HF 2433 (LSB 5031HV (3) 84)

HOUSE FILE 2433

BY  COMMITTEE ON STATE GOVERNMENT

(SUCCESSOR TO HF 2257)

A BILL FOR

An Act relating to state agency decision making.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 9A.105, subsection 1, paragraph h, Code 2011, is amended to read as follows:
   h.  Whether the applicant or any person named pursuant to paragraph “g” has been convicted of a crime
 
felony that, if committed in this state, would be a crime involving moral turpitude or which is a felony, and identify the crime
 
felony.
    Sec. 2.  Section 9A.106, subsection 2, paragraph a, Code 2011, is amended to read as follows:
   a.  Been convicted of a crime
 
felony that, if committed in this state, would be a crime involving moral turpitude or a felony.
    Sec. 3.  Section 17A.3, subsection 1, paragraph a, Code 2011, is amended to read as follows:
   a.

(1)  Adopt as a rule a description of the organization of the agency which states the general course and method of its operations, the administrative subdivisions of the agency and the programs implemented by each of them, a statement of the mission of the agency, and the methods by which and location where the public may obtain information or make submissions or requests.
   (2)  Each board, commission, or other multimember agency shall follow Robert’s rules of order, eleventh edition, in governing the conduct of agency meetings.
    Sec. 4.  Section 17A.4, subsection 3, Code 2011, is amended to read as follows:
   3.
  a.  When an agency for good cause finds that notice and public participation would be unnecessary, impracticable, or contrary to the public interest
 
When the statute so provides, or with the approval of the administrative rules review committee, the provisions of subsection 1 shall be inapplicable. The agency shall incorporate in each rule issued in reliance upon this provision either the finding and a brief statement of the reasons for the finding, or a statement that the rule is within a very narrowly tailored category of rules whose issuance has previously been exempted from subsection 1 by a special rule relying on this provision and including such a finding and statement of reasons for the entire category.
   b.
  (1)  If the administrative rules review committee by a two-thirds vote, the governor, or the attorney general files with the administrative code editor an objection to the adoption of any
 
a rule
 
or portion of a rule pursuant to this subsection, that
 
the rule
 
or portion of the rule shall cease to be effective one hundred eighty days after the date the objection was filed. A
   (2)  If the administrative rules review committee files with the administrative code editor an objection to the adoption of a rule or portion of a rule pursuant to this subsection, the administrative rules review committee, by a separate two-thirds vote, may suspend the applicability of the rule or portion of the rule until the rule ceases to be effective under this paragraph “b”. The determination to suspend the applicability of the rule or portion of the rule shall be included in the copy of the objection to be forwarded to the agency.
   c.  If an objection to a rule is filed under this subsection, a
 
copy of the objection, properly dated, shall be forwarded to the agency at the time of filing the objection. In any action contesting a rule
 
or portion of a rule adopted pursuant to this subsection, the burden of proof shall be on the agency to show that the procedures of subsection 1 were impracticable, unnecessary, or contrary to the public interest and that, if a category of rules was involved, the category was very narrowly tailored.
    Sec. 5.  Section 17A.4, subsection 7, Code 2011, is amended to read as follows:
   7.
  a.  Upon the vote of two-thirds of its members the administrative rules review committee may delay the effective date of a rule
 
or portion of a rule seventy days beyond that permitted in section 17A.5, unless the rule was promulgated under section 17A.5, subsection 2, paragraph “b”. This provision shall be utilized by the committee only if further time is necessary to study and examine the rule.

If the rule was promulgated under section 17A.5, subsection 2, paragraph “b”, the administrative rules review committee, within thirty-five days of the effective date of the rule and upon the vote of two-thirds of its members, may suspend the applicability of the rule or portion of the rule for seventy days.
   b.  Notice of an effective date that was delayed under this provision shall be published in the Iowa administrative code and bulletin.
    Sec. 6.  Section 17A.4, Code 2011, is amended by adding the following new subsection:
   NEW SUBSECTION.  9.  Upon the vote of two-thirds of its members, the administrative rules review committee, following notice of intended action as provided in subsection 1 and prior to adoption of a rule pursuant to that notice, may suspend further action relating to that notice for seventy days. Notice of a notice of intended action that was suspended under this provision shall be published in the Iowa administrative code and bulletin.
    Sec. 7.  Section 17A.8, subsection 4, Code 2011, is amended to read as follows:
   4.
  a.  The committee shall choose a chairperson from its membership and prescribe its rules of procedure. The committee may employ a secretary or may appoint the administrative code editor or a designee to act as secretary.
   b.  The chairperson of the committee shall be chosen as provided in this paragraph. For the term commencing with the convening of the first regular session of each general assembly and ending upon the convening of the second regular session of that general assembly, the chairperson shall be chosen by the committee from its members who are members of the house of representatives. For the term commencing with the convening of the second regular session of each general assembly and ending upon the convening of the first regular session of the next general assembly, the chairperson shall be chosen by the committee from its members who are members of the senate. A vacancy shall be filled in the same manner as the original appointment and shall be for the remainder of the unexpired term of the vacancy.
    Sec. 8.  Section 17A.8, subsection 9, Code 2011, is amended to read as follows:
   9.
  a.  Upon a vote of two-thirds of its members, the administrative rules review committee may delay the effective date of a rule
 
or portion of a rule until the adjournment of the next regular session of the general assembly, unless the rule was promulgated under section 17A.5, subsection 2, paragraph “b”.

If the rule was promulgated under section 17A.5, subsection 2, paragraph “b”, the administrative rules review committee, within thirty-five days of the effective date of the rule and upon the vote of two-thirds of its members, may suspend the applicability of the rule or portion of the rule until the adjournment of the next regular session of the general assembly.
   b.  The committee shall refer a rule
 
or portion of a rule whose effective date has been delayed
 
or applicability has been suspended to the speaker of the house of representatives and the president of the senate who shall refer the
 
delayed or suspended rule
 
or portion of the rule to the appropriate standing committees of the general assembly. A standing committee shall review a
 
the rule within twenty-one days after the rule is referred to the committee by the speaker of the house of representatives or the president of the senate and shall take formal committee action by sponsoring a joint resolution to disapprove the rule, by proposing legislation relating to the rule, or by refusing to propose a joint resolution or legislation concerning the rule. The standing committee shall inform the administrative rules review committee of the committee action taken concerning the rule. If the general assembly has not disapproved of the rule by a joint resolution, the rule shall become effective. The speaker of the house of representatives and the president of the senate shall notify the administrative code editor of the final disposition of each rule
 
or portion of a rule whose effective date has been delayed
 
or whose applicability has been suspended pursuant to this subsection. If a
 
the rule is disapproved, it
 
the rule shall not become
 
be effective and the agency shall rescind the rule. This section shall not apply to rules made effective under section 17A.5, subsection 2, paragraph “b”.
    Sec. 9.  Section 80A.4, subsection 1, paragraph g, Code 2011, is amended to read as follows:
   g.  Has not been convicted of a crime described in section 708.3, 708.4, 708.5, 708.6, 708.8, or 708.9 felony.
    Sec. 10.  Section 99G.24, subsection 7, paragraph a, Code 2011, is amended to read as follows:
   a.  Has been convicted of a criminal offense
 
an aggravated misdemeanor or felony related to the security or integrity of the lottery in this or any other jurisdiction.
    Sec. 11.  Section 135C.33, subsection 1, paragraph a, Code 2011, is amended to read as follows:
   a.  For the purposes of this section, the term “crime” does not include offenses under chapter 321 classified as a simple misdemeanor or equivalent simple misdemeanor offenses from another jurisdiction
 
means an aggravated misdemeanor or felony.
    Sec. 12.  Section 147.55, subsection 5, Code 2011, is amended to read as follows:
   5.  Conviction of a crime
 
an aggravated misdemeanor or felony related to the profession or occupation of the licensee or the conviction of any crime
 
an aggravated misdemeanor or felony that would
 
directly affect the licensee’s ability to practice within a profession. A copy of the record of conviction or plea of guilty shall be conclusive evidence
 
of the conviction.
    Sec. 13.  Section 148.6, subsection 2, paragraph b, Code 2011, is amended to read as follows:
   b.  Being convicted of a felony in the courts of this state or another state, territory, or country. Conviction as used in this paragraph shall include a conviction of an offense which if committed in this state would be deemed a felony without regard to its designation elsewhere, or a criminal proceeding in which a finding or verdict of guilt is made or returned, but the adjudication of guilt is either withheld or not entered. A certified copy of the final order or judgment of conviction or plea of guilty in this state or in another state shall be conclusive evidence
 
of the conviction.
    Sec. 14.  Section 153.34, subsection 9, Code 2011, is amended to read as follows:
   9.  For the conviction of a felony in the courts of this state or another state, territory, or country. Conviction as used in this subsection includes a conviction of an offense which if committed in this state would be a felony without regard to its designation elsewhere, and includes a finding or verdict of guilt made or returned in a criminal proceeding even if the adjudication of guilt is withheld or not entered. A certified copy of the final order or judgment of conviction or plea of guilty in this state or in another state constitutes conclusive evidence of the conviction.
    Sec. 15.  Section 156.9, subsection 2, paragraph e, Code 2011, is amended to read as follows:
   e.  Conviction of any crime
 
an aggravated misdemeanor or felony related to the practice of mortuary science or implicating the licensee’s competence to safely perform mortuary science services, including but not limited to a crime
 
an aggravated misdemeanor or felony involving moral character, dishonesty, fraud, theft, embezzlement, extortion, or controlled substances, in a court of competent jurisdiction in this state, or in another state, territory, or district of the United States, or in a foreign jurisdiction. For purposes of this paragraph, “conviction” includes a guilty plea, deferred judgment, or other finding of guilt. A certified copy of the judgment is prima facie
 
conclusive evidence of the conviction.
    Sec. 16.  Section 169.13, subsection 1, paragraph b, Code 2011, is amended to read as follows:
   b.  Being convicted of a felony in the courts of this state or another state, territory, or country. Conviction as used in this paragraph includes a conviction of an offense which if committed in this state would be deemed a felony without regard to its designation elsewhere, or a criminal proceeding in which a finding or verdict of guilt is made or returned, but the adjudication or guilt is either withheld or not entered. A certified copy of the final order or judgment of conviction or plea of guilty in this state or in another state is conclusive evidence
 
of the conviction.
    Sec. 17.  Section 272C.1, subsection 6, Code 2011, is amended by adding the following new paragraph:
   NEW PARAGRAPH.  ag.  The state racing and gaming commission created pursuant to section 99D.5.
    Sec. 18.  Section 272C.3, Code 2011, is amended by adding the following new subsection:
   NEW SUBSECTION.  5.  Notwithstanding any other provision of law to the contrary, a licensing board shall not treat a deferred judgment or a final order resulting in a deferred judgment, as deferred judgment is defined in section 907.1, as a conviction in determining whether there are grounds for licensee discipline or license denial, unless the deferred judgment is withdrawn and judgment is entered as provided in section 907.3, subsection 1.
    Sec. 19.  Section 523A.503, subsection 1, paragraph f, Code 2011, is amended to read as follows:
   f.  Conviction of a criminal offense
 
an aggravated misdemeanor or felony involving dishonesty or a false statement including but not limited to fraud, theft, misappropriation of funds, falsification of documents, deceptive acts or practices, or other related offenses.
    Sec. 20.  Section 543B.15, subsection 3, paragraph c, Code 2011, is amended by striking the paragraph.
    Sec. 21.  Section 543B.29, subsection 1, paragraph f, unnumbered paragraph 1, Code Supplement 2011, is amended by striking the unnumbered paragraph.
EXPLANATION
   This bill relates to the rulemaking process and more generally to agency decision making.
   The bill concerns the administrative rules review committee (ARRC) relative to its powers concerning the rulemaking process and the process of selecting a chairperson of the committee.
   As it relates to the rulemaking process, the bill provides that a rule can be adopted without notice only if the statute so provides or with the approval of the ARRC.
   Code section 17A.4(3) relates to so-called “emergency” rulemaking. This section is amended to empower the ARRC to object to an emergency adopted rule and suspend its effect.
   Code section 17A.4(7), concerning the 70-day delay authority of the ARRC, is amended to provide that the ARRC may, upon a two-thirds vote, suspend the applicability of a rule promulgated under Code section 17A.5(2)(b) (so-called emergency rulemaking) for 70 days. The bill provides that action to suspend the applicability of a rule under this new provision must be taken within 35 days of the effective date of the rule. In addition, the bill provides that the ARRC may utilize the 70-day delay authority regardless of the reason for the delay and for a portion of a rule. Under current law, rules promulgated under Code section 17A.5(2)(b) take effect upon filing and are not subject to the 70-day delay authority of the ARRC.
   Code section 17A.4, new subsection 9, provides that the ARRC, upon a two-thirds vote, may suspend for 70 days further action relating to a notice of intended action filed by an agency. Under current law, the ARRC has no authority relating to a notice of intended action filed with the ARRC until the adopted rule is filed with the ARRC following this notice.
   Code section 17A.8(4), concerning the selection of the chairperson of the ARRC, is amended. The bill provides that the chairperson for the term commencing with the convening of the first regular session of each general assembly and ending upon the convening of the second regular session of that general assembly shall be chosen by the committee from its members who are members of the house of representatives. The chairperson for the term commencing with the convening of the second regular session of each general assembly and ending upon the convening of the first regular session of the next general assembly shall be chosen by the committee from its members who are members of the senate. Current law provides that the chairperson shall be selected by the ARRC from the membership of the ARRC. 
   Code section 17A.8(9), concerning the session delay authority of the ARRC, is amended to provide that the ARRC, upon a two-thirds vote, may suspend the applicability of a rule promulgated under Code section 17A.5(2)(b), until the adjournment of the next regular session of the general assembly. The bill also provides that action to suspend the applicability of a rule under this new provision must be taken within 35 days of the effective date of the rule. In addition, the bill provides that the ARRC may utilize the session delay authority for a portion of a rule. Under current law, rules promulgated under Code section 17A.5(2)(b) take effect upon filing and are not subject to the session delay authority of the ARRC.
   As it relates to agency decision making generally, the bill requires that boards and commissions operate under Roberts rules of order, revised. 
   The bill also relates to agency action concerning professional or occupational licensing. The bill restricts the ability of a licensing board to consider a deferred judgment when deciding whether to suspend or revoke a license or impose some other licensee discipline. The bill also generally limits offenses which may be considered to aggravated misdemeanors or felonies.