Stitt seeks to make agency rulemaking transparent
September 22, 2020
If an Oklahoma citizen tries to closely monitor state agencies’ rules and regulations today, the antiquated and cumbersome processes used by state officials are a major deterrent. But Gov. Kevin Stitt’s administration is working to end that problem, lawmakers were told Tuesday.
“Citizens have called for reform and increased openness to the rulemaking process,” said Chris Coffman, managing editor of the Oklahoma Administrative Code and the Oklahoma Register in the Office of Administrative Rules at the Oklahoma Secretary of State. “Many find the current system difficult to navigate and dated. Public participation in the rulemaking process currently requires an antiquated approach that is the antithesis of today’s technology, and our vision is to modernize the filing and publishing of administrative rules while increasing transparency and accountability.”
During a joint House-Senate legislative study, Coffman told lawmakers that the state’s current processes not only hinder public review but also increase costs and the likelihood of mistakes.
He said Oklahoma government’s current filing-and-publishing system for state regulations is built on programs from 1992 and earlier. The process of getting agency filings into the publishing program involves use of Windows 3.0 (launched in 1990), DOS computer programming, and the WordPerfect 5.1 program (also launched in 1990).
“This is the only computer, maybe on Earth, that’s still running these programs,” Coffman said. “And if something happens to it, we’re in a tough spot.”
The office relies heavily on paper, rather than electronic documents, during the publication of agency rules, he said.
“All the agencies are filing by paper with us, the official copies are paper, we’re reprinting any corrections we make on those filings, we’re printing the code, we’re printing the register—so it’s paper-based,” Coffman said.
Because the state system uses a WordPerfect program from 1990 while most agencies are using the latest version of Microsoft Word, agency rules must be converted into WordPerfect, “which obviously causes a lot of errors that we have to spend a lot of time cleaning up,” Coffman said.
Because so much of the current process is paper-based or done through obsolete computer programs, the official copy of rules published by the Office of Administrative Rules can differ from the uncorrected original drafts kept on file at state agencies, Coffman said.
“We have no way to extract from the official copy to provide the agencies a Word copy, so agencies are keeping an in-house copy that may differ from what the actual, official version is,” Coffman said. “And this requires extensive time every year when we review those to make sure there’s accuracy between the two.”
Coffman also said agency notices of fee increases are not publicized under the current system.
“When an agency files a notice of increase right now, it goes to the governor and Legislature, but it’s not publicly displayed on a centralized website,” Coffman said.
He said the system also involves much duplication of effort.
Under the modernization efforts now underway, Coffman said the state will soon have a web-based filing-and-publishing system along with a one-stop rules portal that citizens can access for all steps of the agency-rulemaking process and viewing of amendments.
By allowing electronic-based filings, Coffman said many current problems will be eliminated and a full record of the entire rules process will be preserved and made available to the public.
National experts told lawmakers the need for public transparency in agency rulemaking is greater than ever because much de facto law is now set by agencies as they write the regulations required to implement laws passed by legislatures.
“At the state and federal levels, we’ve seen more and more power going to the executive branch—and not necessarily to the president or the governors,” said Daniel Dew, legal policy director for the Pacific Legal Foundation. “It’s going to unelected, not-as-accountable agencies. And so, as we know, accountability is vital for good government.”
Despite its reputation as a conservative state, James Broughel, a senior research fellow at the Mercatus Center at George Mason University, told lawmakers that Oklahoma imposes a larger regulatory burden than many states.
“Oklahoma has more regulations per capita than the average state in the U.S. and the average state in the southwest region,” Broughel said. “New Mexico is the most-regulated state in the southwest region by this measure and Texas would be the least regulated.”
Dew recommended that lawmakers pass reforms giving the Oklahoma governor more direct power over state agencies. For most of state history, the Oklahoma governor’s ability to appoint agency heads has been limited or indirect and often required serving most of two terms before he or she had appointed enough members to agency governing boards to enact changes in policy.
At the prompting of Gov. Kevin Stitt, lawmakers began addressing that problem at some of the state’s largest agencies in 2019.
In January, Stitt announced his “goal is to have a 25-percent reduction in regulations by the end of my term.” Stitt has issued an executive order that requires agencies to repeal two regulations for every new regulation added.
Because of the COVID-19 pandemic, state officials have temporarily lifted many regulations this year. Dew said the fact that those regulations “needed to be suspended so that certain businesses could function during some of these shutdowns” shows those regulations were either unnecessary or counterproductive.
“A lot of the regulations we didn’t really need,” Dew said. “They’re just kind of there. It’s tradition. It’s what we’ve done for a long time.”