Background: Assembly Omnibus exempts DPI from regulatory oversight, parts of REINS Act

Provision has “conservatives scratching their heads”

Short Version: Yesterday, the Milwaukee Journal Sentinel reported that the Assembly omnibus exempts the Department of Public Instruction (DPI) from key oversight provisions in the regulatory process, rolling back a part of the historic REINS Act.

If enacted, legislative Republicans will only succeed in making DPI less accountable and less subject to oversight.

The Full Story: The Assembly omnibus provision, according to the Legislative Reference Bureau, states:

“Consistent with the result in Coyne, this bill exempts rules promulgated by the Department of Public Instruction from the requirements that a) a scope statement be submitted to DOA [Department of Administration} for a determination of authority and that the scope statement be approved by the governor and b) a proposed rule in final draft form be submitted to the governor and that the governor approve the rule in writing.”

The question is whether the governor can be empowered to approve rulemaking by administrative agencies. In almost all cases, there is general agreement that he or she can. Yet some have argued that the State Superintendent of Public Instruction has a privileged position, based on Article X, Section 1 of the Wisconsin Constitution, which “vests’ the “supervision of public instruction” in the Superintendent. Tony Evers and his teachers’ union allies have argued that this means that the Superintendent is, in many respects, the “governor” of public education and even can make education policy. WILL – and other conservatives – have strongly disagreed.

In Coyne v. Walker, a 2016 SCOWIS decision, struck down 2011 Act 21, which gave the governor veto power over rules adopted by the Superintendent. However – the case produced no majority opinion and agreed upon rational, and, therefore, established no binding precedent. The majority was cobbled together from three different opinions that offered different views. Ultimately, Coyne resulted in confusion.

When lawmakers passed the REINS Act in 2017, a law to provide more oversight and accountability on all agencies, it included more gubernatorial and DOA checks on agencies. It did not exempt DPI. But DPI and Evers ignored several requirements of REINS Act, relying on Coyne.

Consequently, WILL, on behalf of taxpayers, sued Evers in 2018, arguing DPI had to follow the REINS Act. The State Supreme Court of Wisconsin agreed to hear WILL’s case, Koschkee v. Evers. The case will be heard and likely decided in the first half of 2019.

WILL’s Bottom Line: Reliance on Coyne v. Walker is a mistake. The State Superintendent of Public Instruction does not and cannot have a constitutional right to make regulations. Fortunately the State Supreme Court in the first half of 2019 has the chance to clarify Coyne and the State Superintendent’s constitutional power.

Get up to speed:

DPI would be exempt from law requiring governor-approved regulations”, Milwaukee Journal Sentinel, December 1, 2018

Wisconsin Supreme Court To Take Up Case Alleging Evers Violated the REINS Act”, RightWisconsin, April 13, 2018

Koschkee v. Evers, WILL’s case summary

WILL President Rick Esenberg on Coyne v. Walker, WILL, May 18, 2016

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