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Volume 12, No. 1, Winter 1998

Legal Services Publications             Legal Services Home Page

Table of Contents

News from the States

Kentucky Committee Investigates Quasi-Governmental Agencies and Private Firms

by Alice Hobson, Kentucky

In recent years, two entities in Kentucky have fought hard to block access by Kentucky's Program Review and Investigations Committee (Committee) to necessary information about the entities' operations. One of the entities refused to release financial and membership information about its insurance and lending agencies to other state agencies, participants and potential members. In 1994, both entities sued the Committee in an effort to stymie the committee's investigations.

This article explores the Committee's ability to investigate both quasi-governmental entities and private contractors, specifically, an organization of Kentucky counties (KACo) and a marina operator with a state contract. One of the reasons the committee had the stronger legal position in these controversies is its nontraditional definition of state agency. The committee also used, as an investigatory tool, opinions from the Office of the Attorney General interpreting the Kentucky open records statute. These opinions were invaluable in the investigations. Since legislative oversight may be the only avenue for public accountability, investigations of these types of organizations should be aggressively pursued.

In 1978, the General Assembly created a 16-member committee. KRS 6.905 - .935. The committee has far-ranging authority to conduct performance evaluations to determine the efficiency and effectiveness of state programs. Statutorily, the committee conducts studies to:

• Determine if funds are spent for the appropriated purpose;
• Evaluate the effectiveness of programs in accomplishing their goals and statutory intent;
• Evaluate the efficiency of program operation;
• Determine if there is a need for change in agency operations;
• Determine if a reorganization of a state agency is necessary; and
• Monitor reorganization plans.

To pursue these objectives, the committee has the power to subpoena witnesses and documents. In 1992, the General Assembly added a definition of "state agency" that includes a wide array of entities including quasi-governmental agencies and private contractors. This definition includes all entities created by the state's Constitution, statutes, all three branches of state government, any of its subdivisions, instrumentalities or affiliated organizations or by any employee or official acting in his official capacity. Additionally, the definition includes any entity that:

• Receives any part of its funding from state tax dollars;
• Receives funding from funds or resources entrusted to the state;
• Receives funding from fines, fees, licensing or penalties;
• Receives federal funding for which the state is responsible for oversight or expenditures; and
• Receives or has received resources, including funds, equipment, property, supplies or services, directly or indirectly from the state.

Finally, the statute applies to those portions of public or private entities that relate to the delivery of services to or for the state, or as defined in the previous sections of the statute.

The Kentucky Association of Counties (KACo) is a non-profit corporation created in 1974. KACo is a membership organization of counties and county officials. Until recently, KACo operated seven self-insurance and loan programs. All of these programs had private third-party administrators (TPAs) under no-bid contracts. Approximately one-and-one-half years into the investigation, KACo filed a lawsuit challenging the committee's authority to conduct the investigation. The committee had made the following findings, among others:

• The former executive director of KACo was the third-party administrator for six of the programs, with a salary totalling more than $360,000 per year.
• A former county judge was paid $253,000 as the TPA of one of the programs, and was simultaneously employed as executive director of the program.
• KACo's "advance revenue program" lost nearly $30 million in an investment hoax involving the purchase of fictitious notes called "prime guarantee notes." Program administrators and employees testified they had signed limited powers of attorney to allow the purchase of the notes, without even reading them.

The basic issue in KACo's lawsuit was whether an organization created and operated by county officials, paid for with county funds and existing solely for the benefit of county governments is a state agency under the committee's broad definition? If not, could other government officials form similar organizations that would be free from public scrutiny?

The committee used the definition of "state agency" as the basis for its authority to investigate KACo and its seven insurance and lending programs. The committee's counsel argued that KACo and its programs qualified as state agencies under almost every prong of the state agency definition.

First, since the General Assembly created counties as political subdivisions of the state, KACo and its programs fit clearly under the state agency definition, according to the committee's argument. Second, since five of the programs were created under the Interlocal Cooperation Act, the programs are state agencies because they are created by subdivisions of state government. Third, county funds for KACo and its programs come from fines, fees or licensing authorized by state statutes. Fourth, counties receive resources from the commonwealth and are therefore funded at least indirectly by the state. KACo and its programs were created for the sole purpose of delivering services to counties. Therefore, the committee argued, KACo and its programs clearly fall under the committee's authority since they receive county funds and provide services to counties.

Within months of filing the lawsuit, KACo reconsidered its actions and moved to dismiss its complaint. The court never reached the merits of the case. The Kentucky Department of Insurance launched investigations of three of the programs and took action against them. KACo disbanded its "reinsurance trust," sold the medical insurance program and restructured its liability insurance program under a DOI order. Other programs made major reforms in their operations. An outside company conducted a thorough management review.

Kentucky's Attorney General found that KACo, its seven self-insurance and loan programs and several of the third-party administrators were public agencies for purposes of the state's Open Records Act. Under this statute, a public agency includes any interagency body composed of two or more public agencies. The formation of five of the programs under the Interlocal Cooperation Act made them public agencies for this purpose. Three of the third-party administrators were also public agencies under the Open Records law because at least 25 percent of their funding is public.

As part of an investigation of Kentucky's state park system, the committee focused on the public and private operations of state park marinas. Increasingly, the Parks Department has privatized these marina operations, giving marina operators 15- to 20-year contract extensions and reduced commission rates. In exchange, the lease holders replaced state-owned facilities with facilities built and owned by the private marina operators.

In studying the marinas, the committee encountered problems that illustrate the difficulties in monitoring and evaluating government operations that have been privatized.

During its review, the committee asked for financial audits of state park marinas operated by private businesses contracting with the Parks Department and the Finance Cabinet. The marina audits are filed annually with the Parks Department, pursuant to an administrative regulation and the operator's contract. The administrative regulation, 304 KAR 3:010, contains record-keeping and auditing requirements that are intended to permit the state to effectively evaluate the marina operations.

When the committee subpoenaed these audits, the operator of the marina at Lake Cumberland State Resort Park sued the committee to block the committee and the public from seeing the audits of the marina. For many months, the private marina operator fought the committee's effort to review these financial audits, claiming the audits contained proprietary information. After inspecting and examining the marina audits, however, the Franklin Circuit Court held that the audits were not confidential or proprietary under the Open Records Act. The Court said the release of these documents would not give an unfair commercial advantage to competitors. The Court of Appeals upheld the Circuit Court's decision. The state's Supreme Court heard the case on an expedited appeal.

Since there was no case law in Kentucky on the issue of injunctive relief against a legislative committee, counsel looked to federal case law and the U.S. Congress for guidance. The most persuasive case is Eastland v. United States Servicemen's Fund, 421 U.S. 491, 44 L.Ed 2d 324, 95 S. Ct. 1813, (1975). In that case, the U.S. Supreme Court held that investigating and gathering information are integral parts of the legislative process, and issuing a subpoena pursuant to an investigation is similarly an "indispensable ingredient of lawmaking," not subject to injunction.

Both the marina case and Eastland arose from the issuance of a subpoena by a legislative committee seeking records relating to a nongovernmental organization. The U.S. Supreme Court held that the activities of a Senate subcommittee, individual senators, and the committee's chief counsel fell within the "legitimate legislative sphere" and were protected by the absolute prohibition of the Speech or Debate Clause against being questioned in any other place, and were immune from judicial interference.

On appeal, in Marina Management Services, Inc. v. Kentucky Cabinet for Tourism et al., 906 S. W.2d 318 (Ky. 1995), the Kentucky Supreme Court affirmed the committee's right to perform the audits under the Committee's enabling legislation. However, the court refused to allow the public release of the audits. The Court determined that the audits contain proprietary information that is exempt from disclosure under the Kentucky Open Records Act. In a well reasoned dissenting opinion, one Justice stated:

The marina case could affect all legislative committees since the Open Records Act is an important information-gathering tool for legislators. Unlike the Program Review Committee, most committees do not have direct authority to subpoena records. Access to state agency records related to contracts with private businesses could be obstructed. Legislative access to state agency information is imperative to ensure sound public policy.

Additionally, due to this court decision, the Kentucky State Auditor determined his agency could not pursue an audit of these marinas. Since the state auditor's statute requires public release of the audits, the state auditor decided that it could not perform an audit without public disclosure.

As a result of the marina case, the state's Finance Cabinet worked together with the committee and the state auditor to ensure access, for purposes of financial audit or program review, to any documents or data that are directly pertinent to a contract. The Finance Cabinet promulgated an administrative regulation providing for the disclosure of this information to the contracting agency, the Finance and Administration Cabinet, the Auditor of Public Accounts and the Legislature, regardless of its status under the Open Records Act. Every new contract must now contain specified language. 200 KAR 5:314 (Effective May 16, 1996).

Legal Services Staff Section Holds
Three Meetings In Fall of 1997

The fall of 1997 proved to be an extremely productive and exciting time for the Legal Services Staff Section (LSSS). By holding three successful and challenging meetings, the LSSS offered its members more professional development opportunities than ever before. From the deep South, to the nation's capital, to the sunny skies of California, legislative legal staff traveled across the country to gain expertise and strengthen their professional networks.

The following articles summarize these activities. If you missed these meetings, there will be more to come with the NCSL Annual Meeting July 20-23 in Las Vegas and the LSSS/RACCS Joint Professional Training Conference October 8-10 in Minneapolis/St. Paul. Look for more details on these meetings on the LSSS homepage and in the next Legislative Lawyer.

In October of 1997, the Legal Services Staff Section tried something new when it held a joint meeting with the National Legislative Program Evaluation Society (NLPES). The two staff sections met in Jackson, Miss. to study philosophical and legal issues regarding legislative oversight. Although the meeting was geared toward lawyers who assist or advise in program evaluation and auditing, several LSSS members headed south to explore new topics and exchange ideas with legislative lawyers who serve a very different role than the traditional bill drafter.

Plenary and concurrent sessions were of interest to both groups. Dr. Michael Scriven, a leading thinker on program evaluation and professor at the Claremont Graduate University, presented "The Logic of Evaluation." As one of the keynote speakers, Scriven urged the use of a general logic of evaluation, rather than performance indicators, as the foundation for conducting program evaluations. Scriven also presented a luncheon speech on the future of evaluation. Another plenary session, entitled "The Past, Present and Future of Legislative Oversight," consisted of a panel discussion that explored the effects of term limits and other changes on the legislature's desire and ability to conduct oversight. Other plenaries included Dr. Midge Smith of the University of Maryland who explored the variety of evaluation methods and Mississippi Senator John Horhn, who gave a dramatic presentation of the African-American perspective on American history.

Twelve concurrent sessions covered a variety of audit, evaluation and legal issues. Members of both staff sections were encouraged to mix and match these concurrent sessions, and many people attended sessions from both areas. The integration of lawyers and evaluators created a dynamic learning environment for both groups of legislative staff. The LSSS presented four concurrent sessions. These included: "Jurisdiction of Legislative Committees over Quasi-Governmental Agencies," presented by Alice Hobson of Kentucky, Caryn Quilter of Mississippi, and Carrie Vibert of Connecticut; "Issuance of Subpoenas by Legislative Committees and Witness Immunity," presented by Jim Ashford of California and Ronny Frith of Mississippi; "Discoverability of Auditors' Workpapers," presented by Ted Booth of Mississippi, Frank Caskey of Alabama, and Roger Norman of Arkansas; and "Working on Interdisciplinary Teams," presented by Danny Miller and John Simpson of the Mississippi Department of Transportation, Jan Bush of Florida, and Cheryl Ridings of South Carolina.

Participants liked the idea of holding a joint meeting with two staff sections. "This meeting offered a splendid opportunity for both groups to broaden their professional skills," said Marcia Goodman, Director of Legislative Legal Services for the Connecticut Legislature and LSSS Executive Committee member.

I love the Senior Legislative Drafting Seminar, and this year was no exception. I enjoy the chance to work on and discuss bill drafting techniques in a relaxed environment, and CLE is a necessity in a lawyer's life. But my continuing enthusiasm for the seminar really originates with the opportunity for contact with other state legislative legal staff. This was the third time I have attended the seminar in the last four years, and each time I find that I return to my office with a new sense of purpose that derives from making and renewing professional acquaintances.

This year, the seminar, entitled "Ambiguities, Quality and Other Heresies," was held in conjunction with the McGeorge Law School and its Institute for Legislative Practice in Sacramento, Calif. on November 20^th through 22^nd. Over the course of two and a half days, we explored instances in which ambiguity and other traditional bill drafting heresies might be appropriate or necessary. We examined the ethical implications of routine drafting decisions and pondered how the quality of our work, in the oftentimes "fast food bill drafting" environment, can be maintained.

Robert Martineau, Distinguished Professor Emeritus at the University of Cincinnati, presented the first session of the seminar, which focused on ambiguities. He began by reviewing the basic definition of ambiguity, which he defined for bill drafting purposes as a word or phrase with two or more possible interpretations. Professor Martineau then broadened the discussion of ambiguity to include the concepts of vagueness and generality. He defined the concept of "vagueness" as uncertainty in application to particulars, and the concept of "generality" as one not limited to a specific or unique referent. His experiences led him to believe that problems of vagueness in bill drafting generally congregate in three areas, descriptive words, verbs and concepts. Problems of generality in bill drafting are usually concentrated around definitions and categories. At the end of his presentation, Professor Martineau led seminar attendees in a group exercise involving problem identification and resolution.

After lunch, David Marcello, executive director of the Public Law Center in New Orleans, gave a humorous and insightful presentation on legal ethics for bill drafters. His presentation was interspersed with anecdotes from Louisiana's colorful political history, which gave rise to more than one belly laugh. Marcello's remarks were premised on the idea that a bill drafter makes many political choices throughout the drafting process and that these decisions can affect policymaking as much, if not more, than the decisions a legislator makes. Marcello's presentation increased our awareness of how bill drafters can inadvertently wield power in the legislative process.

During the second day of the seminar, we heard a panel presentation about managing major reform packages. The panel was comprised of three attorneys with the Legislative Counsel Bureau of California, Jim Ashford, Ann Burastero and Robert Gronke, as well as Nathaniel Sterling, executive secretary to the California Law Revision Commission. Each panel member shared some of his or her experiences with major reform packages, and the overall substance of their comments focused on the necessity for organization and preparation before beginning to draft. They emphasized that there would almost always be significant and time-consuming changes with this kind of drafting assignment and that the drafter's anticipation of these changes sometimes helps when prioritizing drafting assignments. The panel also mentioned political considerations that influence the drafting of a major reform piece, such as a higher level of media coverage and great interest on the part of the public.

The Honorable Janice Rogers Brown, an associate justice of the California Supreme Court, gave a presentation during lunch on her experiences as an attorney in the legislative, executive and judicial branches of government. Her comments indicated that working in each of the branches of government has given her greater insight into the machinery of government, which she believes has made her more effective in her various governmental roles.

Bob McCurley, director of the Alabama Law Institute and adjunct professor of Law at the Alabama School of Law (and chairman of this staff section), led the afternoon panel session on quality control. In Alabama, quality control over legislative drafting begins with the hiring process and continues throughout an attorney's tenure in the legislative drafting office. McCurley tries to employ individuals with the writing skills and background to handle the demands of legislative drafting, and he develops the continuum of quality control through training, mentoring, maintaining an internal review process and encouraging attorneys to develop subject matter specialties. Other panel participants included Jim Ashford, principal counsel with the Legislative Counsel Bureau of California, and Bill VanArsdall of Kentucky. They agreed with McCurley's comments and stressed the importance of an internal review process and mentoring in maintaining control over the quality of work produced by a bill drafting office.

On the third day and final morning of the seminar, Bill Behnk, coordinator of Legislative Information Systems for the California General Assembly, and his staff, gave an overview of their extensive computer system and its use in providing support for bill drafting services. I was amazed that they have 365 support personnel just for information systems. That morning, we also toured the California Assembly Chamber and were shown how information such as bill text, bill status and committee activity is instantaneously available to members on laptop computers.

Following each general lecture, Anne Burastero of California led the small group discussion in which I participated. Bob McCurley, Bruce Feustel, Jim Ashford and Robert Gronke led other small group discussions. Receptions were held on both evenings of the seminar, so there was ample time for informal conversation with other bill drafters.

I repeat, "I love the senior bill drafting seminar!" It is always a worthwhile experience. It is a chance to hone your craft. It is an opportunity to build a network of professional colleagues, and it is a time to have a little fun.

The Legal Services Staff Section traveled to the nation's capital in early November to meet in conjunction with NCSL's Assembly on State Issues/Assembly on Federal Issues. The LSSS sponsored three sessions.

The programming began with Richard Ruda, director of The State and Local Legal Center. He briefed attendees on the cases before the U.S. Supreme Court this term that could affect the states. Professor Gordon G. Young presented the second program, Statutory Interpretation and the Use of Legislative History. This presentation gave a brief look at the various views concerning the methods courts should use in determining the meaning of a statute. It also included a discussion of several views about the appropriateness of using legislative history in interpretation.

The final program was a two part session entitled Term Limits and their Effects on Legislative Staff. This session, as well as Professor Gordon's, was co-sponsored by the Research and Committee Staff Section. Legislative researchers and legal staff filled the seats in hopes of hearing how other states were dealing with the onset of term limits. In this session, Professor George Peery of Mars Hill College in North Carolina gave an overview of the various states' approaches to term limits. Rona Hallabrin, senior consultant in the California Senate Research Office, followed Peery's presentation with a discussion of the various court challenges affecting the California term limits law. She also explained how the different legislative agencies were coping with the implementation of term limits.

Debbie Haskins, senior attorney for Rules Review in the Colorado Office of Legislative Legal Services, explained her office's orientation program. In a term limit environment, orientation programs must be more effective than before. New legislators must learn quickly so that they can function in the legislative process and represent their constituents effectively.

LSSS members also benefited from the ASI programming which included keynote speakers Federico Pêna, secretary of energy, and Rob Reiner, well-known actor, director, and committed advocate for the importance of early childhood development.

Primer on the Investigative Authority of
Legislative Committees

It has been uniformly held that the legislature has the authority to conduct investigations. The authority to investigate is indispensable to the exercise of legislative power. It is an inherent power that may be exercised either directly or through a duly constituted committee.

In a bicameral legislature, the right to investigate exists as a separate and distinct power in each house. It is also permissible, however, for the two houses to jointly appoint a committee or commission for the purpose of conducting an investigation. Legislative bodies may appoint nonlegislators to such investigatory bodies. The authority to obtain the information necessary for the legislature to properly exercise its power to enact laws may also be conferred on a nonlegislative body.

Historically, the power of investigation existed in the British Parliament and in the legislatures of the colonies. In modern times, the authority is exercised in most, if not all, of the state legislatures. It is unquestionably exercised in full in our national legislature, the U. S. Congress.

The rationale for investigative power is that, in order to intelligently discharge its function to make or unmake written laws, the legislature must be possessed of the general intelligence and information necessary to enact laws that are wise, well-informed and appropriate to address the targeted situation. Mason's Legislative Manual provides as follows:

Mason's Manual of Legislative Procedure (1989), p. 558.

The power extends to any subject for which the legislature has the right to enact laws. This power is necessarily broad. Investigation may be made concerning the administration of existing laws, proposed laws, or potentially necessary laws. Inquiry may be made as to defects in any social, political or economic system to the end of devising remedies for any such defects. Investigation may be made of any subject and any matter that relates to the need of legislation on the subject matter, and what kind and the extent of any legislation that is needed.

Inquiry by a legislative body is not proscribed even where the subject of the inquiry is also properly the concern of the judiciary. According to Mason's:

Mason's Manual, at 564.

As the judicial rules of evidence are not a limiting factor, an investigation by the legislature or one of its committees may include a search into its subject matter far beyond the scope of a judicial trial, and the manner of conducting the investigation rests on the discretion of the investigating body. The production of documentary evidence may be compelled, and when an investigating committee is authorized to issue subpoenas, its subpoena duces tecum may not ordinarily be set aside nor enjoined by a court.

The legislative body or a committee thereof may summon legislators or nonlegislators and may compel obedience to its summons. The production of papers material to the inquiry may not be circumvented merely because the papers are private, if the exercise of the power to inquire is within the scope of the legislature's prescribed duties.

When a lawfully summoned witness refuses to produce the books, papers or other documents required, the legislature's remedy may proceed according to procedures fixed by statute; the procedure will otherwise be controlled by the customary rule and practice of legislative bodies. Generally, wilful disregard of the authority of a legislative body will constitute a punishable contempt, and although the legislature is not a court, the contempt procedure for the courts may be utilized by the legislature where the constitution or statutes do not make express provision for the procedure.

Where the investigatory power is exercised by a committee, the power to try for contempt may rest with either the committee or be limited to the legislature as a whole, depending on the state. The legislature could also provide by statute for judicial enforcement of contempt of a legislative committee, and this would not violate the principle of separation of powers. Generally, the term of imprisonment for contempt will expire with the session of the legislature.

An inquiry into the management of the various departments, agencies and institutions of the state is always a legitimate legislative function. The right to investigate the affairs of a private person, corporation or institution will exist only when directly related to a legitimate area of inquiry.

The legislative power to investigate is not absolute; there are limitations. The fact that the general scope of the inquiry is permissible does not automatically validate every individual question or subpoena.

The legislature is to observe all constitutional protections of the individual. A claim that particular legislative demands constitute an infringement upon constitutional rights must be determined by the courts, and the decision will be bounded on one side by the individual's right to enjoy life, liberty, property, freedom to associate, and protection from inquisitions into private affairs, and on the other by whether there is a substantial relation between the information sought and a legitimate area of legislative concern. A witness cannot be compelled to reveal his private affairs except to the extent reasonably required for the legitimate legislative purpose.

Mason's lists the following limitations on the right of a legislative body to investigate:

1. It is a general rule that the legislature has no power through itself or any committee or any agency to make inquiry into the private affairs of a citizen except to accomplish some authorized end.

2. The legislature has no right to conduct an investigation for the purpose of laying a foundation for the institution of criminal proceedings, for the aid and benefit of grand juries in planning indictments, for the purpose of intentionally injuring such persons or for any ulterior purpose.

3. A state legislature, in conducting any investigation, must observe the constitutional provisions relating to the enjoyment of life, liberty and property.

4. An investigation instituted for political purposes and not connected with intended legislation or with any of the matters upon which a house should act is not a proper legislative proceedings and is beyond the authority of the house or legislature.

5. When a committee is appointed by resolution to make an investigation and the object of the investigation, as shown by the resolution, is not a proper legislative object but is to establish an extraordinary tribunal for the trial of judicial and other officers, the duties imposed on the commission being strictly judicial and not ancillary to legislation, the committee has no legal status.

6. A governmental "fishing expedition" into the papers of a private corporation on the possibility that they may disclose evidence of crime is contrary to the first principles of justice and an intention to grant the power must be expressed in most explicit language.

7. The investigatory power of a legislative body is limited to obtaining information on matters which fall within its proper field of legislative action. Mason's Manual, at 562-3.

The state, acting through its legislative body, clearly has the power to inform itself through legislative investigation, that investigatory power is broad, and the power is inherent in the legislative process. The rights of citizens must be protected in this process, and the method of investigation will, therefore, be scrutinized. But, the underlying authority of the legislature remains.

Ethics and Politics of Drafting: A Review of David Marcello's Presentation

The legislative drafter may have a self-image of a skilled technician who is above the political fray. That view is the furthest thing from the truth, according to David Marcello. "No legislative drafter can escape the ethical and political implications of the task," Marcello told his audience at the Senior Legislative Drafting Seminar held in Sacramento last November.

David Marcello is the executive director of The Public Law Center, a joint clinical legal education program of Tulane and Loyola Law Schools. The program provides legislative and administrative advocacy services to disadvantaged clients, in addition to teaching legislative drafting to students from all parts of the world. From his stories of former governor Edwin Edwards and other Louisiana politicians, it was clear that Marcello loves and thrives in a political environment, but he also understands the importance and challenges of legislative drafting.

Marcello's presentation at the seminar identified a number of political influences and ethical issues facing drafters. The influences on the drafter start at the information gathering stage. The requester of the legislation will seldom have more than a rough idea of what to include. "Only in the drafting is the proponent's intent developed. The drafter who fails to get the client's views on all of these word/policy choices is effectively usurping that client's policymaking function." Although Marcello encourages drafters to consult with or carefully explain their policy choices contained in the draft, he admits that in "the hurly-burly of an actual legislative session," these consultations or explanations are far from the ideal.

Setting priorities is also a value-laden task. Whose bill do you draft first and how much time do you spend on it? "The amount of time devoted to preparing and revising a draft is a decision rife with 'political' implications." Should you consider the importance of requester, the timeliness of the subject matter, the party affiliation of the requester, how easy it is to get the draft out, what chance the bill has of passage or how strongly the requester wants to pursue the draft?

Even the decision to draft a bill has political policy implications. Marcello noted a situation in which a Louisiana cow manure problem could have been dealt with effectively by resolution or by bill. The difference politically was that the resolution was not subject to the governor's review. In this case the legislature was on one side of the issue and the governor on the other. The good drafter, according to Marcello, has to understand these political realities, as well as the legislative options, and suggest strategies that will work. A drafter inevitably makes a number of decisions in creating the draft, but the drafter should "explain matters sufficiently to let the client make informed decisions."

Marcello also mentioned several standard drafting issues that have political ramifications. Should your law be self-executing or will it depend on agency rules? That choice alone might dictate whether the bill will pass. In addition to making a value choice as to who should determine what the law will be, that choice greatly affects who will support or oppose the bill. Also, something as seemingly simple as the drafter providing a key word description may dictate which committee will review a piece of legislation. Marcello recounted the story of working with a Louisiana drafter on a bill's key word description. The drafter had captioned the bill as "HEALTH AND WELFARE." The description was true enough, but "CIVIL PROCEDURE-VENUE" would also be correct. The second option would result in the measure being referred to the sponsor's own Civil Law and Procedure Committee instead of the Health and Welfare Committee. The drafter agreed to change the key word, and the receptive committee played a large role in the bill's passage. The choice of the key word description in Louisiana is a matter of great discretion because there are so many ways to describe or capsulize legislation. Yet, when the legislature looks to that description to help determine a bill's committee assignment, the decision as to how to write that description carries great political influence.

Perhaps one of the greatest political battlegrounds for drafters involves the desire to be accurate, precise and clear in the wording of statutes versus a legislator's perceived political need to be obscure about some point. Marcello notes that "those legislative drafting personnel who are lawyers have dual ethical obligations-to the representation of a client and to the fair administration of the justice system-that may sometimes conflict."

Marcello noted that while the process of drafting is inherently political, there are some ethical guidelines. He suggests that lawyer and non-lawyer drafters should all be guided by lawyers' ethics. To do so, he argued, protects the integrity of the law formation process and protects the drafters themselves. Foremost among the applicable duties is the duty to keep the client informed. The rules of professional conduct establish "the client as the ultimate decision-maker" and make it clear that the lawyer has to explain matters sufficiently to the client so the client can make informed decisions about representation." For drafters, that means "this duty to keep the client informed comes into play at every stage of the drafting process."

Marcello noted, however, that this duty to inform is affected by a rule of reasonableness-the legislator client is entitled only to such explanation as is "reasonable under the circumstances." He noted the difference between the explanation that could be given before session starts and that given during the "fury" of peak session times. Marcello also described ethical guidelines on advocacy and candor and their meaning to drafters.

His purpose in raising these political implications and ethical guidelines was not to paint drafters as latter-day Machiavellians. Rather, he urged drafters to understand the political effects of what they do and to consciously strive to deal with these issues in an ethical manner.

IN FOCUS . .

by Laura S. Jones, Georgia

By the spring of 1999, the state of Georgia plans to put 200 years of Georgia's session laws and legislative record on the Web. The Georgia Legislative Documents Project (GLDP) is a collaborative effort spearheaded by SOLINET, shorthand for the Southeastern Library Network. SOLINET, a not-for-profit cooperative of nearly 800 southeast libraries, has a presence on the Internet at http://www.solinet.net

SOLINET will be the clearinghouse and will do the data base design and selection of outside vendors to complete the actual data input for the GLDP. The Georgia Department of Archives and History, Emory University, Georgia State University, and the University of Georgia will be partner institutions, supplying some of the old books, other materials and expertise. Funded by the National Endowment for the Humanities and a private Georgia foundation, the GLDP will convert Georgia House and Senate Journals and Georgia Session Laws dating back to 1777 to digital format. The resulting documents will be fully searchable in a format similar to that only provided by CD-ROM technology now. The GLDP will eventually be on the Galileo network, which is Georgia's statewide electronic library. (More on Galileo can be found at http://www.peachnet.edu/galileo/history.html)

The value of such a data base is self-evident. Georgia bill drafters, like those in many states, already have computerized access to the Georgia Code on the Web on Georgia's homepage and via Michie's Georgia Law on Disk on each drafter's computer. Case law can also be retrieved with the touch of a button. However, if drafters want or need to amend Georgia's uncodified laws (laws of local application, city charters, local salary bills, homestead exemptions, etc.), or need to see an old version of a general law, we must turn to the books, some of which are quite dusty. And if the drafter needs to see an old House or Senate Journal in which all the legislative proceedings of a given session are recorded, again it's to the books. This is a time consuming process of finding a needle in the haystack, checking supplements, indexes, and Shepard's to ensure that all references have been reviewed and that the current version of the subject of the amendment is in hand.

SOLINET and its partner institutions see the GLDP mainly as a preservation project, as well as a way to provide the public with access to valuable information about Georgia's history, culture, growth and development. Of course, as a bill drafter, I see it as one more way to make my job easier and my response time shorter and more accurate during a hectic legislative session.

The GLDP is a pilot project; if it works and is feasible, SOLINET wants to take the idea and the technolgy to other states.

The process has just begun, but I hope this glimpse into the workings of SOLINET and the GLDP convinces readers that proactive cooperation with other institutions such as SOLINET will ensure that bill drafters and other legislative lawyers have access to a wide array of information in the most cutting edge format possible.

Kate Nevins is the executive director of SOLINET and Christina Craig is the project manager for the GLDP. They can be reached at (800)999-8558 or by email at solinet_information@solinet.net.

News from the States

Delaware
By Rich Dillard

Those of you who, in January, tuned in to the Delaware General Assembly's Web site http://www.state.de.us/research/assembly.htm may or may not have realized that the revamp of the word processing and bill tracking system had not yet been implemented, nor was it implementable, at the start of session. The next promise of implementation is mid-March, when we reconvene after the Joint Finance Hearings.

By contrast, the indexed update of the landlord tenant code as a separate publication is now available to the public as promised.

On a drafting note: The Delaware Constitution has always required (at least since 1897) a 2/3 majority vote for the adoption of legislation creating new crimes that are not felonies. This means that creating a felony with a life sentence penalty takes a simple majority to pass, while jaywalking legislation requires a 2/3 vote. The reason for the anomaly is that the latter enactment increases the criminal jurisdiction of an inferior court and the Constitution requires a 2/3 vote for such changes.

Because of this anomaly, legislators over the years have sometimes avoided creating misdemeanors in favor of felonies, primarily because there weren't enough votes to adopt the crimes as misdemeanors, or, as was the case with seat belt legislation, the crime was declared to be a secondary offense to avoid a 2/3 vote requirement.

This may come to an end, for the most part, this year as the General Assembly faces the second leg of a constitutional amendment making the Court of Common Pleas (which has original or concurrent jurisdiction over all cases involving misdemeanors) a constitutional Court rather than its current status as an inferior Court. (Apparently, Delaware is the only state that allows a constitutional amendment to be passed by successively elected General Assemblies and without a vote by the public.) Whether this means fewer new felonies in the future remains to be seen.

Maine
By Margaret Reinsch
and David C. Elliott

In 1995 and 1996, amendments to the Maine Administrative Procedure Act (APA) and other laws were enacted giving the Legislature significant new authority in reviewing certain agency rules. The new laws were enacted to counter the long-standing sentiment of many Maine legislators that agencies frequently fail to comply with the intent of the Legislature in their rule making and that the legislative branch needs to exert greater control over executive branch rule-making activities.

Under the new laws, rules designated as "major substantive rules" in the legislation authorizing their adoption may not be finally adopted by an agency until reviewed by the Legislature. The Legislature may authorize final adoption of the rules, either as presented or with specified changes, or it may deny the authorization necessary to adopt the rules as final.

In 1997, the first major substantive agency rules were submitted to the Legislature for review under the new law. During the 1997 legislative sessions, the Legislature reviewed 11 major substantive rules proposed by 6 different agencies. The Legislature passed and the governor signed authorizations for final adoption of all of the 11 rules submitted in 1997. Seven were authorized without changes and four were authorized subject to specified change. During the same legislative year, the Legislature enacted laws authorizing the development of 28 additional major substantive rules requiring legislative review.

David C. Webb has joined the Office of Policy and Legal Analysis as a legislative analyst for the duration of the 1998 legislative session. Danielle D. Tetreau has joined OPLA as a legislative analyst on a permanent basis.

Maryland
By Sherry Little

Under legislation passed during the 1997 session, a single Department of legislative Services (DLS) was created to consolidate three former agencies--the Department of Legislative Reference, the Department of Fiscal Services and the Office of Legislative Data Processing. The new, central, nonpartisan agency, with a staff of 350, is headed by Executive Director Karl S. Aro who serves by appointment of the president of the Senate and the speaker of the House. Aro, previously director of the Research Division in Legislative Reference, began working for the General Assembly in 1979. Prior to being named executive director, Aro was particularly involved in legislative and congressional redistricting projects, as well as policy anaylsis and committee staff management.

The internal structure of the new Department is organized into four units--Office of the Executive Director, Office of Legislative Audits, Office of Information Systems, and Office of Policy Analysis. Legal staff of the department are assigned to the Office of Policy Analysis and will continue to perform legislative drafting, committee staffing, and statutory revision functions, as well as policy analysis and rules and regulatory review. This Office also has responsibility for budget and fiscal analysis, as well as library and information services and statutory revision tasks.

With regard to statutory revision, the public utilities companies revision has been introduced as Senate Bill 1 for the 1998 session. The correctional services article is being drafted for the 1999 session. The Office of Policy Analysis is headed by Warren Deschenaux who also has worked for the General Assembly since 1979. Deschenaux, who holds a J.D. from the University of Connecticut School of Law, previously worked for the Department of Fiscal Services, most recently serving as the operating budget coordinator.

New Jersey
By Bill Castner

A unique separation of powers issue arose when New Jersey's attorney general decided not to defend a legal challenge to the constitutionality of the state's recently enacted law prohibiting so-called partial birth abortions. The decision of the Office of Attorney General was based on a legal opinion it issued concluding that the law is unconstitutional. Since there are no constitutional or statutory provisions in New Jersey that require the attorney general to defend state laws, the Legislature opted to hire outside counsel to defend the legislation.

The governor's nomination for a vacant local prosecutor position was recently withdrawn after a state senator invoked the use of "senatorial courtesy," a term given to the New Jersey Senates' practice of permitting a single senator to veto the appointment of individuals from his or her home district. Senatorial courtesy has no official sanction in law, but exists as an unwritten rule or custom, and has largely withstood a number of political and legal challenges. The practical result of senatorial courtesy is that a nominee cannot be confirmed without the approval of every home-county senator, except in rare instances when the Senate formally revokes a member's courtesy powers.

Approximately 5,600 bills were introduced in the New Jersey Legislature during the 1996-97 legislative session. The governor and the Legislature enacted 437 laws........The entire professional staff of New Jersey's nonpartisan Office of Legislative Services can now access West CD-ROM Libraries (also known as "Premise Research"), where various legal resources including court opinions, statutes and session laws are available........Beginning with the 1998-99 legislative session, the New Jersey Legislature has designed a new format for its bills. After surveying styles of bills from over 30 states, New Jersey developed a new format that now includes a first page with the name of the sponsor(s), the sponsor's district, a synopsis of the bill, the current version of the text and the state seal on the bottom portion of the first page, followed by the text of the bill beginning on the second page.

New Mexico
By John Jasper

Indian gaming continues to present thorny issues. The secretary of the Interior permitted Indian gaming compacts to go into effect by taking no action to approve or disapprove them. All gaming tribes have signed statutory compacts and revenue sharing agreements (16 percent of net take goes to the state general fund). All tribes but one have made the first revenue sharing payment. The Mescalero tribe has not, and that dispute will probably end up in litigation that will raise the question of the legality of the revenue sharing agreements. The question of the legality of regulatory costs to be paid by tribes pursuant to compact provisions is headed for binding arbitration or, perhaps, a court test.

Oregon
By Chuck Wilson

Two key staff members are retiring. Tom Clifford, Legislative Council since 1972, and Chuck Wilson (our state correspondent), chief deputy since 1965, both retire at the end of February.

Pennsylvania
By Ann Marie Bereschak

On Jan. 16, 1998, the Pennsylvania Public Utility Commission (PUC) submitted for review under the regulatory review process six regulatory packages addressing deregulation of the electric utility industry. According to the PUC, the regulations will further implement the "Electricity Generation Customer Choice and Competition Act" signed into law on Dec. 3, 1996, by Governor Tom Ridge. The purpose of the Act is to permit customers to choose their electric generation suppliers and to ensure that reliable and safe electric service will be maintained. The six regulations are published in the Jan. 31, 1998, Pennsylvania Bulletin.

A major rulemaking package from the Pennsylvania Department of Environmental Protection (DEP) is currently under review by the House and Senate Environment Resources Committees and the Independent Regulatory Review Commission (IRRC). The rulemaking makes comprehensive changes to the commonwealth's hazardous waste program to more closely align Pennsylvania's hazardous waste management regulations with those of the federal government.

The regulation was published in the Dec. 6, 1997, Pennsylvania Bulletin with a 60-day public comment period ending Feb. 4, 1998. The House and Senate committee comments are due to the DEP on Feb. 24, 1998, and the IRRC's comments are due on March 6, 1998.

Texas
By Steve Collins

The Texas Legislature is in mid-interim and is scheduled to convene its next regular session in January 1999.

The Texas Legislative Council is preparing for consideration, during the next regular session, a revision of the public finance laws (to be a title of the Government Code), the Occupations Code (a recodification of laws governing various regulated occupations), and part of the insurance laws (the first step toward a revised Insurance Code).

Rita Arneil, long-time senior counsel, has been promoted to deputy director of the legal division. Among Rita's new duties is the oversight of statutory revision efforts.

The big news in Texas is the settlement on Jan. 16 of the state's lawsuit against the tobacco industry. Valued at $15.3 billion, the issue now joined is the appropriate expenditure of the settlement proceeds. Legislative leaders are challenging the authority of the attorney general to determine through the settlement agreement the disposition of the proceeds, and have sought to intervene in the case. In addition, a candidate for attorney general has filed suit challenging the authority of the attorney general to pay a percentage of the settlement to private litigators who the attorney general retained on a contingency fee arrangement. The attorney general's contract with the private lawyers provides a 15 percent fee, resulting in fees in excess of $1 billion.

Wyoming
By Mark Quiner

In June 1997, the Wyoming Legislature held a special session for the purpose of education funding. The Wyoming Supreme Court in 1996 held that the system of education funding was unconstitutional in that it was based in part on local wealth. As a result, the Wyoming Legislature passed a new education funding plan. The governor vetoed part of the law passed by the Legislature. The Legislature has challenged the governor's veto on constitutional grounds. The case is currently before the Wyoming Supreme Court, which heard oral argument on the issue in January 1998.

As for major recodifications, the entire tax code is being revised. This is the result of a two-year project with a 24-member task force appointed by the governor. The Legislature will be considering the legislation to change the tax code during the upcoming legislative session in February 1998.

Also, Title 19 of the Wyoming Code governing Defense Forces and Affairs will be the subject of reform and will be up for a legislative vote in the upcoming session.

State Contacts

The following lists people who serve as state contacts for sending news to The Legislative Lawyer. Some of these are new appointments. Please send corrections to Jo Donlin at NCSL (303) 364-7700; jo.donlin@ncsl.org.

For more information:
contact Kae Warnock, NCSL Liaison to the Legal Services Staff Section. Phone: 303/856-1553
E-mail: kae.warnock @ncsl.org