Certified Final Objection No. 107 of the
Joint Legislative Committee on Administrative Rules
At its meeting on December 18, 1998, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, V(a), to enter a preliminary objection to Final Proposal 98-151 containing proposed rules Env-WC of the Water Council, (Council) relative to its practice and procedure. The Council responded by letter dated February 1, 1999.
At its meeting on February 19, 1999, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 98-151. The final objection has been filed with the Director of the Office of Legislative Services for publication in the New Hampshire Rulemaking Register. The effect of a final objection is stated in RSA 541-A:13, VI:
After a final objection by the committee to a provision of a rule is filed with the director under subparagraph V(d), the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the provision to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, is in the public interest, or does not have a substantial economic impact not recognized in the fiscal impact statement. If the agency fails to meet its burden of proof, the court shall declare the whole or portion of the rule objected to invalid. The failure of the committee to object to a rule shall not be an implied legislative authorization of its substantive or procedural lawfulness.
Due to the number of bases for objection, some of the rules to which the final objection has been made have not been identified in this text. All the rules to which the Committee’s final objection was made are specified in the annotations to the rules made by the Committee’s legal staff. Copies of the Council’s rules both with and without Committee staff annotations are available from the Office of Legislative Services, Division of Administrative Rules, Room 219, State House Annex. The following summarizes some of the bases for the Committee’s final objection:
The Committee determined that Env-WC 202.01 is, pursuant to Committee Rules 401.01(c)and 402.02(a), beyond the authority of the Council and contrary to legislative intent by conflicting with RSA 91-A:1-a and RSA 91-A:2 as described below.
This provision states "a quorum of the council shall be a simple majority of the total number of sitting members, provided, however, that in the context of an appeal, a quorum shall be a simple majority of those sitting members who have not recused themselves from the hearing." For example, if there were 5 vacancies, applying this rule would mean that as few as 6 members would constitute a quorum.
The Committee noted that RSA 21-O:7, I(a), authorizes 16 members for the Council. According to Black’s Law Dictionary, Fifth Edition, a quorum is defined as "a majority of the entire body," which in this case would be 9 members. The Committee also noted that when the General Court intends that a quorum be something other than a simple majority of the entire body the General Court specifically so provides and either specifies the number of members actually constituting a quorum, which it did not do when creating the Council. The Committee also noted that the General Court did not authorize the Council to determine its own quorum requirements. Therefore, the Committee concluded that the Council has no authority to specify that a quorum of the Council is anything but a majority of the entire body.
The Committee further determined that allowing fewer members than constitutes a true quorum of the Council would result in violation of the state’s right-to-know law, RSA 91-A. Pursuant to RSA 91-A:1-a, III, the Council is a public body governed by the requirements of RSA 91-A. Pursuant to RSA 91-A:2, I, an agency meeting requires the "convening of a quorum of the membership of a public body, as provided in RSA 91-A:1-a, to discuss or act upon a matter or matters over which the public body has supervision, control jurisdiction or advisory power." The Committee concluded that the quorum provision in the Council’s rules, by allowing less than a true quorum for discussions or actions as described in RSA 91-A:2, I, is inconsistent with the statutes described above.
Env-WC 202.04(b) and (c), and Env-WC 202.06
The Committee determined that Env-WC 202.04(b) and (c), and Env-WC 202.06 are, pursuant to Committee Rules 403.01(d) and 401.01(c), contrary to the public interest by not being clear and understandable and beyond the Council’s authority, respectively, as described below.
Each of the three provisions uses the term "presumed" as a substitute for "deemed." In Env-WC 202.04(b), the rule provides that documents will be "presumed to have been filed" on the date actually received by the Council’s clerk. Paragraph (c) states that documents issued by the Council and sent to the last address of record for a participant in an appeal "shall be presumed adequate notice" [sic]. The pertinent language of Env-WC 202.06 is identical to the that of Env-WC 202.04(c).
The Committee determined that it was unclear what was intended by the word "presumed." Specifically, in the Committee’s view, it was not clear who it is that must so presume, or what for what purposes such presumption must be made. The Committee also was concerned that it was unclear whether any person would be permitted to show the contrary to the presumptions stated in the rules provisions. Finally, the Committee concluded that if the presumption was intended to bind anyone other than a participant in the appeal, the Council lacked jurisdiction over such person and therefore has no authority to impose such a requirement.
The Committee determined that Env-WC 203.12 is, pursuant to Committee Rules 402.02(a) and (b)(2) and 403.01(d), contrary to legislative intent and contrary to the public interest by not being clear and understandable, as described below.
This two sentence section governs intervention. It merely provides that petitions for intervention will be handled in accordance with RSA 541-A:32, and that in any order granting intervention the Council shall indicate "the extent to which the intervenor shall be considered a party for purposes of these rules."
The Committee noted that RSA 541-A:16, I(b), requires each agency to adopt rules of practice setting forth all formal and informal procedures available. The Committee then noted that RSA 541-A:32 does not address completely the issue of intervention. For example, the statute does not provide the criteria and procedure to be used in determining whether to impose limitations upon the participation in the proceeding by an intervenor. Yet, in the Committee’s view, the Council will have to make such decisions each time it is presented with a motion for intervention, thereby setting procedure and criteria outside the process mandated by RSA 541-A:3. The Committee determined that no potential intervenor could not know from reading this rule how it is that the Council will decide whether to impose limitations, and if it does, which limitations could be imposed and why they would be imposed.
The Committee also determined that the rule was unclear when it indicated that the Council will specify "the extent to which the intervenor shall be considered a party" for the purposes of the appeal. In the Committee’s view, the status of an intervenor and the status of a party are fundamentally different. The Council may impose limitations on the participation of an intervenor, but the Council may not impose such limitations on a party. Therefore, the Committee concluded that the provision blurs the distinction between the two statuses, rendering the rule unclear as to what is actually intended.
The Committee determined that Env-WC 203.19(d) is, pursuant to Committee Rules 402.02(a) and (b)(2), contrary to legislative intent and contrary to the public interest by not being clear and understandable, as described below.
This rule governs the use of written testimony. It provides that written testimony may be used if it would be more readily understood than oral testimony, and then sets forth the process to be followed in such instances. The Committee did not object to the language that is in the rule, but objected on the basis of what was absent. Specifically, the Committee took notice of Petition of Grimm, 138 NH 42 (1993), in which the Supreme Court required that in instances in which the credibility of a witness or witnesses is material to the outcome of the case, those who will render a decision must be present for personal observation of such witness’s or witnesses’ testimony. As noted above, agencies are required, pursuant to RSA 541-A:16, I(b), to set forth in its rules all formal and informal processes available, yet this procedural requirement is not reflected in the rules. The Committee concluded that a participant or an observer could not know from reading Env-WC 230.19 that such personal observation is a requirement.