Capital Chatter square logo

Who writes the laws in Oregon? The Legislature, the governor or state agencies?

Many Oregonians appear “freaked out” by what they see as the de facto answer: state employees, not legislators.

Under the Oregon Constitution, the sole authority to make law rests with the 90-member Legislature. State agencies then write administrative rules to carry out the law. Some legislators, particularly Republicans, have long contended that such rules often exceed the Legislature’s intent.

And in this case, the agency regulations implement Gov. Kate Brown’s pandemic-related executive orders.

What Republicans say has people freaking out is Oregon OSHA’s new permanent rule requiring face masks and other COVID-19 protocols at workplaces. More than 70,000 people signed a petition against the rule, which took effect May 4.

This probably boils down to whether people trust their state government and the Brown administration. The lawyerly language in the rule certainly does provide room for worry.

“It’s a confusing process for people back home, and the word ‘permanent’ really is scary,” said Rep. Daniel Bonham, R-The Dalles.

Oregon OHSA had adopted a temporary rule last year to enforce Brown’s executive orders. However, a temporary rule is limited to 180 days. Thus, the agency went through its regular process for adopting a permanent rule whose provisions “remain in effect when until revised or repealed.”

When will that be? No one knows.

Rep. Bill Post, R-Keizer, said, the word “permanent” makes it sound as if the Oregon OSHA rule will live forever, and people are “freaking out.”

The rule promises of itself, “Oregon OSHA will repeal the rule when it is no longer necessary to address that pandemic.”

It goes on to state, “Because it is not possible to assign a specific time for that decision,” the agency will consult with specific advisory committees, the Oregon Health Authority and stakeholders “as circumstances change to determine when all or part of the rule can be appropriately repealed.” The first discussions are to take place by July and then every two months.

Yet science could move faster than state bureaucracy. As an example, the federal Centers for Disease Control and Prevention announced Thursday that fully vaccinated individuals don’t need to wear a mask or physically distance in most circumstances – unless required by state, local or tribal laws.

Late Thursday afternoon, Brown announced that she was modifying some state requirements in light of the CDC recommendations. House Republican Leader Christine Drazan of Canby also wrote to Brown, asking that the changes be incorporated into the Oregon OSHA rule.

Drazan and other Republican legislators had tried to have Oregon OSHA officials testify about the rule. But that is outside the Legislature’s purview, according to legislative lawyers and Rep. Paul Holvey, D-Eugene, who chairs the House Business and Labor Committee.

Agency rules are a recurring controversy. Some lawmakers and lobbyists, particularly ones representing business and industry, want the Legislature to have a say over agency rules. Legislative lawyers say current law allows legislators to consider only whether an agency has the authority to make a rule and whether that rule complies with the constitution.

The Oregon OSHA permanent rule met both requirements, the lawyers said. Even if they had found severe problems, the lone recourse would be going to court.

“Nothing the Legislature does in this process could invalidate the rule or stop it from becoming permanent,” Marisa James, a senior deputy legislative counsel, told the committee.

She said it would be a violation of the separation of powers – among the legislative, executive and judicial branches of government – for the Legislature to interfere with administrative rulemaking.

“Each branch has a job to do, and they don’t interfere with the job of the other branches. The Legislature makes the law, and the agencies implement those laws through rulemaking,” James said. “It’s good for the Legislature to have information on what the agency has done to see if the Legislature needs to amend the law or change the rulemaking authority that’s in the law. But that’s not intended to have the Legislature delay or prevent the agency from engaging in rulemaking.”

Holvey said that was why he did not ask Oregon OSHA officials to participate in the committee discussion, much to the dismay of Republicans.

“OSHA not being here today, to me shows the public they are too big, they are too powerful, to be concerned with the hundreds of thousands of Oregonians that are absolutely dismayed with this rulemaking process,” said Rep. Shelly Boshart Davis, R-Albany.

Where do the fines go? Oregon OSHA has received more than 23,000 workplace complaints since the pandemic arrived and has issued more than 150 citations to employers.

Employers who deliberately, seriously flouted regulations – multiple times in some cases – have been fined $8,900 to $126,749. Few such fines have been paid. Most are being contested by the employers.

The fines issued for non-willful but serious violations have ranged from $100 to $4,200. About three-quarters of those fines have been paid.

A Capital Chatter reader wondered what happens to the fines when they are collected. I asked agency representative Aaron Corvin. Under state law, the money goes into the Premium Assessment Operating Account, which pays for workers’ compensation-related operations, including Oregon OSHA. Corvin said the total penalties typically make up less than 2.5% of the fund revenue.

An unprecedented uprising: Democrats and Republicans on the House Judiciary Committee sent a letter on Wednesday asking chair Rep. Janelle Bynum, D-Happy Valley, to act on Senate Bill 649. The seemingly common-sense bill would close a loophole that allows teachers to receive lighter sentences than sports coaches if convicted of sexually abusing students.

The bill passed the Senate 28-0. Its bipartisan sponsors include Sen. Bill Hansell, R-Athena; Sen. Kathleen Taylor, D-Milwaukie; and Rep. Bobby Levy, R-Echo.

Bynum wants the Legislature to take up overall sentencing reform and its disproportional impact on people of color, particularly Black Oregonians. However, any changes in Measure 11 sentencing guidelines require two-thirds approval in both the House and Senate, necessitating some Republican support. Thus, Measure 11 reforms have not moved forward this year.

Bynum said advocacy for SB 649 seemed inconsistent with some legislators’ refusal to address sentencing reform. But she told me Thursday that the door now has been opened for such discussions in the next legislative session, and she will schedule SB 649 for a hearing and committee action.

It was stunning that everyone on the committee except Bynum – Democrat and Republican, urban and rural – called on her to act.

Their letter stated: “Pursuant to House Rule 8.20, the following members of the House Judiciary Committee, representing a majority of the committee membership, request a Public Hearing and Work Session on Senate Bill 649. As 1 in 10 sexually abused youth are abused by educators, Senate Bill 649 amends sex abuse in the second degree to include teachers who violate the teacher-student trust relationship in such an egregious manner, consistent with our current expectations and state statute regarding sports coaches.”