In December, the Republican-controlled state Legislature passed and lame-duck Gov. Scott Walker signed Act 369, a package of laws designed to curb the powers of the incoming governor and attorney general. Among these was a statute requiring state agencies to take new steps before approving what are known as “guidance documents,” which interpret and explain agency rules to the public.
This law requires, among other things, that agencies give the public notice of proposed guidance documents by publishing them in the administrative register and providing a public comment period of at least 21 days. It adds, however, that an agency “may hold a public comment period shorter than 21 days with the approval of the governor.”
In recent weeks, as battles over the new laws continue to play out in court, at least three state agencies have used this provision to establish comment periods of “zero days.”
For instance, the state Department of Public Instruction (DPI), with permission from Gov. Tony Evers, set a comment period of zero days for more than 100 guidance documents, ranging from policy handbooks to tips for teacher-license applicants on how to fill out their forms.
DPI spokesperson Elizabeth Tomez says the request was made on July 1 and approved by the governor’s office on July 2. The documents were published in the administrative register on July 8.
“This was an unusual, time-sensitive situation,” Tomez explains in an email. “We sought this flexibility for our first group of guidance documents, but have not needed it for subsequent guidance.” She says the tight timelines created by a court ruling “meant that guidance created after March 26, 2019, by the department would have been rescinded unless we sought flexibility, as provided under the law, on the initial comment period.”
That’s a lot to unpack, but let’s try.
On March 26, the package of so-called lame-duck bills was blocked by a Dane County judge. On June 11, the Wisconsin Supreme Court reversed that injunction except for the portion of the law dealing with guidance documents. It said the injunction could not simply be lifted because the state agencies, which were mostly just waiting while the case played out, would not have time to meet the new requirements for these documents by the July 1 deadline. And, under the new law, documents that were not put through this process by this date would be rescinded.
“If this court were now to stay that part of the circuit court’s injunction, the agencies would have insufficient time to complete the notice and comment procedure for all of their existing guidance documents,” the court wrote. And this “would create harm to the general public because the existing guidance documents on which members of the public rely to interact with state government agencies will no longer be available as of July 1, 2019.”
The court said existing documents didn’t have to meet the July 1 deadline, except those that were created after March 26.
In response, state agencies proceeded to publish guidance documents created during this window in accordance with the new law. And some of them invoked the provision that allowed the governor to authorize a comment period of less than 21 days. (Previous to the passage of Act 369, there was no required comment period at all for guidance documents.)
Evers’ spokeswoman Melissa Baldauff says that, besides DPI, the Department of Corrections, Department of Workforce Development and Department of Health Services asked for and received authorization from the governor to publish guidance documents with a truncated comment period. She says this was done “in order to provide information to the public more quickly.” (Like DPI, the DOC, and DWD set zero-day comment periods while DHS set a comment period of one-day.)
Baldauff argues that, in practice, the implications are negligible because “these documents are always available to the public and open for comment, even after the initial comment period. The public is welcome and encouraged to comment on these documents at any time.” She adds that, as of early this week, “we have not been made aware of any agency receiving a public comment.”
Tomez, similarly, says “anyone may [still] comment at any time” on any guidance document. DPI requested the zero-day comment period, she explains, “to prevent the confusion that would have resulted from rescinding documents already communicated.”
But Tom Kamenick, an attorney with the conservative Wisconsin Institute for Law & Liberty, criticizes the administration’s interpretation of the statute. (Kamenick is a member of the all-volunteer Wisconsin Freedom of Information Council, on which I serve as president.)
“The timing of the Wisconsin Supreme Court decision made a full 21-day public comment period impossible,” Kamenick says, “but that’s no excuse for not having a comment period at all.” He says DPI and other agencies “could have submitted their guidance documents for public comment a few days earlier to allow for a shortened—but still lawful—comment period.”
Kamenick argues that the proposed rules regarding guidance documents were “designed to give people the chance to review and comment on how laws and regulations would be interpreted to apply to them. Depriving people of that opportunity violates the letter and the spirit of the law, leaving Wisconsin with a less transparent and less accountable government.”
Cory Fish, an attorney with Wisconsin Manufacturers and Commerce who filed an amicus brief supporting the lame-duck laws, did not respond to a request for comment. In his brief, Fish argued that additional strictures are needed to prevent agencies from using guidance documents to effectively create new rules. “Agency reliance on unpromulgated ‘rules’ to the detriment of the regulated community through guidance is not only illegal, but poor public policy,” he wrote.
Rob Lee, an attorney with Midwest Environmental Advocates who filed a brief regarding guidance documents in a separate lawsuit on behalf of state environmental groups, is most worried that the court could still uphold the part of the law that rescinds earlier guidance documents, which number in the hundreds of thousands. As he wrote in his brief:
“Guidance documents streamline administrative processes, create regulatory certainty, reduce costs, and even ensure the consistent application of the law throughout the state. Act 369 threatens the effective and efficient administration of law in Wisconsin because it leads to the rescission of thousands of existing guidance documents and obscures the distinction between guidance documents and administrative rules.”
The result, he warned, would be less effective government and more litigation.
But Lee says that even though “agencies are under a continuing obligation to accept and consider public comments even after adopting guidance documents,” the Evers Administration’s interpretation of the 21-day notice rule could also spur fresh legal contention.
“Just because it says you can have a shorter comment period,” Lee notes, “does not mean that you can have no comment period.” Ultimately, he says, “this could be another question decided by the courts.”