Mr. Robert W. Pearce, Chairman Certificate of Need Appeals Commission 4815 West Markham Street Little Rock, Arkansas 72205
Dear Mr. Pearce:
This Office acknowledges receipt of your request for an official opinion. Your question concerns the Certificate of Need Appeals Commission (CONAC) which was created by Acts 857 and 948 of 1985, compiled at Ark. Stat. Ann. 82-2311 and 82-2312.
The statute specifies that CONAC be composed of three members appointed by the Governor. You inform us that the Governor has appointed three members but that one of the appointees has resigned and has refused to serve until his successor is appointed.
Your first question is whether CONAC can undertake official business with only two members at a meeting. The answer is yes. There is no requirement in the law that all of the appointed members be present; rather, the only requirement is that a quorum be present.
Your second question concerns the effect of a split vote if a hearing is held with only two members present. Your concern is that one member might vote to affirm a decision of the State Health Planning Development Agency (SHPDA) and the other member might vote to reverse. The answer to this question requires reference to both CONAC rules and the Administrative Procedure Act. CONAC Rule No. 12 provides: "DECISION BY VOTE: In cases where CONAC members are not unanimous, decisions shall be made by majority vote." A deadlock means that CONAC cannot render a decision.
The Administrative Procedure Act at Ark. Stat. Ann. 5-709(d) provides, in part: "Except as otherwise provided by law, the proponent of a rule or order shall have the burden of proof. . . ." If the appellant fails to convince two members that the decision should be reversed, he will have failed to meet his burden of proof. Thus, the decision of SHPDA would stand.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Arnold M. Jochums.