Delegation of Authority to Staff: Legal Dos and Don ts.

Transcription

1 Delegation of Authority to Staff: Legal Dos and Don ts. June 5, :15 a.m. - 12:00 p.m. 1

2 After this program, you will be able: To decide how effectively to utilize Board staff; To critique how other jurisdictions utilize their Board staff; To revise new ways to get the most from your Board staff, and; To identify issues of unlawful delegation of authority to Board staff. 2

3 This is not about the following: Delegation of Board authority to a private organization, such as in drafting statutes or administrative regulations or rules legislative delegation ; That involves various case law about, for example, a Board setting standards not its own, but simply referring or adopting the standards set by a private organization. 3

4 This is not about the following, continued: Legislative delegation jeopardizes standards set by a Board which has simply adopted other standards of private organizations not its own; But perhaps legislative delegation is not applicable to adopting standards of other government agencies, such as the Centers for Disease Control and Prevention (i.e., guidelines for universal precautions). 4

5 This is not about the following, continued: This is not solely about Board staff, that is, an us versus them or Board versus Board staff ; The same delegation issues can arise between the Board as a body and a single Board member, such as in approving applications for licenses, renewals, and continuing education. 5

6 What working arrangement with Board staff do you have? In-house, salaried, government Board staff employed solely by the Board; Contract, hourly, private Board staff employed under contract by the Board as needed does any of this still exist? Part-time Board staff, contract consultants, and Board staff under contract via a state association for the Board. 6

7 What working arrangement with Board staff do you have? In-house, salaried, government Board staff employed by another government department which also houses the Board a common, umbrella agency providing support staff to numerous state Boards; The above arrangement provides the least control over the work of the Board by its staff and thus the least ability to delegate authority Board members simply do so much of all the work, such as, reviewing applications, renewals, and continuing education. 7

8 What working arrangement with Board staff do you have? Similar arrangement for legal services, investigative services, or hearing officer services (administrative law judge); See generally, The Role of Board Counsel: What is too Involved? from the National Council of State Boards of Nursing, Discipline Case Management Conference, Park City, Utah. 8

9 What do you have your Board staff do? Focus here on administrative functions: Attend all Board meetings, special meetings, retreats, and prepare the draft minutes of each such meeting; Review, edit, and send form documents of the Board, such as investigative letters, dismissal letters, and other form templates regularly used by the Board. 9

10 What do you have your Board staff do? Focus here on administrative functions: Be available by telephone, , and in-person to answer day-to-day questions from the public and from licensees of the Board; Be knowledgeable about state personnel rules, government contracting, and budgeting important emphasis on government financials because state government is not a private business. 10

11 What do you have your Board staff do? Focus here on administrative functions: Just as with Board attorneys, Board staff should know their limitations they are not the final representative for the general public, or for other licensees of the Board, so they must learn to respond to such inquiries appropriately as ultimate decisions must be made by the Board. 11

12 What do you have your Board staff do? Focus here on administrative functions: Be aware of a Board staff being a licensee of that profession and thus overstepping authority; Some state statues may require the Board s chief administrative officer, i.e., and Executive Director, or its investigators, to be licensees of that profession this raises unique issues such as higher professional pay and authority to make substantive, practice decisions. 12

13 An ultimate issue: What is too involved? What dos and don ts are there for deciding how to use Board staff, i.e., what can the Board delegate to its own staff? Is this a different question from what should the Board delegate to its own staff? 13

14 An ultimate issue: What is too involved? Boards must comply with their state s open meetings laws; Boards must also comply with various case law which sets limits by allowing ministerial versus discretionary actions to be made by Board staff; So what is a ministerial versus a discretionary action? 14

15 An ultimate issue: What is too involved? Look at how many times a state Board practice act, in state statute passed by the state General Assembly, uses the word Board in the authority of agency it s everywhere! Does it literally mean the Board and only the Board as a body can do those things? Does your state law provide for authority for Board staff to act apart from the Board as a body? 15

16 An ultimate issue: What is too involved? Are there implied authority and powers of the Board? Of the Board staff? The Board as a body does not answer the office telephone telephone is nowhere in any practice act; The Board as a body does not respond to requests for records of the Board (in Kentucky, state open records requests must be responded to within three (3) business days) how could it do so if it meets once every 90 days? 16

17 An ultimate issue: What is too involved? Are there implied authority and powers of the Board? Of the Board staff? What open meetings decisions frame these issues? What case law frames these issues? What can we determine are ministerial versus discretionary actions that can be delegated by the Board to Board staff? 17

18 An ultimate issue: What is too involved? Open meetings decisions: Holben v. Ohio State Medical Board, 185 Ohio App.3d 463, 2009-Ohio-6323; Facts employee Holben with civil service status tendered a resignation letter to the Board Executive Director, which was not acted upon by the Board before Holben withdrew and rescinded it, but the Executive Director rejected the withdrawal and denied the continued employment due to the resignation. 18

19 An ultimate issue: What is too involved? Open meetings decisions: Holben v. Ohio State Medical Board, 185 Ohio App.3d 463, 2009-Ohio-6323; Outcome Appellate court ruled in favor of employee Holben and reinstated employee Holben with back pay because, by statute, the employer was the Board which had never acted on the employment issue, and where no statute allowed the Executive Director to act in place of the Board. 19

20 An ultimate issue: What is too involved? Open meetings decisions: Holben v. Ohio State Medical Board, 185 Ohio App.3d 463, 2009-Ohio-6323; Rationale at what meeting of the Board in its minutes was this employment matter decided? No statute gave authority to the Executive Director in place of the Board; Next time get a Board meeting and take action reflected in the minutes on the issue. 20

21 An ultimate issue: What is too involved? Open meetings decisions: Holben v. Ohio State Medical Board, 185 Ohio App.3d 463, 2009-Ohio-6323; Could this happen to you? Yes, a General Counsel at a Kentucky Board was let go where the Executive Director ostensibly fired the head lawyer of a three lawyer staff; Again, the employer was the Board with no action at a meeting as reflected in the minutes. 21

22 An ultimate issue: What is too involved? Open meetings decisions, continued: Failure to get quorum didn t stop Mass. Panels: 7 licensing boards have record of taking votes anyway The Boston Globe, July 28, 2013; Facts Massachusetts licensure boards with vacancies meet without a quorum of the whole Board to conduct business, where for example, a 5 member Board had 2 vacancies, 2 of 3 present Board members was erroneously considered a quorum versus 3 of 5 Board members. 22

23 An ultimate issue: What is too involved? Open meetings decisions, continued: Outcome Massachusetts licensure board actions were thus called into question, but no express remedy was carried out; What could be an ultimate outcome in Massachusetts? 23

24 An ultimate issue: What is too involved? Open meetings decisions, continued: In Kentucky, actions taken in violation of the open meetings laws are voidable, not void someone with standing would have to sue to overturn an invalid action; In Kentucky, are invalid actions made valid by a later vote of a quorum of the Board? 24

25 An ultimate issue: What is too involved? Open meetings decisions, continued: Kentucky Supreme Court allowed the General Assembly to approve a budget and spending retroactively to cover a gap of about eight months when the General Assembly had previously adjourned without passing a budget (a Kentucky constitutional mandate!) and the Governor had spent monies during that time under his constitutional emergency powers ; Sets the precedent for after-the-fact approval. 25

26 An ultimate issue: What is too involved? Open meetings decisions, continued: As in Massachusetts, this has happened in Kentucky where state Boards have met without a quorum; What to do? Practical application versus strict and narrow construction of the state open meetings laws; Raises internal problems of applying the Board to a meeting without a quorum such as Board member pay for attending each meeting of the Board. 26

27 An ultimate issue: What is too involved? Case law and opinions: Washington Attorney General Opinion 1987 No. 7 (March 5, 1987) Higher Education Coordinating Board may not delegate authority to its Executive Director to adopt rules implementing various programs; But, the Board may delegate authority to implement applicable Washington state law; This is well-grounded in state case law. 27

28 An ultimate issue: What is too involved? Case law and opinions: The Board is a state agency created by the Legislature. As such, it enjoys only those powers expressly conferred by statute or necessarily implied in furtherance of its statutorily defined duties. A specific application of this rule is the well-settled principle that a public administrative body to which discretionary functions have been delegated cannot redelegate such functions, absent express authorization. 28

29 An ultimate issue: What is too involved? Case law and opinions: The courts have consistently held that a public body may not redelegate its powers unless they are administrative or ministerial as opposed to discretionary. 29

30 The ultimate issue: Dos and Don ts. Practical issues addressed first does your Board have the staff to take on delegated tasks? Does the staff have the training to take on delegated tasks? Without getting to the ministerial versus discretionary functions test, should not many functions of a licensure Board be routine, that is, be ministerial, i.e., issuing a license to an applicant (recognizing if discretion is necessary to refer to the Board)? 30

31 The ultimate issue: Dos and Don ts. Practical issues addressed first don t allow Board staff, or even a single Board member, to take an action that the full Board would regret such as issuing a license to a felony applicant; Instead, allow Board staff, or even a single Board member, to take action that if mistakenly done by the Board would be reversible, such as, issuing a license in error to an applicant who had failed the necessary examination. 31

32 The ultimate issue: Dos and Don ts. Legal issues addressed second don t allow Board staff, or even a single Board member, to take an action that is required by the full Board to be taken; This would be ministerial versus discretionary actions a laundry list of possible actions that would fit one category or the other. 32

33 Conclusions: Follow your state s open meetings laws on Board actions; Follow your state s case law and attorney general opinions on delegation; Abide by Board staff limitations of authority and power. 33

34 Conclusions: Use Board staff and Board members to the full extent as authorized by law this is better service to the public; But fully train Board staff and Board members on their duties and tasks, especially to identify ministerial versus discretionary actions; Have a written job description for the duties of Board staff, even a step-sheet for various tasks of the Board s functions, such as complaints and applications. 34

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36 Mark R. Brengelman, A0orney at Law Hazelrigg & Cox, LLP 415 West Main Street, Suite 1 Post Office Box 676 Frankfort, Kentucky Office: (502) ; Fax: (502) E- mail: MBrengelman@hazelcox.com 36