Assembly Passes Bill to Create Procedures to Repeal Invalid Rules

By a partisan 63-36 vote, the Assembly passed AB 80 (Ballweg-R) which would establish “expedited” procedures for an agency to repeal a rule that the agency no longer has the authority to promulgate. Such rules can be rendered invalid because of the repeal or amendment of the law that previously authorized its promulgation. The bill as drafted, however, requires the agency to make the determination if a rule is no longer valid.

The process is considered expedited as it circumvents the statutory administrative rulemaking procedures set forth in Chapter 227. Under the bill, the agency submits a repeal petition to the Legislative Council staff. Then, the petition goes to the legislature’s Joint Committee for Review of Administrative Rules (JCRAR) for approval or rejection. If JCRAR approves, the agency may promulgate the proposed repealing rule.

The bill would also require agencies to submit a report to JCRAR each year that identifies rules for the following:

• For which the authority to promulgate has been eliminated or restricted;
• That are obsolete or that have been rendered unnecessary; or,
• That are duplicative of, superseded by, or in conflict with another rule, a state statute, a federal statute or regulation, or a court ruling.

Finally, the bill requires the Department of Administration (DOA) to review new laws and assign the act for review by each agency that DOA determines may be affected by the act. The agencies in turn must determine if the act limits their authority, renders the existing rules invalid, or otherwise affects the agencies rules. The agency review could then start the process for repealing invalid rules.

Bill Eliminates At-will Employment; Requiring Employers Prove Compliance with Seven-Part Termination Test

Democratic legislators are circulating a bill that would generally prohibit an employer, including the state, from discharging an employee unless the employer meets a seven-part test. One element of the test requires the employer prove by clear and convincing evidence that the employee committed a violation of work rules or performance standards that were uniformly enforced and properly noticed. The bill allows the terminated employee to sue the employer and then requires the employer to prove all seven tests were met.

Specifically, the bill considers it an actionable wrongful discharge of an employee (deemed “unfair” under the law) if any of the following applies:

1. The work rule or performance standard was not made known to the employee prior to the discharge.
2. The employer failed to enforce the work rule or performance standard in similar situations for a prolonged period.
3. The employer did not conduct an interview with the employee, or hold a hearing, concerning the violation prior to the discharge, did not conduct that interview or hearing promptly after the violation, or did not provide the employee with a precise description of the conduct constituting the violation.
4. The employer did not prove by clear and convincing evidence that the employee committed the violation.
5. The violation is the same as or substantially similar to a violation committed by another employee who was not discharged for committing the same or a substantially similar violation.
6. Unless the violation is egregious, the employer failed to first apply a less drastic form of discipline for the violation.
7. The discharge is disproportionate to the gravity of the violation, taking into consideration any mitigating or aggravating circumstances

Bills to Increase Charter School Opportunities See Legislative Action 

Bills to increase charter school opportunities in Wisconsin received legislative attention over the past two weeks.  The first bill, Assembly Bill 64, would allow each technical college district board to authorize independent charter high schools that provide a curriculum focused on occupational education and training or science, technology, engineering, and math (STEM). An amendment to the bill authorizes a tribal college or one or more American Indian tribes or bands to establish and operate or initiate a contract for the operation of a charter school. A vote was scheduled on the bill but was delayed as legislators reviewed other amendments that have been introduced related to the financing of the new charters schools. A vote has not been rescheduled. 

Later this week, Joint Legislative Council considered a separate bill recommended by the Special Committee on State-Tribal Relations. LRB 1441/1, drafted similarly to the AB 64 amendment, authorizes a tribal college or one or more American Indian tribes or bands to establish a charter school. In an unusual move by Joint Legislative Council, the committee voted against introduction and this LRB will not be introduced.

Speed Limit 

In previous addition of “Bills of Note,” we informed you of a bill that would increase the speed limit on freeways and expressways to 70 mph. Assembly Bill 27, introduced by Representative Tittl (R-Manitowoc), passed the State Assembly 76-22, with Republicans and Democrats on both sides of the vote. Opponents of the bill argued increased speeds would lead to an increase of vehicle deaths, In addition, some argued commercial vehicles should have a separate lower speed limit.

This bill now goes to the Senate committee on transportation.