, Muskogee, OK

May 3, 2010

Agencies can create law without accountability to people

George Faught
State View

— There are three ways laws are created in the State of Oklahoma. The primary method is through the legislative process of passing bills. A second means is by constitutional amendments achieved through a vote of the people. The third, and most subtle way, is by state agencies promulgating rules.

For the past two years, I have served as vice-chair of the House Committee on Administrative Rules and Agency Oversight, which examines the policies of state agencies. This has been quite an eye-opening experience as I have become aware of numerous new rules being proposed by department staff which, if not questioned by the Legislature, automatically become law.

What I have discovered is that agency heads have the power to make laws that affect the citizens with little accountability to anyone. The most troubling outcome is when an agency, facing budget shortfalls, creates needed revenue by increasing fees or fines, or by proposing entirely new fees without legislative direction.

Most agencies are willing to work with the Legislature to determine a compromise that is satisfactory to both sides. However, if this compromise is unattainable, the only recourse is for the Legislature to disapprove a rule within a limited time frame. We are not allowed to amend these rules; we must either accept them or attempt to throw them out. In my opinion the system needs to be changed.

Earlier this year, while performing my duties on this committee, I became aware of a new permanent agency rule adopted by the Oklahoma Water Resources Board. The rule would require a new $50 annual fee for each groundwater permit, including those used for agriculture irrigation (up to a maximum of $500 per person). The Oklahoma Water Resources Board anticipates this new fee to generate an annual windfall of up to a half-million dollars to help shore up their agency budget.

Unfortunately, under current law, the only way to stop this is for the Legislature to disapprove the rule — which is why I filed House Joint Resolution 1086. HJR 1086 passed the Oklahoma House of Representatives on a bipartisan 70-26 vote, but was denied a hearing in the State Senate, thereby allowing the rule to go into effect. As a result, the people of rural Oklahoma will literally pay the price. This new rule forces rural Oklahomans to pay nearly a half million dollars in new fees during this challenging economic climate.

We’ve seen a growing tendency among state agencies to do an end-run around the Legislature and fill budget holes by enacting fee increases on working Oklahomans without legislative approval. In my opinion, this constitutes taxation without representation. State agencies should not be allowed to unilaterally hike fees anytime their budgets get a little tight. The Legislature should not cede budget authority to unelected bureaucrats.

I propose that the Legislature approve all administrative rules BEFORE they become effective. This would add a layer of openness in government that is not presently there. There are countless examples where fee increases, policies and mandates are implemented under the shielding process of rule making.

I think it is time to dynamically change the process to bring accountability to all government, from its elected officials down to the smallest agency. By doing so, we return the power to the people: elected officials can be voted out, appointed agency heads need not answer to the people.

Reach State Rep. George Faught, R-Muskogee, at (405) 557-7310, (918) 682-8383, or