State officials are weighing how a legal opinion requiring fire sprinklers in apartment buildings could affect how state agencies enforce and adopt new administrative rules.
Wisconsin Attorney General Josh Kaul, in a legal opinion last fall, rescinded a 2017 opinion from his Republican predecessor, Brad Schimel, that found the Department of Safety and Professional Services had no power to require that contractors install fire sprinklers in multifamily buildings with more than four units.
Although Kaul’s opinion backs the agency’s fire-sprinkler rules, it may also block a legal avenue that’s been used to challenge state agencies’ authority to draw up administrative rules and enforce them.
At issue is a 2011 law, Act 21, which outlines how state agencies can make new rules without going through the state Legislature. Asked in 2017 to weigh in on DSPS’ fire sprinkler rule, Schimel concluded Act 21 meant state agencies were required only to enforce rules explicitly laid out in state statutes, and couldn’t make rules that go beyond those limits.
Kaul, in his opinion, came to the opposite conclusion and rescinded Schimel’s opinion.
“Attorney General Kaul concluded that (Act 21) does not alter existing, explicit grants of rulemaking authority, regardless of whether the statute could be characterized as broad or “general,'” according to a news release announcing his decision.
The DSPS, for its part, hasn’t changed how it is enforcing its sprinkler rules just yet. Jennifer Garrett, a department spokeswoman, said the agency only requires sprinkler systems on buildings with 20 or more units.
“Our legal team is aware of and has been considering Attorney General Kaul’s opinion,” she said.
The Wisconsin Builders Association has also previously tried challenging the sprinkler rule in court, only to see an appeals court side with the DSPS’ authority to require sprinklers on multifamily buildings with four or more units.
Brad Boycks, executive director of the Builders Association said he and his colleagues are “disappointed” in Kaul’s opinion rescinding Schimel’s sprinkler opinion.
“We do not believe the legislative intent on several laws past over the past few legislative sessions ever envisioned a scenario where very specific state statutes could be overridden when pointing to broad rule making authority written in other sections of the statutes,” Boycks said in a statement.
Robert DuPont, of Wisconsin’s Alliance for Regulatory Coordination, said Schimel’s treatment of the sprinkler rule was designed to provide a means of undoing administrative rules outside the legislative process.
It would have been too unpopular for trade groups or the Walker administration to try to repeal the sprinkler rule through the Legislature. So Schimel used his pen instead, DuPont said.
“If the Builders wanted to stop (DSPS’ rule), they should have gone to the statutes,” he said. “They didn’t want to do that because it’s politically unpopular and it looks really bad to challenge fire safety rules. So they tried to change this in a roundabout way by being kind of cute.”
DuPont said it’s laughable to think state agencies only have the power to enforce rules explicitly laid out in state statutes.
State statutes, he said, are full of language directing state agencies to draw up specific rules, or giving agencies authority to adopt new rules. The vast majority of Wisconsin’s building code, for instance, isn’t found anywhere in state statue, he said. Instead, statutes give DSPS broad authority to draw up the building code.
Still, DuPont said he’s unsure if state agencies under Gov. Tony Evers could use Kaul’s opinion as license to exercise broader authority than they had under Walker.
Kaul’s legal opinion meanwhile won’t bring much certainty for contractors, said Jacob Curtis, an attorney at Von Briesen and Roper and former legal counsel at the Wisconsin Department of Natural Resources under Walker.
A 2018 state supreme court ruling, Tetra Tech v. Wisconsin Department of Revenue, ended the court’s longstanding practice of deferring to state agencies’ interpretation of state statute. State Lawmakers followed that ruling, from former justice Dan Kelly, with a 2018 state law prohibiting courts from deferring to the legal conclusions of state agencies.
Curtis said contractors dealing with state agencies have a right to request that officials show what statutes give them authority to enforce particular rules. Although Kaul’s opinion complicates Wisconsin’s regulatory system, Curtis said the supreme court’s recent ruling and the Legislature’s 2018 law may stand as a stronger impediment to the power of state agencies.
“If given the choice between following state statute and a supreme court opinion, and following this Kaul opinion, I think you’d take the former,” Curtis said.
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