Certified Final Objection No. 90 of the

Joint Legislative Committee on Administrative Rules

At its meeting on February 14, 1997, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 96-198 containing proposed rules of the Board of Examiners of Psychology and Mental Health Practice (Board) relative to its organization. The Board responded by letter dated March 24, 1997, received by the Office of Legislative Services on March 25, 1997.

At its meeting on July 18, 1997, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 96-198. The final objection has been filed with the Acting 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 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 staff. Copies of the rules can be obtained from the Office of Legislative Services, Division of Administrative Rules, Room 219 in the State House Annex, 25 Capitol Street, Concord, New Hampshire 03301.

The following summarizes some of the more significant issues and the bases upon which the Committee objected:

1. Psy 105.02

The Committee objected that Psy 105.02 is, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with RSA 91-A:2, I. Rule Psy 105.02 relates in part to the necessity, or the lack thereof, to have a quorum for the purpose of convening a Board meeting. This provision is identical to one previously adopted by the Board and to which the Committee entered a final objection in 1993. In its entirety, Psy 105.02 states that "except as may be otherwise required by law, no quorum shall be required to convene a meeting, conduct a hearing or receive information of any kind, but final action shall be taken only by the affirmative vote of a majority of the board member eligible to participate in the matter in question."

The Committee has twice concluded that this provision is inconsistent with RSA 91-A:2, I. That provision states that "…’meeting’ shall mean 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." In the Committee’s view, since a "meeting" is defined as the convening of a quorum, something less than a quorum cannot, by definition, be a "meeting." The Committee concluded that a quorum is always necessary for the convening of a Board meeting.

2. Psy 105.03

The Committee objected that Psy 105.03 is, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with 1994, 412:52 and RSA 541-A:16, I(a).

Pursuant to 1994, 412:52, agencies are required to comply with Ls-A 400 of the Uniform System of Numbering and Drafting (developed by the Director of Legislative Services) as contained in the New Hampshire Rulemaking Manual. Pursuant to Ls-A 401.10(a)(1), each agency is required to put the rules required by RSA 541-A:16, I(a) in the first chapter of the agency’s rules, in this case Psy 100. Further, Ls-A 401.10(a)(1)a. - d. indicate what is considered to be organizational in nature. Thus, the Committee concluded that rules which do not fall within those parameters are not organizational in nature and do not belong in that first chapter, and their inclusion violates 1994, 412:52 and RSA 541-A:1, I(a).

3. Psy 105.04(a)

The Committee objected that Psy 105.04(a) is, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with RSA 541-A:1, XV.

This rule states that "any board member who accepts a position as an officer, director, or employee of a professional association which represents practitioners of any profession or occupation licensed by the board shall promptly disclose this fact to the board in writing." The Committee noted that this provision applies to no one outside the agency, only to board members. Thus, the Committee determined that the requirement is one that is internal and has specific applicability, and therefore does not meet the definition of a "rule" in RSA 541-A:1, XV. That statute provides, in pertinent part, that a "rule" is a "statement of general applicability adopted by an agency to (a) implement, interpret or make specific a statute enforced or administered by such agency or (b) proscribe or interpret an agency policy, procedure or practice requirement binding on persons outside the agency, whether members of the general public or personnel in other agencies." [Emphasis added.] The Committee concluded that Psy 105.04(a) is not a rule, and should be removed from Psy 100.