Guest Commentary

A. Any agency final rule that has an impact on the private sector in this state is repealed from and after December 31, 2012.

B. Notwithstanding any other law, an agency shall not adopt a rule that has an impact on the private sector. Any agency rule that has an impact on the private sector, including any rule that is repealed pursuant to subsection A, must be enacted as a statute.

C. For the purposes of this section, “private sector” includes a private business, private entity or private property owner.

That is the exact text of Arizona Senate Bill 1339. On its face, it might appear to be a rather innocuous attempt to rein in some out-of-control, unelected agency official who has taken himself too seriously and adopted a series of inappropriately stifling rules and regulations.

The libertarian in me can embrace the concept. However, because of the breadth of the language, engaging in a nanosecond’s worth of rational thought leads to the conclusion that this bill is simply yet another expression of the megalomaniacal overreach being inflicted on cities and towns all across this state during the 2011 legislative session.

This bill would repeal all agency rules that have “an impact on the private sector,” and similar rules that may be adopted up until the end of next year—unless they first receive legislative approval. Just for the sake of argument, let’s pretend we can all agree on what “an impact on the private sector” means in application, and that the vagueness of that statement will not be challenged in court (which, by the way, is a rather incongruous affectation of this fiscally conservative Legislature, making their actions a cottage industry for attorneys—but I digress).

Here are a few examples of the fallout:

• One of the criteria used in assessing liquor-license applications is related to location (saturation in an area, incompatibility with surrounding uses, zoning issues, etc.). Each of those is an agency rule, not statutory.

• The recent passage of Proposition 203 (medical marijuana) started the process of the Department of Health Services putting together rules related to where dispensaries and grow centers can operate. Oddly, this bill would effectively leave all of the pot rules unregulated—probably not the effect the conservative Legislature had in mind. However, because of the status of pot, the Legislature also lacks the authority to regulate it. Irrespective of one’s position on Prop 203, it’s clear that the gents who are trying to be the saviors of the private sector didn’t think this one through.

A few other areas that would become unregulated:

• Under the Department of Environmental Quality: pollution standards, including standards related to the cleanliness of our water supply.

• Under the Department of Health Services: child care, food service and rules related to group-living conditions (elderly and special needs).

• Weights and measures, horse and dog racing, mining regulations—pick an agency, and look at its purview. This bill effectively strips away its ability to adopt regulations in support of its mission.

The men and women who are appointed to the state agencies now under scrutiny bring a skill set and level of expertise specific to the agency for which they serve. Legislators cannot have a breadth of knowledge sufficient to intelligently rule on the broad spectrum of areas encompassed by the various state agencies, nor do they have the time or staff necessary to properly educate themselves on the array of issues. Ours is a complex social fabric that must rely on the interplay of experts in a variety of fields to come together and adopt a coherent set of guidelines that reflect a sustainable, long-term greater good. If the Legislature is unhappy with some of the rules in place, change the decision-makers. Don’t eviscerate the process.

This Legislature is considering, or has already adopted, laws that pre-empt local decision-making in areas related to firearms, staffing of local government offices, a variety of city revenue issues that will impact our ability to preserve the quality of life our constituents deserve, local procurement processes, the number and compensation level of city workers, and more. Now comes the wisdom of SB 1339, which tosses the baby (the desire for rational oversight) out with the bathwater (the entire oversight process). Its effect is babies in unregulated day-care centers that serve up unregulated water. Nicely done, guys.

This article appears in Mar 3-9, 2011.