Administrative Rule Review Report  #AR11-038

Legislative Service Office

12-Aug-11

 

AGENCY:                                 Office of State Lands and Investments

 

DATE SUBMITTED:                   8/11/2011

 

SUBJECT:                                 Chapter 32, Capital Improvement Projects – Countywide Consensus List Awards (Block Allocation).

 

NATURE OF RULES:   Procedural and Legislative

 

STATUTORY AUTHORITY:  2011 Session Law Chapter 88, Section 342; W.S. 11-34-103

 

DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION

SUBMITTED BY THE AGENCY TO LSO:  Notice of the proposed adoption of new rules was provided by the LSO as required by W.S. 28 9 103(d).  No comments have been received to date.  Otherwise, procedural compliance is apparently complete to date.

 

SUMMARY OF RULES:

 

Section 2 of the new Chapter 32 (Capital Improvement Projects – Countrywide Consensus List Awards (Block Allocations)) contains definitions for Capital Project Funding including what are a "Capital Project", "Eligible Applicant" and "Public Service Facility".

 

Section 5 addresses eligibility for grants for Capital Projects.  Section 5(b) lists which costs incurred during a Capital Project are ineligible for reimbursement under these rules.

 

Section 6 outlines the procedure for completing applications under the rules.  Applications are first done on a county consensus list basis, with a joint resolution from the applicant county or counties and the governing bodies of the cities and towns within the county or counties which comprise at least 70% of the incorporated population certifying to the State Loan and Investment Board (the Board) that those entities have reached agreement on the projects for which the funds will be used. The joint resolution shall contain the cost of each project and shall not exceed the total amount allocated for the county.

 

Section 8 provides for grant disbursement and administration, including the process for fund reversion.  Section 9 provides that SLIB may conduct and audit and inspect all projects funded under this appropriation.

 

FINDINGS:

 

These rules create a list of costs associated with a Capital Project which are ineligible for reimbursement under the appropriation authorized by 2011 Session Law Chapter 88, Section 342.  The legislation authorizing the Capital Project Funding was very broad and gave the Board little guidance on a number of issues necessary to implement the program.  With the lack of specifics, it is arguable that the Legislature intended to allow the Board to use its discretion to create a list of costs which were ineligible for reimbursement with funds from the Capital Project Funding appropriation.[1]  While not specified in the appropriation authorizing this program, in other SLIB administered local government grant programs, the delegated legislative authority is broadly granted.  These rules follow closely rules approved for other SLIB grant programs.  Given the lack of specifics and with no comments received by the standing committee which sponsored the legislation, it appears that the rules should be considered to be within the agency's statutory authority and the intent of the Legislature.[2]

 

STAFF RECOMMENDATION:

 

That the rules be placed on the Consent List and be approved by the Council as submitted by the Agency.

 

 

                                                            _______________________

                                                            Matt Obrecht

                                                            Staff Attorney

 

                                                            _______________________

                                                            David K. Gruver

                                                                        Assistant Director

 

MDO



[1] See W.S. 11-34-103(b):

  11-34-103. Powers and duties generally; employees and financial matters; reports to governor.

(b)  The board shall employ assistants, clerks, appraisers and other employees as necessary to conduct its business, fix the fees, costs and charges which shall be credited to the general fund to cover the expenses of the board in making loans and define the duties of the officers, agents and employees of the board. All officers and employees shall be under the direction and authority of the board in all matters not inconsistent with this act. The board shall, as required by W.S. 9-2-1014, report to the governor such general information and recommendations as to the board seem proper. The [state loan and investment] board shall exercise all incidental power as necessary to carry out this act. (emphasis added).

[2] "When the legislative mandate is broad, as in this case, the administrative agency must invoke expertise to create standards, which will furnish notice to the public of how the decision may be reached. The creation of such standards serves to eliminate any need to develop standards on a case by case basis, which is time-consuming; may lead to inconsistent results; and severely inhibits judicial review." Rissler & McMurray Co. v. Environmental Quality Council (In re Bessemer Mt.), 856 P.2d 450, 454 (Wyo. 1993).