Sue Lani Madsen: agency rule-making is running amok
That’s essentially what a legislator asked a state agency representative last week. Legislators pass laws, and laws delegate rule-making authority to the executive branch. The limits of rule-making authority have been in the news lately thanks to the Human Rights Commission, but it’s a process worth considering apart from genderless bathroom access.
So let’s talk elevator maintenance.
There’s no left-right to elevators. We want elevators to go up and down, stop at the floor when we push a button, not fall to the basement, and preferably not get stuck between floors with us in them. Elevators used to be a luxury even in a six-story building; now we expect to find them anywhere there are stairs.
The driving force behind the Americans With Disabilities Act was the obvious need to accommodate people who use wheelchairs, not only in high-rise towers but also in schools, low-rise commercial buildings, churches and community centers.
With elevators now ubiquitous, more citizens are affected by elevator rules adopted and implemented by the state Department of Labor and Industries (L&I). Citizens take their complaints about state rules to their elected representatives.
Rep. Cary Condotta, R-Wenatchee, was surprised when elevator maintenance turned into a hot topic in his office this year. Surprised, that is, until he found himself with the same complaints after L&I inspectors visited the low-rise, low-use elevator at his own business.
As a result of citizen complaints, Condotta and Rep. Matt Manweller, R-Ellensburg, have co-sponsored HB 2549, a bill to rein in one part of the rules for elevator inspection adopted by L&I.
Condotta was the first to testify. Not only his own elevator, but elevators up and down the Wenatchee Valley received nitpicking citations. Elevators were being evaluated based on the latest code instead of the code they were installed under. Even new installations accepted by L&I the year before were now noncompliant. Work of dubious necessity was required and sucked money out of building owner budgets.
The volunteer treasurer for a small community center testified that elevator maintenance costs had ballooned from 19 percent of their annual budget to an unaffordable 37 percent. They didn’t have the money and L&I offered an alternative: the community center could take the elevator out of service and pay $32 a year for L&I to confirm they weren’t using it. Manweller asked if this would cause a problem with ADA compliance, and he was right. Shutting down the elevator violates accessibility rules. Rules, rules, everywhere rules.
All agency rule-making has to follow the procedures set out under the Revised Code of Washington and the Washington Administrative Code. There’s a detailed timeline and five levels of notification, each with a form to be filed to the Office of the Code Reviser. Citizen notification requirements can be met simply by publishing announcements in the Washington State Register online.
But few individuals can afford the time to monitor the Office of the Code Reviser’s website for possible rules of interest. And who would have thought that L&I adopting rules about elevator maintenance would affect your neighborhood community center budget?
There are many boards, councils and commissions that play a role in the rule-making process. The citizens who serve are appointed, and generally are uncompensated except perhaps for travel expenses. Some of these boards take a leading role and provide valuable oversight, others rely heavily on staff direction and are little more than a rubber stamp for agency actions. The agency representative at the hearing on Condotta and Manweller’s bill confirmed L&I has an Elevator Safety Advisory Board, although she was unable to describe exactly what role it played in her agency’s rule-making process or how it sought public input.
While legislators have a role to play in holding unelected boards and commissions accountable, so do citizens. There is a process for individuals to petition a state agency “to adopt, amend or repeal an administrative rule.”
So many tempting rule targets, so little time. Time to make a little time.
Contact Sue Lani Madsen at rulingpen@gmail.com.