The state Highway Commission’s rules would be subject to legislative approval and a legislative subcommittee would be created to oversee the independent five-member commission under proposed legislation state Rep. Andy Davis, R-Little Rock, has drafted.
Davis, who served on the Governor’s Working Group on Highway Funding, said this week that his draft bill is designed to increase legislative oversight over the Highway Commission.
He said he’s “open to input and suggestions” from his colleagues about the measure that he hopes to introduce during Gov. Asa Hutchinson’s proposed special session on highway funding after the end of the fiscal session. The fiscal session starts Wednesday.
But the chairmen of the House and Senate public transportation committees said they question whether the draft legislation would run afoul of Amendment 42 to the Arkansas Constitution, which created the Highway Commission.
State Sen. Bill Sample, who chairs the Senate Public Transportation, Technology and Legislative Affairs Committee, said he wonders whether the Mack-Blackwell Amendment prevents or requires legislative approval of the commission’s rules.
“I’m certain the Highway Commission would challenge its legality,” said Sample, a Republican from Hot Springs.
State Rep. Prissy Hickerson, who chairs the House Public Transportation Committee, said that “this could be unconstitutional in that the Mack-Blackwell act grants approval of programs and processes solely to the Highway Commission.”
“This would need to be researched,” said Hickerson, a Republican from Texarkana who previously served on the Highway Commission.
But Davis said his intent is only to require legislative approval of the funding process for now.
“The bill is a rough draft. That may need to be clarified. I have no intent to require more rules than that for legislative approval at this time,” he wrote in an email.
Davis said attorneys for the Bureau of Legislative Research advised him that his draft legislation wouldn’t violate the Arkansas Constitution.
“In my opinion and in theirs, the Legislature has broad authority over the commission,” he said.
“If you read the Mack-Blackwell Amendment, it pretty clearly says that the commission is independent from the executive branch. But it is very clear that they will carry out whatever the Legislature puts into statute,” Davis said.
In part, Amendment 42 states: “There is hereby created a State Highway Commission, which shall be vested with all the powers and duties now or hereafter imposed by law for the administration of the State Highway Department, together with all powers necessary or proper to enable the Commission or any of its officers or employees to carry out fully and effectively the regulations and laws relating to the State Highway Department.”
Danny Straessle, a spokesman for the state Highway and Transportation Department, declined to comment in detail.
“It’s draft legislation, and we don’t know if it’s been vetted,” Straessle said.
The Arkansas Democrat-Gazette obtained a copy of Davis’ draft legislation from the Highway Department under an Arkansas Freedom of Information Act request. “Take a look at and let me know what you think,” Davis wrote in an email dated Feb. 10 to Director Scott Bennett.
Davis said this week that he’s not formally heard back from the Highway Department.
He said he wants to require the Highway Commission to put its funding process into a proposed rule requiring legislative approval so lawmakers “will have buy-in about that process, which will eliminate skepticism” about the funding process.
The Highway Commission legislative oversight subcommittee would give the commission “a bigger audience” of lawmakers to provide information to lawmakers and allow lawmakers to ask questions of the commission, Davis said.
But Hickerson said that “the existing transportation committees can and do receive reports on highway projects and [the state Highway and Transportation Department] could present any additional information that legislators request or are interested in to the House and Senate transportation committees.”