Administrative Rule Review Report #AR11-040
Legislative Service Office
23-Aug-11
AGENCY: State Board of Athletic Training
DATE SUBMITTED: 8/18/2011
SUBJECT: Chapter 1, General Provisions; Chapter 2, Organization & Procedures of the Board; Chapter 3, License Requirements; Chapter 4, Application Procedures; Chapter 5, Fees; Chapter 6, Renewal; Chapter 7, Professional Responsibility; Chapter 8, Adverse Action; Chapter 9, Complaints, Practice and Procedure; Appendix A, Wyoming Athletic Trainers Licensing Act; and Appendix B, NATA Code of Ethics.
NATURE OF RULES: Legislative and procedural.
STATUTORY AUTHORITY: W.S. 33-45-106(a).
DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION SUBMITTED BY THE AGENCY TO LSO: On May 28, 2010, the board notified LSO of its intent to adopt new rules. As required by W.S. 28-9-103(d), LSO notified the primary sponsor and the Joint Education Committee. The board has notified LSO that the rules were adopted on August 17, 2011 and that no comments were received during the public comment period. Although the board delayed adopting the rules for over a year, the rules were submitted to LSO within ten days of adoption as required by W.S. 28-9-103(b) and it appears the board has met the statutory procedural requirements.
SUMMARY OF RULES: The rules were promulgated to carry out the Wyoming Athletic Trainers Licensing Act. They establish procedures for conducting board business, establish requirements for licensing and continuing professional education, set fees, establish disciplinary procedures and establish ethical standards.
FINDINGS: Chapter 2, § 3 states that that board may establish and empower committees “to approve . . . applications for license . . . .” The section also provides that, “These committees shall be comprised of current members of the Board and/or administrative staff.” W.S. 33-45-106(a)(iii) authorizes the board to “[a]pprove or disapprove applications for licensure and issue licenses.” Empowering staff to approve applications for license is an improper delegation of the authority and responsibility borne by the board to take final action upon applications. See, e.g. Kilpatrick v. Planning Bd. for Boylston, 16 Mass. L. Rep. 436 (Mass. Super. Ct. 2003) .
Chapter 7, § 2(b)(x) provides that persons licensed by the board shall not, “practice, facilitate or condone” discrimination on the basis of race, sex, age, religion, nation [sic] origin, mental or physical handicap or “other preferences or characteristics.” To the extent the language prohibits “condoning” discrimination, particularly on the basis of “other preferences or characteristics,” it exceeds statutory authority to adopt rules relating to athletic training and raises First Amendment concerns. See, e.g., Boy Scouts of America v. James, 530 U.S. 640, 660 (2000) (“The First Amendment protects expression, be it of the popular variety or not.”).
Chapter 7, § 2(b)(xv) similarly provides that a licensee shall not “condone” unlicensed practice or an activity which is a violation of the Act or rules. The definition of condone includes “to regard or treat (something bad or blameworthy) as acceptable.” See http://www.merriam-webster.com/dictionary/condone. Prohibiting a licensee from condoning certain behavior also raises First Amendment concerns because the language may inhibit freedom of expression.
STAFF RECOMMENDATION: 1) That the Council request the Governor to use his line item veto authority under W.S. 16-3-103(d) to address the above concerns. This could be done by striking the language below. Otherwise, the recommendation would be for the Governor to direct the board to rescind the rules and address all the concerns raised.
Chapter 2, § 3: That the Council request the Governor to use his line item veto to strike “and/or administrative staff” in the last sentence of the section.
Chapter 7, § 2(b)(x): That the Council request the Governor to use his line item veto to strike “or condone” and “or other preferences or characteristics”.
Chapter 7, § 2(b)(xv): That the Council request the Governor to use his line item veto to strike “, condone”.
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Lily Sharpe
Staff Attorney
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Gerald W. Laska
Staff Attorney
LNS