18AO:0001 Jurisdictional authority for rules authored as regulations by state agencies

Topics:

Advisory Opinions
Advisory Opinions: Nonjurisdictional

18AO:0001

Date: February 15, 2018   Subject: Jurisdictional authority for rules authored as regulations by state agencies

Kevin Kilgore
1695 115th Street
​Diagonal, Iowa 50845

Dear Mr. Kilgore:

This opinion is in response to your filing of January 10, 2018, updated on February 2, 2018, requesting an opinion from the Iowa Public Information Board (IPIB) pursuant to Iowa Code section 23.6 and rule 497—1.2.  We note at the outset that IPIB’s jurisdiction is limited to the application of Iowa Code chapters 21, 22, and 23, and rules in Iowa Administrative Code chapter 497.  Advice in a Board opinion, if followed, constitutes a defense to a subsequent complaint based on the same facts and circumstances.

FACTUAL STATEMENT:  You request an advisory opinion regarding the jurisdictional authority for rules authored as regulations by state agencies.

QUESTIONS:

  1. What entity is the jurisdictional authority for validation of statutory compliance of agency rules written as regulations? (emphasis in original)
  2. What written guidance to delineate the process and/or appeal of that process?

OPINION:

The questions you ask are not within the jurisdiction of the IPIB.  Rule 497-1.2 states:

497—1.2(23) Requirements for requesting board advisory opinions. 1.2(1) Jurisdiction. The board will only issue advisory opinions pertaining to Iowa Code chapters 21 and 22, or rules adopted thereunder. The board shall not have jurisdiction over the judicial or legislative branches of state government or any entity, officer, or employee of those branches, or over the governor or the office of the governor.

In your request for an advisory opinion from the IPIB, you state that your questions “are specific to § 17A.2(10),” and later quote the preamble of Iowa Code section 17A.2(11).  

Pursuant to Iowa Administrative Rule 497-1.3(3), a person who has received a board opinion may, within 30 days after the issuance of the opinion, request modification or reconsideration of the opinion.  A request for modification or reconsideration shall be deemed denied unless the board acts upon the request within 60 days of receipt of the request.  The IPIB may take up modification or reconsideration of an advisory opinion on its own motion within 30 days after the issuance of an opinion.

Pursuant to Iowa Administrative Rule 497-1.3(5), a person who has received a board opinion or advice may petition for a declaratory order pursuant to Iowa Code section 17A.9.  The IPIB may refuse to issue a declaratory order to a person who has previously received a board opinion on the same question, unless the requestor demonstrates a significant change in circumstances from those in the board opinion.

BY DIRECTION AND VOTE OF THE BOARD
Mary Ungs-Sogaard, Chair
E. J. Giovannetti                                                                       
Keith Luchtel
Monica McHugh
Frederick Morain
William Peard
Julie Pottorff
Suzan Stewart
Renee Twedt                                                                          

Submitted by:
Margaret E. Johnson, Executive Director