Judges： YASODHARA MOHANTY
Filed Date： 4/25/1990
Status： Precedential
Modified Date： 7/6/2016
RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF APRIL 13, 1990 TO ATTORNEY GENERAL, ROBERT H. HENRY. I AM THE ASSISTANT ATTORNEY GENERAL WHO HAS UNDERTAKEN TO RESPOND TO YOUR LETTER. WE HAVE SINCE DISCUSSED THIS MATTER AND I HAVE ALSO TALKED TO YOUR ASSISTANT, DIANA MCGUIRE. AS ADVISED, MY RESPONSE TO YOUR LETTER WILL BE INFORMAL BECAUSE A FORMAL QUESTION WAS NOT MADE.
FIRST, LET ME CLARIFY A MISUNDERSTANDING THAT APPEARS IN YOUR CORRESPONDENCE. CONTRARY TO YOUR INFORMATION, THIS OFFICE HAS NOT RECEIVED AN OFFICIAL REQUEST TO DETERMINE WHAT SECTIONS OF THE ADMINISTRATIVE PROCEDURE ACT, AS AMENDED IN 1989, APPLY TO THE GOVERNING BOARDS OF REGENTS OF INSTITUTIONS WITHIN THE STATE SYSTEM OF HIGHER EDUCATION. LIKEWISE THERE HAS NOT BEEN AN OFFICIAL REQUEST FOR DEFINITION OF A RULE UNDER THE ACT AS IT APPLIES TO INSTITUTIONS OF HIGHER EDUCATION. MOST ENQUIRIES HAVE BEEN ABOUT THE DEPARTMENT OF LIBRARIES' (DOL HEREIN) QUESTIONNAIRE. A FEW INSTITUTIONS HAVE EXPRESSED CONCERN ABOUT THE APPLICATION OF THE ACT.
IN MARCH 1990, AT THE REQUEST OF THE CHANCELLOR, I SPOKE ON BEHALF OF THIS OFFICE TO THE PRESIDENT'S COUNCIL REGARDING ARTICLE I OF THE ACT. THE PURPOSE OF THE SPEECH WAS TO INFORM THE INSTITUTIONS OF THE STATUTORY BASIS FOR THE DEPARTMENT OF LIBRARIES' QUESTIONNAIRE AND TO OFFER ANY NECESSARY ASSISTANCE IN COMPLETING THE QUESTIONNAIRE. IT IS ALSO MY UNDERSTANDING THAT PRIOR TO THIS MEETING, THE CHANCELLOR SENT A LETTER DATED FEBRUARY 16, 1990, TO THE PRESIDENT OF EACH INSTITUTION WITHIN THE STATE SYSTEM OF HIGHER EDUCATION, ADVISING OF THE NECESSITY TO RESPOND TO THE QUESTIONNAIRE. A COPY OF THIS LETTER WHICH WAS RECENTLY FURNISHED TO ME IS ENCLOSED FOR YOUR INFORMATION.
I WILL THEREFORE REITERATE THAT IF YOU REQUIRE ANY ASSISTANCE COMPLETING THE QUESTIONNAIRE PLEASE CONTACT ME OR ASSISTANT ATTORNEY GENERAL BECKY RHODES, WHO IS THE LIAISON COUNSEL TO THE DEPARTMENT OF LIBRARIES.
COMPLIANCE WITH DOL QUESTIONNAIRE
ON DECEMBER 15, 1989, THE DOL SENT A LETTER TO ALL STATE AGENCIES REQUESTING THAT THE QUESTIONNAIRE ATTACHED TO ITS LETTER BE COMPLETED AND RETURNED PRIOR TO JANUARY 15, 1990. THE GOVERNING BOARD OF REGENTS OF ROGERS STATE COLLEGE RECEIVED THIS QUESTIONNAIRE AND THE DOL'S LETTER. UNLESS YOUR BOARD INTENDS TO FILE APPROPRIATE OBJECTIONS UNDER THE ACT, THIS QUESTIONNAIRE SHOULD BE COMPLETED AS SOON AS POSSIBLE.
A STATUTORY BOARD, SUCH AS THE BOARD OF REGENTS OF ROGERS STATE COLLEGE IS AN AGENCY AS DEFINED UNDER 75 Ohio St. 250.3. CERTAIN RULE-MAKING PROVISIONS OF ARTICLE I OF THE ACT APPLY TO THE INSTITUTIONS AND THEIR GOVERNING BOARDS. 75 Ohio St. 250.4(9) (1989). THIS SECTION STATES SPECIFICALLY:
"9. UNTIL JANUARY 1, 1992, THE BOARDS OF REGENTS AND INSTITUTIONS THEY GOVERN SHALL BE EXEMPT FROM ARTICLE I OF THE ADMINISTRATIVE PROCEDURES ACT EXCEPT FOR SECTIONS 75 Ohio St. 250.3/75 Ohio St. 251/75 Ohio St. 252/75 Ohio St. 254, THE NOTICE AND PUBLICATION REQUIREMENTS OF SECTION 75 Ohio St. 303/75 O.S. 308.2 OF THIS TITLE AND SECTIONS 11 AND 12 OF THIS ACT. . . ." 75 Ohio St. 250.4(9).
PURSUANT TO 75 Ohio St. 250.4(9) THE GOVERNING BOARD OF REGENTS OF ROGERS STATE COLLEGE AND THE COLLEGE ARE SUBJECT TO THE STATUTORY DEFINITIONS OF 75 Ohio St. 250.3 AND TO THE SECTION 75 Ohio St. 251 REQUIREMENT FOR FILING RULES WITH DOL. THEY MUST ALSO COMPLY WITH 75 Ohio St. 252 CONDITIONS FOR A VALID RULE AND WITH SECTION 75 Ohio St. 254 REQUIREMENTS FOR ATTESTATION AND CERTIFICATE OF PUBLICATION. THE COLLEGE AND ITS GOVERNING BOARD ARE ALSO SUBJECT TO THE NOTICE AND PUBLICATION REQUIREMENTS OF SECTIONS 303, 308.2, 256.1 AND 256.2. THE PROCEDURE FOR FINAL ADOPTION OF A RULE BY THE INSTITUTIONS AND THEIR GOVERNING BOARDS IS OUTLINED IN THE SECOND PARAGRAPH OF 75 Ohio St. 250.4(9). THE REMAINING RULE-MAKING PROVISION OF THE ACT DO NOT APPLY TO ROGERS STATE COLLEGE AND ITS GOVERNING BOARD UNTIL JANUARY 1, 1992. 75 Ohio St. 250.4(9) FURTHER OUTLINES THE CURRENT PROCEDURE FOR FINAL ADOPTION OF A RULE BY THE GOVERNING BOARDS OF REGENTS.
IN RESPONSE TO YOUR SECOND INQUIRY I WILL REFER YOU TO 75 Ohio St. 250.3(3). THIS SECTION DEFINES WHAT IS A RULE UNDER THE ACT. IT ALSO SPECIFIES THE STATUTORY EXCEPTIONS TO THE DEFINITION. YOUR BOARD HAS CERTAIN RULE MAKING AUTHORITY PURSUANT TO 70 Ohio St. 3801 ET SEQ. RULES PROMULGATED PURSUANT TO THIS AUTHORITY
*(SECTIONS 75 Ohio St. 256.1 AND 75 Ohio St. 256.2 OF THE ACT.) MAY BE SUBJECT TO THE ACT. I AM CERTAIN THAT YOUR ABLE COUNSEL WILL BE ABLE TO ASSIST YOU IN INTERPRETING THE APPLICATION OF THE ACT TO THOSE RULES. IF, HOWEVER, YOU HAVE ANY SPECIFIC QUESTIONS REGARDING PARTICULAR RULES OF YOUR GOVERNING BOARD OR INSTITUTION, YOUR COUNSEL OR YOU MAY CONTACT EITHER BECKY RHODES OR THE UNDERSIGNED AT THE ADDRESS AND TELEPHONE NUMBER STATED IN THE LETTERHEAD ABOVE.
(YASODHARA MOHANTY)