Baker administration drops ball on regs

Aversion to regulation shouldn't mean ignoring law

WITH ONLY DAYS left in this legislative session, plenty of lawmaking remains to be done. And even after the session ends, there will still be work left to do. One big task: Various executive branch agencies will have the job of putting forward regulations to fill in details that statutes didn’t cover.

Some examples. The secretary of public safety will have to make decisions on stun guns – who’s allowed to own one and what safety standards are necessary. The Department of Correction will have to determine how prison guards will be trained in the state’s new solitary confinement policy. The newly-created Department of Family and Medical Leave will have to establish the process for workers to make claims for those benefits.

Anyone trying to monitor or participate in this required agency activity would welcome a recent addition to our state administrative procedure law that requires each of the nine executive offices to publish on its website a list of recent laws requiring regulations along with agency plans to adopt them. Except that no executive office website posts this information. It seems the governor is allowing his administration to ignore this notification law, a rebuff that is both a departure from his usual goodwill toward the Legislature and a reminder of his attitude toward agency regulations, which is irritation shading into antipathy.

Two decades ago, Secretary for Administration and Finance Charlie Baker undertook an extensive pruning of the state’s administrative code to ax anything obsolete, inconsistent, or inefficient. “Our regulations are the face we give government,” he said at the time, “and it’s not a pretty face.”

Since then, to the delight of much of the business community, regulation has come to be regarded as an invasive species, a governmental form of kudzu in constant need of cutting back lest it overrun private enterprise. (Our Legislature even got in on the act. Prompted by model legislation from the right-wing American Legislative Exchange Council, they passed a law prohibiting agencies from putting out any new regulation until they had reported on the costs and benefits of the regulation on small business — not once but twice — and requiring them to review the need for each of their regulations every 12 years.)

You might think that this battle against perceived regulatory overreach would eventually exhaust itself. But just after taking office in 2015, Gov. Baker saddled up the warhorse again. As part of making good on his campaign promise to deliver “a state government that gets out of the way,” he not only instructed his agencies to spend the coming 12 months ridding the state of unwanted regulations, but also announced that during that time no new regulation would take effect without the express approval of the secretary for administration and finance, whose approval would be presumptively withheld.

As Gov. Baker’s agencies busied themselves during their first months finding more regulations to discard, the Legislature was growing increasingly concerned about a New Jersey company that had quickly taken over ten nursing homes in Massachusetts and was providing dangerously substandard care in them. Eager for the Department of Public Health to step in and put the brakes on more acquisitions by this company, the Legislature had directed that agency the year before to establish a regulatory process instituting a public hearing before any future nursing home license transfers could occur.

No such regulation was in place by the end of the Patrick administration, however, and the Baker administration’s year-long moratorium on new regulations was making it appear unlikely that it would be forthcoming anytime soon.

Sen. Harriette Chandler, who had been following the nursing home controversy closely, told her fellow lawmakers that it was starting to appear that laws that the Legislature had enacted were disappearing into a “never never land,” where required regulations were not being adopted. The missing nursing home regulation, she noted, was not the only example of an executive branch agency failing to act. At her urging, the Legislature amended the state administrative procedure law to include the requirement that executive offices publish information about their regulatory progress.

The governor vetoed that provision because, he said, it imposed unnecessary burdens on state agencies. The Legislature overrode him. And yet, three years later, no executive office yet publishes the required information on its website, a fact that lowers the governor’s grade on transparency, already not his strongest subject.

And in light of the governor’s general aversion to regulation, Sen. Chandler’s larger question remains: Is state government in becoming a “never never land” where required regulations are not being adopted?

In the secretary of state’s office, which is in charge of tracking regulatory activity, there’s no record of regulations having been filed by the designated agency under some recent laws. Here are two:

  • A law on defibrillators in schools requires regulations from the Department of Elementary and Secondary Education on the law’s implementation, including hardship waivers for schools unable to comply.
  • A law on the preservation and retention of evidence in sexual assault cases requires regulations from the State Police on the responsibility of state and local government to preserve forensic evidence in cases of rape or sexual assault.
What to conclude about the missing regulations? One explanation is simple inattentiveness, which would cast some doubt on the governor’s reputation for managerial prowess. Other explanations include a lack of interest in soliciting public participation or other unwillingness to comply. Or maybe the administration has decided, consistent with its minimalist approach, that no regulations in these areas are really necessary. If that’s the case, it would be easy enough provide an explanation of its thinking on an executive office website, as the Legislature asked three years ago.

Margaret Monsell is an attorney practicing in the Boston area.