On Feb. 12, 2008, Ohio Governor Ted Strickland signed Executive Order 2008-04S, implementing common sense business regulations to foster an atmosphere that facilitates and promotes economic development. With his new Executive Order, the Governor intends to create a regulatory environment in which businesses are considered the customers of the state and are treated as such.
The Strickland Administration began with the concept that business regulation in Ohio must “promote the health, safety, and economic vitality of Ohioans,” and must do so in a transparent, accessible, and efficient way. Governor Strickland’s Executive Order directs all cabinet agencies, boards and commissions to take an eight-step approach when creating rules to be presented to the Joint Committee on Agency Rule Review (JCARR). Specifically, the Executive Order directs agencies, boards and commissions to:
- Avoid subjectivity and retroactivity in rulemaking to allow predictability for businesses;
- Draft rules in clear, concise language that avoids technical jargon when possible;
- Promote “transparency and predictability” in the “objectives and burdens imposed by the regulatory activity;”
- Replicate existing Federal Rules when at all possible;
- Focus on consistency in the rulemaking process;
- Strive to have the least burden and cost to businesses “necessary to achieve the underlying regulatory objective;”
- Consider the impact rules will have on Ohio’s business climate; and,
- Provide the proposed rule to the agency’s legal counsel for review before submission.
Additionally, the Executive Order outlines the method by which agencies should administer common sense regulation in Ohio. The Executive Order encourages agencies to reduce administrative burdens, working cooperatively with businesses to “expedite processing…and keep[ing] in mind business deadlines and other commercial demands.” Agencies also are directed to minimize the amount of information required from applicants and to “avoid requiring submission of intellectual property or other confidential business information,” if at all possible. The Executive Order also requires agencies to review their current policies and procedures for compliance with the new guidelines and to modify them as necessary.
In Executive Order 2008-04S, Governor Strickland asks his Cabinet members to focus on outcomes - rather than simply compliance - when creating rules and regulations for businesses. The Executive Order directs those decision makers to focus on whether their rules will make “Ohio a more or less attractive place to do business.”
Much of the responsibility for implementation and enforcement of these guidelines is placed squarely in the hands of each department director or board administrator. The Governor encouraged state agencies to use discretion and common sense when deciding how and when to levy penalties for noncompliance – including a call to “waive penalties for first-time or isolated paperwork or procedural non-compliance” when appropriate. Finally, the Executive Order directs a particular group of cabinet agencies to designate an existing staff person as their “Agency Regulatory Ombudsman.” Each of the following agencies must appoint a person to act as their “problem-solving liaison between the agency and those affected by its rules and processes”:
- Administrative Services
- Environmental Protection
- The Industrial Commission
- Job and Family Services
- Natural Resources
- Workers’ Compensation
Private Rights of Action & Timeline
Executive Order 2008-04S does not create a private right of action for businesses or others. It does place accountability for compliance with the director, administrator, or other head of each entity covered by the executive order. Finally, no timeline has been set for implementation of this order, but agencies are encouraged to begin implementation as soon as possible.