New Rules are Sloppy and Misguided

July 15, 2013  By Edward Kuharski

[What follows are written comments submitted to the Wisconsin Department of Administration as part of the public input process on the promulgation of emergency administrative rules. – Editors]

Edward Kuharski testifies.

To whom it may concern:

I provided testimony at the hearing on Friday afternoon, and I would like to submit the following supplementary comment:

I think the DOA, the Capitol Police whom DOA oversees, and the DOJ who have been conscripted to prosecute the frivolous and frequently false citations issued to citizens using the public forum area of our capitol building have fundamentally misunderstood and misapplied the rules in Admin 2. This has led to the present situation where the DOA has painted itself into a Constitutional/legal corner and has on the whole refused to admit its error despite the failure of their misguided efforts – even though they have been employing the top state’s attorneys at great expense to the public.

This is most unfortunate for all concerned.

The purpose of Admin 2 is to guide the state in implementing policies that benefit the public and assist in doing the public’s business. The notion that the state furthers these interests by making the public’s core, direct roles as citizens subservient to other interests within state facilities is simply wrong and clearly doesn’t work.

The focus of any revision of Admin 2 should be to protect and serve First Amendment/Article 1, Sections 3&4 activities from undue encroachment by other uses of state facilities. Especially as it pertains to the well-established public forum areas of the capitol building, the rule’s purpose should be to regulate through a permitting scheme those ancillary events and exhibits which in whole or in part,obstruct access or block passage to and through the public forum space.

Done properly, such events and exhibits can occur and be enjoyed without negatively impacting the primary function of the rotunda space which is as a public forum that citizens have free and unfettered access to at all times the capitol is open. Permits should be used to insure that no special interest group’s activities unduly infringe on or disrupt the normal vital functions of our capitol building.

Capitol Police march down the stairs to deliver citations. Photo by Dawn Henke.

And the scheme for issuing permits and assisting permitted ancillary activities should focus on protecting public health, safety and welfare and should NOT focus on “enforcement” activities. It should not be designed or executed in a manner that consumes vast quantities of public resources in efforts to suppress a primary function of our seat of government, as has been the case in the past year.

An area totally neglected in the Rule is the inclusion of regulations on the use and misuse of public employees and other public resources to pursue such illegitimate and partisan, political goals. The State of Wisconsin’s own behavior has been by far the most frequent and significant source of disruption and disorder in the capitol over the past 2-1/2 years.

In short, both versions of the proposed rule, as well as the several versions of the expanded Facilities Access Policy are sloppy and misguided work and need to be done over from scratch. This goes as well for the previous version of Admin 2 that had been in place since 1994.

Thanks so much for your time and attention.

Forward, Edward Kuharski

P.S. Every day is a good day to apologize to those you have harmed. You’ll feel better afterward.

Edward Kuharski, Architect, AIA, LEED AP – BD+C
Green Design Studio

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