Filed with LRB: April 15, 2013
Publication Date: April 16, 2013
Effective Dates: April 16, 2013 through September 12, 2013
Hearing Date: July 12, 2013
EmR1305
ORDER OF THE
DEPARTMENT OF ADMINISTRATION
ADOPTING EMERGENCY RULES
The statement of scope for this rule, SS 028-13, was approved by the Governor on March 15, 2013, and published in Register No. 687 on March 31, 2013. This emergency rule was approved by the Governor on April 11, 2013.
Finding of Emergency
The Legislature has vested management authority over various state buildings and grounds, including those of the Wisconsin State Capitol, in the Department of Administration since 1979. Section 16.84(1), Wis. Stats. Since 1979 the Department has permitted the use of these buildings and grounds for the free discussion of public questions and other purposes, so long as such uses did not interfere with the prime uses of these facilities, or otherwise infringe on interests of the state. Section 16.845, Wis. Stats., and s. Adm 2.04, Wis. Adm Code.
Beginning February 2011, groups of persons began to occupy the Wisconsin State Capitol Building without permits. This included appropriating rooms and hallways in the Capitol building for purposes such as camping and storage of bulk supplies. To restore order to the building and return the building to a point where the work of the Wisconsin State Legislature and the Supreme Court of Wisconsin could perform their constitutionally authorized functions without undue disruption, the Department expended funds in excess of $7,400,000 for law enforcement personnel. The continuous occupation of the State Capitol was formally terminated in March of 2011.
Groups of persons continue to occupy rooms in the Wisconsin State Capitol building without permits, including the Capitol rotunda. These groups constitute an exception to the norm.
The Wisconsin State Capitol Police (WSCP) issue more than 400 permits annually for the use of various state facilities. Permits are used for a variety of purposes, whether political, non-political, charitable or commercial. Permits are issued regardless of political party, affiliation or content.
Occupation of the Capitol rotunda and other areas has caused disruptions to the properly permitted events and normal government activities, including but not limited to, a Red Cross blood drive, a high school science exhibit, school group tours, general public tours, and legislative committee meetings and sessions. The State does not refuse permits for the lawful and safe use of State facilities by any group or groups. Neither can the State allow any group to occupy the Capitol in disregard of the rights of permit holders, public employees or visitors. It is imperative that the Department continue to gain greater compliance from user groups in order to protect the public safety and welfare.
The Department of Administration hereby adopts an order to repeal Adm 2.14(2)(vr) c.; to renumber and amend Adm 2.14(2)(vr) a. and b.; to amend Adm 2.02(1)(a), 2.04(1), 2.04(2), (3), (5) and (7), 2.07(2), 2.08(1) and (1)(d), 2.11, 2.14(2), (2)(v), (2)(vm) and (2)(vm) 5.; and to create Adm 2.03(3m), (3r) and (6m), 2.04(1m) and (1r).
Rule Analysis
1. Statute interpreted: s. 16.846, Stats.
2. Statutory authority: ss. 16.004(1), 16.846(1)(a) and 227.11, Stats.
3. Explanation of agency authority:
The Department is the managing authority of numerous state properties and is required to “Have charge of, operate and maintain . . . the state capitol building . . . and such other state properties as are designated by law.” Section 16.84(1), Wis. Stats. “The department shall promulgate under ch. 227, and shall enforce or have enforced, rules of conduct for property leased or managed by the department.” Section 16.846(1), Wis. Stats. Additionally, “the managing authority of any facility owned by the state . . . may permit its use for free discussion of public questions, or for civic, social or recreational activities.” Section 16.845(1), Wis. Stats. Further, “Whoever does or attempts an act for which a permit is required under this section without first obtaining a permit may be fined . . . or imprisoned . . . or both.”
4. Related statute or rule: s. 16.84, Stats., and Chapter Adm 2
5. Plain language analysis:
The objective of the rule is to obtain greater compliance from user groups regarding facility use. This objective will be achieved by codifying historical Department practices and more clearly detailing certain provisions of the administrative code as informed by judicial interpretations.
6. Summary of and comparison with, existing or proposed federal regulations.
Existing federal regulations vary by agency, state and facility, and are too numerous to permit meaningful comparative analysis.
7. Comparison with rules in adjacent states:
All adjacent states have similar administrative code provisions. Illinois requires permits for demonstrations or other events to be submitted at least 48 hours in advance of the use, unless the requestor can prove by a preponderance of the evidence that the cause of the event was unknown or resulted from changed circumstances. Michigan does not permit demonstrations or other activities without written authorization. Michigan also requires written authorization for displays, and requires that such requests “normally” be submitted 30 days in advance. Likewise, Minnesota requires a written permit, with agreements to be reached regarding topics including, “security, police protection, liability for damages, and cleanup of areas” prior to issuance of a permit. Iowa also requires a written application and approval by written letter or a memorandum of understanding signed by the event director.
8. Summary of factual data and analytical methodologies:
9. Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report:
10. Fiscal Estimate: The proposed rule changes will have no additional fiscal impact.
11. Effect on small business: The proposed rule changes will have no impact upon small businesses.
12. Agency contact person:
Wendy Coomer
Department of Administration
101 E. Wilson Street, 10th Floor
Madison, WI 53702
(608) 266-1741
SECTION 1: Adm 2.02(1)(a) is amended to read:
Adm 2.02 Designation of state office buildings and facilities.
(1) The following buildings and facilities are hereby designated as state office buildings and facilities for the purpose of use management under this chapter:
(a) State capitol building,
except those rooms reserved by the legislature.
SECTION 2: Adm 2.03(3m), (3r) and (6m) are created to read:
Adm 2.03 Definitions. In this chapter:
(3m) “Event” means any performance, ceremony, presentation, meeting, rally, organized tours not led by department or legislative staff or officials, festival, reception or the like held in public areas of state facilities or buildings. The term “event” does not include activities such as: informal tourist activities; constituents or members of the public visiting elected officials otherwise conducting routine business with any state agency or state entity.
(3r) “Exhibit” means any display of art work, including but not limited to paintings, sculptures, arts and crafts, photographs or other artistic materials; public service and educational presentations; signs or banners which are not held by an individual or which are larger than 28” in length or width; and historical displays and other similar items.
(6m) “Rally” means any gathering of people for the purpose of actively promoting any cause, whether by conducting a picket, parade, demonstration or the like.
SECTION 3: Adm 2.04(1) is amended to read:
Adm 2.04 Public meetings and events.
(1) With the exception of areas in the state
capitol building reserved for use by the legislature, the The
department, as managing authority of the state office buildings and facilities,
may permit buildings and facilities to be used by any person governmental
body or official, or any nonprofit, fraternal, religious, or veterans'
organization for the purpose of governmental business, public meetings for
the free discussion of public questions, or for activities of a broad public
purpose for an event or to display an exhibit if the use:
(a) Does not interfere with the prime use of the building or facility.
(b) Does not unduly burden the managing authority.
(c) Is not a hazard to the safety of the public or state employees nor detrimental to the building or facility.
(d) Does not expose the state to the likelihood of expenses or damages which cannot be recovered.
(e) Is appropriate to the physical context of the building or facility.
SECTION 4: Adm 2.04(1m) and (1r) are created to read:
(1m) The department may publish reasonable, content-neutral guidance regarding the application of this chapter to individual buildings and facilities, including but not limited to reasonable time, place or manner limits on permitted activities, consistent with the factors set forth in sub-sections (1) and (1r).
(1r) Permits shall be granted for any event or exhibit, subject to the discretion of the department. The department’s exercise of discretion shall be limited by the contents of this chapter, and the following:
(a) Permits may not be denied based upon the content of the event or exhibit.
(b) Permits may be denied or limited if the requested use conflicts with a previously granted permit.
(c) Permits may be denied if the person, group or organization requesting the permit has failed to pay any uncontested invoice for expenses or damages arising out past events or exhibits, whether the event or exhibit occurred with or without a permit.
(d) Permits may be denied or limited if the permit application form is not fully completed or signed by a person who is legally competent to contract and to sue or be sued.
(e) Permits may be denied if the permit request contains a material falsehood or misrepresentation.
(f) Permits may be denied or limited if the requested use conflicts with planned programs organized and conducted by the department, any state agency, or any state official or body or state officials.
(g) Permits may be denied if the person, group or organization requesting the permit has made material misrepresentations regarding the nature or scope of an event or exhibit in the course of receiving a permit in the past.
(h) Permits may be denied or limited if the proposed use involves activity that is prohibited by law.
(j) If any word, phrase, section or other portion of this chapter, or any written guidance issued under this chapter’s authority, is held unconstitutional or otherwise invalid by a court of competent jurisdiction, then such holding shall not affect the validity of the remainder of this chapter or other guidance issued under it, which shall remain in force and not be affected by such holding.
SECTION 5: Adm 2.04(2),(3), (5) and (7) are amended to read:
(2) An applicant for the use of buildings and
facilities shall complete a written application to the department at least 72
hours in advance of the anticipated utilization of the building or facility. The
department may establish guidance for the waiver of this sub-section for the
state capitol building or grounds. In the event of a conflict of
requests by 2 or more organizations, the department shall have full discretion
when permitting use of state office buildings and facilities.
(3) An applicant for the use of buildings and facilities shall be liable to the state for injury to the state’s property, for any expense arising out of the use, and for such sums as the department may charge for the use as provided in s. 16.845 (1), Stats. The department may publish content neutral guidance further limiting or explaining potential imposition of charges.
(5) The department and the applicant may not discriminate against any individual on the basis of age, race, creed, color, handicap, marital status, sex, sexual orientation, national origin, ancestry, arrest record or conviction record in the utilization of state office buildings and facilities for government business, public meetings for free discussion of public questions, or for civic activities.
(7) The granting of permission to use a state office
building or facility does not obligate the department to furnish the applicant
any service or utilities, or render any support with personnel, equipment, or
supplies. The department may furnish assistance and may charge for any expense
arising out of the use of a building or facility. The department may inspect
any equipment or apparatus brought in for any public meeting,
event or activityexhibit, and may limit or prohibit the use of
any items which might affect safety or the normal operation of the building.
SECTION 6: Adm 2.07(2) is amended to read:
Adm 2.07 Exterior and interior displays and decorations.
(2) Displays and decorations. No displays, signs,
banners, placards, decorations or graphic or artistic material exhibit
may be erected, attached, mounted or displayed within or on the building or the
grounds of any state office building or facility without the express written
authority of the department. Any graphic or artistic material exhibit
advertising, promoting, or identifying a commercial enterprise or a
political activity is prohibited except as indicated in sub. (4). Any
unauthorized material exhibit shall be removed and disposed of by
the department. This provision shall not be applied to any individual who
holds a sign that is not larger than 28” in length or width, or to any item of
clothing worn by an individual. The department may set reasonable time
limits on permitted activities.
SECTION 7: Adm 2.08(1) and (1)(d) are amended to read:
Adm 2.08 Introduction of equipment and hazards.
(1) To provide a place of employment that is safe for employees and frequenters thereof, pursuant to s. 101.11, Stats., the department shall have the right to confiscate and dispose of any hazard to the life, health, safety or welfare of state employees or the public. The department shall have the right to correct or eliminate any hazardous situation arising out of any action by a tenant agency or individual and to charge the tenant agency or individual for costs incurred to correct or eliminate any hazardous situation or practice by a tenant agency. Any person who refuses to remove or correct any hazardous situation at the request of any department employee shall be subject to citation pursuant to sec. Adm 2.14 (2) (zd).These hazards include, but are not limited to, the following:
(d) Holiday trees or holiday decorations or other displays, decorations, signs, banners or the like introduced in buildings and facilities managed or leased by the department without the approval of the department or contrary to the manner instructed by the department.
SECTION 8: Adm 2.11 is amended to read:
Adm 2.11 Confiscation of materials. Property confiscated by the department for violation of this chapter shall be stored by the managing authority until the owner provides proof of ownership, unless confiscated pursuant to sec. Adm 2.08 (1).
Section 9: Adm 2.14(2), 2(v), (2)(vm), (2)(vm)5, are amended to read:
Adm 2.14 Rules of conduct.
(2) In order to preserve the order which is
necessary for the enjoyment of freedom by occupants of the buildings and
facilities, and in order to prevent activities which physically obstruct access
to department lands and buildings or prevent the state from carrying on its
instructional, research, public service, or administrative functions, P
and pursuant to s. 16.846, Stats., whoever does any of the
following shall be subject to a forfeiture of not more than $500:
(v) Without approval of the department, conducts an event
picket, rally, parade or demonstration in those buildings and facilities
managed or leased by the department or on properties surrounding those
buildings.
(vm) In order to preserve the order which is
necessary for the enjoyment of freedom by occupants of the buildings and
facilities, and in order to prevent activities which physically obstruct access
to department lands and buildings or prevent the state from carrying on its
instructional, research, public service, or administrative functions, a
Any participant or spectator within a group constituting an unlawful
assembly, who intentionally fails or refuses to withdraw from the assembly
after it has been declared unlawful, shall be subject to the penalties
identified in sub. (2) (intro.). Any picketing, rally, parade,
demonstration, other assembly, or congregation of spectators to the activity
event may be declared unlawful if its participants:
5. Enter or occupy any building or
facility managed or leased by the department, without authorization from the
person in immediate charge of any room in the building, or by a person
designated to approve requests for the use of rooms for meetings.
SECTION 10: Adm 2.14(2)(vr) a., b. are renumbered to Adm (2)(vr) 1., and 2., and as renumbered amended to read:
1. a. In this section paragraph (vm)
"intentionally" means that the participant or spectator knew,
or reasonably should have known, that the participant's or spectator's
conduct by itself or in conjunction with the conduct of others had or would
have the prohibited effect.
2. b. The department may designate a state
official or officials who shall have primary authority to implement this
paragraph, paragraph (v) and paragraph (vm). The official shall
prescribe limitations for any picketing, rally, parade, demonstration or
other assembly event in order to meet the requirements of this
these paragraphs. When informed of any eventpicketing,
rally, parade, demonstration, or other assembly, the department official or
designee may proceed immediately to the site to determine if there is
compliance with this these paragraphs. If the official
prescribes limitations or has previously prescribed limitations, and
those limitations are not observed by the assembly, the official may then
declare the assembly event unlawful. Any declaration of
illegality or prescription of limitations shall be effective and binding upon
the participants in the assemblyevent, unless and until modified
or reversed.
SECTION 11: Adm 2.14(2)(vr) c. is repealed.
c. Any participant or spectator within the group
constituting an unlawful assembly, who intentionally fails or refuses to
withdraw from the assembly after it has been declared unlawful, shall be
subject to the penalties identified in sub. (2) (intro.).
SECTION 12: EFFECTIVE DATE. The rules contained in this order shall take effect as emergency rules upon publication in the official state newspaper as provided in s. 227.24 (1) (c), Stats.
By: ________________________________ Date:________________________________
Mike Huebsch, Secretary
Wisconsin Department of Administration
