Certified Final Objection No. 52 of the

Joint Legislative Committee on Administrative Rules

At a special meeting on November 10, 1992, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:3-e, to enter a preliminary objection to Final Proposal 92-179 containing proposed rules of the State Board or Education (Board) relative to minimum standards for public school approval. The Board responded to the preliminary objection by letter dated November 19, 1992.

At its meeting on December 18, 1992, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 92-179. 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 made to selected rules on the bases summarized below, the annotations made to the rules by the Committee's Attorney, the written testimony submitted prior to or at the November 10, 1992 meeting, as well as the oral testimony given at that meeting. Copies of the Division's rules with the annotations made by the Committee Attorney, the written testimony, and the transcript of that meeting 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.

1. Rulemaking Notice Form

The Committee objected that Final Proposal 92-179 was, pursuant to Committee Rules 402.02(a) and 402.02(b)(1), contrary to legislative intent because the completed Rulemaking Notice Form conflicted with RSA 541-A:3-a, III(f), as discussed below.

Agencies are required by RSA 541-A:3-a, III, to provide notice of the commencement of a rulemaking proceeding. The notice requirements are specified by RSA 541-A:3-a, III. Among those provisions is the requirement that the agency include "a concise summary explaining the effect of the rule." The notice submitted by the Board indicated that the proposed rules differed from the existing rules in 8 respects, with the last two being that "Ed 307 is being repealed" and "Ed 308 is being repealed." The Committee concluded that the notice did not indicate that, while certain parts will be empty, the regulated community will still be required to comply with many of the same requirements. The Committee concluded that one reading the notice could mistakenly conclude that the requirements are being repealed when all that is changing is where the requirements may be found. Therefore, the Committee objected that the notice was misleading and conflicted with RSA 541-A:3-a, III(f).

2. Pt. I, Art. 28-a Statement

The Committee objected that Final Proposal 92-179 was, pursuant to Committee Rules 402.02(a) and 402.02(b)(1), contrary to legislative intent because the Part I, Article 28-a Statement conflicted with RSA 541-A:3-a, I-a, as discussed below.

Pursuant to RSA 541-A:3-a, I-a, agencies are required to "provide the legislative budget assistant a statement with adequate details and supporting data that the proposed rule does not violate the New Hampshire constitution, part 1, article 28-a." The "adequate details" are provided by responding to the provisions of Ls-A 301.03(e)(1) through (4) of the New Hampshire Rulemaking Manual. The Committee determined that the statement provided by the Board was not responsive to the provisions cited above. Additionally, the notice indicated that the proposal "adds a policy requirement for character and citizenship." The Committee also determined that if the development of such a policy will necessitate additional local expenditure, and no funds are provided by the state, then such a requirement would violate Pt. I, Art. 28-a, and prove the Pt. I, Art. 28-a statement to be inaccurate. Therefore, the Committee objected that the Pt. I, Art. 28-a statement was contrary to legislative intent by not providing "adequate details" and by being inaccurate.

3. Public Comment Hearing Process

The Committee objected that Final Proposal 92-179 was, pursuant to Committee Rules 402.02(a) and 402.02(b)(1), contrary to legislative intent because the process used by the Board to receive public comment conflicted with RSA 541-A:3-c, I and II.

In the Committee's view, the rulemaking process as set forth in RSA 541-A is one that encourages participation by the public. In fact, RSA 541-A:3-c, I, requires that each agency hold at least one public hearing at which comment from the public shall be solicited. That statute also requires that such hearings "shall afford all interested persons reasonable opportunity to testify" and otherwise submit comment.

The Board, in the notice for final proposal 92-179, scheduled two such hearings. The first hearing was scheduled for Sept. 22, 1992 from 7-9 p.m. at Salem High School. The second hearing was scheduled for Sept. 23, 1992 from 7-9 p.m. at Plymouth High School. At the first hearing, the Board allowed all those who wish to testify to do so, even though the hearing went well past the 9 p.m. closing time. However, the Board did not follow this process in the second hearing. The Committee received testimony that, instead, the Board simply closed the hearing at approximately 9 p.m. and refused to allow those waiting to testify the opportunity to do so. The Board then voted less than two days later to establish the text of the final proposal.

In the view of the Committee, the decision to conduct the second hearing in a manner different from the first raised several significant problems. The first is that, by denying those who had not spoken by 9 p.m. the opportunity to speak, the Board violated RSA 541-A:3-c, I. That provision requires that all interested persons be given reasonable opportunity to testify. The Committee rejected the argument that the "reasonable opportunity" referred to in RSA 541-A:3-c, I, is defined solely by the amount of time specified by the agency in the notice. The Committee concluded that a hearing for which an inadequate amount of time has been allotted and which results in preventing persons from testifying is not in compliance with RSA 541-A:3-c, I. The Committee also rejected the argument that RSA 541-A:3-c, II, only requires an agency to "consider fully all written and oral submissions concerning the rule, in accordance with the terms of the notice." [Emphasis added.] In the view of the Committee, RSA 541-A:3-c, I and II, do not permit an agency to schedule less time for public comment than might be necessary and then invoke it as authority for denying the opportunity to testify. The Committee believes that the requirements of RSA 541-A:3-c, I and II, must be read together and understood in the context that the first paragraph was amended in 1992 to compel rulemakers to be more accessible and accountable to the public.

The Committee noted that the Board had commenced a rulemaking proceeding on this subject and published notice for it in the July 31, 1992 Rulemaking Register. In that notice the Board had indicated that it had scheduled 3 hearings for 2 hours each, for a total of 6 hours. The hearings were to be held in Salem, Plymouth and Concord. The Board withdrew that notice and submitted the notice for 92-179. In that notice the Board scheduled only 2 hearings, eliminating the Concord hearing and scheduled only a total of 4 hours for the hearings, even though the rules were exactly the same. The Committee determined that it was inappropriate to schedule one less hearing and reduce the amount of time available to the public to present testimony, and that such action was inconsistent with RSA 541-A:3-c, I.

In the Committee's view, another significant, related problem with respect to how the hearings were conducted is that the Board lacks rules specifying how such hearings must be conducted. The Committee considered that, pursuant to RSA 541-A:2, I(b), agencies are required to "adopt rules of practice setting forth the nature and requirement of all formal and informal procedures available." Thus, the Committee concluded that the process by which public comment hearings are to be conducted falls squarely within this statutory requirement. One purpose for such rules is to prevent from happening that which occurred in this rulemaking proceeding: an agency altering the process from one public comment hearing to another even for the same proposal. Thus, the Committee concluded that the alteration of the process was intended to prevent full participation by the public.

The Committee also determined that the Board did not "fully" consider all oral and written comment, as required by RSA 541-A:3-c, II. The second hearing took place on September 23, and the deadline for written comment was the same day. The Board had a meeting on September 24, commencing less than 12 hours after the Plymouth hearing, at which it was to consider all the public comment, both written and oral, and draft appropriate amendments. The Board received, by some reports, more than 6 hours of oral comments. The Board also received many, many pages of written comment--too many to estimate. The Committee concluded that the Board could not have been able to "consider fully" more than 6 hours' worth of oral comments and the voluminous written comments in the approximately 5 hours allotted for such consideration at the September 24 meeting.

Therefore, the Committee objected that the rules are contrary to legislative intent by conflicting with RSA 541-A:3-a, I, by not allowing all interested persons reasonable opportunity to testify, and by conflicting with RSA 541-A:3-c, II, relative to "considering fully" all written and oral comment.

4. September 24, 1992 Board Meeting

The Committee objected that Final Proposal 92-179 was, pursuant to Committee Rule 402.02(a), contrary to legislative intent because the meeting at which the Board considered changes to the text of the rules conflicted with RSA 91-A:2, as discussed below.

The Board intended to have a meeting on September 24, 1992, and gave notice for the meeting pursuant to RSA 91-A:2. The Committee reviewed a copy of the agenda for that meeting. There was a "work session" scheduled for 9 a.m., and then other items for later in the day. At some point before the 24th, Board decided to postpone the other items on the agenda until the next day, the 25th, and provided notice to this effect. The Board did this by writing "cancelled" on the notice for the meeting on the 24th, and posting an agenda for the meeting on the 25th next to the notice posted for the 24th.

The Committee decided that the first problem was that the agenda for the meeting on the 24th was misleading as to the purpose and nature of the "work session." The listing of the session on the agenda did not indicate in any way that it related to a discussion of the minimum standards for school approval rules. In the Committee's view, since the next item on the agenda, the Pledge of Allegiance, was scheduled for 1 p.m. and was followed by a more detailed list of agenda items, a person reading the agenda could have understood the "work session" to be closed to the public.

The Committee concluded that the second problem was that, due to the way in which the word "cancelled" was put on the notice for the meeting on the 24th, one reading the amended notice could have concluded quite reasonably that the "work session" had been cancelled, as well. In fact, the work session was conducted on the 24th, and it was at this session that the Board deliberated on the potential changes. Therefore, the Committee objected that the rules are contrary to legislative intent by conflicting with RSA 91-A:2 during the rulemaking process relative to providing adequate and clear notice of the time, place, and purpose of the meeting at which public comment relative to these rules was to be evaluated.

5. Compliance with RSA 21-N:1, II

The Committee objected that the Final Proposal was, pursuant to Committee Rule 402.01(b), contrary to legislative intent by conflicting with RSA 21-N:1, II, as discussed below.

Pursuant to RSA 21-N:1, II, it is the policy of the state of New Hampshire that "the paramount goal of the state shall be to provide quality education for all school-age children in the state, to the end that each such child shall be provided the opportunity to reach his full educational potential and shall have been exposed to the widest possible variety of educational and cultural experiences consistent with sound basic education." The Committee determined that the elimination of some, and relaxation of other, standards conflicted with that policy and objected that the rules were contrary to legislative intent by conflicting with RSA 21-N:1, II.

6. Uniform System of Numbering and Drafting

The Committee objected that the Final Proposal was, pursuant to Committee Rule 402.02(a), 402.02(b)(1), 403.01(d) and 403.02(c), contrary to legislative intent by conflicting with RSA 541-A:3-a, VIII, and contrary to the public interest by not being clear and understandable, and capable of uniform enforcement, as discussed below.

The Committee determined that the final proposal was among the worst examples of non-compliance with the uniform system that it has received in years. The Committee noted that not only were the formatting and numbering out of compliance with the uniform system, but that the rules were internally inconsistent in their non-compliance. Pursuant to RSA 541-A:3-a, VIII, the Board must conform to the uniform system of numbering and drafting developed by the Director of Legislative Services and contained in the Rulemaking Manual. The text of the Objection Response corrected a large number of the problems, but many instances of non-compliance remained.

Therefore, the Committee objected 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 Committee concluded that the rules should be amended to comply with the uniform system of numbering and drafting as indicated in the annotations to the rules. Included in the annotations was a comment that putting all the rules for all types of schools in a single part was confusing and too much information for a single part. This is because if a reader is interested, for example, in finding out the requirements for elementary schools, 2/3 of the rules in Ed 306 will be irrelevant and of no use to the reader.

7. Ed 306.04(c)

The Committee objected that Ed 306.04(c) was, pursuant to Committee Rule 401.04 and 402.04, beyond the Board's authority and contrary to legislative intent by implementing a rule in such a way as to conflict with Part I, Article 28-a of the New Hampshire Constitution.

This rule relates, in part, to the minimum number of hours of instruction that must be given before a middle school will receive credit for a full day of instruction in the event of an emergency situation requiring early dismissal of students. Pursuant to RSA 189:25, an elementary school is "any school in which the subjects taught are those prescribed by the state board for the grades kindergarten through 8 of the public schools." The existing rules treat as elementary schools all those that are not junior high schools or high schools. The classification of "middle school" will not be recognized until these rules become effective.

The current requirement applicable to elementary schools is for a minimum of 3.5 hours of instruction. This rule, Ed 306.04(c), requires that those elementary schools that are middle schools must have at least 4 hours of instruction before credit for a full day can be received. Raising the requirement for schools that are currently elementary schools but will be middle schools from 3.5 to 4 hours appears to the Committee to increase costs to the school district. This is because there may be days in which emergencies occur necessitating the dismissal of students after 3.5 hours of instruction but before 4 hours. Under existing rules, the school would get credit for such a day, but under the proposed rules the school will not. There are many costs associated with keeping the school open even a single day longer, including personnel costs, costs of utilities, and the cost of consumables, among others.

The Committee determined that to the extent that costs are increased by operation of this requirement, and such increased costs are not funded by the state or political subdivisions do not choose to fund compliance, the rule would violate Pt. I, Art. 28-a of the New Hampshire Constitution. That provision states that:

The state shall not mandate or assign any new, modified or expanded programs or responsibilities to any political subdivision in such a way as to necessitate additional local expenditures by the political subdivision unless such programs or responsibilities are fully funded by the state or unless such programs or responsibilities are approved for funding by a vote of the local legislative body of the political subdivision.

Therefore, the Committee objected that the rule was beyond the authority of the Board and contrary to legislative intent by conflicting with Pt. 1, Art. 28-a.

8. Ed 306.05(b)(3)

The Committee objected that Ed 306.05(b)(3) was, pursuant to Committee Rules 402.02(b)(2), 403.01(d) and 403.02(c), contrary to legislative intent by conflicting with RSA 541-A:3, and contrary to the public interest by not being clear and understandable, and capable of uniform enforcement, as discussed below.

This rule governs school day and school year scheduling patterns. One criterion set by the Board for use by the Commissioner in determining whether to approve or deny a request for an alternative scheduling pattern was, in the view of the Committee, too vague. The criterion, as set forth in Ed 306.05(b)(3), provides that the Commissioner shall grant approval to an alternative scheduling pattern if, among other requirements, "the plan is educationally sound." The Committee concluded that this criterion is so vague that any particular proposal can be said to meet or fail to meet it, depending upon who makes the determination. 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.

9. Ed 306.17

The Committee objected that Ed 306.17 was, pursuant to Committee Rules 402.02(a), 402.02(b)(1), 403.01(d) and 403.02(c), contrary to legislative intent by conflicting with RSA 21-N:1 and RSA 541-A:3, and contrary to the public interest by not being clear and understandable, and capable of uniform enforcement, as discussed below.

This section deals with staff requirements. In the existing rules, the Board has set student to staff ratios for specific staff position types. Although Ed 306.17 also sets ratios of students to staff for staff position types, it either fails to set a ratio of students to staff for some staff position types, such as for media generalists and reading specialists, or sets such ratios at higher levels for such position types, such as for assistant principals, thereby increasing the number of students served per specific type of staff member. The policies governing education in New Hampshire have been set forth in RSA 21-N:1. The Committee determined that the elimination or relaxation of such minimum ratios was inconsistent with RSA 21-N:1. Pursuant to Ed 306.17(d), "each school with an enrollment of 500 or more students shall provide the services of an assistant principal." The existing rules require an assistant principal for schools with an enrollment of 400 and over, and another assistant principal for each 800 students thereafter. This rule both sets a higher ratio for the first 500 students, and fails to address at what point additional assistant principals will be required.

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, and by conflicting with RSA 21-N:1.

10. Ed 306.39(c)

The Committee objected that Ed 306.39(c) was, pursuant to Committee Rule 402.02(a), 402.02(b)(2), 403.01(d) and 403.02(c), contrary to legislative intent by conflicting with RSA 541-A:3 and RSA 541-A:12, III(e), and contrary to the public interest by not being clear and understandable, and capable of uniform enforcement, as discussed below.

This provision, Ed 306.39(c), requires that local school districts submit documentation demonstrating compliance with all aspects of Ed 306 that are applicable. The rule further requires the Commissioner to designate departmental staff members to visit the schools for verification purposes and that "department staff shall use this information to recommend an approval designation to the commissioner."

However, the rules fail to specify what criteria and procedure must be used by departmental staff to arrive at their recommendations, and the Committee determined that this will require such staff to create their own. For example, the school districts are required to have a policy on student tardiness. If a school district submitted documentation that it did, in fact, have such a policy but that the policy allowed students to be tardy 180 days per year, the staff would have no basis for not recommending approval for such a policy. As the Board is the rulemaker, it must specify such criteria and procedure or it will amount to a delegation of rulemaking authority to such staff.

Therefore, the Committee objected 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:12, III(e) relative to delegating rulemaking authority.

11. Ed 306.39(j) and (k)

The Committee objected that Ed 306.39(j) and (k) were, pursuant to Committee Rules 401.01(c) and 402.02(a), beyond the authority of the Board and contrary to legislative intent by conflicting with RSA 541-A:15, II, as discussed below.

These provisions state that "the commissioner of education shall revoke a school's approval if he/she determines that a school is no longer in compliance with the provisions of these standards," and that "the commissioner shall notify the local school board chairperson and the superintendent of schools of his/her decision to revoke a school's approval," respectively.

Pursuant to RSA 541-A:15, II, the approval designation cannot be revoked unless the school district first has the opportunity for a hearing. The process specified in Ed 306.39 does not appear to provide for a hearing prior to such revocation, although there is provision for an appeal to the Board after the fact.

Therefore, the Committee objected that the rule is contrary to legislative intent by conflicting with RSA 541-A:15, II, and is beyond the authority of the Board by granting the Commissioner a power specifically prohibited by statute.

12. Negative Public Testimony

The Committee objected that the rules in Final Proposal 92-179 were, pursuant to Committee Rules 401.04, 402.01(b), 402.02(a), 403.01(a), 403.01(c), 403.01(d), 403.02(c), 402.04, and 404.01(a)(1) and (4), beyond the authority of the Board, contrary to legislative intent by violating various statutes including a statutory purpose statement, contrary to the public interest, and have a substantial economic impact not recognized in the fiscal Impact Statement, as discussed below.

Based upon the testimony of those who testified at the November 10, 1992 meeting in opposition to the final proposal, the Committee objected that the rules are contrary to legislative intent by violating: RSA 21-N:1, I and II, by not carrying out the policies stated therein; RSA 21-N:9, II(s), and RSA 186:8, III, by failing to set certification standards for educational personnel; RSA 186:8, I, by failing to actually specify minimum standards for public schools; and Part II, Article 83 by failing to encourage and advance education.

The Committee also voted to object, based upon public testimony, that the rules are beyond the authority of the Board to the extent that they violate the constitutional provisions cited above.

Based upon written testimony the Committee objected that the rules are contrary to the public interest by: not being clear and understandable and capable of uniform enforcement in general, and as the rules relate to where information services will actually be located and who will be responsible for their oversight; failing to fairly consider negative public testimony; and by using broad language when greater specificity is required.

Finally, based upon public testimony, the Committee objected that the rules have a substantial economic impact that was not accounted for in the

Fiscal Impact Statement pursuant to Committee Rules 404.01(a)(1) and (4). The Committee received testimony that the rules appear to require "children with different talents" policies and programs, not currently required. There also was testimony that allowing schools districts to relax standards may cause families to move from districts with low standards to districts with higher standards, causing negative financial impact in both districts.