Administrative Rule Review Report  #AR08-004

Legislative Service Office

05-Jan-08

AGENCY: Department of Fire Prevention & Electrical Safety, Electric Board.

DATE SUBMITTED: December 31, 2007.

SUBJECT:                                       Chapter I, Sections 2-4, Chapter II, Section 1, Chapter III, Sections 1-4, Chapter IV, Section 1, Chapter V, Sections 1-4, 6-8, Chapter XI, Sections 3 and 4, Chapter VII, Sections 2-4, 11, 12 and 16, Electrical Board Rules and Regulations

NATURE OF RULES:                     Legislative and Procedural.

STATUTORY AUTHORITY:         W.S. 35-9-124(a)(i).

DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION

SUBMITTED BY THE AGENCY TO LSO:  Apparently complete to date.  No comments were received during the public comment period.

SUMMARY OF RULES:

The Department of Fire Prevention and Electrical Safety adopted rules to make grammatical changes to the existing Electrical Board Rules and Regulation ("rules"); to update the rules to be consistent with newly revised building codes; to update the membership on the Electrical Board from three (3) to five (5) members; to establish that a quorum on the Board shall consist of three (3) members; to add a definition of "cured;" to update the definition of "Electrical Board;" to amend the definition of "Electrical Safety Division" to include its duty of issuing electrical wiring permits; to specify the Board's duty to review civil penalties and review petitions; to specify that the Chief Electrical Inspector may impose fines; to allow the Board to resolve a complaint before a contested hearing by reducing the amount of the proposed fine; to replace "licensee" with "person(s)" throughout the rules; to state that examinations are scheduled by contacting the testing agency after approval by the Chief Electrical Inspector; to remove the requirement that training hours be obtained before a license expires when renewing an expired license; to take out "master" in the provisions regarding temporary work permits as it only refers to journeyman; to remove the provision allowing registered apprentices to take the journeyman examination after meeting the specified criteria; to amend the masters electrician licensing requirements by requiring a journeyman's license for at least four (4) years and requiring 16,000 hours of "documented evidence of work experience;" to define "documented evidence of work experience" and delete prior language defining work experience; to update the rules for master, journeyman and low voltage technician applications; to replace "trainee" with "apprentice" throughout the rules; to add that notifications of registration renewal will be mailed to the last submitted address; to update the permit fee schedule and the re-inspection fees to be consistent with Wyoming statutes; to create a new Section 6 to Chapter 5 detailing reciprocal licensing with other states and to specify the applicability of the Wyoming Administrative Procedures Act.

FINDINGS:  Except as noted below, the rules appear to be within the scope of statutory authority and legislative intent.

In Chapter 1, Section 2(b) of the proposed rules, the Department has amended the Board's rules to include the duty to "sustain civil penalties."  Pursuant to W.S. 35-9-124 and 130, the Board's duty requires a full review of penalties assessed by the Department and includes the option of upholding the penalty, ruling that a violation is unsubstantiated or reducing the amount of a proposed fine.  Contrary to the language of the proposed rule, the Board must do more than "sustain civil penalties."

In Chapter 2, Section 1, the proposed rules define "Apprentice Electrician" and "Apprentice Technician" to include only those hired by a "Wyoming licensed electrical contractor."  These two terms are defined by Wyoming Statute and do not include the word "Wyoming." See W.S. 35-8-102(a)(i) and (ii).  By including the term Wyoming, the rules are less inclusive and could at least theoretically exclude parties that were meant to be covered by the statutes.

The Department has amended Chapter 3, Section 4(c) by adding a new paragraph (iii).  That paragraph states that the Board may resolve a complaint at any time before the contested hearing by, "(iii)  Reducing the amount of the proposed fine."  A technical reading of this rule might allow the board to have a complaint dismissed, without a hearing, simply by reducing the fine by some inconsequential amount (e.g. $1).  Such action could constitute an unconstitutional deprivation of due process.  Further, W.S. 35-9-130 states that the Board

shall hear the appeal at its next regularly scheduled meeting.  At the appeal hearing, the electrical board may uphold the proposed fine, rule that the alleged violation is not substantiated, or reduce the amount of the proposed fine.

The statute neither contemplates the Board resolving a complaint prior to a contested hearing nor allowing a fine to be reduced and the complaint "resolved" prior to a hearing.

STAFF RECOMMENDATION:

With regard to Chapter 1, Section 2, that the Council recommend that the Governor direct the Department of Fire Prevention and Electrical Safety to amend the provision to read "review civil penalties" rather than "sustain civil penalties."

That the Council recommend to the Governor that he direct the Department of Fire Prevention and Electrical Safety to remove the word "Wyoming" from the definitions of "Apprentice Electrician" and "Apprentice Technician."

Finally, that the Council recommend to the Governor that he direct the Department of Fire Prevention and Electrical Safety to remove the amendment to Chapter 3, Section 4(c).  To the extent the Board is allowed to resolve complaints prior to hearing, the rules already allow such resolution upon "accepting conditional terms for settlement" or "dispensing with [the complaint] in an informal manner."  These methods could include an agreement for the reduction of the proposed fine.

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Ian Shaw

Staff Attorney

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Dan Pauli

Director

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