In our opinion: Consistent regulations

Published: Saturday, Dec. 29 2012 12:00 a.m. MST

In the regulatory world, there are two fundamental realities. First, those being regulated are generally not enthusiastic about having government agents watching over their shoulders. Second, regulation is ineffective unless it is consistently applied in a way that practitioners and their clients, patrons or patients know exactly what is expected and what recourse is available if harm is done.

Pablo Martinez Monsivais, AP

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Those who engage in a professional occupation — whether it's in the area of finance, health care, the construction trades or any other field — are typically subject to at least some form of governmental regulation. It's in the best interest of professionals and those who receive their services to know that qualifications and best practices are assured.

That's why it's troubling to see recent evidence that the regulatory agencies in Utah have been inconsistent in how they monitor compliance and enforce standards of practice.

A recent legislative audit reported the state's Division of Occupational and Professional Licensing has been aggressive in pursuing some cases, while allowing others to languish without action. Separately, a prominent lawmaker has voiced concern that the agency that oversees securities dealers has also been inconsistent in its approach, sometimes acting too aggressively on relatively minor transgressions.

In the regulatory world, there are two fundamental realities. First, those being regulated are generally not enthusiastic about having government agents watching over their shoulders. Second, regulation is ineffective unless it is consistently applied in a way that practitioners and their clients, patrons or patients know exactly what is expected and what recourse is available if harm is done.

In the case of the state's licensing division, the auditors found the agency does a good job of responding quickly to complaints, but is inconsistent in follow-through. While the majority of cases that come to the agency are handled and disposed of according to policy, a substantial number received no action for long periods of time. The auditors found more than 100 cases under the agency's purview during fiscal year 2012 which had remained open without action—in some cases for up to six years.

The audit also found lapses in dealing consistently with health care workers who failed to undergo drug and alcohol screening, or had failed screening tests, prompting concerns from legislative leadership.

One lawmaker, Rep. Jim Dunnigan, R-Taylorsville, is sponsoring legislation that would allow the agency more latitude in how to deal with minor transgressions. Under current law, even minor offenses may end up on the road to full licensure review, even though the nature of the alleged actions don't necessarily warrant formal proceedings.

At first blush, Rep. Dunnigan's approach appears sensible and warrants consideration as an effort to bring greater balance to the regulatory apparatus. Granting the agency more discretion and flexibility in dealing with individual cases would likely bring more consistency in how the agency deals with the nearly 200,000 professionals under its jurisdiction.

Likewise, balance is a virtue in the world of securities regulation. Before you turn over your savings to a money manager or equities firm, you want to know they enjoy a clean reputation, and it's essential that any record of transgressions is easily accessible to the general public.

But Sen. Howard Stephenson, R-Draper, has voiced concern that records of sanctions posted by the state's Division of Securities can unfairly tarnish a professional's resume by lingering too long in the public record. He would like to see a mechanism to scrub records of minor transgressions — or records of alleged violations later overturned on appeal — from the long-reach of the Internet.

Stephenson raises a valid point. While the reach of the Internet may not be infinite, its outer boundaries are not yet charted. As such, records may linger and when excavated in a Google search, offer up only a factoid of information, lacking context.

But on the other hand, a solution to that concern is not to limit the ability of regulators to place on the public record any and all instances of verified malfeasance. That tidbits of untethered information might be cached and retrievable somewhere on the web doesn't justify laws or policies that would restrict access to public information.

Such regulatory issues surface in every legislative session. It's important our regulatory agencies have the resources and commitment to execute their tasks in a consistent manner, and it's up to the Legislature to see that they do.

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