Code Revision Commission
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Representative Matthew J. Shepherd
Unverified
0:30
Okay, so I've received word we're ready to start.
I'm going to call this meeting of the Arkansas Code Revision Commission to order. I understand from staff that we'll need to take role of those uh i guess members of the legislature that are attending in person in
little rock so that i can note them and uh take care of uh handling uh the administrative matters related to their to their presence so with that i'll uh if uh kevin if you would have those that in attendance state who they are so that we can have record of that. Okay. Members, we'll start over here
Speaker 7
1:27
on my left. If you'll announce your name on the record for the meeting. Representative Jimmy Gassaway.
Representative Kenneth B. Ferguson
Unverified
1:38
Representative Ken Ferguson. Representative Fred Allen. Representative Keith Brooks. Start over here. Senator Bryant. Yeah,
Speaker 20
1:58
when you get situated, yeah, if you'll announce yourself Senator Tucker, Clark, Clark Tucker. Okay. Yeah. We've got one chair.
Speaker 28
2:09
We've got one more representative Jesse Magruder. and i see i see
Speaker 30
2:24
senator king is there as well okay he just
Representative Matthew J. Shepherd
Unverified
2:30
recognized you okay we're good yeah we're good okay that's everyone all right thank you and kevin and matthew if if others uh show up if you'll just make note of their of their presence i appreciate everybody uh making time for this meeting today uh part of the need as we talked
about at our last meeting is there are some supplements that are going to be produced and put out here in the very near future and so we wanted to try to reconvene and I appreciate staff making the remote options available so that we could get this scheduled sooner than later with that we'll turn to our agenda the first item is the approval of the minutes from june 19th of 2025 their exhibit b in the packet motion to approve
okay that's a motion from representative gas away
yes right all right is there a second second mr chair
Speaker 20
3:32
did you get the second senator bryant no okay senator bryant any
Representative Matthew J. Shepherd
Unverified
3:38
discussion all those in favor indicate by saying I any opposed why
don't we why don't we do this if I see representative Wardlaw just walked in as well and I don't know that we have I don't know that we necessarily have a a vice chair, but I think it'd be easier if one of the, if maybe Senator Tucker, if maybe he could chair the meeting from there in Little Rock and then I can just participate remotely and that might help things to flow a little better.
okay okay okay without objection i'll assume the role temporarily in your stead mr chair and and no
Representative Matthew J. Shepherd
Unverified
4:44
uh and just for the other members senator tucker i think is the second longest serving or from the senate side is the longest serving member of code revision presently and so that's why i just suggested that he take the chair but uh with that i'll let senator tucker take us forward from there.
Okay, we've got three more legislators here who need to announce themselves. Representative Wardlaw, would you just
recognize yourself, please? All right, introduce yourself and Representative Ennett. It didn't let
Representative Jeff Wardlaw
Unverified
5:26
me put my code in. I feel weird. It's just Representative Ward-Law of South Arkansas. Just interested in what we're
Representative Aaron Pilkington
Unverified
5:37
changing. Representative Pilkington. Representative Pilkington, Johnson, Pope County. Had some bills that were affected by this, so I'm here because they're my bills,
and I want to make sure y'all do
the right thing. You're very welcome. We'd love to have you here.
Speaker 56
5:52
Representative Bennett. Good afternoon. I'm Representative Denise Sennett, District 80. Thank you. Thank you, Representative Bennett. welcome okay with
that um the next item on our agenda are the items that were held over from the june 19th meeting and i'm just going to sorry kevin you take the lead commissioners if
Speaker 7
6:10
you'll look at exhibit c which is in your packet it's going to contain the items that were held over
from the june 2025 meeting concerning the 2025 act errors and conflicts there was an updated version of this exhibit that was emailed to you yesterday for this part of the meeting you will also need Supplemental Exhibit C1. This supplemental exhibit is also in your packet. It was emailed to you yesterday. Similar how we did the last meeting for this exhibit, there are page numbers at the top right of the exhibit to help keep track of where we are. I will use that page number to guide us through the exhibit.
If you look on page one of the exhibit, there are brief summaries of the items that were held over. Following those summaries, there are excerpts from the relevant acts concerning each item was held over i will introduce each item with reference to its item number in the page number at the top right so our first item that was held over held over was item a7 beginning on page 2 this item concerns act 706 on page 2 lines 25 through 26 the act references the arkansas
pollution control and ecology commission the commission is referenced again on page 3 line 15 these are all with respect to setting a deductible however if you look on page three lines 10 through 12 the language refers to the amount of the deductible for corrective action being set by rule of the division here meaning the division of environmental quality at the last meeting we indicated that staff's initial thoughts for that division should be commissioned here you all asked us to reach out to the interested parties which we did so we reached out
Speaker 10
7:54
to the department of energy environment and i believe they have a representative here today
to speak on this please come forward please just
Speaker 64
8:15
identify yourself for the record and you may proceed good afternoon i'm michael mcallister deputy chief counsel for the department
Speaker 66
8:21
of energy and environment. The department includes both the Pollution Control and Ecology
Commission and the Division of Environmental Quality. We noted the same concern that the committee noted. Under the applicable
Speaker 67
8:36
law, the Pollution Control and Ecology Commission is the body that promulgates rules and we noted the apparent discrepancy in the wording. So we would concur with whatever you all want to do.
I understand that you have a supplemental exhibit, and I have read that. I know Walter Wright, he's a very fine attorney. I don't disagree with anything he said, so whatever the committee's pleasure is. But we agree. It is the commission that promulgates rules, not the division. Okay. Thank you. Go ahead, Mr. Chair.
The division does not actually establish rules. That's what you're saying.
Speaker 66
9:26
That's correct. They implement them, but the Pollution Control and Ecology Commission is the rulemaking authority. That promulgates them.
Speaker 65
9:32
Okay, thank you. Kevin, did you have something
Speaker 10
9:35
else? Yes, sir. Mr. Chair, there's also a supplemental Exhibit C-1 for this
Speaker 7
9:40
agenda item. This was provided to us by Representative Zach Gramlich, who was the primary sponsor of Act 706. And in there, there is a memo from the Mitchell-Williams firm. And if you read through that memo, the suggestion appears to be that there should be no change made to the reference.
So just wanted to bring that up to the commission's
attention. Does Representative Gramlich have a comment on this? Did you all reach out to him or hear back from him? Did he participate in this memo? I'll leave
Speaker 79
10:25
that to Matthew. I spoke to Representative Gramlich. He asked us to distribute that memo and authorized its release today.
Okay. I'll just give the members a minute to look through it in case you haven't had
Senator Joshua Bryant
Unverified
10:42
that time yet. Senator Bryant, did you have something? just clarifying the memo basically says leave it as it is don't make any any changes whatsoever to the existing language as it was passed that's the way we read the memo sir and is it out of the scope of authority if if this body were to change division page 2 line 11 to commission just for a b and c to all match or is that beyond the scope of our authority that would fall within
Speaker 7
11:07
your traditional authority under arkansas code 12303 if you feel like that the reference there to
Speaker 91
11:12
commission i mean excuse me to division is an error you would have the
Speaker 85
11:18
authority to correct that to commission
Speaker 67
11:22
is that the department's position we read it as um as somewhat confusing but again i have read the memorandum i don't have any issues with the analysis offered by a Walter Wright, the attorney, author of that.
We thought it was a little confusing and maybe would be clearer if it was changed to commission, but I'm not here to advocate for either outcome. Mr. Wright's not here today, is he? Does the code
revisor have a position in light of the memo from Mr. Wright at the Mitchell firm? This is one
Speaker 73
12:04
I defer to you all I think it just comes down to whether you think that that is an erroneous reference when it uses division there and then it would be up
to you all to use your authority if you did but
Senator Joshua Bryant
Unverified
12:17
I defer to you all sir right I guess my question be if the division as a broad authority were to attempt to circumvent the Commission by rule and they had their own internal dialogue where would that flesh out in the courts if something not that it would ever go that far but I'd have
Speaker 67
12:38
to defer to the agency on that well we read the statutory authority as putting rulemaking authority in the Commission
not in the division the division can petition for a rulemaking which is how it usually happens but the rulemaking authority is clearly vested in the Commission under statute if there was a conflict of personalities or problems
Senator Joshua Bryant
Unverified
12:58
between the Commission and the division with the division feel like they have the authority and maybe not this administration but subsequent administrations would they feel like they have that authority based on this language to go ahead and circumvent the Commission regardless of what other law
Speaker 67
13:15
states I can't imagine that they would they'd be a pretty tough
Representative Jimmy Gazaway
Unverified
13:35
road you got any thoughts on this represent Gadsway well my thought is that we should make a change
when you look at the language on page two the amount of the deductible incurred by the owner
operator before the owner or operator is eligible to receive payment for correct for corrective action shall be established by a rule by the division that is just simply incorrect the division cannot establish a rule we seem to all agree on that that language is just simply incorrect it should read the commission and i think we should make a change there i don't particularly agree with the c1 opinion i don't think that
that can be read together and i would propose that we make
Representative Matthew J. Shepherd
Unverified
14:26
the change i'll i'll take that yeah go ahead yeah i've got a question for for matthew or kevin so what we have in front of us are excerpts from the bill and these are references to when the deductible is set have we looked at the other existing set the pre-existing sections of arkansas code to determine if there are other references to the deductible being set.
I mean, are these the only three references to the deductible in Arkansas Code? If so, that would seem to, I would tend to agree with Representative Gassaway. We have two references to the commission setting it, one reference to the division. The division is subservient to the commission, as it would be my understanding. And so it would seem that it should be corrected. But do we know, are there other references to that deductible being set in the law?
Speaker 7
15:21
I'm not aware of any, Representative Shepard. This particular deductible all came in as new language within this act. But I'm not aware of any other deductibles that may be in surrounding sections. But for this particular section, this was all new language that came in.
Representative Matthew J. Shepherd
Unverified
15:42
Okay, so let's see. I was going to try and search it real quick to see. This is the Petroleum Storage Tank Trust Fund.
Is that right? Yes, sir. and is the entirety of this is the entirety of this section or this subchapter is this all new language the whole subchapter
Speaker 7
16:23
no sir just in this particular act it's amending a section
that's in that subchapter and it's adding language concerning this new deductible so if
Representative Matthew J. Shepherd
Unverified
16:35
this is adding a new deductible then I mean the bill is the bill is essentially the I mean that's the totality of all references so it kind of I mean I tend to I always tend to lead towards not making a change but it seems like
this doesn't make sense I mean, I would want to hear what the department says, but if the division tried to set a deductible, I would assume the commission would have a problem with that. Mr. McAllister?
Speaker 117
17:18
I would assume the same thing. I don't have the whole subchapter in front of
Speaker 67
17:24
me, and going off memory is always kind of not a good idea.
when you're a lawyer at the table. But this whole subchapter deals with the Petroleum Storage Tank Trust Fund. The old language of the subchapter discussed if an owner-operator has a release that's eligible for coverage under the trust fund, They had to expend the first $7,500, and the statute said to be treated as a deductible.
This bill changes that number and says that number will be set by a rule promulgated by the commission. Yeah, and I did
Representative Matthew J. Shepherd
Unverified
18:14
a quick search here on the subchapter looking for other references where in the same sentence there's a reference to deductible or and either to the commission or the division, and it looks like these are the only references. So I would tend
to agree with, I guess, the motion that Representative Gassaway was making.
Okay. Well, I'm going to take Representative Gathaway's comment as a motion, and I'll take your comment. Representative Shepard has a second.
We got some background noise coming in from someone. Okay. Any other discussion on that motion? All in favor of making the motion is to change the word division on page 3, line 12, to commission. Right, Representative Gathaway? Okay. All in favor of that motion? Aye. Any opposed? thank you any opposed okay motion carries it
looks like it's page 3 line 11
right that's right page 3 line 11 division to commission yes thank you represent Shepard page 3
packet yeah before we move on on Representative Barnett. Would you please identify yourself, Representative Barnett? Will you just identify yourself in your mic,
Speaker 132
19:45
just say that you're here? Yeah. Lincoln Barnett, District
Speaker 10
19:48
63. Thank you, Representative. Okay, Kevin. Yeah. Mr. Chair, our next item is item C-5.
You'll find this beginning on page 4 of your exhibit. This item concerns Act 796. On page 5,
Speaker 7
20:02
lines 7 and 8, the name of the Board of the Division of State Services for the blind is changed to the board of the division of state services for the deaf and blind and on page sixes and seven of your exhibit lines 36 1 and 5 you'll see references to a commissioner and references to the division that were changed accordingly however as we discussed at the last meeting the boards and divisions powers and duties were not expanded to include services
for individuals who are deaf and the creation section for the division itself was not changed Staff's initial thoughts here were that the board and the division should remain as the board of the Division of State Services for the Blind and the Division of State Services for the Blind. You all asked us to reach out to the
Speaker 10
20:43
Department of Commerce, so we did that, and Mr. Jake Wendley from the Department of Commerce is here. Mr. Wendley? If
you'll just identify yourself for the record, you may proceed.
Speaker 136
21:01
Good afternoon, members. Jake Windley, Director of Legislative Affairs for the Department of Commerce. Yes, we received a request from the Bureau, and we responded. Our specific issue is with Section 19 of Act 796 that amends Arkansas Code Section 2511205. My understanding is that the purpose of Act 796 was to merge the operations for the school for the deaf and the school for the blind together. This specific provision of the Arkansas Code contains two references to the school.
Those are in Subdivision A, 1, B, I, E, and Subdivision B. And those two changes we have no issue with. Those were to bring those references into conformity. The issue is with the title of the statute, Subdivision A, Subdivisions H2, and H3. What we believe happened here is that just going through the drafting process, there was any time there was the division of for the blind,
it was changed to the deaf and blind, kind of like emerging the operation for the schools. In this case, the issue, since it's changing the board, the commissioner reference, and the division itself without changing any of the other statutory sections, you have a situation where you have a board and a division with no enumerated powers and no funding. If there was a desire to completely merge the Division of State Services for the Blind so that it would encompass the deaf and blind,
you would need a much more zealous and invasive approach. I believe it would be a couple dozen statutory sections that would need to be amended. Our opinion is those references that I identified should probably be struck. It would not affect the central purpose of the statute, And it would help preserve the ongoing functions the division of state services for the blind Thank you, sir. And was that the recommendation of
the code revisor? Yes, sir Essentially that we strike the words deaf and from those four subdivisions that he just identified. Yes, sir. Okay
Any questions or discussion from the members of the Commission? If not, I'll entertain a motion Just for
Senator Joshua Bryant
Unverified
23:23
clarity all the sections that are highlighted the recommendation would be to remove Deaf and
correct from those so we'd have Back to the basically the original language of board division of state services
for the blind Yeah, with the exception of yes, there's there's two exceptions
Speaker 20
23:42
There's there's two references in there to the actual school itself
Which is has been renamed as Arkansas school for the deaf and
Speaker 73
23:49
blind. So those two references Would stay the same those are in A, one cap B, the little E, and then in
Speaker 91
23:56
the subsection B on the next page. But all the other references would just go back to being blind, not deaf and blind. The only note
on that is on page seven of the packet, the very top line, it's all new language right there, so technically that's not going back to what it was before.
But the effect is the same. We would still remove the same two words,
Senator Joshua Bryant
Unverified
24:20
deaf and. So it would be the Commission for the Board of Division of the Blind? State Services for the Blind. State Services for the Blind.
Speaker 147
24:30
Yes, sir. Okay. Mr. Chair, I'd make a motion. A quick question. Is there similarly a Board of the Division
Representative Matthew J. Shepherd
Unverified
24:38
of State Services for the Deaf? I don't believe there is, sir. No, I don't know. Okay.
Any other questions? okay you were making a motion senator
Senator Joshua Bryant
Unverified
24:55
mr. chair make a motion to remove the words deaf and from page
five of the exhibit lines five and eight and page seven of the exhibit lines one and five okay is there a second to the motion I'll see a second
from Representative Gassaway. All in favor? Aye.
Aye. Any opposed? All right, the motion carries. Thank you, members. Kevin? Okay.
Speaker 10
25:26
Mr. Chair, our next item is item C6. You'll find this one beginning on page
Speaker 7
25:33
8 of your exhibit. This item concerns Act 798. On page 8, lines 28 through 30, there are potentially confusing uses of at the discretion, may also, and shall. The use of may also also also doesn't appear to make sense as there's no prior power or duty listed here in the use of shall seems inconsistent with the use of the language at the discretion.
This is one that staff did not have any initial thoughts on, but we do have Representative McClendon here, the primary sponsor of Act 798 to speak on this
Representative Mindy McAlindon
Unverified
26:14
issue. Thank you. Thank you. I'm sorry. Thank you, Chairman. I appreciate
it. So, yes, my biggest concern was that this just appears to be like it should have been May and that there's an inconsistency of asking the Racing Commission, giving them authority to do the discretion to join the inclusion list and says that they may maintain that self-exclusion list.
And then later it says that if there is a multistate one, that they shall join it. And I just found some discrepancy there, inconsistency, and just wanted to bring it before this committee to see what your thoughts were and see if that shall need to be changed to a May. And I'm going
Speaker 159
26:54
to allow a place, so I'm going to mute until you
need me. Okay. Thank you, Representative Mecklinden. Any discussion from the members? I would be comfortable.
I have a couple of thoughts. One is I think any
time we're contemplating changing a shall to a May or vice versa, that we should be very hesitant about that because that's a significant change that's likely to be substantive in my view. The other note, it's not highlighted but at the start of the line, B1, line 28 on page 8 of the packet, it starts by saying at the discretion and I'm just
noting that that's another potential inconsistency if the word shall is uh remains to be included because you shall do something at your discretion so so anyway i
just wanted to mention those couple notes and open the floor for further discussion senator bryant i'll ask the question again is it is that within the
Senator Joshua Bryant
Unverified
27:54
purview of our authority to move maize or shells to may and maize the shells to be if you find that it doesn't
Speaker 73
28:02
change the substance or the meaning of the statute you do have the authority to make changes in word
Senator Joshua Bryant
Unverified
28:08
usage well i would assume changing a shell
to a may would change the the ask to a the mandate to an ask so can we step down versus stepping up that's it's really
Speaker 91
28:21
up to you all senator bryan is the commission to determine whether it's changing the substance or meaning
Speaker 73
28:27
that's just the language of one two three or three says you can exercise your authority as long as you're not changing the substance or meaning
Representative Matthew J. Shepherd
Unverified
28:38
of the statute? I would have, I guess that my two comments are, I agree with
Senator Tucker and Senator Bryant's comments. I mean, I think historically we've been very, very leery of making changes that in some cases are going from a may to a shall. Senator Tucker points out the discretionary language at the outset of B-1, which would further point towards a May. I would have the question of, I guess, Matthew, from a drafting standpoint, does the clause at the discretion of the director, does that, from a drafting standpoint,
plot does that only referencing the next phrase the maintenance of a statewide self exclusion list or does that clause also likewise give discretion is that was that would that have been drafted to give the commission discretion to join a multi-state uh list or enter into another agreement i'll let kevin weigh in here with me too but
Speaker 166
29:58
it's set off by commas if you look it's at the
Speaker 79
30:03
discretion comma the commission may also which as kevin noted the also doesn't seem to relate back to anything comma and the commission shall so that being the case i'm not sure how it would be interpreted i'll leave it to kevin it's yeah it feels a
Speaker 167
30:19
little ambiguous i agree with matthew it's you
Speaker 59
30:22
know it's it's at least ambiguous i would give it that that's a good point it's
a good point were you finished representative shepherd
Representative Matthew J. Shepherd
Unverified
30:35
well i mean i think that as i understand it when this was brought up that maybe there was some discussion of swapping the may and the shall but it wouldn't make sense to make the initial may a when it's providing it's discretionary at the outset. And so, I don't know. I mean, this is, you know, kind of a can of worms.
But I guess I just have the similar concerns that we've heard from both senators.
Representative Jimmy Gazaway
Unverified
31:06
Representative Gassaway has been, let me recognize it, Representative Gassaway. Thank you. So,
I guess the concern I have, and this is somewhat similar to, I think, what's already been said. But it would appear to be substantive if we make a change, because it's going to change the entire meaning and way that the statute operates. But the question that I have is, the way the statute's currently written, there is what I would call an apparent
absurdity. And I don't know if this was just a drafting error. I'd like to hear more from the sponsor on this but it was this a drafting error that was the part of the sponsor or was there an error that occurred in drafting at the bureau how did this happen and then kind of given all that what is our authority to make a change if there is an apparent absurdity in the statute and or or if there is an error in drafting that occurred whether that was especially if it was
uh on the maybe on the part of the
Speaker 174
32:14
bureau so those are my questions so thank you for
Representative Mindy McAlindon
Unverified
32:19
that i appreciate it i appreciate the discussion and i agree this is kind of a maybe a little bit of a gray area i think my intent is to make
Speaker 175
32:26
sure that we just clear up the language so that there is less ambiguity would would be my intent the um
Representative Mindy McAlindon
Unverified
32:32
the error occurred i think because we had we went through several um several amendments and it was right at the end of session and i know at one point we actually undid an amendment and brought it back. So I think, I think it just got a little
sloppy there at the end to be perfectly frank. And I think that's what has happened. The intent was not to have the commission mandated to join a multi-state self-exclusion list. Um, my original intent is to have them join the statewide, the Arkansas self-exclusion list, which I understand And we can't do right now. We may have to come back and do that as an amendment next session. But it was not, the intent was not to have to join the multistate.
So the intent essentially would be for the May and the shall on lines
Senator Joshua Bryant
Unverified
33:30
Yes, that would be my original intent. Okay. Senator Bryant? I think Representative Gasly got her
to answer my question. Okay. And I don't know. again i i agree it's well my original thought was if at the discretion they may maintain it was and if you left the shell it'd be and if the commission decided to maintain they shall do it
this way right um that wouldn't uh require us to change the may or the shell just insert if the commission adopts um or chooses to maintain a statewide exclusion list they shall join it but that goes against obviously the intent of the sponsor. Kevin did you
want to address Representative Gassaway's question about an apparent absurdity? Sure similar response
Speaker 7
34:12
to Senator Bryan you do you all do have the authority to correct word usage and so if you feel like there is an error in word usage you can correct it it's just the overriding principle that applies
to that is if it's you do not think it's making a change to the
Speaker 185
34:35
substance or meaning of the statute. Mr.
Speaker 175
34:38
Chair. Yes. I have a comment. Yes, Ms. Mullings, yeah. I think there's some hesitancy because I think May to shall is kind of the classic substantive change that we think of. But in this case, there's a conflict in the provision with the discretionary language at the beginning.
So I think that puts a different slant on this. And I will say last meeting we made several changes that changed and to or or vice versa, which is just as substantive as this would be. But with this conflict in the provision, I don't
Speaker 186
35:19
see it so much as a substantive change as correcting a conflict.
Okay. Um, just for my part, I have one vote, but I, uh, I'm very sympathetic to the issue. I've certainly drafted language and bills that didn't look exactly the way that I intended for
it to, but I'm comfortable removing the word also from line 29, but I, I don't, I don't think
that I'm personally comfortable changing the Mays or the Shows on behalf of
i will vote for that bill in 2027 if the people of my district send me back
but on behalf of the commission i'm very hesitant to do that that's my
Senator Joshua Bryant
Unverified
36:11
i think that's my position senator bryant thank you mr chair i think i i would agree if we were to strike the word also and the discretion is that the commission may do it it doesn't make them make them have to do the multi-state is that correct like if they if they may maintain a statewide exclusion list they therefore don't also shall have to join a multinational is it
predictive is it is it incumbent upon them to enter into a statewide before they go into the next phase of the subset a and B or they mandated you a and be regardless of their
of little b1 kevin or matthew y'all wanna i think
Speaker 91
36:53
we would typically defer to the agency on those kind of interpretations that that's
Speaker 81
37:01
my thought as well i'd hate to step into the agency's shoes and try to answer that
Representative Matthew J. Shepherd
Unverified
37:05
well doesn't doesn't it doesn't it depend on whether the discretion applies to that second provision? I mean, if the law says that somebody shall do something, they shall do it. And that gets back to the question of whether the discretion applies to the shall. That's my question as well. I think
this is, and I don't want to cut the discussion off. I think it's a good discussion and I'm interested in it, even though that brands me as a language nerd. But
But my other thought is I don't think we – I don't believe that we should base our decision on the answer to that question because then we're making
a results-oriented decision. And I don't really – yeah. No, I
Representative Matthew J. Shepherd
Unverified
37:55
agree with you, and I think it's – but that gets back – that's to the same thing about, well, what – asking the commission, what would they do? The commission has to follow the law.
right it does and i went back and looked at so the there was an amendment it looks like it was a house amendment that changed where may also may also previously was shall and the amendment changed it to may also it made some other changes later on so
and represent mackalindon what so what was what's your what would be your desire well in a
Representative Mindy McAlindon
Unverified
38:40
in a perfect world we would clear all this up but
i think it goes beyond the scope of this committee i think um as submitted getting rid of the also is definitely what i think we need to do because i think that's just it's sloppy where it is um i would love to see shall moved back to may because i think it gives some consistency um but it's also something that we can come back and correct if I had to assuming I'm back in the legislature next session but ideally we would remove the also and we would change that shall to a may and just so it's there's a lot of I guess consistent ambiguity if I can phrase it that way
fair enough any other thoughts before we proceed last question so in order to
Representative Jimmy Gazaway
Unverified
39:26
fix an apparent absurdity and maybe there's some question as to whether or not there is a an apparent absurdity I think it depends on how you read the at the discretion and how that modifies the other things that come later because there's an at the discretion there's a and then there's a shall and all of that to me doesn't make sense when you read it all together
so i mean my feelings about it are if we make the change that representative mackalyn proposes that is that will have a substantive effect but is the commission empowered to make a change for example to fix an apparent absurdity even if it results in a substantive change it's not our intent to make a substantive change it has the effect of making a substantive change because we're fixing the absurdity that can't be reconciled within the language does this make sense
and i don't know what our i don't know what
Speaker 7
40:31
we're empowered to do uh in that regard the the way the statute reads representative gas away is just it you know if y'all determine it's your it's up to you all to determine whether you're making a change to the substance or meaning of the statute If you feel like you're making a substantive change to the statute, then the way the statute reads, you would not have the authority to make the change. But that's up to your discretion as the commission.
Speaker 88
40:55
But you do have the authority to change word usage.
Representative Jimmy Gazaway
Unverified
40:59
Okay. Well, my feeling is that if we make the change that Representative McElhinney proposes, it will have a substantive effect. It's not my, it would not be my intent to make a substantive change per se. I'm just simply attempting to reconcile the inconsistency that's in the statute at the request of the sponsor. But again, I don't know exactly how that, how that squares with what our authority is.
Speaker 7
41:30
I believe the exact language is shall not change the substance or meaning of the law. okay fair
enough the way the way i take that is if we believe it's going to have a substantive effect then we're not authorized to do it whether we intend for it to be
Representative Jimmy Gazaway
Unverified
41:46
that way or not this is how i would anybody else have any
Representative Matthew J. Shepherd
Unverified
41:51
thoughts on that thank you i appreciate that what yeah i mean it seems like i mean they can matthew or kevin can correct me but generally
there is no legislative intent for anyone that you can look at with regard to Arkansas law and we have to take the statute on its face and if we make a change that I mean it's one thing correct something that can't there's no way like the also there's nothing for also to refer back to right it doesn't appear to be but then when you get into changing a shall to may then that does have i mean that does appear
Speaker 79
42:37
to have a substantive effect that's just something that we've always referred to this group on you know they and they're all different right like we look at them in the context of each individual one so kevin stated the statute which has a bright line rule but sometimes we look at these and you at the context and you think oh well it's crystal clear that that's wrong because that won't work and sometimes it's not as clear so i think it's something that
Speaker 81
43:05
we've just looked at on a case-by-case basis with that overarching principle there and your actions have always depended on that
Speaker 22
43:12
yeah senator bryant i'm sorry senator bryant i guess my
Senator Joshua Bryant
Unverified
43:16
question would be was what is the recourse what if motion motion was made we change it we step it down into a may or we do with the sponsor request what recourse is that a is that a judicial recourse or what outside of just a nervousness about setting precedence what's what's the post effect if you look at the how these things have gone in
Speaker 73
43:39
the past there's you know not saying this would be the case in this particular instance but
Speaker 7
43:46
there have been lawsuits that have challenged decisions that the commission has made and the court has looked at that and determined whether they thought the commission was properly exercising its authority or not so there has been in the past a judicial route to
Senator Joshua Bryant
Unverified
44:04
review actions by the commission well Mr. Chair I would make a motion to remove the word also
on page 8 of the packet line 29 and change the word shell to may on line 30
okay but before we proceed I'll just I would my other answer to your question Senator Ryan you know setting precedent
and then obviously a judicial recourse that Kevin mentioned is just that as a commission when we run technical corrections bills it's really just our colleagues trusting that
we're truly making corrections that are only technical in nature and I you know I'm very protective over that trust that they
place in us is that So for me, that's the biggest thing.
Okay, so with that, any other? Can
Representative Matthew J. Shepherd
Unverified
44:56
I ask a question? Yeah. Is this, is what we're considering it, are these, I mean, this is not just for purposes of potentially a technical correction. This is actually for changing how it will be
Speaker 7
45:10
printed, correct? Yes, sir. This is how it will be printed in the supplement
Representative Matthew J. Shepherd
Unverified
45:15
and on the online version of the code. Yeah. So I, I don't, I don't have an issue with striking also, but because of the fact that we are, that we would be making something that is mandatory on the commission, a, uh, taking it back to permissive, I would not be in favor of taking Sheldon May.
And I just, I mean, I understand it's probably an error in terms of how it was drafted, but I just, I'm concerned of where do we draw that line in trying to protect, for better or worse, what is passed by the legislature. My position is that
Speaker 209
45:59
I understand, I mean, I understand there's differences of opinion. Yeah, my
position is the exact same as Representative Shepard's.
Representative Jimmy Gazaway
Unverified
46:07
And I tend to agree with Representative Shepard and Senator Tucker on this. However, I guess before we vote, my question to staff would be, in staff's opinion, is there any way that this can be read in such a way that it is logical? The staff believe that if you read the statute as written, that there is some logical, there's logic to it and could be interpreted in such a way to be effective.
Speaker 79
46:50
You're asking me to draw a conclusion, and I'm terrible at that, because I'm always the person who says we're going to defer to the agency. I think it depends on how you read the commas, and from
Speaker 211
47:02
there I think you could read it possibly two different ways. If you want to use the commas and read it as kind of a de facto list, then the question becomes what does the shall relate back to? But I think there's an interpretation in there that I'm not comfortable making and would
Representative Jimmy Gazaway
Unverified
47:20
probably have to be a judicial determination. Okay. Well, that gives me, I
guess my point is if it could be read logically and consistently the way it is and we make a change to it, then that's, I
think that's clearly substantive in an area that we shouldn't, a road we shouldn't go down.
it cannot in any reading in staff's opinion be read to be logical and have a practical effect then we might should consider making a change but it sounds like staff's not prepared to give that opinion I have a lot of sympathy for the sponsor but I tend to agree with Representative Shepard and senator tucker that this is going
to have too much of a substantive effect and it's too much of
Senator Joshua Bryant
Unverified
48:11
a gray area so mr. chair i'd like a comment and i'd like to amend my motion i i think when i going at what uh staff says if you read this where the commas are placed the director of the commission can choose not to present either either the may or the shell And so if I read it like that, I would amend that motion to no longer remove shall to May, but only strike the word also in line 29. Okay. So we have an
amended motion to strike the word also from line 29.
Is that right, Senator Bryant? Okay. Is there a second for that
motion? Second from Representative Gassaway. Any further discussion? All in favor? Any opposed?
Speaker 10
49:06
Okay. That motion carries. All right, Kevin. Commissioners, this is our fourth and last holdover item. This is
Speaker 7
49:11
item D9, beginning on page 11. Item D9 involves a provision that was repealed by an earlier act
and amended by a later act. You'll see that on page 14, that act 762, section 12, amended 39221, B1 cap A. However, if you turn to page 17, you'll see where Act 500, Section 2, repealed Section 39221, B1, Cap A. Staff's initial thoughts were that following the past president of the commission, this provision be set out as repealed. However, there was a lot of discussion on that issue at the last meeting, and you all asked us to talk to Alcohol Beverage Control on this,
and so we reached out to them, and we have Christy Bjornsson from
ABC here. Welcome, Ms. Bjornsson, if you'll
Speaker 218
50:08
just identify yourself, you may proceed. I am Christy Bjornsson, Regulatory Administrator over Alcohol, Tobacco, Racing, Gaming, and Marijuana. We looked at both of these bills, and I was here for the last Code Revision Commission meeting,
where you guys discussed that the repealer kind of trumps, even if it came last in time. I don't see any reason to stray from your analysis that you looked at last time. I know the sponsor, at least Representative Pilkington, is here on one of the bills. I don't believe that it affects the substance in the intent of his bill in any way, nor do I think it affects the other bill really in any way. They both outlined that a sale from a private club is not a sale for tax purposes.
Thank you. Representative Pilkington, did you want to offer any commentary? I concur. Okay, so was the consensus that we had reached last time was that Act 500 would prevail even though it
Speaker 7
51:14
was first in time? I can't speak for you all. The consensus was to hold the item over to speak to the sponsors and to the agency and to get some feedback on that. I also heard from Senator Irvin, and she indicated that as long as ABC thought they could fully implement her act which I think is the one which is
Speaker 91
51:30
the later one here the act 762 that she was fine with this with whatever resolution okay
so what you said miss Bjornsson is that we would we would settle with the bill that was first in time which struck that subsection yeah the repeal yeah yeah would you
Speaker 218
51:53
push your button please it talks about alcohol in pools and that's kind of a dated method by which the private clubs skirted around some of the laws
that prevented them from selling alcohol it was meant to be more of like a social club where people would donate their alcohol in but over time that practice has kind of died out and there are other parts of the alcohol code that makes it kind of ineffective either way so I wasn't concerned looking at the interpretation of either bill we can still move forward implementing the law as changed by
both representative pilkington and urban okay okay any comments or questions or discussion from commission members okay
Representative Matthew J. Shepherd
Unverified
52:33
not all just just to be clear i think this was already said
from staff's position that is that is a uh i guess a rule of construction that we routinely follow that if a section is deleted that it can it is not revived by a potential amendment to the what was the deleted language
later in the session that has been the prior practice of the
you that's our internal course of performance
okay if there's no other questions or mockery of the chair uh then we uh i'll
entertain a motion motion from representative gazaway
and the motion is to have act 500 the striking
of the provision prevail i see a second for senator bryant all in favor uh any opposed okay the motion carries. All right, I think that takes us
Speaker 10
53:41
down to item D on the agenda, Kevin.
Yes, sir. Commissioners, this item D involves an issue that was raised by Representative Carolyn Brown,
Speaker 7
53:51
primary sponsor of Act 501 at our last meeting. We listed this item separately because it was not part of our report at the last meeting. For this item, you will need both Exhibit D and Supplemental Exhibit D1. If you look on page one of Exhibit D, you'll see a summary of Acts 340 341 section 34 and act 501 section 10. if you then turn to pages 3 and 4 of
exhibit D you will see the purple star schools provisions created by acts 340 341 and on page 7 through 10 of the exhibit you will see the purple star school program provisions created back 501 in addition to supplemental exhibit D1, you will find recommendations and thoughts from Representative Carolyn Brown. Representative Brown had concerns that the acts conflict with one another. At the last meeting, we were asked to speak to the Department of Education on this issue, and we have
Mr. Daniel Schultz from the Department of Education
here. Come on up, Mr. Schultz. If you'll
Speaker 230
55:04
just identify yourself, and you may proceed. Thank you, Members of the Committee, Daniel Schultz, Department of Education, Council. So your staff did reach out to us. My initial review of this, just sort of at a cold legal analysis, was that I felt they could be read together without a conflict. I've subsequently understood that the people with greater subject matter expertise
believe that there may be a conflict. Obviously, the mandatory provision is the second to pass, so we will consider that controlling regardless. may wouldn't overcome the shall so if if both are understood to represent the same thing then we we don't have any objection to what the what this body decides on the matter thank you daniel is there
a recommendation from there we also have
Speaker 7
55:48
a representative and for representative carolyn brown was not able to make it but there's a mr don
Speaker 156
55:55
barry that's here to speak on her behalf on this issue carl barry if you want to
Speaker 232
56:12
come up do you want If you'll just identify yourself for the record, please. Don Barry for the Military Officers Association. On behalf of Representative Brown, the question, as Mr. Schultz had identified, is that the may shall could be resolved by the recognition of the fact that 501 is subsequent.
The programs that we're talking about here are the recognition programs. The schools develop programs under the state guidance, and then once they pass certain parameters, the Arkansas Council for Military Children, which is existing, will recognize them as a Purple Star School or a Purple Star District, depending upon the number of schools that have attained that rating. In 340, 341, Section 34, what we're doing is we're actually establishing a recognition program.
So that was conditional or it was not mandatory that that program, that recognition program need to exist, whereas over in 501 it is mandatory that the council will establish that recognition program. So that's the conflict. And then subsequent to that was a determination whether or not the division would be promulgating rules. In one case, it was determined that they may promulgate rules, whereas in Act 501, it was mandatory.
So just to resolve the conflict, there's a question as to whether or not the two programs are parallel. We determine, or at least within the functional body, we recognize them as
Speaker 234
57:47
being parallel, so there was a conflict. That's what Representative Brown felt. If there's any other questions on that. Any questions for Mr. Schultz or
Speaker 44
57:58
Colonel Barron from the members? Okay. Thank you all very much.
Representative Shepard, as a House sponsor of Act 341, do you have anything else you'd like to share on it?
Representative Matthew J. Shepherd
Unverified
58:22
Yeah. Well, I mean, my view of it would be that there is no conflict. house bill 1512 which that became act 341 it does reference purple star schools and it states that they may be designated and that the division that desi may promulgate rules and that applies to
a school district or a charter school so it's it's a permissive program And that is what we, as we presented that legislation, that's what it was presented as. Then when you look at 1545, which was a subsequent bill and subsequently became Act 501, that is a mandatory program.
And there's no reference between the two. It just so happens that they both are Purple Star school programs, and while they may be generally, you know, referring to the Purple Star school program that exists nationwide, that, to me, that would be bringing in information outside the scope of the legislation and outside the scope of Arkansas Code. And so, you know, basically the way I read it is under my bill, a district or a public charter school could apply to be a Purple Star school, and DESE may promulgate rules to do that.
Under the other bill, each public school with 20 or more children of military families shall adopt. That applies only to schools and schools that meet certain criteria, and so I think that it can be addressed. I think DESE can handle that. They can promulgate rules for districts that want to opt into that, but then they can also follow Representative Brown's law, which I'm fully supportive of, as to the application to schools that have the requisite number of children of military families.
And so I believe they can be reconciled and would be consistent with our practice of generally attempting
to leave legislation alone as it's presented. Okay, thank you, Representative Shepard.
Colonel Berry, would you mind coming back up?
Do you have thoughts on Representative Shepard's comments?
Speaker 232
1:01:26
He's accurate in that regard. And I think in the rulemaking process, DESE has been able to navigate these parameters so that we're able to bring effectiveness to legislation, which may be juxtaposed, I guess would be a term. And in this case here, it's not worth, to Representative Shepard's point, we don't need to defeat law just for the purposes of what that there may be an interpretation of a conflict.
So I think that in execution, the rulemaking process could probably smooth this out. ALC has an opportunity to take a look at that. Public comment has a chance to review that as well, too. So I think there's room to navigate that. And I think that taking a look at Representative Shepard was nodding. I think in that regard, I came across as wanting to see the conflict resolved at the statutory level, but I think that in the rulemaking process, we'll be able to navigate that.
Speaker 238
1:02:29
Okay, thank you. And I'm all for trying to
Representative Matthew J. Shepherd
Unverified
1:02:34
address it at the statutory level if there needs to be a reconciliation of that, but that would need to be something done during a legislative session, And I appreciate certainly his comments and hope that
the program as presented in both bills is successful and well-utilized.
Okay. Thank you, Colonel Mary. Any comments or questions or discussion from commission members?
Dean Nance, you've been awful quiet today. And you're on mute, so you're still quiet.
Speaker 241
1:03:13
busted uh okay are there any proposed is a
we're just going to leave that as it is nobody has a motion on that okay that's sounds good just to clarify
Speaker 79
1:03:25
we'll just codify everything right kevin yes like it'll all go in the book yeah
Speaker 203
1:03:30
both both acts will be fully codified okay and
Representative Matthew J. Shepherd
Unverified
1:03:34
they cover different sections so there's no there's no i mean there are different sections
in the law so they can be codified there's no need for any kind of reconciliation within the language no
Speaker 31
1:03:45
sir they're both assigned to different parts yeah okay thank
you members uh with that we'll move to item e on the agenda yeah thank
Speaker 10
1:03:56
you commissioners this is another new item that was not discussed
Speaker 7
1:03:59
at the last meeting the attorney general's office contacted us about an apparent manifest reference error in act 934 you will find the materials on this in exhibit e on page one there is a summary of the issue on page three line 24 you will see a reference to quote penalties
under section 2657-256 however that section does not contain penalties and you can find a copy of that section on page six of the exhibit the penalties are found in section 2657-255 a copy of which you will find on pages four and five so staff's initials thoughts on this is that we agree with the attorney general's office that this appears to be a manifest reference error and our suggestion would be to change the reference to 2657-255.
Representative Gasway, I see you're the House sponsor on this bill. Do you have any thoughts on
Speaker 246
1:04:58
this? Sorry, I put you on the spot. Should have been more prepared.
Representative Jimmy Gazaway
Unverified
1:05:03
If there's any other discussion, you can go ahead and move to that. Give me just a moment
Speaker 71
1:05:09
to review it. Any thoughts from any other members or questions?
Are you looking something up, Senator Bryant? Yeah, one
Speaker 170
1:05:54
moment for Senator Bryant. is is the 26 57 256
Representative Matthew J. Shepherd
Unverified
1:05:58
is that the the totality of that section or of that subsection that that's
Speaker 7
1:06:05
an that's an excerpt from that section sir just the portion that reflects that it does contain the penalties
Speaker 91
1:06:13
oh um sorry about that yes 256 that is the complete section for
Representative Matthew J. Shepherd
Unverified
1:06:19
256 and i just note that it looks like the reference in there to penalties is only for purposes of saying that uh that tobacco control can collect penalties as assessed under 255 yes sir if you go back in time
Speaker 7
1:06:39
at one point they were moved by that act in 2019 the 256 and that may have been where the confusion arose yeah thank you representative shepherd
yeah it does note that in 256 that 255 is the penalty section which i think further clarifies right the manifest reference error here
Representative Jimmy Gazaway
Unverified
1:07:07
so after review i would agree it does appear that there is a manifest error and we should correct that reference to 255 okay
I'll take that as a motion motion Senator Brian
did you look up what you needed to look up okay is there a second second second from representative Shepard any other discussion on this all in favor of the motion any opposed okay the motion carries all right that takes us to the
Speaker 7
1:07:44
last item on our agenda. Mr. Chair, I'll keep this brief. Just as an update, we're currently working on the 2025 supplements. We expect to have those finished in early August. We expect the online version of the code to be updated in mid-August and the printed supplements to be shipped in early September. We also wanted to take this opportunity to gauge the commission's interest in staff working on a corrections bill that would deal with state government funds. you'll see that issue summarized there in exhibit f as you go through the code you'll see often where
a state treasury fund is created in more than one section over time this has caused confusion they're often one version of the section will be amended and the other won't it becomes confusing when you want to try to reference that state treasury fund section because which provisions are you going to reference the one in title 19 or the one somewhere else so our idea was to try to you know create a list of those go through and consolidate those creation sections under title 19 we've reached out to department of finance administration they've indicated they would help us work on that issue and so this was just a chance for us to gauge
your interest on and us pursuing that
project i'm supportive of that effort i think that's a smart
thing to do but uh welcome come representative gas away agrees so any other thoughts or comments from the members
Speaker 42
1:09:05
of the commission I would I would just ask as you
Representative Matthew J. Shepherd
Unverified
1:09:09
work through that that obviously work with the BLR fiscal affairs side of things on that and also
it might be good to loop in maybe the budget chairs as well just as we look at those at those funds yes sir we can do
that that's all I have okay without anything further for the Commission I'll entertain a motion to adjourn motion second kind of motion a
second all in favor all right we are adjourned thank you everybody thanks
Agenda
A. Call to Order
B. Approval of the Minutes of June 19, 2025, meeting – Exhibit B
C. Items held over from June 19, 2025, meeting concerning 2025 Act Errors and Issues – Exhibit C
D. Acts 340/341 and Act 501 – Exhibit D
E. Act 934 – Exhibit E
F. Report of Code Revisor – Exhibit F
G. Adjournment
Documents
Speakers
Representative Matthew J. Shepherd
Unverified
Speaker 7
Representative Kenneth B. Ferguson
Unverified
Speaker 20
Speaker 28
Speaker 30
Senator Clarke Tucker Chair
Unverified
Representative Jeff Wardlaw
Unverified
Representative Aaron Pilkington
Unverified
Speaker 56
Speaker 10
Speaker 64
Speaker 66
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Senator Joshua Bryant
Unverified
Speaker 91
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Representative Jimmy Gazaway
Unverified
Speaker 117
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Representative Mindy McAlindon
Unverified
Speaker 159
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