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17MO:0044

Date: 
Thursday, September 21, 2017
Subject: 
Kilgore Petition for Rulemaking
Opinion: 

Before The Iowa Public Information Board

In re:

Kevin Kilgore, Petitioner

Petition for Rulemaking

 

                    Case Number: 17MO:0044

                                     

                                     REPORT


 

COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and submits the following report recommending denial of the above-referenced petition for rulemaking filed by Petitioner Kevin Kilgore on August 24, 2017.

 

Iowa Code 17A.7 allows any interested person to petition an agency requesting the adoption, amendment, or repeal of a rule, and requires each agency to prescribe by rule the form for petitions and the procedure for their consideration.  Iowa Code 17A.7(1).  Iowa Administrative Rule 497-5.4 outlines the procedure for IPIB review of a petition for rulemaking:

 

5.4(2) Within 60 days after the filing of the petition, or within any longer period agreed to by the petitioner, the board must, in writing, deny the petition, and notify petitioner of its action and the specific grounds for the denial, or grant the petition and notify petitioner that it has instituted rule-making proceedings on the subject of the petition. Petitioner shall be deemed notified of the denial or grant of the petition on the date when the board mails or delivers the required notification to petitioner.

 

Mr. Kilgore’s petition requests eight separate amendments to the IPIB administrative rules:

 

  1. 497-2.1(5) Board Review:  Amend to read “The Board’s review of a formal complaint shall be made solely on the facts alleged in the complaint” by striking “...for legal sufficiency is not a contested case proceeding and…” and “...and the results of the initial review conducted by the board’s staff.”  OR repeal and consolidate with 497-2.1(2).  
     

Response:  This rule was effective July 1, 2013, and amended to allow initial review by IPIB staff, effective September 9, 2015.  The proposed revision would remove the ability of the IPIB staff to review a complaint for legal sufficiency and require the full Board to determine whether to accept or dismiss a formal complaint on the basis of a prima facie review.  Iowa Code section 23.8 requires the IPIB to review a complaint for jurisdiction, merit, and legal sufficiency, which would not be possible with this rules revision.

 

  1. 497-4.5(5):  Strike the subrule in its entirety.  
     

Response:  This rule states that all rulings by an administrative law judge acting as the IPIB presiding officer are subject to appeal to the IPIB.  This is a summary of the requirements of Iowa Code section 17A.15, which outlines the process for appeal to the agency within a certain time period.  Striking this rule would remove the ability of the IPIB to review the ruling of an administrative law judge.  It was effective July 1, 2013.

 

  1. 497-4.5(6):  Strike the subrule in its entirety.
     

Response:  This rule, effective July 1, 2013, requires that the IPIB, when reviewing a proposed decision upon appeal, shall have the powers of and comply with the provision of the laws and rules governing a presiding officer.  Again, this rule implements Iowa Code section 17A.15.  Striking this rule would remove this role from the IPIB.

 

  1. 497-4.6(17A) Waiver of Procedures:  Amend by striking the sentence beginning “However, the board in its discretion….”
     

Response:  This rule was effective July 1, 2013.  It allows the IPIB to refuse to grant a waiver of provisions of Iowa Administrative rules section 497-4 if the IPIB determines that such waiver would be inconsistent with the public interest.  As an example, this rule allows the IPIB to refuse to approve a settlement proposed by the parties in a contested case that the IPIB believes negatively impacts the public interest.  This amendment would remove that discretion.

 

  1. 497-4.7(17A) Telephone proceedings:  Strike the rule in its entirety.
     

Response:  This rule was effective July 1, 2013, and allows telephone proceedings for preliminary procedural motions, and also other proceedings with the consent of all parties.  The rule specifically references the convenience of the witnesses and parties when scheduling telephone hearings.  Most preliminary procedural motions can be efficiently and effectively handled by telephone.  The Department of Inspection and Appeals has a similar rule (Iowa Administrative Rule 481-10.7).  Removal of this rule could negatively impact the ability for citizens to attend proceedings.

 

  1. 497-4.24(17A) Interlocutory appeals:  Strike the rule in its entirety.
     

Response:  This rule was effective July 1, 2013, and allows the IPIB or any party in a contested case the ability to request a review of an interlocutory order of the presiding officer when the IPIB is not sitting as a presiding officer.  Striking this rule would prevent the IPIB from reviewing decisions made by an administrative law judge on preliminary motions such as a motion for summary judgment and would not be consistent with Iowa Code section 17A.15.

 

  1. 497-4.25(17A) Final Decision:  Amend by adding “...or an administrative law judge…” to 497-4.25(1) and striking 497-4.25(2).
     

Response:  This rule was effective July 1, 2013.  This revision would remove the IPIB as the final decision making authority in any contested case in which an administrative law judge is serving as the presiding officer.  This change would not be consistent with the provisions of Iowa Code section 17A.15.

 

  1. 497-4.27(17A) Applications for rehearing.  Strike the rule in its entirety.
     

Response:  This rule was effective July 1, 2013.  It allows any party to a contested case the ability to file for an application for rehearing from a final order.  This rule implements the procedure outlined in Iowa Code section 17A.16(2).

 

Mr. Kilgore does not request a meeting with the IPIB as allowed by Iowa Administrative Rule 497-5.1.


 

RECOMMENDATION
 

I cannot support any of the proposed rule-making modifications and repeals as each either violates the statutory powers, duties, and authority of the IPIB or offers nothing of merit.
 

I recommend that the IPIB deny this petition and notify the petitioner of this action and the specific grounds for the denial, pursuant to Iowa Administrative Rule 497-5.4(2).
 

Respectfully Submitted this 6th day of September, 2017.

 

_________________________________

Margaret E. Johnson, J.D.

 

CERTIFICATE OF MAILING

    

This document was sent by electronic mail on the 6th day of September, 2017, to:
 

IPIB

Kevin Kilgore (also by regular mail)           

 

_______________________________

                                                                    

 

Iowa Public Information Board

In re:

Kevin Kilgore, Petitioner

Petition for Rulemaking

 

                    Case Number: 17MO:0044

                                     

                                     ORDER


This matter comes before the Iowa Public Information Board (IPIB) this 21st day of September, 2017, to consider the Report filed on September 6, 2017.

 

Upon review of the Report and its responses and recommendations, the IPIB finds the proposed rule-making modifications and repeals would violate the statutory powers, duties, and authority of the IPIB or are without merit.

 

Therefore, the IPIB approves and adopts the responses and recommendations of the Report and orders that this Petition for Rulemaking is DENIED.

 

So ordered this 21st day of September, 2017.

 

 

 

_____________________________________

IPIB Chair


Cc:    IPIB

Kevin Kilgore

 

 

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