Certified Final Objection No

Certified Final Objection No. 14 of the

Joint Legislative Committee on Administrative Rules

At its meeting on November 19, 1990, the Joint Legislative Committee on Administrative Rules (Committee) voted to make a preliminary objection to Final Proposal 90-240, containing proposed rules of the State of New Hampshire Department of Employment Security (Department) relative to the approval of fees. The Department responded by letter dated December 18, 1990, by amending some of the proposed rules to address some of the Committee's concerns.

At its meeting on January 10, 1991 the Committee voted, pursuant to RSA 541-A:3-e, V(c), to make a final objection to one aspect of the rules in Final Proposal 90-240. The final objection has been filed with the Director of the Office of Legislative Services for publication in the New Hampshire Rulemaking Register. The effect of a final objection is stated in RSA 541-A:3-e, VI:

After a committee objection is filed with the director under paragraph V(c), to the extent that the objection covers a rule or portion of a rule, the burden of proof thereafter shall be on the agency in any action for-judicial review or for enforcement of the rule to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, and is in the public interest. If the agency fails to meet its burden of proof, the court shall declare the whole or portion of the rule objected to invalid. The failure of the committee to object to a rule shall not be an implied legislative authorization of its substantive or procedural lawfulness.

The following outlines the rule to which the Committee objects and the reason for the final objection:

Emp 204.03(b)

The Committee objected that rule Emp 204.03(b) violates Committee Rules 403.01(d), 403.02(c) and 402.02 in that it is contrary to the public interest by not being clear and understandable and capable of uniform application, and contrary to legislative intent by allowing requirements to be set orally rather than through the process mandated by RSA 541-A:3.

The rule provides a list of 6 factors "to be considered by" the Commissioner or his designee in deciding whether to approve a fee request. The "factors" include "the amount of benefits involved and the results obtained," and "the terms of the claimant's attorney's fee agreement, if any." The rule offers no guidance as to how the factors are actually considered, i.e., what about each factor makes it more or less likely that a fee will be approved.