Certified Final Objection No. 111 of the
Joint Legislative Committee on Administrative Rules
At its meeting on February 19, 1999, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 98-109 containing proposed rules Csp 100 of the College Tuition Savings Plan Advisory Commission (Commission) relative to its organization. The Commission responded by letter dated April 5, 1999.
At its meeting on May 21, 1999, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 98-109. 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.
There is an additional effect of the Committee’s decision to enter a final objection to this final proposal. Pursuant to RSA 541-A:17, I, rules are valid for no longer than 8 years, unless sooner readopted by the agency. An exception to the 8 year expiration provision has been set forth in RSA 541-A:17, II, for those organizational rules approved by the Committee. Such rules, once adopted, have no specific expiration date. As the Committee did not vote to approve these rules, pursuant to 541-A:17, I, they will expire 8 years from their effective date.
The following summarizes the bases for the Committee’s final objection:
The Committee objected that Csp 102.09 is contrary to legislative intent, pursuant to Committee rule 402.02(a), by conflicting with RSA 91-A, as set forth below.
The provisions of Csp 102.09 allow for "telephonic meetings’ in which one or more Commission member participates in the "meeting" via telephone or other equipment. The language of the rule states:
Members shall be permitted to participate in a meeting of the commission by means of a telephone or similar communications equipment that enables all persons participating in or observing the meeting to hear every other person participating in or observing the meeting. Participation by these means shall constitute presence in person at a meting. Notwithstanding the telephonic participation by certain commission members, a physical meeting shall be established for each meeting where at least one member shall and the public can convene. Any meeting at which one or more members are participating by telephone shall be recorded verbatim by magnetic tape or other similar recording technology.
Pursuant to RSA 91-A:1-a, III, the Commission is a public body governed by the requirements of RSA 91-A, the state’s Right-to-Know Law. Pursuant to RSA 91-A:2, I, a meeting of a public body 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." [Emphasis added.] According to Black’s Law Dictionary, (Fifth Ed.), to "convene" means "to call together; to cause to assemble; to convoke." It also defines a "quorum" as "a majority of the entire body," which in this case would be 7 members, as RSA 195-H:3, I, authorizes 13 members for the Commission.
Thus, the Committee determined that the Commission must have at least 7 members physically present for any meeting in which it will discuss or act upon official matters. The Committee further determined that allowing fewer members to be present than constitutes a true quorum of the Commission would result in violation of RSA 91-A. The Committee concluded that, by allowing less than a true quorum to be physically present for discussions or actions as described in RSA 91-A:2, I, the telephonic meeting provisions of Csp 102.09 conflict with the statutes cited above.