Governor’s Tracking No. AR 354
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE
PEACE OFFICER STANDARDS AND TRAINING
|
In the Matter of the
Proposed Rule Amendments of the Minnesota Board of Peace Officer Standards
and Training Governing Continuing Education and Accreditation; |
ORDER OF CHIEF ADMINISTRATIVE LAW JUDGE ON REVIEW OF
RULES UNDER STATUTES, SECTION 14.26, SUBDIVISION 3(b) |
The Minnesota Board of Peace Officer Standards and Training (“Board”)
has adopted the above-entitled rules pursuant to Minnesota Statutes, section
14.26. On February 8, 2008, the Office
of Administrative Hearings received the documents filed by the Board as
required by Minnesota Statutes, section 14.26 and Minnesota Rules, part
1400.2310. On February 22, 2008, the
Administrative Law Judge issued the Order on Review of Rules Under Minnesota
Statutes, Section 14.26. As set forth in
the February 22, 2008 Order, a portion of the rules was disapproved.
Based upon a review of the written
submissions and filings, Minnesota Statutes, Minnesota Rules, and the February
22, 2008 Order,
IT
IS HEREBY ORDERED: that the findings of the Administrative Law Judge in the
February 22, 2008 Order on Review of Rules Under Minnesota Statutes, Section
14.26, regarding the disapproval of a portion of the rules are approved. The reasons for the disapproval of the rules
and the changes recommended to correct the defect found are as set forth in the
attached Order.
Dated this 26th
day of February, 2008.
__s/Raymond
R. Krause___________
RAYMOND
R. KRAUSE
Chief
Administrative Law Judge
Governor’s Tracking No. AR
354
STATE OF
OFFICE OF ADMINISTRATIVE
HEARINGS
FOR THE
PEACE OFFICER STANDARDS AND
TRAINING
|
In
the Matter of the Proposed Rule Amendments of the Minnesota Board of Peace
Officer Standards and Training Governing Continuing Education and Accreditation,
Minnesota Rules Chapter 6700 |
ORDER ON REVIEW OF RULES UNDER STATUTES, SECTION 14.26 |
The Minnesota Board of Peace Officer Standards and
Training (“POST 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 February 8,
2008, 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.
With one exception as set forth in the
Memorandum below, the rules are APPROVED. The definition of discrimination at Minn. R. 6700.0900, subpart 6a, and Minn. R.
6700.0902, subpart 9 is DISAPPROVED as
not meeting the requirements of Minn. R. 1400.2100 (D).
4.
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 further review.
Dated: February
22, 2008
_s/Eric
L. Lipman______________________
ERIC
L. LIPMAN
Administrative
Law Judge
SUMMARY OF CONCLUSIONS
In this case, the
Administrative Law Judge has found a defect in one of the proposed rules.
Additionally,
as required by Minn. Stat. § 14.127, the agency has made its determination
regarding the effect of the rules upon small businesses and small cities. The Administrative Law Judge has reviewed the
POST Board’s determination and concurs with its finding that the costs of complying
with the proposed rules in the first year after the rules take effect will not
exceed $25,000 for any one small business or any one small city.
Lastly, the undersigned has
provided a series of recommendations – which are purely advisory in nature – which
the Board may wish to consider prior to adoption of the approved rules.
MEMORANDUM
In
December of 2007, the POST Board published in the State Register a Notice of Intent to Adopt Rules Without a Public
Hearing. The proposed rules relate to
the training and continuing education of licensed peace officers.
Pursuant
to Minnesota Statutes, section 14.26, the agency has submitted these rules to the
Office of Administrative Hearings for a legal review.
According to state law,
there are several circumstances under which a rule must be disapproved by the
Administrative Law Judge or the Chief Administrative Law Judge. A proposed rule is defective when it:
(a)
is not adopted in compliance with the procedural requirements of state
law, unless the judge finds that the error was harmless in nature and should be
disregarded;
(b)
is not rationally related to the agency’s objectives or the agency has
not demonstrated the need for and reasonableness of the rule;
(c)
is substantially different than the rule as originally proposed and the
agency did not comply with required procedures;
(d)
grants undue discretion to the agency, is unconstitutional[1] or
illegal[2];
(e)
improperly delegates the agency’s powers to another entity; or
(f)
falls outside of the statutory definition of a “rule.”[3]
Minn. R. 6700.0900, subpart 6a
Minn. R. 6700.0902, subpart 9
In revisions to Minn. R.
6700.0900, subpart 6a, and Minn. R. 6700.0902, subpart 9, the POST Board
proposes to require course instructors to begin each class with the reading of
a required statement regarding the conduct that constitutes “classroom
discrimination.” The proposed rule
provides that the instructor is to inform students that “[d]iscrimination is an
act or comment of prejudice that offends another.” Additionally, Minn. R. 6700.0902, subparts 10
and 12, provides for the imposition of discipline upon course sponsors, faculty
and students for violations of the anti-discrimination policies.
There are two difficulties
presented by these sections. The first
is that the rule provides no genuine warning as to what types of misconduct run
afoul of the anti-discrimination rule.
Based as it is on whether others take offense to the “act or comment,”
the proposed rule is simply not sufficiently specific enough to instruct those
who wish to abide by the rule what type of conduct is proscribed.[4] Moreover, the standards that Board officials
might use when gauging compliance with the proposed rules are not part of
common understanding, so as to make the intended meaning clear.[5]
Second, there is genuine
doubt that POST Board could permissibly sanction, or withdraw the benefits of
course accreditation from, a sponsor, instructor or student on the grounds that
another person was merely offended by their conduct in the classroom. As the U.S. Supreme Court noted in the case
of Street v.
Among the alternatives that
the Board may wish to consider is to revise the proposed rules so as to provide
that instructors will inform students that classroom discrimination is
prohibited and to define that term with greater precision elsewhere in the
regulation. A longer definition – which
is too clumsy to be recited at the beginning of each class, but which focuses
on the evils that the POST Board hopes to eliminate – might be:
“Classroom discrimination”
is defined as oral, written, graphic or physical conduct directed against any
person or, group of persons, because of their race, color, creed, religion,
national origin, sex, age, marital status, status with regard to public assistance,
sexual orientation, disability, or veteran's status that has the purpose, or
reasonably foreseeable effect, of demeaning or intimidating that person or
group of persons.
Another
possibility might be for the Board to reference the standard now found in Minn.
Stat. § 363A.13, subdivision 1. This
statute provides that it is an unfair discriminatory practice to:
discriminate in any manner in the full utilization of or benefit from
any educational institution or the services rendered thereby to any person
because of race, color, creed, religion, national origin, sex, age, marital
status, status with regard to public assistance, sexual orientation, or
disability, or to fail to ensure physical and program access for disabled persons.
Key
aims of any such regulation should be to give those who are bound by the
restriction fair warning of what conduct is proscribed and to avoid punishing
conduct that is protected by the First Amendment.
In this respect, the decision of the United States District Court for
the Eastern District of Michigan in Doe
v. University of Michigan, 721
F.Supp. 852 (E.D. Mich. 1989) may be helpful to the POST Board. In a case that involved university rules
which proscribed speech that tended to “stigmatize” other individuals, the
Court carefully draws a distinction between speech that is lewd, obscene,
profane, libelous or ‘fighting words' – which may be subject to government
regulation – and speech that is merely “shocking” or “offensive” – which is far
more likely to enjoy 1st Amendment protections.[7]
Likewise, the Court’s detailed description of the relevant law may help
the Board to craft any future anti-discrimination measures.
II.
Editorial Revisions that the Board May Wish to Consider
Minn. R. 6700.0900,
subpart 2
The proposed rule is unclear as to the
methods by which licensees will be randomly selected for review of their
continuing education credits. While the
regulatory text clearly suggests that every licensee will have an equal chance
of being selected for additional review, the proposed rule would be improved if
some description of the Board’s methods were included. Further, such an
addition is needed and reasonable and would not be a substantial change to the rule.
Minn. R. 6700.0901,
subpart 2
Minn. R.
6700.0902, subpart 2a
The proposed rules are clumsily worded
and unclear. The Board may wish to
consider the following revision to both subparts so as to improve the
readability of the proposed rules: “‘Accreditation’
means that the attendees of an approved course are eligible to receive
continuing education credit.” Such
revisions are needed and reasonable and would not be a substantial change to the rules.
Minn. R.
6700.0902, subpart 2a (E)
While mindful that the proposed
The
proposed rule would be more clearly worded if it advised accredited course
sponsors that they would, at a minimum, be evaluated every five years to ensure
compliance with the accreditation rules of Part 6700, but that course sponsors
may be evaluated at intervals less than once every five years. Further, such a revision is needed and
reasonable and would not be a
substantial change to the rule.
The phrasing
of the proposed rule seems to suggest that the Board will make individualized
determinations at the time of accreditation, for each course sponsor, as to the
supporting documentation that must be maintained by the sponsor in order to
later demonstrate compliance with Part 6700.
The rule would be more clearly worded, and perhaps easier to administer,
if it provided that the types of listed documentation, plus any items
specifically requested by the Board in an individual case, shall be retained by
an accredited course sponsor.
Similarly,
the last sentence of the proposed rule would be more clearly worded if it
read: “The documentation must be
maintained for five years or until evaluated by the board and shall be made available to the board upon request.” Such revisions would be needed and reasonable
and would not be a substantial
change to the rule.
In order that the proposed rule would
be clear and consistent with the text in 6700.0900, subpart 6a, the Administrative
Law Judge urges the Board to consider the following revision at page 11, lines
24-26: “This course (name of the
course), (course number) has been approved by
the POST Board for continuing education credit.” Such a revision is needed and reasonable and would
not be a substantial change to
the rule.
E. L. L.
[1]
In order to meet constitutional
requirements, a rule must be sufficiently specific to provide fair warning of
the type of conduct to which the rule applies. See, e.g., Cullen v.
[2] See,
[3] See,
[4] Compare, In the Matter of the Proposed Adoption of Amendments to the Rules of the Department of Human Services Governing the Use of Aversive and Deprivation Procedures By Licensed Facilities Serving Persons with Mental Retardation or Related Conditions, OAH Docket No. 1800-7471-1 (http://www.oah.state.mn.us/aljBase/18007471.93.htm) (quoting Thompson v. City of Minneapolis, 300 N.W.2d 763, 768 (Minn. 1980)).
[5] Compare, e.g., In the Matter of the Proposed Rules Governing the Licensure of Treatment Programs for Chemical Abuse and Dependency and Detoxification Programs, Minnesota Rules, Chapter 9530, OAH Docket No. 3-1800-15509-1 (2004) (“The Administrative Law Judge finds the requirement that a program have a particular licensure, and ‘any additional certifications required by the department,’ to be impermissibly vague and a defect in the rule") (http://www.oah.state.mn.us/aljBase/180015509.rr.htm).
[6] Street v.
[7] Doe v.