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Sunday, July 10, 2011
Ind. Gov't. - More on: General Assembly mistakenly repeals FSSA, effective June 30, 2011
Updating this ILB entry from Saturday, July 9th, quoting Niki Kelly's FWJG story, and this ILB entry posted later yesterday, where I explain "what (IMHO) exactly happened," Eric Bradner writes about the drafting error in this Sunday story in the Evansville Courier & Press.
Bradner's story is headed "Dissolving the state's largest agency was just a 'mistake.'" As you will notice, I have marked in bold some parts of the story I think deserve comment. The story begins:
INDIANAPOLIS — All of us make occasional mistakes when we're rushed.ILB comments:
We leave the garage door open. We forget to swing by the grocery and pick up milk. We misplace our keys, or shove a folder in the wrong desk drawer.
Minor annoyances. Nothing more, right? These things happen to everyone.
The thing is, there are a few professions where even small mistakes come with enormous consequences. Think police officers, for example, or surgeons.
When you work in the office responsible for drafting legislation for the Indiana General Assembly, your job means churning out hundreds of pages of legalese and analysis — drafting bills, helping lawmakers craft amendments, producing fiscal impact statements.
The smallest of mistakes well, you see where this is going.
Last week, Senate leaders discovered that one of the measures they'd passed this year accidentally repealed the Family and Social Services Administration.
It's Indiana's largest state agency, upon which some 1 million Hoosiers rely for Medicaid, food stamps and more. And under a new state law, it would be abolished.
The Fort Wayne Journal Gazette discovered the story, and learned that Gov. Mitch Daniels signed an executive order to keep the agency up and running Thursday night, as soon as he learned of the error.
The story is, state law sets dates for a host of things to sunset. An old law was going to have the FSSA, an expansive human services agency, sunset on June 30.
Nobody was seriously considering getting rid of the agency, and the General Assembly passed a measure that would repeal that sunset provision. Problem was, that measure was set to take effect July 1. In other words, under state law, the FSSA was already gone.
No one was actually affected by this error, and the governor's executive order effectively remedied it.
It's not the only mistake that's been made, though. Legislators have also discovered errors in new laws that govern project labor agreements and that allow felons to seal the records that show their checkered pasts.
These problems demonstrate what happens when the bill-drafting Legislative Services Agency, and the lawmakers responsible for the ideas LSA's lawyers put to paper, are rushed.
First, note that what we are talking about here are drafting errors, mistakes. This is different from the earlier entry today about what happens when a legislator want to introduce a questionable, or blatantly unconstitutional, law.
This FSSA repeal is similar to another error, also reported by Niki Kelly of the FWJG, in a June 9th story:
A mistake in a bill meant to loosen construction wage requirements in Indiana will force all public works projects – regardless of the cost – to go through a process establishing wage rates.Second, I highlighted: "No one was actually affected by this error, and the governor's executive order effectively remedied it." For a different take, see attorney Paul Ogden's entry this morning, headed "Governor Daniels Needs to Call General Assembly into Special Session To Fix Inadvertent Elimination of FSSA."
Senate President Pro Tem David Long, R-Fort Wayne, said legislative leaders only recently discovered the error in House Bill 1216 that will affect state and local projects costing less than $150,000 for six months.
“There was a drafting error. It was not caught, and (the legislative services agency) has apologized to us,” Long said. “It should have been caught.”
Third, I strongly disagree with the story's statement: "These problems demonstrate what happens when the bill-drafting Legislative Services Agency, and the lawmakers responsible for the ideas LSA's lawyers put to paper, are rushed." As pointed out in more detail in my analysis yesterday:
- Four years ago, at the end of 2007, the very same laws expired and apparently no one noticed! There was no statutory basis for the FSSA for months, until the laws were restored, retroactively, by actions of the 2008 General Assembly. (I expect there is more to this story ...)
- In the 2010 session, Sen. Pat Miller introduced SB 62, which was prepared by the select joint commission on Medicaid oversight. This means it was not a rush job, this was a study committee. It was a one section bill, and died in second house committee. From the digest:
Removes the expiration dates for the office of the secretary of family and social services, the office of Medicaid policy and planning, the statutes concerning directors of divisions within family and social services (FSSA), and certain advisory committees under the FSSA statutes.SB 62-2010 would have repealed the same "sunset" provisions as were repealed this year. By its terms, the repeals would have taken effect July 1, 2010. That would have been okay, because these FSSA chapters would have not otherwise have expired until June 30, 2011. So, unlike what happened this year, they would not have expired before the repeals went into effect.
- In the 2011 session, Sen. Miller introduced SB 331. One provision, SECTION 20, as drafted for introduction, contained the same repealer as the 2010 proposal. Although presumably no one was more rushed than usual prior to the 2011 session, the bill drafter retained the same July 1 effective day, but bumped it up from year 2010 to 2011 -- thereby leaving the fatal gap of one day between the expiration of the FSSA, and the repeal of the "sunset" provisions that effectuated the expiration.
Posted by Marcia Oddi on July 10, 2011 02:00 PM
Posted to Indiana Law