Governor’s Tracking No. AR 513
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE BOARD OF ARCHITECTURE, ENGINEERING, LAND
SURVEYING, LANDSCAPE ARCHITECTURE, GEOSCIENCE, AND INTERIOR DESIGN
|
In
the Matter of the Proposed Rules Governing Cooperation in Communications;
Examination Cheating; Landscape Architect Education and Experience; and
Certified Interior Design Education and Experience; |
ORDER ON
REVIEW OF RULES
UNDER STATUTES, SECTION
14.26 |
The Minnesota Board of Architecture,
Engineering, Land Surveying, Landscape Architecture, Geoscience, and Interior
Design (Board) is seeking review and approval of the above-entitled rules,
which were adopted by the agency without a hearing. Review and approval is governed by Minn.
Stat. § 14.26. On April 1, 2011, the
Office of Administrative Hearings received the documents that must be filed by
the agency under Minn. Stat. § 14.26 and Minn. R. 1400.2310. Based upon a review of the written
submissions and filings, and for the reasons set out in the Memorandum which
follows,
IT
IS HEREBY ORDERED:
1.
The agency has
the statutory authority to adopt the rules.
2. The rules were adopted in compliance with all procedural requirements of Minnesota Statutes, Chapter 14, and Minnesota Rules, Chapter 1400.
3. The rules are needed and reasonable, with the exception of the following rule parts:
a. 1800.0110;
b. 1800.0120, subpart 2, item C, subitems (2) and (3); and
c. 1800.0140.
Accordingly, these rule parts are DISAPPROVED as not meeting the requirements of Minn. Stat. § 14.06 (a) and Minnesota Rules part 1400.2100, items D and E.
4. The rules as modified are not substantially different from the rules as published in the State Register on December 27, 2010.
5. Pursuant to Minnesota Statutes, section 14.26, subdivision 3(b), and Minnesota Rules, part 1400.2300, subpart 6, the rules will be submitted to the Chief Administrative Law Judge for review.
Dated: April 13, 2011
/s/
Manuel J. Cervantes
_______________________________
MANUEL
J. CERVANTES
Administrative
Law Judge
MEMORANDUM
Pursuant to Minnesota Statutes, section
14.26, the agency has submitted these rules to the Administrative Law Judge for
a review as to legality. The rules
adopted by the Office of Administrative Hearings[1]
identify several types of circumstances under which a rule must be disapproved
by the Administrative Law Judge or the Chief Administrative Law Judge. These circumstances include situations in
which a rule was not adopted in compliance with procedural requirements, unless
the judge finds that the error was harmless in nature and should be
disregarded; the rule is not rationally related to the agency’s objectives or
the agency has not demonstrated the need for and reasonableness of the rule;
the rule is substantially different than the rule as originally proposed and
the agency did not comply with required procedures; the rule grants undue
discretion to the agency; the rule is unconstitutional[2]
or illegal; the rule improperly delegates the agency’s powers to another
entity; or the proposal does not fall within the statutory definition of a
“rule.”
In the present rulemaking process, the Administrative Law Judge (ALJ) has found three defects in the rules. The Administrative Law Judge has also recommended two technical corrections, which are discussed below. The technical corrections do not reflect defects in the rules, but are merely recommendations for clarification to the rules that the Board may adopt if it chooses to do so. All other rule parts are approved.
Substantive
Defects under
Part 1800.0110
The Board proposed the following language regarding
appearing before the Board:
Notwithstanding
any other provision in law or rule, for purposes of assisting the board in determining the person’s
qualifications or compliance with Minnesota Statutes or Minnesota Rules, and at
the request of the board . . ., a holder or applicant of a certificate or
license issued by the board shall: .
. . (Emphasis added.)
The
rule goes on to require the regulated individuals to appear and provide sworn
testimony, respond to questions, and produce evidence requested by the
Board.
As written, the italicized language
above is defective because it exceeds the authority granted to the Board.
The ALJ proposes the following two
possible solutions to correct this defect.
First, the Board can eliminate the language, and begin the rule part
with, “[F]or purposes of assisting the board . . . . In the alternative, the Board could modify
the defective language to limit it to the language of Minnesota Rules, chapter
1800 (e.g. “Notwithstanding any other provision of this chapter.”) Amending the proposed rule as described above
is needed and reasonable and would not result in rules that are substantially
different from those originally published in the State Register.
Part 1800.0120,
subpart 1, item C
This proposed rule part deals with the information
that applicants, licensees, and certificate holders must report to the Board,
including a current address, a legal name change, and the revocation or
suspension of any applicable license held in another state or country. Item C requires these individuals to notify
the Board in writing, within ten days, if they have:
(1) been
convicted of or [have] pled guilty or nolo contendere to a felony, an element
of which is dishonesty or fraud, whether or not the person admits guilt;
(2) engaged in
acts or practices tending to show that the applicant, licensee, or certificate
holder is incompetent; or
(3) engaged in
conduct reflecting adversely on the person’s ability or fitness to engage in
the practice of architecture, engineering, land surveying, landscape
architecture, geoscience, or use of the title certified interior designer, as
applicable.
The
Board has authority under Minn. Stat. § 326.111, subd. 4, to sanction licensees
and applicants for the types of conduct listed in Part 1800.0120, subpart 1,
item C.
The language of a rule is unconstitutional if it does
not provide fair warning of the type of conduct to which the rule applies.[3] The second and third elements of Item C are
problematic because they require an individual to self-report conduct which can
be highly subjective in nature and open to different interpretations. The average person will not necessarily know
when he or she is incompetent or lacks the fitness to engage in his or her
profession. In contrast, the reporting
of an address, name change, conviction of or plea to a felony, or revocation of
a license or certificate is an objective event that will be clear to the individuals
regulated by the Board.
To correct this defect, the Board must either delete
subitems (2) and (3) from the proposed rule; or, in the alternative, the Board
should describe or list specific conduct that constitutes incompetence or a
lack of fitness to engage in the applicable professions. These actions are needed and reasonable and
would not render the proposed rules substantially different.
Part 1800.0140
The Board proposed language regarding examination security
and irregularities, as follows:
Notwithstanding any other provisions under this
chapter, the board may postpone scheduled examinations, the grading of
examinations, or the issuance of certificates due to a breach of examination
security; unauthorized acquisition or disclosure of the contents of an
examination; suspected or actual negligence, errors, omissions, or
irregularities in conducting an examination; or for any other reasonable cause or unforeseen circumstance. (Emphasis added.)
The italicized language creates uncertainty for those
regulated by the Board and grants the Board undue discretion regarding the
fulfillment of its examination duties.
Accordingly, this language is defective.
The Board can cure this defect by deleting the defective language. The ALJ believes that unforeseen
circumstances will be adequately covered by the reasonable cause language proposed
by the Board in this rule part. This
modification is needed and reasonable, and would not render the proposed rules
substantially different.
Other Technical Concerns
The Administrative Law Judge recommends the following technical
corrections to the rules. The technical corrections are not defects in the
rules, but are recommendations for corrections to the rules that the Board may
adopt if it chooses to do so to aid in the administration of the rule. Each of the changes recommended below is
needed and reasonable and would not be a substantial change from the rules as
proposed.
Part 1800.0110
The ALJ recommends that the
Board make the following clarifying change at line 2.8 of the Revisor’s draft
dated August 25, 2010: “. . . or the attorney
general on behalf of the board.”
Part 1800.0130, subpart 3
Part 1800.0130 deals with examination irregularities
and cheating. Subpart 2 describes
specific conduct that constitutes cheating.
The Board proposes the following
language regarding nonlimitation of authority at Subpart 3: “This part does
not limit the authority of the board from taking action against an applicant,
examinee, licensee, or certificate holder under the provision of any other law
or rule.”
As justification for Subpart 3, the Board’s Statement
of Need and Reasonableness (SONAR) states that “[i]ndividuals who cheat are
always coming up with new ways to accomplish their goal and the invention of
new technology makes it easier and easier.
It is difficult to define every possible way that an individual may
cheat when new methods are constantly being developed.”
The ALJ notes that the language, as written, does not
seem to accurately reflect the intent of the Board stated in the SONAR. Accordingly, the ALJ recommends that the
Board amend the proposed language in the following, or substantially similar,
manner: “This part does not limit the
authority of the board from taking action against an applicant, examinee,
licensee, or certificate holder under the provision of any other law or rule
for conduct not specifically described in this part.”
M. J. C.
[1]
[2] In order to be constitutional, a rule must be
sufficiently specific to provide fair warning of the type of conduct to which
the rule applies. See, Cullen v.
[3]
See, Cullen v.