page to state government web sites leads to info.ri.gov. The February 2005 issue of Governing magazine reported, The story of technology in Rhode Island is similarly centered on the fight between central government and line agencies. The state has more than 40 different e-mail servers, creating unnecessary expense for upkeep and virus protection, not to mention spotty delivery. Agencies find it very difficult to share information with each other, and until relatively recently, the state had a dozen different help-desk organizations, often using different software.

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It would be immensely helpful to the public if there were a single web site, maintained objectively by a disinterested party and updated annually, containing the same basic information about all state agencies with links to their web sites (where they exist).47 We recommend the following basic information for all state agencies be included on a disinterested, well-maintained web site: 48 1. Name of agency. 2. Contact information: address, phone and fax numbers, email address. 3. Name of agency head. 4. Annual budget or appropriation. 5. Number of employees or FTEs if funded by the state budget. 6. Mission statement and a description of responsibilities. b. Require all state agencies which are audited, either by the states auditors or by independent auditors, to submit their audit reports electronically for posting on the General Assemblys web site. As of January 1, 2006, all state agencies must submit annual reports electronically for posting on the web site of the General Assembly. We think it vital that the same requirement be established, by law, for all reports of audits. 7. Subject the Joint Committee on Legislative Services (JCLS) to the auditing and reporting requirements now binding on all other administrative agencies. The legislature must model oversight by submitting to it. It is important that audits of the legislature be performed by an independent firm, not by the Office of Auditor General or by the Bureau of Audits in the Department of Administration. Such independent audits should be conducted at least every other year, preferably in the odd-numbered year. We recognize that the call for audits of JCLS has sometimes appeared as a challenge to the leadership of the House.49 Leadership changes in both the House and Senate over the last several years should free the General Assembly to consider independent audits of JCLS spending in a new light. We recommend that a performance audit of the entire Legislative Department be performed every odd-numbered year to help the Assembly weed out waste and inefficiency. We further recommend that the legislature post on its web site an annual report to the public of its activities including legislative grants and community service grants. (We note that information about community service grants appears now on www.rilin.state.ri.us.)

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The February 2005 issue of Governing magazine reported, Chief Information Officer Thomas Collins has begun undertaking major changes. His first step was to create a new administrative structure under which the states executive branch IT managers were relocated to his department. In addition, each agency works with an individual from Collins staff to try to encourage centralized and standardized products. 48 The mission of the new Division of Information Technology (within the Department of Administration) does not include maintaining a government information web site. The Governors Fiscal Fitness Program Annual Report dated March 1, 2005, refers to the formal separation of the Office of Library and Information Services and the Division of Information Services, but we have not so far found any on-line information about the latter. 49 The Senate passed such legislation unanimously in 2001, and members of the House tried to attach a requirement for independent audits to the state budget in 2001 and 2002. All of these efforts were thwarted by allies of the former speaker of the House.