Administrative Rule Review Report  #AR11-055

Legislative Service Office

10-Oct-11

AGENCY: Board of Architects & Landscape Architects

DATE SUBMITTED: 10/4/2011

SUBJECT: Chapters 1 through 11, Appendices A, B, and C

NATURE OF RULES:                     Legislative and Procedural

STATUTORY AUTHORITY:         W.S. 33-4-104, 33-4-105 and 33-4-107

DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION

SUBMITTED BY THE AGENCY TO LSO: Apparently complete to date.  The agency received a number of comments regarding the rules and made various changes in response to the comments.

SUMMARY OF RULES:  The amendments to the rules clarify and update provisions relating to the board's procedures, release of records, licensing requirements, license application process, examination requirements, practical experience requirements, reactivation of a retired status license, payment of fees, professional development, the use of seals and hearing procedures.  The rules also incorporate rules of professional conduct.

FINDINGS:  Chapter 2, § 2 allows the board to establish committees to act on applications for licenses, applications for renewal, special requests, complaints, complaint investigations or other issues that the board deems proper to delegate.  The current changes, however, also allow committees to be comprised of current members of the board "and/or the Board's Executive Director.”  Empowering the executive director to be a member of a committee which acts on applications for licenses 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).  W.S. 33-4-107 requires that that the board issue licenses.  It should also be noted that Chapter 2, § 3(b) of the rules provides that a majority of the board constitutes a quorum and a majority vote of the quorum is required to transact business.  Consequently, a committee which transacts any business must include a majority of the board.

STAFF RECOMMENDATION:  That the Council request the Governor to use his line item veto authority under W.S. 16-3-103(d) to address the Executive Director's membership on committees.  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 this concern.

Chapter 2, § 2:  That the Council request the Governor to use his line item veto to strike “and/or

the Board's Executive Director" in the last sentence of the section.

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Lily Sharpe

Staff Attorney

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Lynda G. Cook

Staff Attorney

LNS/cj