HF 3445

1st Engrossment - 90th Legislature (2017 - 2018) Posted on 04/26/2018 07:02pm

A bill for an act
relating to state government; modifying rulemaking; regulating policy
pronouncements; providing for the investigation of complaints of harassment,
misconduct, and discrimination in the executive branch; amending Minnesota
Statutes 2016, sections 14.03, subdivision 3; 14.127, subdivision 4; 14.381, by
adding a subdivision; proposing coding for new law in Minnesota Statutes, chapters
14; 43A; repealing Minnesota Statutes 2016, section 14.381, subdivision 3.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2016, section 14.03, subdivision 3, is amended to read:

Subd. 3.

Rulemaking procedures.

(a) The definition of a rule in section 14.02,
subdivision 4, does not include:

(1) rules concerning only the internal management of the agency or other agencies that
do not directly affect the rights of or procedures available to the public;

(2) an application deadline on a form; and the remainder of a form and instructions for
use of the form to the extent that they do not impose substantive requirements other than
requirements contained in statute or rule;

(3) the curriculum adopted by an agency to implement a statute or rule permitting or
mandating minimum educational requirements for persons regulated by an agency, provided
the topic areas to be covered by the minimum educational requirements are specified in
statute or rule;

(4) procedures for sharing data among government agencies, provided these procedures
are consistent with chapter 13 and other law governing data practices.

(b) The definition of a rule in section 14.02, subdivision 4, does not include:

(1) rules of the commissioner of corrections relating to the release, placement, term, and
supervision of inmates serving a supervised release or conditional release term, the internal
management of institutions under the commissioner's control, and rules adopted under
section 609.105 governing the inmates of those institutions;

(2) rules relating to weight limitations on the use of highways when the substance of the
rules is indicated to the public by means of signs;

(3) opinions of the attorney general;

(4) the data element dictionary and the annual data acquisition calendar of the Department
of Education to the extent provided by section 125B.07;

(5) the occupational safety and health standards provided in section 182.655;

(6) revenue notices and tax information bulletins of the commissioner of revenue;

(7) uniform conveyancing forms adopted by the commissioner of commerce under
section 507.09;

(8) standards adopted by the Electronic Real Estate Recording Commission established
under section 507.0945; deleted text begin or
deleted text end

(9) the interpretive guidelines developed by the commissioner of human services to the
extent provided in chapter 245A deleted text begin . deleted text end new text begin ; or
new text end

new text begin (10) policies established pursuant to section 14.031.
new text end

Sec. 2.

new text begin [14.031] POLICY PRONOUNCEMENTS.
new text end

new text begin Subdivision 1. new text end

new text begin Definition. new text end

new text begin (a) As used in this section, "policy" means a public written
policy, guideline, bulletin, manual, or similar document providing an interpretation,
clarification, or explanation of a statute or rule to provide guidance for agency regulatory
functions including but not limited to permits or enforcement actions.
new text end

new text begin The definition of a policy does not include:
new text end

new text begin (1) policies concerning only the internal management of the agency or other agencies
that do not directly affect the rights of or procedures available to the public;
new text end

new text begin (2) forms and instructions for use of the form to the extent that they do not impose
substantive requirements other than requirements contained in statute or rule;
new text end

new text begin (3) curriculums adopted by an agency to implement a statute or rule permitting or
mandating minimum educational requirements for persons regulated by an agency, provided
the topic areas to be covered by the minimum educational requirements are specified in
statute or rule;
new text end

new text begin (4) procedures for sharing data among government agencies, provided these procedures
are consistent with chapter 13 and other law governing data practices; or
new text end

new text begin (5) policies concerning agency actions required to comply with treaty obligations.
new text end

new text begin (b) A policy does not have the force of law.
new text end

new text begin (c) Policies established by the agency are subject to all of the following requirements:
new text end

new text begin (1) a policy shall comply with the statutes and rules that are in existence at the time the
policy is established;
new text end

new text begin (2) a policy shall not establish any new requirement;
new text end

new text begin (3) a policy shall be established only by the commissioner of the agency; and
new text end

new text begin (4) the following statement must be printed on the first page of each policy in uppercase
letters: "Every five years the agency shall review and update each policy that is established
before the effective date of this section or that it establishes after the effective date of this
section and shall prepare written documentation certifying that the policy has been reviewed
and updated. A policy that has not been reviewed and updated pursuant to this paragraph
is void."
new text end

new text begin Subd. 2. new text end

new text begin Notice to legislature. new text end

new text begin By January 15 each year, each agency must submit each
policy the agency has or intends to publish under subdivision 3 in the upcoming calendar
year to the policy and funding committees and divisions with jurisdiction over the agency.
Each agency must post a link to its policies on the agency's Web site.
new text end

new text begin Subd. 3. new text end

new text begin Public notice. new text end

new text begin Before a policy is in effect, the agency must publish public notice
of the proposed policy and solicit public comment. The agency shall use the procedure set
forth under section 14.22 to provide public notice and meeting. The agency shall publish
the public notice on the agency's Web site. The agency must send a copy of the same notice
to the chairs and ranking minority members of the legislative policy and budget committees
with jurisdiction over the subject matter of the proposed policy. The public comment period
shall be 30 days after the date of a public meeting on the policy.
new text end

new text begin Subd. 4. new text end

new text begin Final publication. new text end

new text begin The agency must make all policies that conform to this
section available electronically on the agency's Web site within 60 days of the completion
of requirements in this section.
new text end

new text begin Subd. 5. new text end

new text begin Committee action; delay action. new text end

new text begin The agency shall not use a policy until the
legislature adjourns the annual legislative session that began the year the legislature received
notice of the policy under subdivision 2. The speaker of the house and the president of the
senate shall determine if a committee has jurisdiction over the agency before a committee
may act under this section.
new text end

new text begin Subd. 6. new text end

new text begin Policy docket. new text end

new text begin (a) Each agency shall maintain a policy docket with the agency's
current public rulemaking docket under section 14.366.
new text end

new text begin (b) The policy docket must contain:
new text end

new text begin (1) a listing of the precise subject matter;
new text end

new text begin (2) the name and address of agency personnel with whom persons may communicate
with respect to the matter and an indication of its present status within the agency;
new text end

new text begin (3) any known timetable for agency decisions or other action in the proceeding;
new text end

new text begin (4) the date of the public hearing on the policy;
new text end

new text begin (5) the schedule for public comments on the policy; and
new text end

new text begin (6) the date the policy became or becomes effective.
new text end

Sec. 3.

Minnesota Statutes 2016, section 14.127, subdivision 4, is amended to read:

Subd. 4.

Exceptions.

(a) Subdivision 3 does not apply if the administrative law judge
approves an agency's determination that the legislature has appropriated money to sufficiently
fund the expected cost of the rule upon the business or city proposed to be regulated by the
rule.

(b) Subdivision 3 does not apply if the administrative law judge approves an agency's
determination that the rule has been proposed pursuant to a specific federal statutory or
regulatory mandate.

(c) This section does not apply if the rule is adopted under section 14.388 or under
another law specifying that the rulemaking procedures of this chapter do not apply.

(d) This section does not apply to a rule adopted by the Public Utilities Commission.

deleted text begin (e) Subdivision 3 does not apply if the governor waives application of subdivision 3.
The governor may issue a waiver at any time, either before or after the rule would take
effect, but for the requirement of legislative approval. As soon as possible after issuing a
waiver under this paragraph, the governor must send notice of the waiver to the speaker of
the house and the president of the senate and must publish notice of this determination in
the State Register.
deleted text end

Sec. 4.

Minnesota Statutes 2016, section 14.381, is amended by adding a subdivision to
read:

new text begin Subd. 4. new text end

new text begin Fees and expenses. new text end

new text begin (a) The administrative law judge shall award fees and other
expenses to the prevailing party under subdivision 1, unless special circumstances make an
award unjust.
new text end

new text begin (b) A party seeking an award of fees and other expenses shall, within 30 days of the
administrative law judge's report issued in the action, submit to the administrative law judge
an application of fees and other expenses that shows that the party is a prevailing party and
is eligible to receive an award, and the amount sought, including an itemized statement from
any attorney or expert witness representing or appearing on behalf of the party stating the
actual time expended and the rate at which fees and other expenses were computed.
new text end

new text begin (c) The administrative law judge may reduce the amount to be awarded under this section,
or deny an award, to the extent that during the proceedings the prevailing party engaged in
conduct that unduly and unreasonably protracted the final resolution of the matter in
controversy. The decision of an administrative law judge under this section must be made
a part of the record containing the final decision of the agency and must include written
findings and conclusions.
new text end

new text begin (d) This section does not preclude a party from recovering costs, disbursements, fees,
and expenses under other applicable law.
new text end

Sec. 5.

new text begin [43A.385] HARASSMENT, MISCONDUCT, AND DISCRIMINATION;
INDEPENDENT OFFICE ESTABLISHED.
new text end

new text begin Subdivision 1. new text end

new text begin Office established; purpose. new text end

new text begin An independent, centralized office to
receive and investigate complaints of harassment, misconduct, and discrimination, including
sexual harassment, in executive branch state agencies is established. The office shall be led
by a director, appointed by the commissioner of management and budget, who serves in
the unclassified service. The purpose of the office is to apply consistent practices in the
investigation of these complaints across agencies and reinforce a culture that encourages
the reporting of such complaints by increasing confidence in the process and the fairness
of the outcome.
new text end

new text begin Subd. 2. new text end

new text begin Office duties. new text end

new text begin (a) In addition to the requirements of subdivisions 3 to 7, the
office must:
new text end

new text begin (1) collect, maintain, and analyze data related to complaints of harassment, misconduct,
and discrimination across state government and must provide public, de-identified summary
reports on the data;
new text end

new text begin (2) provide an opportunity for state employees, and members of the public who interact
with state employees, to report a complaint, provided that the office's complaint procedures
must be in addition to existing opportunities for reporting available through other means;
new text end

new text begin (3) review complaints filed, and provide related investigation services, to all state
agencies;
new text end

new text begin (4) in the event the office determines that a complaint is substantiated, determine an
appropriate corrective action in response, in consultation with the agency employing the
person found to have engaged in improper conduct;
new text end

new text begin (5) track the outcomes of disciplinary or other corrective action, and advise agencies as
needed to ensure consistency in these actions; and
new text end

new text begin (6) employ trained staff to provide resources and information to all parties to a complaint.
new text end

new text begin (b) State agencies must provide applicable data to the office as required by this section,
and must otherwise assist the office in fulfilling its responsibilities, as requested by the
director.
new text end

new text begin Subd. 3. new text end

new text begin State employee community survey. new text end

new text begin The office must administer an employee
community survey to gain feedback on the workplace in state agencies. Results of the survey
must be used to review the effectiveness of existing agency leadership efforts, and the
application of existing policies and procedures within each agency. The survey must be
intended to solicit feedback from employees on:
new text end

new text begin (1) whether they feel safe in their workplaces;
new text end

new text begin (2) whether they are knowledgeable about the process for reporting complaints of
harassment, misconduct, or discrimination;
new text end

new text begin (3) their level of satisfaction with reporting a complaint, if applicable; and
new text end

new text begin (4) suggestions for ways their employing agency can provide additional support to
employees who have made a complaint.
new text end

new text begin Subd. 4. new text end

new text begin Complaint hotline. new text end

new text begin The office may enter a contract for the development and
maintenance of a hotline that may be used by state employees to report a complaint of
harassment, misconduct, or discrimination.
new text end

new text begin Subd. 5. new text end

new text begin Audits. new text end

new text begin The office must conduct audits to ensure state agencies have effective
and consistent policies and procedures to prevent and correct harassment, misconduct, and
discrimination. The audits must include an evaluation of outcomes related to complaints of
harassment based on a status protected under chapter 363A. The office must provide technical
guidance and otherwise assist agencies in making corrections in response to an audit's
findings, and in ensuring consistency in the handling of complaints.
new text end

new text begin Subd. 6. new text end

new text begin Training. new text end

new text begin The office must provide a centralized, consistent, regular training
program for all state agencies designed to increase the knowledge of state employees in the
state's harassment, misconduct, and discrimination prevention policies, procedures, and
resources, and to create a culture of prevention and support for victims. The content of the
program must include bystander training, retaliation prevention training, and respect in the
workplace training. Customized training programs must be offered for: (1) general state
employees; (2) supervisors and managers; and (3) agency affirmative action and human
resources employees.
new text end

new text begin Subd. 7. new text end

new text begin Annual legislative report required. new text end

new text begin No later than January 15, 2019, and
annually thereafter, the office must provide a written report to the chairs and ranking minority
members of the legislative committees with jurisdiction over state government finance and
state government operations on the work of the office. The report must include detail on
disciplinary and other corrective actions taken by state agencies in response to a substantiated
complaint. The report must not identify a party to a complaint, unless the identity is public
under applicable law.
new text end

new text begin Subd. 8. new text end

new text begin Transfer of responsibilities to office. new text end

new text begin To the extent that a responsibility
described in subdivisions 1 to 7 conflicts with or duplicates the responsibilities of an existing
office or department within a state agency, those responsibilities are transferred to the
centralized office established by this section, consistent with the requirements of section
15.039. The commissioner of administration may, with the approval of the governor, issue
reorganization orders under section 16B.37 as necessary to complete the transfer of duties
required by this subdivision.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective July 1, 2018.
new text end

Sec. 6. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2016, section 14.381, subdivision 3, new text end new text begin is repealed.
new text end

Sec. 7. new text begin EFFECTIVE DATE; APPLICATION.
new text end

new text begin (a) Except where otherwise provided, this act is effective August 1, 2018, and applies
to rules for which a notice of hearing under Minnesota Statutes, section 14.14; a notice of
intent to adopt under Minnesota Statutes, section 14.22; or a dual notice under Minnesota
Statutes, section 14.225, is published in the State Register on or after that date.
new text end

new text begin (b) This act also applies to policies established on or after January 1, 2019. All policies
existing on or before the date of enactment shall be posted on the agency's public docket
on or before January 1, 2019.
new text end

APPENDIX

Repealed Minnesota Statutes: H3445-1

14.381 UNADOPTED RULES.

Subd. 3.

Costs.

The agency is liable for all Office of Administrative Hearings costs associated with review of the petition. If the administrative law judge rules in favor of the agency, the agency may recover all or a portion of the costs from the petitioner unless the petitioner is entitled to proceed in forma pauperis under section 563.01 or the administrative law judge determines that the petition was brought in good faith and that an assessment of the costs would constitute an undue hardship for the petitioner. If an agency has reason to believe it will prevail in the consideration of a petition, and that an effort to recover costs from the petitioner will be unsuccessful, it may request the chief administrative law judge to require the petitioner to provide bond or a deposit to the agency in an amount the chief administrative law judge estimates will be the cost to the Office of Administrative Hearings to review the petition.