Certified Final Objection No. 46 of the

Joint Legislative Committee on Administrative Rules

At its meeting on April 17, 1992, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:3-e, IV, to enter a preliminary objection to Final Proposal 92-022 containing the proposed complete rules of the Board of Podiatry (Board). The Board responded by letter dated May 4, 1992.

At its meeting on October 9, 1992, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 92-022. 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:3-e, VI:

After a committee objection is filed with the director under paragraph V(c), to the extent that the objection covers a rule or portion of a rule, the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the rule to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, and is in the public interest.. 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 a final objection has been filed have not been identified in this text. Such unidentified rules, and the bases for final objection, are specified in the annotations to the rules made by the Committee's Attorney. Copies of the Board's rules with the annotations made by the Committee's Attorney can be obtained from the Office of Legislative Services, Division of Administrative Rules, Room 114 in the State House, at the normal copying rate of $0.20 per page.

The following summarizes the bases upon which the final objection has been entered:

1. Uniform System of Drafting and Numbering

The Committee objected that rules Pod 100 through Pod 500 are, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement and, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with RSA 541-A:3-a, VIII as discussed below.

Pursuant to RSA 541-A:3-a, VIII, the agency must conform to the uniform system of numbering and drafting developed by the Director of Legislative Services and contained in the Rulemaking Manual. The Committee had made a preliminary objection that the rules are contrary to the public interest by not being clear and understandable and capable of uniform application, and contrary to legislative intent by conflicting with the uniform system of numbering and drafting in violation of RSA 541-A:3-a, VIII.

The Board's response eliminated some of the Problems outlined in the preliminary objection relative to compliance with the uniform system, but others remain and are indicated in the annotations. Examples of such violations include failing to provide criteria and procedure for discretionary decision-making, using improper section titles, using "may" inappropriately, lack of clarity with respect to requirements, and using the passive voice in setting a requirement. The Committee therefore made a final objection on the same basis as the preliminary one.

2. Pod 104.03

The Committee objected that rule Pod 104.03(d) is, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement and, pursuant to Committee Rules 402.02(a) and 402.02(b)(2), contrary to legislative intent by conflicting with RSA 91-A:4, IV and by allowing requirements to be set outside the process mandated by RSA 541-A:3.

In the final proposal this rule provided that copies of documents could be obtained by particularly identifying the documents requested and provided further that the requester "agrees to pay the Board's current copying fee." The Committee concluded in the preliminary objection that the fee amount should be included in the rule, since it will apply to all who request copies of documents and would appear to satisfy the definition of a "rule" in RSA 541-A:I, XIII. Therefore, the Committee objected that the rule was contrary to the public interest by not being clear and understandable and capable of uniform enforcement, and contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3.

The response letter indicated that the rule would be amended to state "... and which agrees to pay the board's copying fee of $.50 per page." Unfortunately, the text of the rules submitted with the objection response indicates that the copying fee is $.25 per page. There was no further clarification as to which fee is the correct fee, or what the Board actually intended, so the Committee made a final objection on the same basis as for the preliminary one.

Pursuant to RSA 91-A:4, IV, an agency may charge the "actual cost" of providing a photocopy of any public document requested. In a memorandum issued in the autumn of 1987, the Attorney General indicated the method to be used in determining the "actual cost" for an agency. The memorandum also indicated that unless there were unusual circumstances the "actual cost" for most agencies was $.05 per page. The Committee considered that this rate is five years old but adjusted the rate to take into consideration the increased costs associated with copying. It thereby became clear to the Committee that the rate of $.25 per page is too high. The Committee determined that if one accepts the $.05 per page rate as accurate in 1987 and presumes a cost increase rate of 10% in each of the subsequent years, the cost per page would still be under $.10 per page. The Committee decided that even if one assumes that costs increased 15% per year, the cost would be $.1005 per page. Thus, the rate selected by the Board in its response appears to the Committee to be too high to be consistent with RSA 91-A:4, IV. Therefore, the Committee also included in the final objection that the rule violates RSA 91-A:4, IV, relative to copying costs.

3. Pod 105.02

The Committee objected that rule Pod 105.02 is, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement and, pursuant to Committee Rules 402.02(a) and 402.02(b)(2), contrary to legislative intent by conflicting with RSA 91-A:2, I and by allowing requirements to be set outside the process mandated by RSA 541-A:3.

Pod 105.02 specifies that it shall not be necessary for the Board to have a quorum present for the purpose of certain actions. The rule specifically states that "no quorum shall be required to hold a meeting, conduct a hearing or receive information of any kind, but the final action shall be taken only by the affirmative vote of a majority of the board members eligible to participate in the matter in question." The Committee decided that this provision raises several serious issues.

The first issue is compliance with RSA 91-A:2, I, which defines meeting as the "convening of a quorum of the membership of a public body, as provided in RSA 91-A:I-a, to discuss or act upon a matter or matters over which the public body has supervision, control, jurisdiction or advisory power." Thus, it appeared to the Committee that a quorum is required for Board meetings, despite the text of the rule which provides the opposite.

The second and third issues are very closely related and concern the requirement that an action requires the vote of "a majority of the board members eligible to participate" in the vote. This provision does not appear to require that a quorum be present at the time of the vote, only that those who are voting be present. The Board is composed of five members, but if three members were not eligible for participation in the vote, it would appear that only two members need meet and vote. In a five member body, two members would constitute less than a quorum. The Committee determined that the other problem is that the rules do not specify under what circumstances a member of the Board would not be eligible to participate in voting on business before the Board.

Therefore, the Committee made a preliminary objection that the rule is contrary to the public interest by not being clear and understandable and capable of uniform enforcement, and contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3 and by conflicting with RSA 91-A:2, I.

The response did not address these issues, and therefore the Committee made a final objection on the same basis as for the preliminary one.

4. Pod 105.04

The Committee objected that rule Pod 105.04 is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board and, pursuant to Committee Rules 402.02(a) and 402.02(b)(2), contrary to legislative intent by conflicting with RSA 91-A:I, RSA 91-A:l-a, and RSA 91-A:2, I and II, and by allowing requirements to be set outside the process mandated by RSA 541-A:3.

Pod 105.04 was included in the final proposal. The rule dealt with taking votes by "telephone poll" or "notation." The Committee determined that such votes would be taken in a manner inconsistent with RSA 91-A, and made a preliminary objection that the rule was contrary to legislative intent by conflicting with RSA 541-A:3, RSA 91-A:l, RSA 91-A:l-a, and RSA 91-A:2, I and II, and by being beyond the authority of the Board.

The second sentence of the response letter states that "the following were the changes approved by the Board," and a list of 25 specific changes is provided. However, the response letter did not indicate in any way that Pod 105.04 was being deleted or even amended, yet the rule was not included in the text of the rules accompanying the response letter. As the response letter and text were at odds, the Committee made a final objection on the same basis as for the preliminary one.

5. Pod 203-02

The Committee objected that rule Pod 203.02 is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board, and, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement and, pursuant to Committee Rule 402.02(b)(2), contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3.

This rule governs the granting of motions to change the time periods specified in these rules. The rule states that "a motion for change of time shall be granted upon a finding of due diligence and probable injury to the moving party which outweighs any detriment likely to be suffered by any other party to the proceeding or the public."

The term "due diligence" has not been defined, and it is possible that no two participants, including the Board and the parties, will have the same understanding of what this term means or requires. This source of confusion, and unlimited discretion for the Board, could only have been removed in the Committee's view by defining the term.

The requirement that the Board consider "any detriment likely to be suffered by... the public" raised an issue of authority. When a hearing is scheduled and held the only interests that are adjudicated are those of the parties and the Board. It was unclear to the Committee what "detriment" the public could suffer if the hearing date or time were changed by the Board. The only requirements that the Board must meet with respect to the public is that such hearings be open to the public. Considering the "detriment" to the public appeared to be entirely inappropriate and beyond the authority of the Board.

Therefore, the Committee made a preliminary objection that the rule was contrary to the public interest by not being clear and understandable and capable of uniform enforcement and contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3, and is beyond the authority of the Board.

The response did not remove the bases for objection, and therefore the Committee made a final objection on the same basis as for the preliminary one.

6. Pod 204.03(b)

The Committee objected that rule Pod 204.03(b) is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board and, pursuant to Committee Rule 403.01(f), is contrary to the public interest by being designed to benefit the administrative convenience of the agency to the detriment of the public.

This section governs the service of documents. Paragraph (b) provides that petitions for rulemaking and declaratory ruling need only be served upon the Board, except that "when the relief sought by a petition ... would clearly and directly affect the interests of a person or group of persons, the board shall, by order, require service upon the affected person or persons." The Committee concluded that such a requirement was unnecessary in the case of a petition for a declaratory ruling, which by its very nature is applicable to the petitioner and no one else. The Committee also determined that it is the responsibility of the Board to provide notice for proposed rules, and that such notice is provided through the Rulemaking Register. Therefore, the Committee made a preliminary objection that the rule is contrary to the public interest by being designed to benefit the administrative convenience of the Board to the detriment of the public, and is beyond the authority of the Board.

Neither the response letter nor the text submitted with it addressed this issue, and the Committee made a final objection on the same basis as for the preliminary one.

7. Pod 206.04(a)(2)

The Committee objected that rule Pod 206.04(a)(2) is, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement and, pursuant to Committee Rule 402.02(b)(2), contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3.

This section governs intervention in adjudicatory proceedings. One of the requirements for petitions for intervention is that the petitioner state his "position with respect to the subject matter of the hearing." It was unclear to the Committee what is intended, as it could refer to whether the petitioner is supporting or opposing the complaint, or it could refer to the petitioner's interest in the ultimate outcome. Therefore, the Committee made a preliminary objection that the rule is contrary to the public interest by not being clear and understandable and capable of uniform enforcement, and contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3.

Neither the response letter nor the text submitted with it addressed this issue, and the Committee made a final objection on the same basis as for the preliminary one.

8. Pod 206,07(b)

The Committee objected that rule Pod 206.07(b) is, pursuant to Committee Rules 402.01(c) and 402.02(a), contrary to legislative intent by conflicting with the overall purpose of RSA 541-A:16 through 21, and by conflicting with RSA 541-A:16, IV, RSA 541-A:18, II, and RSA 541-A:18, IV.

Pod 206.07 governs discovery of information by the parties. The Committee determined that adjudicative proceedings governed by RSA 541-A:16 et seq. appear to be intended to be less formal than proceedings in district or superior court. Superior Court Rule 35b.(l), relative to discovery, provides that virtually everything is discoverable in civil proceedings, even if the material sought would not be admissible but is calculated to lead to the discovery of admissible evidence. The major area of exclusion is that most materials prepared in anticipation of litigation are not discoverable unless certain conditions are met.

By way of contrast, Pod 206.07(b) provides, in pertinent part, that parties seeking discovery shall "by motion, seek leave to do so and shall identify the exact type of discovery requested," but that "discovery shall be permitted when the subject matter of the proceeding is so complex that the parties will be unable to address the issues adequately at the time fixed for the presentation of evidence without an opportunity to acquire information pursuant to discovery." Thus, the Committee decided that the process which is intended to be less formal than civil proceedings in superior court actually imposes greater formality and a higher standard for obtaining discovery than the superior court.

There are specific aspects of RSA 541-A that, in the Committee's view, appeared to be violated by such a restrictive provision. Pursuant to RSA 541-A:18, II, agencies are prohibited from applying the rules of evidence in an adjudicative proceeding (except that agencies are required to give effect to the rules of privilege recognized by law). As discussed above, the Superior Court rule relative to discovery even allows the discovery of inadmissible evidence if it will reasonably lead the party to evidence that is admissible. When RSA 541-A:18, II, is applied, it became clear, in the Committee's view, that inadmissibility of evidence is virtually irrelevant to adjudicative proceedings, and that, aside from discovery of privileged materials, there should be no limitation of discovery.

Additionally, pursuant to RSA 541-A:16, IV, in the course of the hearing "opportunity shall be afforded all parties to respond and present evidence and argument on all issues involved" in the hearing. Similarly, RSA 541-A:18, IV, provides that parties are entitled to "conduct., cross examinations required for a full and true disclosure of the facts." If discovery is not available, the Committee determined that it may prove to be impossible for the party to respond or present evidence on all the issues. For example, if the evidence sought by a party is in the sole possession of his or her adversary, without discovery the evidence could, in effect, be suppressed by the adversary. In a party's cross-examination of an adversary's witness, the party could be prevented from conducting its cross- examination to provide the Board with a "full and true disclosure of the facts" if the party is prevented from discovering information relative to the case.

Therefore, the Committee made a preliminary objection that the rule is contrary to legislative intent by conflicting with the overall purpose of RSA 541-A:16 through 21, by conflicting with RSA 541-A:16, IV, RSA 541-A:18, II, and RSA 541-A:18, IV.

Neither the response letter nor the text submitted with it addressed this issue, and the Committee made a final objection on the same basis as for the preliminary one.

9. Pod 206.09(b)

The Committee objected that rule Pod 206.09(b) is, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement and, pursuant to Committee Rules 402.02(a) and 402.02(b)(2), contrary to legislative intent by conflicting with RSA 541-A:18, II and by allowing requirements to be set outside the process mandated by RSA 541-A:3.

This rule states that "all information which will reasonably assist the board arrive [sic] at the truth is admissible, but data which is irrelevant, unreliable, or otherwise lacking in probative value, repetitious or cumulative; or needlessly insulting, hostile or scandalous may be excluded." The Committee determined that, pursuant to RSA 541-A:18, II, the only evidence that can be excluded by the presiding officer is evidence which is "irrelevant, immaterial or unduly repetitious." All other evidence cannot be excluded. In the Committee's view, if evidence does not come within these exceptions, even evidence which is "unreliable," "lacking in probative value "needlessly insulting," "hostile," or "scandalous," putting aside questions as to what these terms mean in practice, cannot be excluded without violating RSA 541-A:18, II. Therefore, the Committee made a preliminary objection that the rule is contrary to the public interest by not being clear and understandable and capable of uniform enforcement and contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3, and by conflicting with RSA 541-A:18, II.

Neither the response letter nor the text submitted with it addressed this issue, and the Committee made a final objection on the same basis as for the preliminary one.

10. Pod 206.12

The Committee objected that rule Pod 206.12 is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board.

This rule provides that "board members present during adjudicative proceedings may question witnesses and make such inquiry of witnesses, parties or counsel, as they believe appropriate." The Committee determined that it is inappropriate and beyond the Board's authority to require that persons who are not witnesses may be examined by Board members, and for the information so solicited to be used for the purpose of rendering a decision.

Pursuant to RSA 541-A:18, I, all testimony must be made under oath or affirmation administered by the presiding officer. It is not likely that counsel to a party or witness would answer directly questions posed by Board members. In fact, Rule 3.7 of the New Hampshire Rules of Professional Conduct for attorneys prohibits attorneys from representing a client in a proceeding in which the attorney is likely to be called as a witness. Thus, it may be unethical for an attorney to represent a client before this Board if he or she is aware that the Board could inquire of the attorney. The Committee determined that this rule could have the result of discouraging attorneys from representing persons before this Board. Therefore, the Committee made a preliminary objection that the rule is beyond the authority of the Board.

Neither the response letter nor the text submitted with it address this issue, and the Committee made a final objection on the same basis as for the preliminary one.

11. Pod 302.02 and 302.03(b)

The Committee objected that rules Pod 302-02 and 302.03(b) are, pursuant to Committee Rules 403.01(d), 403.02(c), and 403.02(d), contrary to the public interest by not being clear and understandable, not being capable of uniform enforcement, and by not treating like entities in a similar manner and, pursuant to Committee Rule 402.02(b)(2), contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3.

In the final proposal Pod 304.02 stated that "a personal interview before the full board shall be required for all original license candidates after the age of 65, or if the board determines that it is necessary to verify or complete the information contained in the application." The Committee determined that this rule institutionalizes age discrimination. An applicant who is over 65 years of age can have a perfectly complete application which contains flawless credentials, but he or she will still be called in for an "interview." It was clear to the Committee from' the second part of the sentence that the interview will not be for the purpose of obtaining missing information, nor will it be for verification, or the first part would have been unnecessary. The Committee determined that the Board must have some other purpose for this interview, but the rules do no specify what it is, how the results of the interview will be used in evaluating the applicant, or why it is not required of applicants under the age of 65. Pod 302.03(b) contains a similar provision, but it requires graduates of foreign schools to have the interview.

Therefore, the Committee made a preliminary objection that the rules are contrary to the public interest by not being clear and understandable and capable of uniform enforcement by not treating like entities in a similar manner, and contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3.

Neither the response letter nor the text submitted with it address these issue, and the Committee made a final objection on the same basis as for the preliminary one.

12. PART Pod 305

The Committee objected that rule Pod 305 is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board and, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with RSA 315:8, IV and RSA 541-A:12, III(b).

This Part is entitled "Temporary Certification." Although there are many problems with this part in the Committee's view, the Committee determined that the one over-arching problem concerns the Board's authority for this type of certification. As mentioned in the discussion for Pod 101.01(e), in the Committee's view the Board only has authority, pursuant to RSA 315:8, IV, to issue licenses, and not certification as a separate form of Board permission. Additionally, pursuant to RSA 315:8 IV, licensure is for a period of one year and not some temporary period determined by the Board. Finally, RSA 541-A:12, III(b), prohibits an agency from creating new categories of licensure. Therefore, the Committee made a preliminary objection that the rule is beyond the authority of the Board, and contrary to legislative intent by conflicting with RSA 315:8, IV, and RSA 541-A:12, III(b).

Neither the response letter nor the text submitted with it address these issues, and the Committee made a final objection on the same basis as for the preliminary one.

13. Pod 401 and Pod 406

The Committee objected that rules Pod 401 and Pod 406 are, pursuant to Committee Rule 402-02(a), contrary to legislative intent by conflicting with RSA 541-A:3-a, VIII.

These parts govern "Disciplinary Matters" and "Unethical Conduct", respectively. Included in Pod 401 are the procedures to be followed with respect to complaints, investigations and hearings. Pursuant to Ls-A 401.09(b) of the NH Rulemaking Manual, such subjects are required to be placed in chapter 200, which is entitled "Complaints and Hearing Procedures." Similarly, Ls-A 401-09(b) requires that the subject of ethical behavior be placed in chapter 500, which is required to be entitled "Ethical Standards". The Committee made a preliminary objection that the rule was contrary to legislative intent by conflicting with RSA 541-A:3-a, VIII, relative to conforming to the uniform system of numbering and drafting.

Neither the response letter nor the text submitted with it address these issue, and the Committee made a final objection on the same basis as for the preliminary one.