MINUTES 

The meeting was called to order by Roy Smith, Acting Chairman in Chairman Monteleone’s absence. It was determined that a quorum was present.

Approval of Minutes:

Ms. Lipscomb stated that the minutes include the notes which reflect the modifications that were made by the Board to the proposed legislative rules. The minutes do not state each and every modification but the modifications are shown on the attachment to the minutes. Ron Spradling moved for approval of the minutes of the June 16, 2005, meeting. Motion seconded by Bud Sprouse. There was no discussion or amendments to the minutes and they were approved by a unanimous vote.

There was no old business to come before the Board.

New Business:

Application of Alliance Consulting Inc.

Ms. Lipscomb advised the Board that she had been contacted by Mr. Christopher Daniels with Alliance Consulting, Inc. who informed her that they wanted to withdraw their application for a design-build project to construct a transfer station building for the Jefferson County Solid Waste Authority and Waste Management at this time. Therefore, this item is being removed from the agenda and will not be considered today.

Donna Lipscomb discussed with the Board the status of the legislative rules. She stated that the rules that were approved by this Board were filed with the Secretary of State. Subsequent to their filing, the rules were reviewed by the Legislative Rule-Making Committee of the Legislature. The attorney which was assigned to the rules is a Judiciary attorney. Ms. Lipscomb and Chairman Monteleone met with legislative counsel as he had many questions and concerns regarding the rules.

The Board made so many changes as a result of the new legislation, as well as moving the order of the sections around within the rules so they would be in the same order of the statute, that you could not determine what was new law versus existing law. As a result, the new rules were not filed as a strike through and insert, the old rules were repealed and replaced with the new rules. The legislative attorney did not believe that the rules flowed very well so he recommended modifying the rules to move the sections around. He also had some concerns about other things in the rules. Ms. Lipscomb provided the Board with the rules as filed and the modified rules as a result of the legislative counsel’s recommendations for comparison. The modified rules will be on the Legislative Rule-Making agenda at the upcoming interim meeting on Monday at 6:00 p.m.. Ms. Lipscomb advised the Board that she would be in attendance at the meeting but was unsure whether the Chairman would be able to attend. She requested that one of the Board members attend to represent the Board.

Ms. Lipscomb advised the Board of the modifications made to the rules. She requested the Board to let her know if they have any concerns with the modifications that were made so she can relay those concerns to the Legislative committee.

Ms. Lipscomb stated that the wording in section 6.1.1 has changed. The attorney was concerned that there was a conflict with the Statute because the rules stated that the performance criteria developer would be selected in accordance with 5G 1.1. The attorney and Chairman Monteleone had some concerns with each other’s recommended language. Therefore, the language was changed to clarify that you still must go through 5G 1.1 but if the project is under one million dollars it can be an employee.

The next change was in 6.2.1 to delete the letters and replace them with numbers to it reads better. The biggest change is the deletion of the entire section regarding emergencies and exemptions which used to be 148-11-14. The code does not give authority for exceptions so the attorney wanted the section deleted.

Another large change is the way holidays are referenced throughout the rules. The rules stated holidays were any days the office was off and the attorney had concerns with that language because they may be off work due to someone’s birthday. The new language simply states Sunday or legal holiday. That is how it is referred to in other areas of the Code so it is consistent.

Ms. Lipscomb stated that the other big modification that she would like the Board to compare and look at is under 148-11-10. On the new page five and the old page six there was a footnote with examples of rating systems. This was unacceptable with rule-making because there should not be any footnotes in the rules. Therefore, they took the footnote and reworded it and made a 10.3 section. They kept the example but took out the maximum scores for demonstration purposes. The attorney did not want anyone who is not familiar with this Act or the rules to think this is how they would have to score by looking at those numbers.

Technical clean up type changes were made by moving around of the sections and giving a new title to a section. There were no other substantive changes in the rules other than just some better wording. Ms. Lipscomb asked the Board to review and compare the two sets of rules and let her know if they had any questions or concerns with any of the changes they made in the meeting with legal counsel.

Ms. Smith asked whether Chairman Monteleone had reviewed all of the modifications made to the rules. Ms. Lipscomb advised that he has reviewed all changes and have kept in constant contact. He was e-mailed the last version of the rules yesterday and he indicated his is ok with the modifications. Chairman Monteleone did not like the modification wherein they took out the maximum scores out. He thought those would be helpful but he did understand the rationale of the attorney if a lay person is looking at the rules they could interpret the score to be what they must utilize.

Mr. Spradling questioned if you do not have a weighted score to go by then who would make the decision. Ms. Lipscomb directed the Board to section 10.3 where they talk about "heavily weighted". Also in section 10.4 they have language. This addresses Mr. Spradling’s concerns. Mr. Clowser stated that he understands counsel’s concern that putting numbers in there will be what everyone will go by, however instead of using the words "maximum score" you could use language to state "not to exceed" and give a range to go by for each area. Mr. Clowser does not believe the individual will know that more weight should be applied to certain areas than other areas. Ms. Lipscomb can’t speak for the attorney but from her impression in the meetings, the attorney felt it should be up to each agency how they wanted to weight for the scoring on each project. This would mean that they could put 100% or 90% on one area and 10% on another. This is something the Board needs to consider. Ms. Lipscomb suggested that the Board come up with language to address their concerns and she will present it to the Legislative Rule-Making committee. She suggested putting wording in the text of the rules to express the desire of the Board as to how projects should be scored and what areas should hold more weight. Ms. Lipscomb stated that the appropriate location to insert wording might be in section 6.2.3 dealing with IFP’s or in 10.3 dealing with evaluations. Perhaps you list a range for each area in the actual rule. Mr. Clay stated that at least a maximum should be given. His recollection is that the Board discussed in detail what weight should be applied to specific areas when they wrote the rules as they did not want an unimportant area be weighted the highest. Mr. Winter believes it would be hard for him to understand how to put the numbers on there because you deal with all different type of facilities with different needs. In his mind it is up to the technical review committees. Mr. Clowser agrees the agency needs input but do you want to set parameters for the agencies. Ms. Lipscomb indicated if you leave it silent the agencies can give something an 80 for design. The Board discussed at length what their opinions were concerning this issue and whether to recommend a modification on the scoring issue to the Rule-Making Review Committee.

Mr. Clay made a motion to maintain the scoring system that was approved and submitted by the Board. Motion seconded by Tom Winter. Mr. Smith requested Ms. Lipscomb meet with the Legislative attorney and let him know the Board’s wishes on this issue and let the attorney add language where he wants in the rules to satisfy the wishes of the Board. Ms. Lipscomb agreed. Ms. Lipscomb indicated that it is her understanding that the Board wants "not to exceed" the numbers previously established. All members voted in favor of the motion and it was adopted.

Mr. Smith asked Ms. Lipscomb to start at the front and direct the members to all modifications in the rules. The Board went through the proposed modifications. Additionally, Ms. Lipscomb agreed to send an e-mail to the Board following the meeting that identified all modifications. Mr. Smith asked if Chairman Monteleone was agreeable to the modifications. Ms. Lipscomb stated that he was agreeable with all modifications but was disappointed with the removal of the scoring percentages. She will discuss the Board’s motion on this issue with Chairman Monteleone prior to meeting with the Legislative attorney to assure he is agreeable with further modifying the rules.

Ms. Lipscomb advised the Board that with the passage of the new legislation and rules she would like for the Board to work and establish a time line that she can utilize to assure the Board does not miss any deadlines. She wants to establish a checklist to be used in order to send out appropriate correspondence and set meetings to meet the statutory deadlines, especially in regard to evaluations, approvals and protests.

Ms. Lipscomb advised the Board that following her meeting with the Legislative attorney she will advise the Board of the decision and any further modifications made in advance of the interim meeting as well as any modifications made at the meeting. The final version of the rules will be sent to each member along with a cover sheet that identifies every modification.

Other Business:

There was no other business to come before the board and the meeting was adjourned.