Deep in the plumbing of the state government is a device that enforces private codes and standards. It’s a curious little feature called “embed by reference”. It’s not used much, but if an agency in the state of New Mexico wants to enforce, say, a group’s copyrighted technical standards, it can.
But the enforcement of copyrighted codes can be problematic, and that is why state law requires safeguards. It is not clear exactly how many private standards are referenced in state law and the practice is subject to abuse.
The legislative branch will sometimes authorize a private code in a law, and then the agency employees of the executive branch will draft a regulation defining how it will be applied. To be enforceable by the executive branch, it must go through a rule-making process that includes steps such as proclamation in the state registry, a notice and comment period, a public hearing, a cost analysis. -benefits and an analysis of how regulation might affect small businesses.
It is not known exactly how many private codes and standards have been incorporated into state law. No one seems to matter. And it is subject to abuse.
One agency, the New Mexico Board of Real Estate Appraisers, incorporated the 2004 edition of an obscure private code of conduct called “Uniform Standards of Professional Appraisal Practice,” a copyright-protected standard used by real estate appraisers, employees of county appraisal offices and practitioners of a few other specialties in the state. The standards are published by a Washington, DC nonprofit with 14 employees called the Appraisal Foundation. But the licensing agency has applied every new version of the standards over the past 15 years – eight versions in total – without following a required state regulatory law.
In this regard, the Council of State has gone rogue. It operates in blatant violation of the New Mexico Administrative Code and the state’s Administrative Procedure Act, without any qualifiers.
I came across these nefarious activities while researching my recent book, “Dispatches from the Cosmic Cobra Breeding Farm”. The book discusses the rise of the practice of “incorporation by reference” among state and federal agencies. The standards of this foundation are a good test case. Authorities have pressured states to adopt the current version every two years. The short turnaround time makes this a good test for spotting the chicane. Agencies in states like Kansas, Maine, Wisconsin, Kentucky, and Montana appear to be doing it right. Others are bluffing.
What happens with this agency is everyone’s nightmare about the practice. On its own authority, the agency effectively delegated people’s work to a private organization on the basis of a carte blanche, apparently in perpetuity. The nonprofit has learned to monetize the arrangement.
For its part, the nonprofit is embarking on a process that seductively resembles the making of government rules: a call for contributions from the public, discussion drafts, hearings, technical sessions and a action of a standards council. The heavily supervised hearings are held in hotel banquet halls in places such as Las Vegas, Kansas City and Denver. It’s like crack for a certain breed of head of state agency. It reassures them to ignore the laws of their own state. But the nonprofit organization process does not impact New Mexico law any more than the reflections heard at the Bell Tower Rooftop Bar in La Fonda or the witty repartee among the current great. exalted ruler and former great exalted ruler of the Grand Lodge of Benevolents and Protectors. Order of Elks. It might be interesting, but it’s not legally important to New Mexico law.
For starters, no association panelist has taken an oath to faithfully perform the duties of an office in New Mexico. But the state agency enforces private standards year after year without any guarantees, as required by law.
So, can a state agency continue to act in this way? Yes. But strictly between us, these private standards are not enforceable unless there is a state rule making process behind them. Someone who has taken an oath to faithfully perform the duties of a state office is the governor. It is up to it to keep its agencies in compliance with the law.
Jeremy Bagott is the author of “Dispatches from the Cosmic Cobra Breeding Farm”. He can be contacted at [email protected]