Ahead of an approaching July 1 deadline and in the midst of legal uncertainty surrounding the Wisconsin Legislature's lame-duck laws, just eight out of an estimated thousands of guidance documents across the state’s agencies have been submitted for publication as required.
Those eight guidance documents, which instruct individuals or entities how to comply with state agency rules, all came from the state Ethics Commission, a body that oversees campaign finance and lobbying laws, among other things.
The December laws, in addition to targeting the authority of the incoming governor and attorney general, required each guidance document to receive a public hearing and undergo certification by agency heads. The documents also have to be reviewed by the Legislative Reference Bureau and placed in the Administrative Register under the laws.
But provisions surrounding guidance documents and other parts of the laws are still on hold stemming from a suit brought by five different unions that alleges the changes unlawfully limited incoming Gov. Tony Evers’ and AG Josh Kaul’s powers.
The state Supreme Court has taken over an appeal that was filed in that case, and it’s poised to rule on a second case from the League of Women Voters that also challenged the constitutionality of the laws.
As the state awaits decisions in those cases, many agencies have adopted a wait-and-see approach in terms of implementing the guidance document provisions of the laws.
Still, a Legislative Reference Bureau staffer said the bureau isn't enjoined under the ongoing legal battle "that we are aware of," adding employees "have published any guidance documents that we have received."
The status of the laws — and the provisions governing guidance documents — have been part of a conversation between Evers' legal department and legal counsel from different agencies, Evers spokeswoman Melissa Baldauff said.
"The law is enjoined right now so we are not taking action on those documents," she said. "The court proceedings will obviously continue to play out."
But at the state Ethics Commission, administrator Dan Carlton said the body’s history — it was created under a 2015 law to succeed the former Government Accountability Board — and nature differentiates it and its approach to the law from other governmental agencies.
“Since the Ethics Commission became a separate entity a couple years ago, the commission’s plan was to review all the documents in its possession: the rules, the opinions, the guidelines, the manuals. The plan was already in place to review those documents,” Carlton said.
Additionally, because the commission is overseen by a six-member, bipartisan panel, Carlton said staff had to keep in mind the body was only scheduled to meet five times in 2019, which offered limited opportunities to weigh in on the documents.
“That really was the big driving factor, was the fact that we have a committee that makes the decisions,” he said.
To do that, Carlton said staff first identified 60 commission guidelines and committee manuals that would fall under the “guidance document” category, before prioritizing ones that received the most questions from regulated individuals.
Six of the eight guidance documents the commission submitted are still able to receive public comment until June 3.
Other agency officials declined to speak on the record or directed comment on their process for approaching guidance documents to Evers' office. But a Department of Public Instruction spokesman noted because the law isn't in effect given the injunction, no documents have yet been submitted.
He added the agency has begun "by identifying the most critical guidance documents," though he said an exact total number of guidance documents at DPI is still unknown, adding it could be in the thousands.
A court brief filed earlier this month in the League of Women Voters case indicates there could be at least 200,000 documents that can be defined as guidance documents across the state's agencies.
"We are aware of the possibility that the current injunction could be lifted and the law could go in effect," the DPI spokesman said. "We are doing what we can to prepare for that contingency and the substantial bureaucratic burden the law would place on the agency."