The opinion
The Honorable Jay Bradford State Senator P.O. Box 8367 Pine Bluff, AR 71611
Dear Senator Bradford:
This is in response to your request for an opinion on the following questions:
1. If proposed or adopted Arkansas Board of Examiners in Psychology Rules and Regulations are in apparent direct conflict with statutory provisions, can the former leave any legal effect or would they be void due to that conflict?
2. If rules have been promulgated not in accordance with the Administrative Procedures Act (A.C.A. § 25-15-201 , et seq. ), are they void or merely voidable? If the latter, can the licensing board enforce those rules or take any adverse action against a member for non-compliance?
It is my opinion, in response to your first question, that a rule or regulation that is contrary to statutory law will be void. A rule or regulation that is, in fact, contrary to law can have no legal effect. See generally State v. Burnett, 200 Ark. 655 , 140 S.W.2d 673 (1940).
In response to your second question, A.C.A. § 25-15-204 (Repl. 1992), which governs procedures for adoption of rules, states under subsection (f) that "[n]o rule adopted after June 30, 1967, shall be valid unless adopted and filed in substantial compliance with this section." See also A.C.A. § 25-15-203 (b) (as amended by Act 1106 of 1993) (providing that no agency rule shall be valid or effective until it has been filed and made available for public inspection as required in the subchapter).
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.
Sincerely,
WINSTON BRYANT Attorney General
WB:cyh