Proposed rules would allow anonymous complaints
By Cole Boehler
When the Legislature enacted a total public indoor smoking ban
during the 2005 session, the law represented a delicate compromise
between business owners–primarily operators of taverns and casinos–and
anti-smoking interests.
The compromise essentially allowed taverns and casinos four years
to make the transition to smoke-free premises, along with a few other
conditions.
That summer, rules to implement the law were carefully written in
the spirit of the compromise and have governed the situation since.
But as the total ban is due to take effect Oct. 1, the Department
of Public Health and Human Services (DPHHS) drafted amendments to the
original rules, then scheduled a public hearing July 16.
Most of the proposed changes, also to take effect Oct. 1 if
adopted, were "housekeeping" matters that would bring the rules
language into the present. But one proposed amendment caught the
attention of the business community and resulted in voiced opposition
at the July 16 hearing.
That provision would allow anyone to anonymously file a smoking
violation complaint against a business, either in writing or
electronically.
The stated justification for the new rule amendments was: "The
proposed rule amendment to ARM 37.113.112(1) would allow citizens to
file anonymous complaints. Mandating that citizen complaints be signed
may deter Montana citizens and particularly workers from filing
complaints due to the potential for retribution. Local health boards or
their designees would need to confirm that a violation of the law has
occurred to act on an anonymous complaint."
One legislator, Rep. Harry Klock (R-Harlowton), testified against
the proposed amendment that would allow anonymous complaints to be
filed.
Business representatives also voiced their concerns at the hearing.
Mark Staples spoke for the Montana Tavern Association and Neil Peterson
represented the Gaming Industry Association. Individual business
operators who spoke were Laura Fix, Dax Cetraro and Steve Morris of
Helena. Matt Donnelly of Gallatin Gateway submitted written comments.
Several health organization representatives testified in favor of the rules amendments.
Following is a paraphrased summary of opponent remarks.
Rep. Klock: No new laws had been passed since the last set
of rules was negotiated and implemented and thus, beyond the clean-up
language, there is no justification for implementing new rules. In my
opinion, if the proposal for allowing anonymous complaints had been
part of the original conception for the non-smoking bill, the
Legislature would never have approved it.
Staples: MTA, GIA, and the licensed community at large is
expecting full compliance, and thus believe that the late proposal for
allowing anonymous complaints to spur investigations or citations flies
in the face of that positive approach and expectation.
The requirement for a signed complaint has worked appropriately and
was unchallenged for restaurants, offices, businesses and all other
public entities. So, why segregate out licensed establishments for
different treatment now that they, too, will become non-smoking?
It appears to insinuate that our folks will act punitively to
anyone complaining. That's an unwarranted and unsupported insinuation,
has no place in the rule-making process, and sets exactly the wrong
tone as we go into the transition.
If any business of any kind retaliated against a complaining
employee, they would have bigger legal problems than a misdemeanor
citation–they'd have an expensive court suit to contend with, so the
rationale behind the “anonymous" proposal doesn't stand up.
Let's go on as we have. It's working. If we run into problems,
we'll deal with them then. Let's not abridge due process of law (right
to know who has accused you) for mere speculation.
Peterson:
The potential for abuse far outweighs the possibility that anonymity
will bolster compliance. When I was at the Montana Department of
Revenue, anonymous complaints often were nothing more than harassment;
they did not augment compliance. In fact, they hampered it. Let's
continue to work as is. It's not broke so don't fix it. GIA is 100
percent committed to compliance.
Fix: You can't even get
a letter to the editor printed without a name and address, so why
should it be different for someone who is attacking my business and
accusing me of breaking a law I fully intend to obey?
Cetraro: It's not necessary.
Morris:
To insinuate that 1) we won't comply, and 2) will retaliate if someone
complains, is without any basis and is an insult to the licensed
community.
Excerpts from Donnelly's letter: "The
purported justification for the rule change (regarding anonymity) is
that certain members of the public may fear retribution if they are
required to sign a complaint.
As you know, there are already multiple laws and statutes
prohibiting retribution in these matters. An employer who attempts to
penalize an employee for filing a complaint would be subject to strict
scrutiny and possibly criminal penalties under existing statute.
Similar, though less frequently cited, penalties would apply to a
business owner who attempted to penalize a customer or patron.
“Conversely, if the proposed change were to become law a
disgruntled employee could cause all sorts of unjustified problems and
costs for an employer who is in compliance with the remainder of the
statute. (Or) What if, for example, (a) competitor decided to start
filing anonymous complaints against us as an attempt to drive us out of
business?
“I am (also) suggesting that the right to know one's accuser is a
fundamental tenet of our (constitutional) legal system. So what if the
accuser is a little uncomfortable! It is not the job of the State of
Montana to make leveling accusations a comfortable matter.”
Staples told the Montana Tavern Times that representatives of the
heart and lung associations generally supported the rule proposals and
thanked the MTA and GIA leadership for their cooperation in making the
transition to smoke-free in Montana a smooth one thus far.
The department must now provide written responses to the testimony,
then submit the rules changes to the Secretary of State's Office for
approval and publication. Once published, the rules assume the force of
law and in this case would take effect Oct. 1.
Peterson and Staples both said they are hopeful the department will
see the logic in requiring signed complaints and will remove the
anonymous complaint provision before the rules are submitted for
publication.