The ACLU of Rhode Island, Common Cause Rhode Island, and the League of Women Voters of Rhode Island sent a letter to General Assembly leaders asking them to repeal an Executive Order, (EO 20-72), issued last week by Governor Raimondo that undercuts transparency in government. The letter objects to the Governor’s use of her emergency powers to allow for unlimited extensions of emergency rules promulgated under the state’s Administrative Procedures Act (“APA”).
The APA governs the creation of administrative rules that have the force of law. A provision of the APA allows for emergency rules that do not have to go through the normal public comment period before being enacted. Rules promulgated under that provision normally expire after four months with a single two-month extension available after which the rules are no longer in effect. Executive Order 20-72 allows for unlimited two-month extensions for any rules “related to the current COVID-19 pandemic.” As a result, executive agencies do not need to accept, or respond to, public comment on those proposed rules indefinitely.
“The APA already establishes a clear process for adopting rules in the case of an emergency,” said Steven Brown, Executive Director of the ACLU of Rhode Island. “In order to promote transparency and accountability, it is essential that any regulation that lasts more than six months be subject to public input.”
“This executive order offends the separation of powers in Rhode Island,” says John Marion, Executive Director of Common Cause Rhode Island. “It amounts to the Governor using quasi-legislative power given to her by the state of emergency to grant herself additional quasi-legislative power.”
“The Administrative Procedures Act has important safeguards to protect the public interest,” says Jane Koster, President of the League of Women Voters of Rhode Island. “This executive order cuts out the public’s role in administrative rulemaking, eliminating those safeguards.”
The emergency regulations promulgated as a result of the pandemic affect the lives of every Rhode Islander and have the force of law. With few signs of the pandemic—and with it the extensive use of emergency rule making—abating, the letter calls on the General Assembly to overturn the Executive Order and make sure that there remains “a public role in the administrative rule-making process after six months, even in the context of this long-running ‘emergency.’”