2024 -- S 3053

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LC006078

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2024

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A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- REFORM RESTRICTIVE

CONFINEMENT ACT

     

     Introduced By: Senator Jonathon Acosta

     Date Introduced: May 06, 2024

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Title 42 of the General Laws entitled "STATE AFFAIRS AND

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GOVERNMENT" is hereby amended by adding thereto the following chapter:

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CHAPTER 56.4

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REFORM RESTRICTIVE CONFINEMENT ACT

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     42-56.4-1. Definitions.

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     As used in this chapter, unless the context indicates a different meaning or intent:

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     (1) "Administrative confinement" means any status or classification, except for disciplinary

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confinement, for prisoners whose conduct may pose a serious threat to life, self, staff, other

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prisoners, or the facility's security or orderly operation.

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     (2) "Basic necessities" means and includes weather-appropriate clothing and footwear;

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adequate food in compliance with medical and religious accommodations, with no more than

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twelve (12) hours between meals; access to drinking water and functioning sanitary fixtures; access

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to a shower and hygienic items; bedding; and ventilation.

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     (3) "Cell" means any room, area or space that is primarily used for the confinement of

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prisoners; or any room, area or space that is less than four hundred square feet (400 sq. ft.),

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regardless of use or purpose; or any indoor room that is solely accessible to one prisoner at a time.

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Shared spaces whose primary purpose is congregate social interaction, education, programming,

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rehabilitation, or physical and psychological wellness, including recreation areas, classrooms,

 

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libraries, and spaces used for medical evaluation and treatment, shall not constitute "cells."

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     (4) "Department" means the department of corrections.

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     (5) "Director" means the director of the department of corrections.

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     (6) "Disciplinary confinement" means punitive confinement of a prisoner based on

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violation of departmental rules, whether in the general population, a specialized housing unit, or

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elsewhere.

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     (7) "General population" means classification to maximum, medium, or minimum security

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with no restrictions placed on activities or privileges.

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     (8) "Member of a vulnerable population" means someone who:

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     (i) Has a serious and persistent mental illness, as defined by the department of corrections,

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or a psychiatric disability, as defined in § 40.1-5-2;

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     (ii) Has a developmental disability, as defined in § 40.1-1-8.1;

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     (iii) Is pregnant, in the postpartum period, or has recently suffered a miscarriage or

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terminated a pregnancy; or

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     (iv) Has a significant auditory or visual impairment, or a serious medical condition that

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cannot be adequately treated in restrictive housing or which is medically contraindicated to

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placement in restrictive housing.

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     42-56.4-2. Discipline -- Disciplinary confinement.

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     (a) The department shall establish maximum penalties for each level of offense. The

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maximum restrictive housing penalty for any single rule violation or any series of related rule

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violations shall be no more than fifteen (15) days.

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      (b) All prisoners in disciplinary confinement shall receive a minimum of two (2) hours

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out-of-cell each day, except in the case of a lockdown. In no event shall a lockdown last more than

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twenty-four (24) hours.

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     (c) No prisoner shall serve more than fifteen (15) days in disciplinary confinement in a

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thirty (30) day period.

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     (d) Any prisoner that is not in disciplinary confinement must be provided with three (3) or

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more hours of out-of-cell time.

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     42-56.4-3. Reporting.

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     (a) The department of corrections shall issue a report ("annual restrictive housing report")

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to be made publicly available on the department's website one year after the effective date of this

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chapter and by January 31 of each year thereafter, containing the following information, broken

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out by disciplinary, administrative, and transitional confinement:

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     (1) The number of prisoners in each institution placed in restrictive housing during the past

 

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year;

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     (2) The nature of the infractions and behaviors leading to the use of restrictive housing;

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     (3) The lengths of terms served in restrictive housing, including terms served consecutively

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and cumulatively;

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     (4) The races, ethnicities, genders, and religions of all prisoners placed in restrictive

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housing;

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     (5) The number of members of a vulnerable population placed in restrictive housing, by

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category promulgated in the definition thereof listed in § 42-56.4-2; and

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     (6) The average weekly out-of-cell time provided to prisoners in each category of

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restrictive housing.

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     (b) The restrictive housing oversight committee, as created in § 42-26-20, may require the

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department to publish additional information, in addition to the fields delineated by statute, in the

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annual restrictive housing report.

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     42-56.4-4. Declaratory judgment.

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     (a) Any prisoner may bring an action for declaratory judgment in the superior court of

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Providence county, when it is alleged that:

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     (1) The department of corrections or an officer thereof failed to perform a duty enjoined

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upon it by this chapter, or acted in violation of lawful procedure as required by this chapter; or

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     (2) A department rule, or its threatened application, interferes with or impairs, or threatens

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to interfere with or impair, the legal rights or privileges of the plaintiff under this chapter or the

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state or federal Constitution.

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     (b) A declaratory judgment may be rendered whether or not the plaintiff has requested the

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agency to pass upon the validity or applicability of the rule in question.

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     SECTION 2. Chapter 42-26 of the General Laws entitled "Public Safety Grant

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Administration Office" is hereby amended by adding thereto the following section:

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     42-26-20. Restrictive housing oversight committee.

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     (a) There is hereby created within the public safety grant administration office, pursuant to

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the provisions of § 42-26-7, the restrictive housing oversight committee ("committee") for the

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purpose of monitoring the use of restrictive housing at the department of corrections.

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     (b) The committee shall consist of the following five (5) members who shall assemble

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annually or more often at the call of the chairperson or upon petition of a majority of its members:

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     (1) One who has been previously sentenced to spend time in restrictive housing, appointed

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by the Black, Latino, Indigenous, Asian-American, and Pacific Islander Caucus of the general

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assembly;

 

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     (2) One who has expertise in law and a demonstrated interest in advancing the rights and

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welfare of incarcerated persons, appointed by the speaker of the house of representatives;

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     (3) One who has expertise in the provision of mental health care to incarcerated persons or

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formerly incarcerated persons, appointed by the president of the senate;

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     (4) One who has a demonstrated interest in advancing the rights and welfare of incarcerated

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persons appointed by the governor; and

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     (5) The director of the department of corrections, or designee.

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     (c) A chair of the committee shall be selected by the members of the committee.

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     (d) Of the members first appointed to the committee, two (2) members shall serve a term

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of two (2) years, two (2) members shall serve a term of one year, and thereafter, members shall

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serve a term of two (2) years. Members shall continue to serve until their successor is duly

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appointed and qualified. Any vacancy on the oversight committee shall be filled in the same manner

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as the original appointment.

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     (e) The committee shall perform the following functions:

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     (1) Appoint a restrictive housing ombudsperson ("ombudsperson") based on whatever

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procedure is determined by the committee;

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     (2) Review and supervise the actions of the ombudsperson;

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     (3) Meet not less than quarterly to bring matters to the ombudsperson's attention and to

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consult on their services, findings and recommendations; and

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     (4) Convene semiannual public hearings to discuss the ombudsperson's services, findings

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and recommendations.

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     (f) The ombudsperson shall be empowered to:

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     (1) Receive and investigate complaints related to incarcerated persons' health, safety,

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welfare, and rights;

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     (2) Identify issues within the department of corrections related to restrictive housing;

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     (3) Ensure compliance with relevant statutes, rules, and policies pertaining to restrictive

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housing;

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     (4) Provide information to inmates, probationers, and parolees, and their families related

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to restrictive housing; and

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     (5) Promote public awareness and understanding of the rights and responsibilities of

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individuals in prison and conditions related to restrictive housing.

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     (g) The ombudsperson shall conduct random biannual inspections of restrictive housing

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areas in each facility, including cells, recreation areas, and programming spaces, and shall visit

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different facilities on each inspection. Neither the committee nor the ombudsperson shall announce

 

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an inspection to any individual or entity outside of the committee before the inspection occurs. The

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department shall ensure full access to the facility, inmates, and staff as part of these inspections

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consistent with this section.

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     (h) All oral and written communications, and records relating to such communications

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between a person in the custody of the department of corrections and the ombudsperson or

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committee, including, but not limited to, the identity of a complainant, the details of the

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communications, and the ombudsperson's findings shall be confidential and shall not be disclosed

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without the consent of such person, except that the committee or ombudsperson may disclose

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without the consent of such person general findings or policy recommendations based on such

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communications; provided no individually identifiable information is disclosed.

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     (i) Notwithstanding any provision of the general laws concerning the confidentiality of

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records and information, the ombudsperson shall have access to, including the right to inspect and

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copy, any non-privileged records necessary to carry out their responsibilities.

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     (j) In the performance of the responsibilities provided for in this section, the ombudsperson

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may communicate privately with any person in the custody of the department of corrections. Such

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communications shall be confidential except as provided in this section.

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     (k) Members of the committee and ombudsperson shall meet with the governor and the

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director of the department of corrections at least two (2) times each year to report on the work and

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findings of the committee.

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     (l) A majority of the members appointed to the committee shall constitute a quorum, which

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shall be necessary for the committee to conduct business. A majority vote of the members present

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shall be required for action of the committee.

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     (m) The general assembly shall annually appropriate such sums as it may deem necessary

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for the payment of any ombudsperson's salary and for the payment of office expenses and other

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actual expenses incurred by the committee or any ombudsperson's in the performance of their

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duties; and the state controller is hereby authorized and directed to draw their orders upon the

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general treasurer for the payment of such sum or sums, or so much thereof, as may from time to

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time be required, upon receipt by them of proper vouchers approved by any ombudsperson's or

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committee.

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     SECTION 3. Section 42-35-1 of the General Laws in Chapter 42-35 entitled

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"Administrative Procedures" is hereby amended to read as follows:

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     42-35-1. Definitions.

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     As used in this chapter:

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     (1) Except as otherwise provided herein, “agency” means a state agency, authority, board,

 

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bureau, commission, department, district, division, institution, office, officer, quasi-public agency,

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or other political subdivisions created by the general assembly or the governor, other than the

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legislature or the judiciary, that is authorized by law of this state to make rules or to determine

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contested cases.

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     (2) “Agency action” means:

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     (i) The whole or part of an order or rule;

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     (ii) The failure to issue an order or rule; or

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     (iii) An agency’s performing, or failing to perform, a duty, function, or activity or to make

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a determination required by law.

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     (3) “Agency head” means the individual in whom, or one or more members of the body of

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individuals in which, the ultimate legal authority of an agency is vested.

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     (4) “Agency record” means the agency rulemaking record required by § 42-35-2.3.

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     (5) “Contested case” means a proceeding, including but not restricted to, ratemaking, price

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fixing, and licensing, in which the legal rights, duties, or privileges of a specific party are required

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by law to be determined by an agency after an opportunity for hearing.

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     (6) “Electronic” means relating to technology having electrical, digital, magnetic, wireless,

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optical, electromagnetic, or similar capabilities.

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     (7) “Electronic record” means a record created, generated, sent, communicated, received,

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or stored by electronic means.

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     (8) “Final rule” means a rule promulgated under §§ 42-35-2.6 through 42-35-2.9, an

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emergency rule promulgated under § 42-35-2.10, or a direct, final rule promulgated under § 42-35-

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2.11.

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     (9) “Guidance document” means a record of general applicability developed by an agency

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which lacks the force of law but states the agency’s current approach to, or interpretation of, law

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or describes how and when the agency will exercise discretionary functions. The term does not

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include records described in subdivisions (19)(i), (ii), (iii), or (iv).

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     (10) “Index” means a searchable list in a record of subjects and titles with page numbers,

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hyperlinks, or other connectors that link each index entry to the text to which it refers.

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     (11) “License” includes the whole or part of any agency permit, certificate, approval,

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registration, charter, or similar form of permission required by law, but it does not include a license

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required solely for revenue purposes.

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     (12) “Licensing” includes the agency process respecting the grant, denial, renewal,

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revocation, suspension, annulment, withdrawal, or amendment of a license.

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     (13) “Order” means the whole or a part of a final disposition, whether affirmative, negative,

 

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injunctive, or declaratory in form, of a contested case.

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     (14) “Party” means each person or agency named or admitted as a party, or properly

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seeking and entitled as of right to be admitted as a party.

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     (15) “Person” means any individual, partnership, corporation, association, the department

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of environmental management, governmental subdivision, or public or private organization of any

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character other than an agency.

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     (16) “Promulgate,” with respect to a rule, means the process of writing a new rule, or

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amending or repealing an existing rule. “Promulgation” has a corresponding meaning. The process

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of “promulgation” begins with the filing of the notice of proposed rulemaking under § 42-35-2.7

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and ends upon the effective date of the rule. “Promulgate” also includes the completion of the

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rulemaking process for emergency rules (§ 42-35-2.10) or direct final rules (§ 42-35-2.11), if

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applicable.

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     (17) “Reasonable charge” means the lowest, customary charge for a service.

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     (18) “Record” means information that is inscribed on a tangible medium or that is stored

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in an electronic or other medium and is retrievable in perceivable form.

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     (19) “Rule” means the whole or a part of an agency statement of general applicability that

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implements, interprets, or prescribes law or policy or the organization, procedure, or practice

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requirements of an agency and has the force of law. The term includes the amendment or repeal of

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an existing rule. The term is used interchangeably in this chapter with the term “regulation.” The

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term does not include:

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     (i) A statement that concerns only the internal management of an agency and which does

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not affect private rights or procedures available to the public. Individuals under the custody or

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supervision of the department of corrections shall be considered members of the public for the

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purposes of this chapter, except where disclosure of any rule or portion of a rule would endanger

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the public welfare and security, pursuant to § 38-2-2(4)(F);

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     (ii) An intergovernmental or interagency memorandum, directive, or communication that

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does not affect private rights or procedures available to the public;

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     (iii) An opinion of the attorney general, or an opinion of the ethics commission pursuant to

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§ 36-14-11;

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     (iv) A statement that establishes criteria or guidelines to be used by the staff of an agency

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in performing audits, investigations, or inspections, settling commercial disputes, negotiating

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commercial arrangements, or defending, prosecuting, or settling cases, if disclosure of the criteria

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or guidelines would enable persons violating the law to avoid detection, facilitate disregard of

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requirements imposed by law, or give an improper advantage to persons that are in an adverse

 

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position to the state;

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     (v) A form developed by an agency to implement or interpret agency law or policy; or

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     (vi) A guidance document.

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     (20) “Sign” means, with present intent, to authenticate a record:

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     (i) To execute a tangible symbol; or

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     (ii) To attach to or logically associate with the record an electronic symbol, sound, or

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process.

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     (21) “Small business” shall have the same meanings that are provided for under 13 C.F.R.,

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Pt. 121, as may be amended from time to time.

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     (22) “Small business advocate” means the person appointed by the chief executive officer

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of the commerce corporation as provided in § 42-64-34.

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     (23) “State register” means the publication required under chapter 8.2 of title 42.

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     (24) “Website” means a website on the internet or other similar technology or successor

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technology that permits the public to search a database that archives materials required to be

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published or exhibited by the secretary of state or an agency under this chapter.

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     (25) “Writing” means a record inscribed on a tangible medium. “Written” has a

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corresponding meaning.

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     SECTION 4. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- REFORM RESTRICTIVE

CONFINEMENT ACT

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     This act would establish a restrictive housing oversight committee for the purpose of

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monitoring the use of restrictive housing, as well as disciplinary confinement at the department of

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corrections. This act would also authorize the committee to hire an ombudsperson to assist in its

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oversight duties.

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     This act would take effect upon passage.

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