Certified Final Objection No. 66 of the
Joint Legislative Committee on Administrative Rules
At its meeting on January 21, 1994, the Joint Legislative Committee on Administrative Rules voted, pursuant to RSA 541-A:3-e, to enter a preliminary objection to Final Proposal 93-138 containing proposed rules of the Board of Speech-Language Pathology (Board). The Board responded by letter dated January 31, 1993.
At its special meeting on June 8, 1994, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 93-138. 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.
The final objection was entered with respect to the rules cited below, and for the reasons set forth in the discussions that follow.
1. Spe 105.02
The Committee objected that Spe 105.02 is contrary to legislative intent, pursuant to Committee Rule 402.02(a), by conflicting with RSA 91-A:2.
This rule provides in pertinent part that "except as otherwise required by law, no quorum shall be required to hold a meeting" or take other specified actions. The preamble to RSA 91-A, also known as the "Right-to-Know Law", provides that "the purpose of this chapter is to ensure both the greatest possible public access to the actions, discussions and the records of all public bodies, and their accountability to the people."
There are two other provisions in RSA 91-A that are relevant. The first is RSA 91-A:1-a, which defines as a public proceeding the transacting of any functions affecting any or all citizens of the state by public bodies such as this Board. The second provision is RSA 91-A:2, I, which provides that a meeting is "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.] In the Committee's view, it is clear that RSA 91-A:2 always requires that a quorum of the membership must be present or there could not, by definition, be a "meeting." Thus, a rule which indicates that a "meeting" can be held without a quorum present conflicts with RSA 91-A:2.
2. Spe 201.03(e)
The Committee objected that Spe 201.03(e) is contrary to legislative intent, pursuant to Committee Rule 402.02(a), by conflicting with RSA 541-A:3-f, II.
When a final proposal receives a preliminary objection, pursuant to RSA 541-A:3-e, V(a), the agency is authorized to make changes to the text that are intended to cure the defect(s) in the rule as identified in the Committee's preliminary objection. However, pursuant to RSA 541-A:3-f, II, the agency is authorized to make changes only to the extent that such changes directly address the specifics of the Committee's preliminary objection. The statute even provides that the Director of Legislative Services may refuse to accept the adopted rule if it contains unauthorized changes.
In the final proposal, the text of Spe 201.03(e) contained a definition of "hearing" and listed, in four subparagraphs, methods of conducting hearings. The Committee noted that it had not objected to the text of Spe 201.03(e) in the final proposal, but the Board did make substantial changes to that text. The definition was amended significantly and the four subparagraphs were eliminated. Thus, the Committee objected that changes made to the rule were in violation of RSA 541-A:3-f, II.
3. Spe 201.04
The Committee objected that Spe 201.04 is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board.
This provision states that "the board shall, upon its own initiative or upon the motion or petition of any interested person, suspend or waive any requirement or limitation imposed by this chapter." The provision also requires that notice be given to those affected and that there must be a finding of good cause for such action to be taken.
The chapter referred to in the quotation above is Spe 200, the Board's rules of practice and procedure. These rules govern subjects such as appearances before the Board, the filing and service of documents, adjudicative proceedings, the powers and duties of those who preside over adjudicative and non-adjudicative proceedings, petitions for declaratory rulings, and petitions for rulemaking. Many of the requirements, prohibitions, and limitations regarding those topics are set by statute and are either repeated in the rules or have been explained in the rules. The Committee further noted that such statutorily-based provisions provide important substantive and procedural provisions that safeguard the rights of those who may or will be affected by Board actions. In the Committee's view, such provisions cannot be suspended or waived by the Board unless and until all interested persons agree to their waiver or suspension. Thus, the Committee objected that this rule is beyond the Board's authority because it allows the Board to suspend or waive such provisions unilaterally.
4. Spe 204.03(b)
The Committee objected that Spe 204.03(b) is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board.
This section deals with the service of documents. Paragraph (b) governs service of applications and certain petitions. The rule provides that service of such documents normally will be required to be made only upon the Board. The rule requires, however, that "when the relief sought by a petition for rulemaking or a petition for a declaratory ruling 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 noted that RSA 541-A:6 governs how agencies must handle petitions for rulemaking. That section provides that any person can petition an agency to adopt, amend, or repeal a rule. The only way an agency can grant the petition is actually to commence a rulemaking proceeding. However, if the agency chooses to deny the petition it must do so in writing stating the reasons therefor. The statute also indicates that, regardless of the substance, the decision must be made within 30 days of the agency's receipt of the petition.
In the Committee's view, an agency must decide to grant or deny based upon the petition alone. If the agency grants the petition by way of initiating a rulemaking proceeding, then all who are interested will have the opportunity to make their views known during the public comment period. After fully considering all the public comment, the agency could decide that it should not go forward with the rulemaking proceeding, the agency can terminate it. The Committee concluded that it is the agency that bears the responsibility to provide notice to all who are interested, and it is beyond the Board's authority to require others to do what is statutorily required of the Board.
Regarding petitions for declaratory rulings, the Committee noted that the rulings on such petitions appear to be binding only upon the petitioner and the agency. Pursuant to RSA 541-A:1, IV, defines "declaratory ruling" as "an agency ruling as to the specific applicability of any statutory provision or any rule or order of the agency." Rules, by way of contrast, are requirements of general applicability, and for that reason do not include declaratory rulings. Thus, the Committee objected that, by definition, declaratory rulings could not clearly and directly affect any other person, and that the Board has no authority to require service upon a phantom class of persons.
5. Spe 206.06(a)
The Committee objected that Spe 206.06(a) is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board.
This rule provides that "the board may, upon motion or its own initiative, direct all interested parties to attend one or more prehearing conferences to aid in the disposition of the proceeding." The Committee concluded that this provision appears to implement RSA 541-A:16, V(b), which provides that "in order to facilitate proceedings and encourage informal disposition, the presiding officer may, upon motion of any party, or upon his own motion, schedule one or more informal prehearing conferences prior to beginning formal proceedings."
The Committee recognized that RSA 541-A:1-c encourages informal resolution of the issues before the formal proceedings have begun. However, the Committee does not take the view that RSA 541-A:16, V, requires that any party participate in such informal proceedings if that party wants to proceed to a formal hearing. However, the Committee also concluded that the party who refuses to attend and participate in a prehearing conference does so at their own peril as adverse, non-dispositive orders could be issued by the presiding officer. Therefore, the Committee determined that it is beyond the authority of the Board to "direct" parties to attend such prehearing conferences.
6. Spe 206.07(b)
The Committee objected that Spe 206.07(b) is contrary to legislative intent, pursuant to Committee Rule 402.01(c), by violating the overall purpose of the hearing requirements of RSA 541-A.
This rule governs discovery by parties to hearings held by the Board. The rule requires that a party seeking discovery against another party must seek leave to do so from the Board. The rule limits the availability of discovery to instances in which the Board concludes that the parties would be unable to address the factual issues of the hearing in time for the hearing unless discovery is permitted. The rule also imposes the requirement that the method of discovery must be "reasonable, will not cause material unfairness or unreasonable expenses to any party, and the requested discovery will not unreasonably delay the proceeding."
In the Committee's view, adjudicative hearings held before administrative agencies are intended to be less formal than proceedings held in Superior Court. Discovery in Superior Court is governed by Superior Court Rule 35, which actually sets a lower standard for discovery than has been established by the Board's rules. The general rule under Superior Court Rule 35 is that anything that is relevant and not privileged is discoverable, even if the requested materials are not themselves admissible as evidence but are reasonably calculated to lead to the discovery of evidence that is. Of course, there are a number of restrictions, and these are set forth in Superior Court Rule 35. However, the Committee concluded that the standard stated in Spe 206.07(b) is significantly more restrictive than that available in Superior Court, and therefore violates the overall purpose of RSA 541-A relative to hearings.
7. Spe 206.11(a)
The Committee objected that Spe 206.11(a) is contrary to legislative intent, pursuant to Committee Rule 402.02(a), by conflicting with RSA 541-A:18, IV.
Spe 206.11 governs the methods of proceeding in adjudicative hearings. Paragraph (a) provides that "where facts material to the subject matter of the proceeding are in dispute, and personal observation of witnesses or the immediate opportunity for cross-examination of witnesses is necessary or desirable, the proceeding shall, to that extent, consist of a trial-type evidentiary hearing with the subsequent submission of memorandum [sic]."
The Committee observed that RSA 541-A:18, IV, provides parties the right to conduct "cross-examination required for a full and true disclosure of the facts," and that this right has not been limited by any other provision in RSA 541-A. The Committee also observed that, because Spe 206.11(a) applies when there are material facts in dispute, observation of the witnesses by the trier of fact and an opportunity to cross-examine witnesses are essential to a fair and complete process. Therefore, the Committee concluded that the rule conflicts with RSA 541-A:18, IV.
7. Spe 206.11(b)
The Committee objected that Spe 206.11(b) is contrary to legislative intent, pursuant to Committee Rule 402.02(a), by conflicting with RSA 541-A:18, IV.
As stated above, Spe 206.11 governs the methods of proceeding in adjudicative hearings. Paragraph (b) provides that "where facts material to the subject matter of the proceeding are in dispute, but personal observation of witnesses or the opportunity for cross-examination of witnesses is not required, the proceeding may, to that extent, consist of the subsequent submission of affidavits and memoranda."
In the Committee's view, RSA 541-A expresses a strong preference for oral direct testimony, as RSA 541-A:18, II, indicates that written direct testimony can be accepted only under limited circumstances. As stated above, the Committee has taken the position that when there are material facts in dispute, observation of the witnesses by the trier of fact and an opportunity to cross-examine witnesses are essential to a fair and complete process. In the view of the Committee, the Board cannot eliminate a party's right to the opportunity to confront and cross-examine adverse witnesses in an adjudicative hearing.