A performance audit of the Egg Inspection Board

              STATE OF ARIZONA
OFFICE OF THE
AUDITOR GENERAL
A PERFORMANCE AUDIT
OF THE
EGG INSPECTION BOARD
DECEMBER 1981
A REPORT TO THE
ARIZONA STATE LEGISLATURE
REPORT 81 - 1 8
DOUGLAS R. NORTON. CPA
AUDITOR GENERAL
STATE OF ARIZONA
OFFICE OF THE
AUDITOR GENERAL
December 16, 1981
Members of the Arizona Legislature
The Honorable Bruce Babbitt, Governor
M r . James Henry, Chairman
Egg Inspection Board
Transmitted herewith is a report of the Auditor General, A Performance
Audit of the Egg Inspection Board. This report is i n response to a
January 30, 1980, resolution of the Joint Legislative Oversight
Committee. The performance audit was conducted a s a part of the Sunset
review s e t f o r t h i n A. R. S. § $ 41- 2351 through 41- 2379.
The blue pages present a summary of t h e r e p o r t ; a response from the S t a t e
Egg Inspector, M r . Carl R. Biehler is found on the yellow pages preceding
the appendices. The Egg Inspection Board was provided with a d r a f t of
t h i s report f o r t h e i r review and comment. The Board did not exercise
t h e i r right t o submit a written response f o r inclusion i n t h i s report.
My s t a f f and I w i l l be pleased t o discuss o r c l a r i f y items i n the r e p o r t .
Respectfully submitted,
Douglas R. Norton
Auditor General
S t a f f : Gerald A. Silva
William Thomson
Dawn S i n c l a i r
Karen C. Holloway
Mary C. O'Connor
Enclosure
LEGISLATIVE SERVICES WING SUITE 200 STATE CAPITOL PHOENIX. ARIZONA 85007 255- 4385
OFFICE OF THE AUDITOR GENERAL
A PERFORMANCE AUDIT OF THE
EGG INSPECTION BOARD
A REPORT TO THE
ARIZONA STATE LEGISLATURE
REPORT 81- 18
TABLE OF CONTENTS
SUMMARY
INTRODUCTION AND BACKGROUND
SUNSET FACTORS
FINDINGS
FINDING I
Consideration should be given to eliminating the
Egg Inspection Board and placing the egg inspection
program within the Arizona Commission of Agriculture
and Horticulture.
CONCLUSION
RECOMMENDATION
FINDING I1
Improvements are needed to enhance the efficiency
and effectiveness of the egg inspection program.
CONCLUSION
RECOMMENDATIONS
FINDING I11
The Egg Inspection Board has been substandard i n
its encouragement and use of public input i n its
operations.
CONCLUSION
RECOMMENDATIONS
WRITTEN RESPONSE TO THE AUDITOR GENERAL'S REPORT
- Page
i
APPENDICES
APPENDIX I - Legislative Council Memorandum 0- 81- 82, August 26,
1981
APPENDIX I1 - Legislative Council Memorandum 0- 81- 83,
September 28, 1981
APPENDIX I11 - Legislative Council Memorandum 0- 81- 89,
September 15, 1981
APPENDIX I V - Quality and Size C l a s s i f i c a t i o n s
APPENDIX V - Quality and Weight Tolerances
APPENDIX V I - Attorney General Memorandum, August 19, 1975
LIST OF TABLES
TABLE 1
Summary of the a c t i v i t i e s of Board inspectors during
f i s c a l years 1976- 77 through 1980- 81
TABLE 2
Summary of Egg Inspection Board revenues and expenditures
during f i s c a l years 1976- 77 through 1980- 81
TABLE 3
Board members holding concurrent office i n the Arizona
Poultry Federation ( APF)
TABLE 4
Allocation of inspection resources
TABLE 5
Summary of the r e s u l t s of egg inspections a t the wholesale
and r e t a i l level during f i s c a l year 1980- 81
- Page
3
SUMMARY
The Office of the Auditor General has conducted a performance audit of the
Egg Inspection Board i n response t o a January 30, 1980, resolution of the
Joint Legislative Oversight Committee. This performance audit was
conducted a s a part of the Sunset review s e t f o r t h i n Arizona Revised
S t a t u t e s ( A. R. s. ) § § 41- 2351 through 41- 2379.
The Egg Inspection Board is composed of f i v e members appointed by the
Governor f o r five- year terms. By s t a t u t e , Board members must be a c t i v e l y
involved i n the production or wholesale d i s t r i b u t i o n of eggs or egg
products. The Board is responsible f o r supervising the a c t i v i t i e s of the
State Egg Inspector, who is appointed by the Board, and four deputy
inspec tors.
The objective of the egg inspection program is t o provide consumer
protection through ensuring t h a t consumers receive the q u a l i t y i d e n t i f i e d
on the product label. To a t t a i n t h i s objective, the program e n t a i l s
mandatory grading, licensure and r e g i s t r a t i o n of dealers and producers,
inspections a t the warehouse and r e t a i l l e v e l s , and enforcement through
the issuance of stop s a l e s orders and notices of violation.
The Board has entered i n t o a cooperative agreement with the U. S.
Department of Agriculture ( USDA) t o provide personnel f o r the enforcement
of the U. S. Egg Products Inspection Act and t h e A g r i c u l t u r a l Products
Marketing Act. These programs e n t a i l continuous inspection of plants
processing egg products, quarterly inspections of producers with over
3,000 hens and continuous inspections of plants involved i n the voluntary
USDA grading program. The USDA reimburses the Board f o r a l l costs
incurred i n administering and enforcing these Federal Acts.
The Egg Inspection Board has not maintained an appearance of independence
or o b j e c t i v i t y i n its dealings with the industry. Board members'
r e l a t i o n s h i p s with the Arizona Poultry Federation, an industry association
which advises the Board, and t h e f i r m s which employ them create potential
c o n f l i c t s of i n t e r e s t and may hamper the Board's a b i l i t y t o carry out the
program's objective of consumer protection. I n addition, although the
Board was intended t o oversee the policies and procedures of t h e S t a t e Egg
Inspector, the Board has not performed supervisory a c t i v i t i e s o r i n i t i a t e d
actions which impact on the administration of the program. Consideration
should be given t o eliminating the Board and t r a n s f e r r i n g the
administration of the program to the Arizona Commission of Agriculture and
Horticulture. ( page 9)
The egg inspection program provides consumer protection and should be
continued. However, improvements are needed to enhance the efficiency and
effectiveness of the program. The expertise of the S t a t e Egg Inspector is
underutilized i n t h a t he r a r e l y performs inspections and devotes a
s i g n i f i c a n t amount of h i s time t o c l e r i c a l functions which should be
delegated to support s t a f f . The S t a t e Egg Inspector could devote more
time t o inspections i f the program were transferred t o the Arizona
tomm~ ssion oi' ngricuixure an6 lior- clculture. ( page l' 3j Staff' resources
are misallocated i n t h a t excessive time is spent on r e t a i l inspections.
Inspections should be concentrated a t the wholesale level where the
g r e a t e s t opportunities t o i d e n t i f y and intercept unacceptable eggs e x i s t .
( page 21) In a d d i t i o n , t h e program needs formal guidelines to ensure t h a t
procedures are carried out consistently. ( page 24)
The Egg Inspection Board has been substandard i n its encouragement of
public input from consumers and i n notifying license holders of Board
meetings, proposed rules and regulations and Board actions. The Board
needs to expand its e f f o r t s t o encourage p a r t i c i p a t i o n by consumers and to
notify a l l licensees of Board meetings, a c t i v i t i e s and actions. ( page 27)
INTRODUCTION AND BACKGROUND
The Office of the Auditor General has conducted a performance audit of the
Egg Inspection Board i n response t o a January 30, 1980, resolution of the
Joint Legislative Oversight Committee. This performance audit was
conducted as a part of the Sunset review s e t f o r t h i n Arizona Revised
S t a t u t e s ( A. R. s. ) $$ 41- 2351 through 41- 2379.
The first law dealing with the s a l e of eggs was enacted i n 1915. Early
laws provided d e f i n i t i o n s of eggs i n cold storage ( 1915) and fresh eggs
( 1939), specified standards f o r grades ( 1939), and required containers t o
bear stamps purchased from the Egg Inspector ( 1941).
Statutory revisions i n 1952 repealed a l l previous egg laws and established
requirements f o r l i c e n s u r e o f producers and dealers, grading, and
inspection and granted the S t a t e Egg Inspector enforcement powers
including the a b i l i t y t o remove eggs from s a l e and i n i t i a t e court action.
Responsibility f o r the enforcement of the law was transferred i n 1967 from
the S t a t e Egg Inspector to the newly- created S t a t e Egg Inspection Board.
The Egg Inspection Board is composed of five members appointed by the
Governor for five- year terms. By s t a t u t e , Board members must be a c t i v e l y
involved i n the production or wholesale d i s t r i b u t i o n of eggs or egg
products. The Board is responsible f o r supervising the a c t i v i t i e s of the
S t a t e Egg Inspector, who is appointed by the Board, and four deputy
inspectors. Two inspectors are assigned to the Phoenix area, and one t o
the Tucson area. These inspectors a l s o t r a v e l throughout the S t a t e to
perform egg inspections at r e t a i l and warehouse f a c i l i t i e s . One inspector
is assigned f u l l time t o oversee USDA grading operations a t a Phoenix egg
packing company.
The objective of the egg inspection program is to provide consumer
protection through ensuring t h a t consumers receive the quality identified
on the product label. To a t t a i n t h i s objective, the program e n t a i l s
mandatory grading, licensure and r e g i s t r a t i o n of dealers and producers,
inspections at the warehouse and r e t a i l l e v e l s , and enforcement through
the issuance of s t o p s a l e s orders and notices of violations.
Persons s e l l i n g fewer than 750 eggs p e r y e a r are required t o be registered
and as such are exempt from mandatory grading. A l l other producers and
dealers must be licensed and may s e l l graded eggs only. Standards for
weight and grade are those prescribed by the U. S. Department of
Agriculture. Board inspectors v i s i t warehouses and packers twice each
month and r e t a i l s t o r e s are inspected annually. During these v i s i t s ,
inspectors can issue e i t h e r stop s a l e orders o r notices of violation.
Stop s a l e s orders are issued t o remove poor quality eggs from the market
and require u n f i t eggs t o be destroyed and misgraded eggs t o be regraded
and reweighed to bring them i n t o compliance with the grade and weight
s p e c i f i c a t i o n s shown on the container l a b e l . Board inspectors issue
notices of v i o l a t i o n f o r noncompliance with s t a t u t e s such as those dealing
with required r e f r i g e r a t i o n temperatures.
The Board has entered i n t o a , cooperative agreement with the U. S.
Department of Agriculture ( USDA) to provide personnel f o r the enforcement
of the U. S. Egg Products Inspection Act and the Agricultural Products
Marketing Act. The Egg Products Inspection Act of 1970 provides f o r the
continuous inspection of plants processing egg products, and f o r quarterly
inspections of producers with over 3,000 hens. A t present, t h e r e a r e no
firms i n Arizona involved i n egg products processing. A voluntary grading
program established by the Agricultural Products Marketing Act requires
continuous inspection of the processing of a l l s h e l l eggs which bear the
USDA shield. There is one firm i n Arizona currently on contract with the
USDA for t h i s grading service. The USDA reimburses the Board for a l l
costs incurred i n administering and enforcing these Federal Acts.
Table 1 summarizes the a c t i v i t i e s of Board inspectors during f i s c a l years
1976- 77 through FY 1980- 81.
TABLE 1
SUMMARY OF THE ACTIVITIES OF BOARD INSPECTORS
DURING FISCAL YEARS 1976- 77 THROUGH 1980- 81"
Fiscal Year
1976- 77 1977- 78 1978- 79 1979- 80 1980- 81
Sample dozens inspected 81,247 88,445 63,589 77,103 88,028
Number of stop s a l e s orders
issued 736 933 598 886 800
Dozens of eggs removed
from sale 162,640 306,175 235,057 285,174 322,236
Notices of violation issued 12 20 22 30 17
Dealers licenses issued 103 10 5 105 10 5 107
Source: Egg Inspection Board Annual Reports f o r the applicable year.
Revenues are generated from license and inspection f e e s . Ninety percent of
the fees collected are retained for the Board's use while ten percent are
remitted to the S t a t e General Fund. The inspection fee was increased in
f i s c a l year 1979- 80 from $. 045 to $. 05 per 30- dozen case of s h e l l eggs and
from $. 05 to $. 055 per 30- pound container of egg products. Table 2
summarizes the revenues and expenditures of the Board during f i s c a l years
1976- 77 through 1980- 81.
" Excludes USDA programs.
TABLE 2
SUMMARY OF EGG INSPECTION BOARD REVENUES AND EXPENDITURES
DURING FISCAL YEARS 1976- 77 THROUGH 1980- 81
Revenues :
Arizona program*
USDA
Miscellaneous
Total Revenues
Expenditures:""
Personal Services
Employee Related
Travel In State
Travel Out Of State
Other
Equipment
Total Expenditures
Fiscal Year
1977- 78 1978- 79 1979- 80 1980- 81
Source: Egg Inspection Board Annual Reports, FY 1976- 77 through 1980- 81.
The Auditor General expresses gratitude to the members of the Egg Inspection
Board and t h e i r s t a f f f o r t h e i r assistance and consideration during the
course of the audit.
* Net of 10 percent deposited to General Fund. ** Board reports t o t a l expenditures only rather than expenditures
segregated between Arizona and USDA programs.
SUNSET FACTORS
Nine f a c t o r s were reviewed t o aid i n the process of determining i f the Egg
Inspection Board should be continued or terminated, i n accordance with
A. R. S. $ 41- 2354, subsection D.
SUNSET FACTOR: THE OBJECTIVE AND PURPOSE
I N ESTABLISHING THE BOARD
The s t a t u t e s contain no e x p l i c i t statement of Legislative i n t e n t .
According to the Board's budget request, the egg inspection program:
" Provides consumer protection f o r the purchasing of
s h e l l eggs and egg products by inspecting, weighing and
examining i n order t o determine t h e q u a l i t y , weight and
condition thereof.. . ."
The Board was created t o oversee the p o l i c i e s of the S t a t e Egg Inspector.
The Board has established the following goals f o r the program:
" To assume complete q u a l i t y control i n order t o
eliminate the s a l e of egg products t h a t do not meet the
q u a l i t y , grade and weight standards under which they
a r e labeled and sold. To provide the enforcement and
services required by the United S t a t e s Department of
Agriculture."
SUNSET FACTOR: THE DEGREE TO WXICH
THE BOARD HAS BEEN ABLE TO RESPOND
TO THE NEEDS OF THE PUBLIC AND THE
EFFICIENCY FILTH WHICH IT HAS OPERATED
The egg inspection program provides consumer protection through the
elimination of poor quality eggs from the market. However, the Board has
performed few functions which d i r e c t l y a f f e c t the operation of the program
and provides l i t t l e supervision of program a c t i v i t i e s . ( page 13)
Our review o f t h e egg inspection program operations revealed t h a t
r e a l l o c a t i o n of resources to f u r t h e r concentrate inspections a t the
dealer/ warehouse level would be more e f f i c i e n t and effective. ( page 21)
Additionally, guidelines should be developed t o provide consistency i n
sample s i z e and s e l e c t i o n procedures and reinspection of rejected eggs.
( page 24)
SUNSET FACTOR: THE EXTENT TO WHICH
THE BOARD HAS OPERATED WITHIN THE
PUBLIC INTEREST
The egg inspection program has operated i n the public i n t e r e s t by
providing consumer protection. However, the composition of the Board and
Board members' r e l a t i o n s h i p s with t h e i r firms and the Arizona Poultry
Federation g i v e s t h e appearance of a lack of independence and provides a
p o t e n t i a l c o n f l i c t of i n t e r e s t t h a t may not be i n the public i n t e r e s t .
( page 9)
SUNSET FACTOR: THE EXTENT TO WHICH
RULES AND REGULATIONS PROMULGATED BY
THE BOARD ARE CONSISTENT WITH THE
LEGISLATIVE MANDATE
Administrative r u l e s and regulations promulgated by the Board must be
reviewed f o r consistency and l e g a l i t y and approved by the Attorney General
p r i o r to t h e i r implementation. The rules and regulations are consistent
with the s t a t u t e s .
SUNSET FACTOR: THE EXTENT TO WHICH THE BOARD
HAS ENCOURAGED INPUT FROM THE PUBLIC BEFORE
PROMULGATING ITS RULES AND REGULATIONS AND THE
EXTENT TO WHICH IT HAS INFORMED THE PUBLIC AS
TO ITS ACTIONS AND THEIR EXPECTED IMPACT ON THE PUBLIC
The Egg Inspection Board has been remiss i n its duty t o encourage public
input and t o inform consumers and licensees of its actions. Our audit
indicated t h a t the Board has not updated its f i l i n g of meeting notice with
the Secretary of S t a t e since its o f f i c e moved i n 1979. I n addition, only
selected licensees are notified of proposed r u l e changes. ( page 27)
SUNSET FACTOR: THE EXTENT TO WHICH THE BOARD
HAS BEEN ABLE TO INVESTIGATE AND RESOLVE
COMPLAINTS THAT ARE WITHIN ITS JURISDICTION
The Board has received a limited number of complaints. The 25 complaints
received over t h e p a s t f i v e years have been investigated and resolved i n a
timely and appropriate manner.
However, neither the s t a t u t e s nor the administrative rules and regulations
promulgated by the Board provide guidelines f o r investigations or
resolution of complaints through the hearing and appeals process. A s a
r e s u l t , t h e p o t e n t i a l e x i s t s f o r inequitable treatment of complainants and
persons against whom complaints are made. According t o a Legislative
Council memorandum dated August 26, 1981,* the development of guidelines
f o r the complaint process would eliminate t h i s potential:
" It would seem beneficial f o r the inspector, the board,
the complainant and the person who is the subject of
the complaint t o have c l e a r guidelines f o r handling
complaint procedures. A routine process f o r reviewing
complaints would help t o ensure t h a t t h e i n s p e c t o r
conducts e f f e c t i v e i n v e s t i g a t i o n s plus it would provide
procedural safeguards f o r the person involved i n the
complaint ...."
SUNSET FACTOR: THE EXTENT TO WHICH THE
ATTORNEY GENERAL OR ANY OTHER APPLICABLE
AGENCY OF STATE GOVERNMENT HAS THE AUTHORITY
TO PROSECUTE ACTIONS UNDER ENABLING LEGISLATION
Arizona Revised S t a t u t e s $ 3- 734 s t a t e s , i n part:
" The a t t o r n e y general and county attorney, upon
request, s h a l l advise the Board, the inspector or
authorized agents thereof i n the performance of t h e i r
duties, and s h a l l i n s t i t u t e and prosecute actions
a r i s i n g under t h i s article...."
* Appendix I contains memorandum t e x t .
7
SUNSET FACTOR: THE EXTENT TO WHICH THE
BOARD HAS ADDRESSED DEFICIENCIES I N THE
ENABLING STATUTES WHICH PREVENT IT FROM
FULFILLING ITS STATUTORY MANDATE
The Board has sought statutory changes three times during the past ten
years. A 1971 b i l l granted the Board the a b i l i t y to promulgate
administrative rules and regulations. Two other b i l l s , passed i n 1973 and
1979, increased inspection fee l i m i t s .
SUNSET FACTOR: THE EXTENT TO WHICH
CHANGES ARE NECESSARY I N THE LAWS OF
THE BOARD TO ADEQUATELY COMPLY WITH
THE FACTORS LISTED I N THIS SUBSECTION
Our review found that several statutory changes are needed f o r the State
egg inspection program to comply more adequately with the f a c t o r s l i s t e d
i n t h i s subsection. ( pages 15 and 25)
FINDING I
CONSIDERATION SHOULD BE GIVEN TO ELIMINATING THE EGG INSPECTION BOARD AND
PLACING THE EGG INSPECTION PROGRAM WITHIN THE ARIZONA COMMISSION OF
AGRICULTURE AND HORTICULTURE.
The Egg Inspection Board has not maintained an appearance of independence
or o b j e c t i v i t y i n its dealings with the industry. Board members'
relationships with the Arizona Poultry Federation and t h e i r firms create a
potential c o n f l i c t of i n t e r e s t and may hamper the Board's a b i l i t y t o carry
out t h e inspection program's objective of consumer protection. In
addition, the Board does not perform any functions which impact on the
effectiveness of the operations of the egg inspection program.
Potential Conflict Of I n t e r e s t
Through Relationshin With the
Arizona Poultry Federation
Arizona Revised S t a t u t e s ( A. R. s.) 53- 709, subsection A, provides f o r the
selection of Board members from within the industry:
" There is established a s t a t e egg inspection board
composed of f i v e members appointed by the governor.
The Arizona poultry federation board of d i r e c t o r s s h a l l
recommend a list of qualified persons f o r such
appointment. Members s h a l l be residents of t h i s
s t a t e . They s h a l l be selected on t h e b a s i s of t h e i r
knowledge, technical or educational q u a l i f i c a t i o n s , or
p r a c t i c a l experience i n the production or d i s t r i b u t i o n - -
of eggs or egg products and, s h a l l a t the time of t h e i r
appointment be a c t u a l l y engaged i n the production or
wholesale d i s t r i b u t i o n of egg or egg products."
( Emphasis added)
The Arizona Poultry Federation ( APF) is an industry association involved
i n the promotion of eggs and egg products and i n the education of the
consuming public. The APF also advises the Egg Inspection Board and
issues opinions concerning rules and regulations. Ten members of the egg,
poultry or feed i n d u s t r i e s are currently regular APF members. Of those
ten members, s i x are egg dealers or d i s t r i b u t o r s . Four of these s i x are
represented on the Egg Inspection Board.
A comparison of Federation officeholders with Board members over the past
five years revealed that s i x individuals held Board membership while
acting a s o f f i c e r s of the Federation. Table 3 shows the industry
a f f i l i a t i o n s of Board members during f i s c a l years 1975- 76 through 1980- 81.
TABLE 3
BOARD MEMBERS HOLDING CONCURRENT OFFICE
I N THE ARIZONA POULTRY FEDERATION ( OF)
Name of Term of Board APF Office Term of APF 8
Board Member Membership Held Office
J. D. Kaffenberger* 1975- 1979 President 1975
Dewey Powell 1976- 1978 Vice President 1976
President 1977
Kermit Smith 1977- 1979 Vice President 1978
Bob Beuerle 1979- 1980 President 1980
Alan Fisher 1981 President 1981
* J. D. Kaffenberger was a l s o S t a t e Egg Inspector from 1951 to 1965.
Source: Board's " Annual Report to the Governor" f o r f i s c a l year
1975- 76 through f i s c a l year 1980- 81 and APF r o s t e r of officers f o r
calendar years 1975 through 1980; minutes of APF minutes from February
1980 through March 1981.
A Legislative Council memorandum dated September 28, 1981," s t a t e s that:
".... The f a c t that a member of the State Egg Inspection
Board is the President of the Arizona Poultry
Federation does not, without more, present a conflict
of interest.... A c o n s t i t u t i o n a l due process issue could
be raised i f a board member allowed the special
i n t e r e s t s of the federation to a f f e c t the board
members' judgment on a board matter.. . ." ( Emphasis
added)
* Appendix I1 contains memorandum text.
10
A review of minutes from Egg Inspection Board meetings and Federation
meetings revealed that the Board declined to vote on such issues as hiring
a part- time inspector, increasing inspection fees, and implementing new
USDA grading standards u n t i l consulting with t h e i n d u s t r y through the
Federation.
The Council of S t a t e Governments has addressed the issue of , industry
membership on regulatory boards as follows:"
". . . for many years, trade and professional groups
fostered the idea that only members of t h e i r own
occupational group were qualified to make judgments
about entrance standards, examination content, or
d i s c i p l i n a r y matters. This professional mystique
argued t h a t the public had no role t o play i n the
regulatory process ...."
Boards sometimes make decisions that serve the economic
i n t e r e s t s of the occupational group r a t h e r than those -
of the public.... Trade and professional associations
frequently are vested with the power to nominate Board
candidates. This ~ r a c t i c e contributes to the notion
that the Board is an extension of the association
r a t h e r than an arm of s t a t e government. .. ." ( Emphasis
added)
P o t e n t i a l Conflict of I n t e r e s t
Through Employer - Employee Relationship
A l l current Board members are employed by major egg producer/ dealers o r
d i s t r i b u t o r s licensed by the State. These employment relationships pose
p o t e n t i a l c o n f l i c t s of i n t e r e s t i n a t l e a s t three aspects of the egg
inspection program: 1) e s t a b l i s h i n g inspection fee r a t e s ,
2) i n v e s t i g a t i n g complaints, and 3) promulgating r u l e s and regulations.
" Benjamin Shimberg and Doug Roderer Occupational Licensing: Questions
a Legislator Should Ask. Lexington, Kentucky: Council of S t a t e
Governments, 1978.
Board members perceive voting on t h e inspection fee r a t e as one of t h e i r
major r e s p o n s i b i l i t i e s . The inspection f e e r a t e d i r e c t l y a f f e c t s the
firms which employ each Board member, since fees a r e assessed based upon
number of eggs sold. While Board members have thus f a r voted to r a i s e ,
not lower, the inspection fee r a t e , a Legislative Council memorandum dated
September 15, 1981,* s t a t e s that:
" Under the r u l e as s t a t e d i n Yetman, it would appear .
t h a t a board member who was an employee of a dealer,
manufacturer, or producer of eggs or egg products would
have a c o n f l i c t of i n t e r e s t i n those cases involving a
p o s s i b l e i n c r e a s e i n inspection fees which a r e paid by
h i s employer. A s s t a t e d i n W i t t v. Morrow 70 ~ a i . A ~ ~ - .
3d 817; 139 Cal Rptr. 161 ( 1977), ' a person who must
make decisions which may a f f e c t h i s employer's purse is
i n a s i t u a t i o n where he may not give f u l l consideration
t o the merits of the decision....'"
The memorandum also notes t h a t the Board would not be prevented from
f u l f i l l i n g its s t a t u t o r y d u t i e s i f a l l Board members disclosed t h e i r
c o n f l i c t i n the o f f i c i a l records of the Board, a s provided i n A. R. S.
538- 508, subsection B. However, no such disclosures have been made.
Further, Board members dual capacities as both regulators and regulatees
may adversely impact complaint investigations. For example, an Auditor
General review of complaints investigated by the S t a t e Egg Inspector
revealed t h a t a Board member ( not currently on the ~ o a r d ) appeared a t a
complainant's home while the S t a t e Egg Inspector was investigating a
complaint involving eggs processed by the Board member's firm. It seems
t h a t a complainant would have d i f f i c u l t y distinguishing between the
member's two roles and as a r e s u l t not perceive the complaint process as
being f a i r and impartial.
* Appendix I11 contains memorandum t e x t .
F i n a l l y , t h e Board has notified industry members of changes to r u l e s and
regulations selectively. For example, i n 1979 the Board notified only 14
of 105 licensed dealers i n Arizona of a proposed rule change. O f those 14
dealers, f i v e were members of the Federation ( four of which had employee
representatives on the ~ o a r d ) and the remaining nine were large- volume
dealers." Such action lends the appearance of p a r t i a l i t y toward
Federation members and large dealers.
Functions Performed By the Board
According to a l e g i s l a t o r who sponsored the 1967 b i l l creating the Board,
the Board was to oversee the p o l i c i e s and procedures of the S t a t e Egg
Inspector and was intended t o ensure t h a t a knowledgeable person was
appointed t o the position.
The Board has not performed supervisory a c t i v i t i e s o r i n i t i a t e d actions
which d i r e c t l y a f f e c t the operation of the program. I n f a c t , the Board
perforns no duties a s a Board other than to approve the budget prepared by
the State Egg Inspector and vote on changes to the inspection f e e r a t e
proposed by the S t a t e Egg Inspector.
A l l functional duties are performed by the S t a t e Egg Inspector and h i s
s t a f f . A review of Board minutes shows t h a t Board members simply r a t i f y
the p o l i c i e s of the S t a t e Egg Inspector.
Further, the Board's r o l e i n promulgating rules and regulations has been
limited i n t h a t there have been few substantive changes to the Board's
s t a t u t e s o r r u l e s and regulations during the l a s t ten years. Those
substantive changes t h a t have been made t o the Board's r u l e s and
regulations have generally been as a r e s u l t of changes t o USDA grading
standards, which are not Board- initiated.
" See page 27 f o r review of substandard s o l i c i t a t i o n of public input.
Finally, Board members s t a t e d t h a t placing an inspection program under
" government control" would lead to inefficiency and waste and t h a t a Board
is needed: 1) t o ensure t h a t a qualified person is appointed t o be the
S t a t e Egg Inspector, and 2) to prevent the position from becoming a
" p o l i t i c a l appointment." Currently, the Board s e l e c t s the S t a t e Egg
Inspector, a position t h a t is exempt from the S t a t e Personnel Merit
System. Board sentiments notwithstanding, i n our opinion the practice of
i n d u s t r y r e p r e s e n t a t i v e s appointing the o f f i c i a l charged with regulating
t h e i r industry at best c r e a t e s a n apparent c o n f l i c t of i n t e r e s t and a t
worst renders the regulatory process suspect. Further, it appears that
the position of S t a t e Egg Inspector could be provided s u f f i c i e n t
insulation from p o l i t i c a l tampering i f the position were made part of the
merit system and adequate minimum q u a l i f i c a t i o n s were established.
Alternative Regulatory Structures
The Council of S t a t e Governments addresses the issue of autonomous
regulatory boards a s follows:
" While autonomous regulatory boards continue t o e x i s t
i n many s t a t e s , there is a growing r e a l i z a t i o n t h a t
such an arrangement.. . makes coordination and e f f e c t i v e
oversight very d i f f i c u l t . . . . "
An Auditor General survey of s i x southwestern s t a t e s revealed t h a t a l l of
t h e i r respective egg regulatory programs are located within a s t a t e
Department of Agriculture. Of t h e t h r e e s t a t e s t h a t have egg inspection
advisory boards, two do not include i n d u s t r y r e p r e s e n t a t i v e s on the Board.
In Arizona, the Arizona Commission on Agriculture and Horticulture is
responsible f o r the administration of standardization programs similar i n
nature t o the egg inspection program. These programs include nursery,
seed and date standardization programs, as well as the f r u i t and vegetable
standardization program.
CONCLUSION
The Board ' s appearance of independence and o b j e c t i v i t y is tainted because
of the r e l a t i o n s h i p which e x i s t s between Board members and: 1) the firms
which employ them, and 2) the Arizona Poultry Federation. In addition,
the Board performs no functions which impact on the administration of the
inspec t i o n program.
RECOMMENDATION
Consideration should be given to the following recommendation:
1. Arizona Revised S t a t u t e s $ 3- 709 should be amended to:
- Eliminate the requirement f o r a five- member Board to oversee
the S t a t e Egg Inspector;
- Eliminate the provision t h a t the S t a t e Egg Inspector be
appointed by the Board;
- Provide f o r the hiring of the S t a t e Egg Inspector by the
S t a t e Personnel Division under appropriate guidelines; and
- Provide f o r the administration of the egg inspection program
by an appropriate umbrella agency, such as the Arizona
Commission of Agriculture and Horticulture, with supervision
of the egg inspection program provided by the S t a t e Egg
Inspector.
FINDING I1
IMPROVEMENTS ARE NEEDED TO ENHANCE THE EFFICIENCY AND EFFECTIVENESS OF THE
EGG INSPECTION PROGRAM.
The S t a t e egg inspection program protects the consumer by ensuring that:
1) the size and quality of eggs are accurately labeled, and 2) those eggs
t h a t are unfit f o r human consumption do not reach consumers. However,
improvements are needed in the program's operation to enhance its
efficiency and effectiveness. Our review revealed that the program is
deficient i n that:
- The program's a b i l i t y t o protect consumers is impaired because
optimal use is not being made of the State Egg Inspector and h i s
s t a f f .
- Some inspection procedures are not carried out consistently
because the program lacks formal, written guidelines.
State Egg Inspection Program
Provides Consumer Protection
and Should Be Continued
The State egg inspection program provides f o r the examination of eggs to:
1) verify the size ( weight) and quality ( grade) as indicated on the carton
label, and 2) determine t h a t inedible, broken or otherwise unacceptable
eggs are not on the market. The program, therefore, provides consumer
protection by ensuring that size and q u a l i t y a r e commensurate with price
as well as preventing eggs which are u n f i t f o r human consumption from
reaching consumers.
Eggs are candled, or held up to a high i n t e n s i t y l i g h t , to determine
quality. Inspectors evaluate the eggs based on four c r i t e r i a :
- condition of the shell;
- size of the a i r c e l l ;
- viscosity and opaqueness of the white; and
- definition of the yolk against the white.
Eggs a r e also weighed t o determine size."
Tolerances*" have been established f o r both grade and weight
c l a s s i f i c a t i o n s . Weight t o l e r a n c e s d e f i n e t h e number of eggs i n a carton
which may f a l l below the accepted average. Quality tolerances specify the
percentage of individual eggs which may be contained i n a carton bearing a
grade designation. For example, at the warehouse l e v e l , a sample of grade
AA eggs must consist of a t l e a s t 85 percent grade AA eggs and may include
up t o 15 percent grade A or B eggs. However, it cannot contain over f i v e
percent grade C eggs o r eggs with small cracks i n t h e s h e l l .
The need f o r such a regulatory program is evidenced by the operation of
similar programs i n other s t a t e s and a t the Federal level. The other 49
s t a t e s have laws dealing with grading, sizing and labeling of eggs. One
s t a t e which terminated its inspection program, l a t e r r e i n s t a t e d it a t the
urging of r e t a i l e r s who f e l t t h a t the program was needed.
Federal programs supplement r a t h e r than d u p l i c a t e t h e S t a t e program. The
U . S . Department of Agriculture ( USDA) s u r v e i l l a n c e inspections are
performed quarterly to i d e n t i f y eggs which a r e u n f i t f o r human
consumption. The S t a t e program, which provides f o r determination of
q u a l i t y and s i z e , is conducted on an ongoing basis.
The Legislature has established s i m i l a r regulatory programs f o r other
perishable commodities:
- The Arizona Commission of Agriculture and Horticulture oversees
standardization programs f o r dates, f r u i t s and vegetables.
* There are c u r r e n t l y f o u r grades: AA, A, B and C. Size classes are:
Jumbo, Extra Large, Large, Medium, Small and Pee Wee. Appendix I V
d e t a i l s standards f o r q u a l i t y and s i z e c l a s s i f i c a t i o n s a s prescribed
by regulations R3- 6- 02 and R3- 6- 05.
** A tolerance is a s p e c i f i c a t i o n o f t h e required level of
acceptability. Appendix V contains tolerances f o r weight and quality
a s prescribed by regulation R3- 6- 03.
- The Dairy Commission is responsible f o r regulation of dairy
products; and
- The Livestock Sanitary Board inspects livestock, meat and meat
processing f a c i l i t i e s .
Accordingly, it appears t h a t the egg inspection program does protect the
consumer and should be continued. However, improvements a r e needed to
enhance the program's performance.
Optimal Use Is Not Being Made Of
the S t a t e Egg Inspector and H i s S t a f f
The S t a t e Egg Inspector and h i s s t a f f of four deputy inspectors are
responsible for inspecting eggs for proper grading, condition and quality
p r i o r t o t h e i r being sold. A s a means t o meet t h a t r e s p o n s i b i l i t y
inspections are made at both the wholesale and r e t a i l level. Our review
revealed t h a t b e t t e r use can be made of the egg inspection program s t a f f
i f : 1) the expertise of the Inspector is b e t t e r u t i l i z e d , and
2) inspections are concentrated a t the wholesale level where the g r e a t e s t
opportunities t o identify and intercept unacceptable eggs e x i s t .
The Expertise of the S t a t e
5
The S t a t e Egg Inspector is required t o be an expert i n egg inspection.
However, the I n s p e c t o r ' s expertise is a l l but wasted i n t h a t he r a r e l y
conducts inspections f o r a l l i n t e n t s and purposes and spends h i s time on
e i t h e r : 1 ) c l e r i c a l functions t h a t should be delegated t o support s t a f f ,
or 2) other unspecified a c t i v i t i e s .
A. R. S. $ 3- 709.~ requires t h a t the S t a t e Egg Inspector meet the following
qualifications:
" He s h a l l be possessed of not l e s s than three years'
experience i n the production, s a l e and determining of
standards and grades of eggs. He s h a l l be possessed of
technical and educational q u a l i f i c a t i o n s or p r a c t i c a l
experience i n the handling and inspection of eggs, and
i n all matters r e l a t i n g to the egg industry. He s h a l l
provide administrative, s e c r e t a r i a l and o f f i c e services
required. "
The current State Egg Inspector meets the statutory requirements above.
He has 22 years of pertinent experience and has been licensed by the USDA
t o perform regulatory duties under two federal statutes.
In s p i t e of the S t a t e Egg Inspector's expertise, during f i s c a l year
1980- 81, he performed only three inspections. None of these inspections
was routine i n that one related t o a consumer complaint and two were in
response to special requests by egg dealers.
Instead of conducting inspections, the State Egg Inspector devotes a
significant amount of h i s time to such duties as license renewal
processing, inspection fee collection and receipting, and preparing
quarterly and annual reports. Our review revealed that approximately 56
percent of the Inspector's time is spent on these c l e r i c a l functions.
Thus, the remainder of the State Egg Inspector's time is apparently
devoted to other a c t i v i t i e s .
According to the job description f o r the S t a t e Egg Inspector on f i l e with
the Department of Administration - Personnel Division, he can perform
c l e r i c a l and nonclerical functions not related to actual inspection such
as consulting with the USDA and the industry. However, i n our opinion,
the position of S t a t e Egg Inspector would be b e t t e r used i f it were more
d i r e c t l y involved i n the inspection process.
I f the S t a t e Egg Inspector were relieved of h i s c l e r i c a l and other
noninspection- related duties he could devote more time to routine
inspections. This could be accomplished without adding to the s t a f f of
the egg inspection program i f it were transferred to the Arizona
Commission of Agriculture and Horticulture.
Inspection Should Be
Concentrated A t the Wholesale Level
Within the egg inspection program there is a S t a t e Egg Inspector and
four deputy egg inspectors. Three of the four deputy egg
inspectors* spend an average of 45 percent of t h e i r time inspecting
eggs a t r e t a i l o u t l e t s as shown below i n Table 4. Our review
revealed that the egg inspection program would be more effective i f
inspection a t the r e t a i l l e v e l were eliminated or d r a s t i c a l l y
reduced and inspections were concentrated a t the wholesale level.
TABLE 4
ALLOCATION OF INSPECTION RESOURCES
Percentage O f Time*" Devoted To:
Retail Wholesale
Outlet Level 0 t h e r
Deputy Egg Inspectors Location Inspections Inspections A c t i v i t i e s
Number One Tucson 55% 40%
a Number Two Phoenix 5% 90%
Number Three Phoenix 7 5% 20%
Average Time 45% 50%
The above allocation of personnel resources t o inspections a t r e t a i l
o u t l e t s does not represent the optimal use of program s t a f f .
Inspections at the wholesale l e v e l a r e f a r more e f f i c i e n t and
e f f e c t i v e a s is demonstrated i n Table 5, which summarizes the
r e s u l t s of egg inspections a t the wholesale and r e t a i l l e v e l during
f i s c a l year 1980- 81.
* Only t h r e e i n s p e c t o r s are included i n the tabulation because
the fourth deputy inspector only performs inspections f o r the
USDA Shield Program.
** Percentages shown are estimates provided by inspectors because
the Board does not maintain such time records.
TABLE 5
SUMMARY OF THE RESULTS OF EGG INSPECTIONS AT
THE WHOLESALE AND RETAIL LEVEL DURING FISCAL YEAR 1980- 81
Retail Outlet Wholesale Level Combined
Performance Measurements Inspections Inspections Inspections
Number Percentage Number Percentage Number Percentage a
Estimated Inspector
Hours Devoted to:
Dozens of Unacceptable
Eggs I d e n t i f i e d 73,401 23% 248,835 77% 322,236 100%
A s shown above, inspections a t the wholesale level c o n s t i t u t e a much
b e t t e r use of inspectors' resources than do inspections a t r e t a i l
o u t l e t s . For example, r e t a i l o u t l e t inspections accounted f o r 45
percent of inspection hours but only 23 percent of the unacceptable
eggs i d e n t i f i e d .
In a d d i t i o n , t h e number of r e t a i l o u t l e t s i n Arizona, approximately
1,760 during f i s c a l year 1980- 81, and the r a p i d i t y with which egg
inventories a t those o u t l e t s turn over, precludes inspections a t
those o u t l e t s from having any meaningful impact. For example, one
Phoenix area r e t a i l o u t l e t turns over its inventory of 1,200 dozen
eggs twice a week. I f t h i s o u t l e t were inspected once a year, which
is a program goal, l e s s than one percent of the 125,000 dozen eggs
reaching consumers from t h i s o u t l e t would be susceptible t o being
inspected.
* Five percent of the deputy inspector's time is spent on
a c t i v i t i e s other than egg inspections.
Further, d i v e r t i n g inspection resources t o r e t a i l o u t l e t s is preventing
the inspection program from achieving its wholesale level inspection
goals. According to the Board's annual reports:
" Major dealer, producer and warehouse locations were
inspected two times per month or as often as possible.
Great emphasis is placed on t h e s e l o c a t i o n s to
eliminate mislabeled eggs from reaching the r e t a i l
s t o r e s and the food service locations." ( ~ m ~ h a s i s
added)
However, an examination o f t h e records of Phoenix metropolitan area
inspections at the wholesale level between January and August 1981
revealed t h a t on the average 36 percent of t h e l a r g e r locations were not
inspected twice each month and 50 percent of the smaller wholesale o u t l e t s
were not inspected once each month.
Additional j u s t i f i c a t i o n s f o r eliminating inspections at the r e t a i l
o u t l e t s are:
- Eggs destined f o r d i s t r i b u t i o n t o restaurants are subject to
inspection only a t the wholesale level.
- The USDA surveillance program t o i d e n t i f y unacceptable eggs p r i o r
to d i s t r i b u t i o n t o r e t a i l o u t l e t s is conducted solely at the
wholesale level.
According to the S t a t e Egg Inspector, r e t a i l inspections serve three
purposes i n addition t o identifying poor q u a l i t y and underweight eggs:
- determination t h a t eggs are properly stored under r e f r i g e r a t i o n ;
- determination t h a t eggs are properly advertised; and
- i d e n t i f i c a t i o n of new dealers.
However, it should be noted t h a t during f i s c a l year 1980- 81 only two
violation notices were issued f o r improper r e f r i g e r a t i o n and none were
issued f o r improper advertising and t h a t during f i s c a l years 1979- 80 and
1980- 81 only four t o s i x unlicensed dealers, a l l of whom supplied
i n s i g n i f i c a n t amounts of eggs, were i d e n t i f i e d . In addition, inspections
t o determine compliance with r e f r i g e r a t i o n , advertising and licensure
requirements could be conducted by inspectors from other S t a t e programs
such as the Department of Administration - Weights and Measures Division
who also v i s i t r e t a i l outlets.
Inspection Program
Lacks Formal Guidelines
Formal, written guidelines concerning inspection procedures have not been
developed by e i t h e r the Board or the S t a t e Egg Inspector. A s a r e s u l t ,
a c t u a l p r a c t i c e varies among deputy inspectors. During the course of the
audit we noted inconsistencies i n the following areas:
1) Size of the spot- check sample. The sample s i z e varies between 50
and 200 eggs and is determined subjectively, based on estimated
l o t size.
2) Use of stop s a l e s tags. Inspectors may issue one of two types of
stop s a l e s tags when rejecting eggs. One r e q u i r e s t h e dealer to
reprocess the eggs and notify the S t a t e Egg Inspector by phone
t h a t reprocessing has been completed so that the stop s a l e may be
released. The other s t a t e s t h a t reinspection may be required
p r i o r t o r e l e a s i n g t h e s t o p s a l e . Although i n s p e c t o r s s t a t e d
t h a t the second type of tag is used f o r large l o t s and f o r l o t s
containing inedible eggs, a l l l o t s of these types do not receive
the same type of tag.
CONCLUSION
The egg inspec t i o n program appears t o be necessary; however, improvements
are needed i n the program to improve its efficiency and effectiveness.
Staff resources are misallocated i n that: 1) t h e e x p e r t i s e of the S t a t e
Egg Inspector is underutilized, and 2) excessive time is spent on r e t a i l
inspections. I n addition, the program lacks needed formal inspection
guidelines.
RECOMMENDATIONS
Consideration should be given t o the following recommendations:
1. The S t a t e Egg Inspector should perform inspections r a t h e r than
c l e r i c a l functions.
2. Inspections a t r e t a i l o u t l e t s should be eliminated o r d r a s t i c a l l y
reduced.
3. The S t a t e Egg Inspector e s t a b l i s h written procedures for:
1) spot- check sampling, including sample s i z e and the manner i n
which the sample is t o be selected, and 2) c r i t e r i a f o r
reinspection of rejected eggs.
4. Arizona Revised S t a t u t e s $ 3- 709 should be amended t o provide f o r
the administration of the egg inspection program by an
appropriate umbrella agency, such as the Arizona Commission of
Agriculture and Horticulture.
FINDING I11
THE EGG INSPECTION BOARD HAS BEEN SUBSTANDARD I N ITS ENCOURAGEMENT AND USE
OF PUBLIC INPUT I N ITS OPERATIONS.
The Egg Inspection Board has been substandard i n its encouragement of
public input from consumers and i n n o t i f y i n g l i c e n s e holders of Board
meetings, proposed rules and regulations and Board actions. The Board
needs to expand its e f f o r t s t o encourage p a r t i c i p a t i o n by consumers and t o
notify a l l licensees of Board meetings, a c t i v i t i e s and actions.
Board Actions Regarding Public Notice of Meetings
A. R. S. 538- 431.02, subsection A, defines t h e r e s p o n s i b i l i t y of the Egg
Inspection Board t o provide public notice of a l l meetings:
" Public notice of a l l meetings of public bodies s h a l l
be given as follows:
1. The public bodies of the s t a t e s h a l l f i l e a
statement with the secretary of s t a t e s t a t i n g
where a l l public notices of t h e i r meetings
w i l l be posted and s h a l l give such additional
public notice as is reasonable and practicable
as to a l l meetings."
In addition, the Attorney General i n a memorandum to a l l s t a t e agencies
dated August 19, 1975," noted t h a t an:
11 9 Open meeting' is open only i n theory i f the public
has no knowledge of the time and place at which it is
to be held."
The Attorney General s t a t e d f u r t h e r t h a t the law on open meetings was not
s p e c i f i c , and outlined guidelines to be followed i n complying with the
public meeting law. He also cautioned agencies against the serious
consequences f o r f a i l u r e t o comply with the law as follows:
* Appendix V I contains the memorandum t e x t .
" Decisions made a t a meeting f o r which d e f e c t i v e n o t i c e
was given may l i k e l y be declared n u l l and void...."
The l a t e s t statement which the Egg Inspection Board has f i l e d with the
Secretary of S t a t e indicates t h a t notices of meetings are posted i n the
Occupational Licensing Building a t 1645 West Jefferson, i n Phoenix.
However, the Board's o f f i c e moved from t h a t location i n May 1979, and
according t o the S t a t e Egg Inspector, meeting notices are posted a t 1937
West Jefferson, Building E, Suite 1, not the Occupational Licensing
Building.
In providing guidelines t o agencies regarding what would c o n s t i t u t e
s u f f i c i e n t " additional" public notice of meetings beyond posting printed
notices, the Attorney General stated:
" F. Additional Notice
I n deciding what types of notice s h a l l be given i n
addition t o posting, governing bodies should consider
the following:
1. Newspaper Publication
In many cases, notice of meetings can be
disseminated by providing p r e s s releases to
newspapers published i n the area i n which
notice is to be given. I n addition, paid
legal notices i n such newspapers may be
purchased by the governing body.
2. Mailing L i s t
Some bodies may wish t o provide a mailing list
whereby persons desiring to o b t a i n n o t i c e s of
meetings may ask to be placed on a mailing
list. A l l notices of meetings issued w i l l
then be mailed t o those appearing on the
current mailing list.
3. A r t i c l e s o r Notices i n Professional or
Business Publications
I n addition, the governing body may obtain
~ u b l i c a t i o n of a r t i c l e s o r notices i n those
professional and business publications
r e l a t i n g t o the agency's f i e l d o r regulation.
" It is not necessary t h a t a l l of these types of notices
be given. Indeed, merely providing notice through the
- -- use of a mailing list and by posting should be
s u f f i c i e n t i n most cases. Neither should the above
l i s t i n g s be considered exclusive and, t o t h e e x t e n t
other forms o f n o t i c e are reasonably available, they
should be used." ( ~ m ~ h a saidsd ed)
The Board has not adopted any of the " additional notice" methods for
notifying the public and its licensees of meetings a s outlined by the
Attorney General.
Although the Board n o t i f i e s t h e Arizona Poultry Federation of meetings,
four of the f i v e licensed egg dealers who belong t o the Federation
currently have employees as members of the Board. Only eight licensees,
representing f i v e firms, are members of the Federation, although there are
107 current Board licensees. Theref ore, current Board n o t i f i c a t i o n
practices do not a c t u a l l y c o n s t i t u t e additional notice t o the public.
Board Actions Reaardim Public Notice
of Proposed Rules and Regulations and
Other Board Actions
When proposing changes i n r u l e s and regulations, each agency is required
by A. R. S. $ 41- 1002 ( ~ d m i n i s t r a t i v e Procedures ~ a w ) to f i l e a notice of
such changes with the Secretary of S t a t e a t l e a s t 20 days p r i o r t o the
proposed adoption date. The Secretary of S t a t e publishes the proposed
changes monthly i n the Administrative Procedures Digest.
The Egg Inspection Board has complied with the s t a t u t e ; however, a review
of the d i s t r i b u t i o n list f o r the Digest as of September 23, 1981, revealed
t h a t 88 percent of the 261 individuals or organizations receiving the
Digest were l e g a l counsel, l i b r a r i e s , or government agencies. Thus, the
publication of proposed rules i n the Digest does not appear to be an
effective method of notifying the consuming public or Board licensees of
proposed r u l e changes.
Additionally, the Board n o t i f i e s the Arizona Poultry Federation and
selected licensees of proposed changes. The S t a t e Egg Inspector s t a t e d
t h a t only those licensees who appear to be affected most by the proposed
changes are n o t i f i e d . Consequently, the Board notified only 14 of the 105
licensed dealers of the September 1979 proposed change concerning
increased inspection fees. Of those 14 dealers, f i v e were also members of
the Arizona Poultry Federation, and four had employees on the Board. Such
s e l e c t i v e Board n o t i f i c a t i o n p r a c t i c e s e f f e c t i v e l y prevents the majority
of Board licensees from having access t o information about Board
a c t i v i t i e s .
Methods Used By Regulatory
Anencies I n Arizona and Other
S t a t e s To Encourage Public Input
An Auditor General survey of egg regulatory agencies i n s i x southwestern
s t a t e s revealed t h a t , i n order t o inform the public of its a c t i v i t i e s , the
majority of the s t a t e s issued news releases and notified industry
associations, and two notified consumer groups. An Auditor General survey
of 30 Arizona regulatory Boards showed t h a t other agencies notified
complainants, consumers who requested information, news media, consumer
groups, l i c e n s e e s / r e g i s t r a n t s and professional associations.
The Egg Inspection Board has n o t c o n s i s t e n t l y notified the public of its
a c t i v i t i e s , other than its local professional association, the Arizona
Poultry Federation. Therefore, the Board is substandard i n its e f f o r t s to
encourage p a r t i c i p a t i o n i n its decision- making by licensees and consumers
i n comparison with other regulatory agencies. A s a r e s u l t , the public
does not appear t o know of the Board's existence. Consumers have not
attended one Board meeting during the l a s t f i v e years. Attendance a t
these meetings has been limited t o Board members, the S t a t e Egg Inspector,
and occasionally an industry representative.
Methods For Improving
Public P a r t i c i p a t i o n
M r . Ernest Gellhorn, former Dean of Arizona Stat& University, College of
Law and a recognized authority on administrative procedure law, has
formulated recommendations f o r improving the Federal Administrative
Procedures Act.* Many of these recommended actions are equally applicable
t o s t a t e regulatory bodies. M r . Gellhorn's recommendations are:
" 1. Agency obligations.... That existing procedures
conform t o c o n s t i t u t i o n a l minima is not a reason
f o r agencies t o f a i l t o explore appropriate
Drocedures f o r ~ r o v i d i u ? effective notice t o the
a f f e c t e d p u b l i c and t h e i r representatives.
( Emphasis added)
" 2. Meeting public notice needs... agencies should be
required t o provide i d e n t i f i e d , accessible sources
of information about proceedings i n which public
p a r t i c i p a t i o n is possible ....
A t a minimum each agency should: ( a) s t r i v e to
provide notice a s f a r i n advance of the proceeding
as possible, and ( b) prepare a separate b u l l e t i n
issued p e r i o d i c a l l y , i d e n t i f y i n g the proceeding
and providing relevant information.
" 3. Attracting and focusing public a t t e n t i o n . The
public can be made aware of important agency
proceedings i n many ways: press releases
to... news media: reauirements t h a t a ~ ~ l i c a n t s
d i r e c t l y inform users; s p e c i a l notice t o
governmental bodies, c i t i z e n groups or trade
associations; and separate agency l i s t i n g s of
s i g n i f i c a n t matters.... ( Ehphasis added)
*, Ernest Gellhorn, " Public P a r t i c i p a t i o n i n Administrative Proceedings,"
Yale Law Journal, Volume 81, No. 3 ( ~ a n u a r y 1972) pp. 398- 402.
Coverage i n the news media is perhaps the - most
effective way of reaching the average c i t i z e n , and
public i n t e r e s t groups and agencies should make
s p e c i a l e f f o r t s t o encourage reporting of t h e i r - - -
a c t i v i t i e s . Factual p r e s s r e l e a s e s written i n lay
language should explain t h e s i g n i f i c a n c e of the
proceedings and opportunities f o r public
participation. Releases describing important
proceedings with a local geographical impact
should be sent t o area news media. I n ma- j or
matters, agencies might consider p u b l i c s e r v i c e
advertisements and announcements over local
broadcasting f a c i l i t i e s - Direct mailings are yet
another a1 ternative . " (~ mphasis added)
Under A. R. S- 541- 2354 h he Sunset Law), one f a c t o r t h a t s h a l l be
considered i n determining the need f o r continuation or termination of each
agency is:
" The extent t o which the agency has encouraged input
from the public before promulgating rules and
regulations and t h e e x t e n t t o which it has informed the
public a s t o its actions and t h e i r expected impact."
I n our opinion, the Egg Inspection Board has not adequately encouraged the
input of license holders, consumers of licensees' services or the general
public i n the promulgation of r u l e s and other actions and has not
adequately informed the public of its actions and t h e i r expected impact.
CONCLUSION
The Egg Inspection Board has been substandard when compared t o other
Arizona regulatory agencies i n its encouragement and use of public input
i n its operations. A s a r e s u l t , license holders are not adequately
informed of Board meetings and a c t i v i t i e s , and consumers have l i t t l e
opportunity t o be informed concerning Board a c t i v i t y .
RECOMMENDATIONS
Consideration should be given to the following recommendations:
1. The Egg Inspection Board should adopt methods to encourage public
input and participation in the promulgation of rules and
regulations and development of legislative proposals,
particularly by licensees. Consideration should be given to the
methods being used by other Arizona regulatory bodies, the
recommendations presented by Mr. Gellhorn and the recommendations
of the Attorney General's Office.
2. The Egg Inspection Board should update its filing of meeting
location with the Secretary of state's Office to reflect the
current location of Board meetings.
CARL R. BIEHLER
STATE EGG INSFECTOR
PHONE
2 5 5 - 5 7 4 1
1 9 3 7 WEST JEFFERSON. BLDG. E. SUITE 1
PHOENIX. ARIZONA 8 5 0 0 9
December 9, 1981
Douglas R. Norton
Aud i tor Genera 1
State Capitol, Suite 200
Phoenix, AZ 85007
Dear Mr. Norton:
Reference i s made t o your draft of the Performance Audit of the Egg
Inspection Board Report 81- 18.
Comments t o Your Findings and Recommendations I I
You are recommending that r e t a i l outlets inspections should be eliminated
or drastically reduced. Several years back the egg packing and warehouse
locations were inspected the same number of times as r e t a i l stores were,
or 3- 4 times a year, It i s d e f i n i t e l y my opinion that packing/ warehouse
locations shouid be inspected a greater number of times than the r e t a i l
stores. However, you can not enforce a l l of the statutes t o protect the
consumer at the dealer locations. With no r e t a i l inspection, managers
would soon realize no one was enforcing the refrigeration law and mass
nonrefrigerated displays of eggs would appear i n the stores and the eggs
may never be refrigerated a f t e r leaving the warehouse, For proof of t h i s
fact, v i s i t the grocery stores of a neighboring state.
No r e t a i l inspections would also open the door f o r an out- of- state
supplier t o deliver direct t o the chain stores and never warehouse the
eggs in Arizona. Therefore, no inspection could be made on any of these
eggs.
A t r e t a i l , we may inspect a store of a particular chain i n Glendale today,
and in 2- 3 days or maybe the same day inspect a store of the same chain in
Mesa or Tucson. This, i n a sense, gives a day t o day knowledge of the
quality of eggs that particular chain i s being supplied with.
You state that the inventory turnover i s twice a week in the r e t a i l
stores, and that less than 1% would be subject t o inspection. Inventory
turnover i s almost daily a t the packing/ warehouse location and i f you
applied the same formula, eggs subject t o inspection at warehouse loca-tions
would probably be less than that,
According t o the Boards latest report to the Governor 94,443 dozen of
eggs were inspected under the state and federal programs and that
56,853,230 dozens were reported sold i n Arizona. The fact is, ,0017 of
the eggs sold were inspected by the inspectors.
Douglas R. Norton, Auditor General
December 9, 1981
Page 2
You s t a t e t h a t i n 1979- 80 and 1980- 81 four t o s i x unlicensed firms that
were wholesaling eggs were i d e n t i f i e d by r e t a i l inspections, a l l of whom
supplied i n s i g n i f i c a n t amounts of eggs. The law does not have provisions
f o r amounts of eggs that can be wholesaled before a license i s required.
The f a c t is, they were i n v i o l a t i o n of the law, and are required t o get
a license f o r s e l l i n g 1 case or 1,000 cases. ( I
You state because we do not inspect a t restaurants, that t h i s i s j u s t i f i -
cation f o r not inspecting the grocery stores. The chefs are more aware
of egg q u a l i t y than any other user o f eggs. We depend on t h e i r complaints
or c a l l s t o inspect a t restaurants.
You state that because the USDA Surveillance Program i s conducted solely
a t the wholesale level that t h i s i s j u s t i f i c a t i o n f o r not inspecting a t
r e t a i l . The USDA Surveillance enforcement i s f o r " restricted" eggs only.
Restricted eggs are cracked, d i r t y , loss or inedible eggs, some of which
are u n f i t f o r human consumption. In that law, there are no provisions
f o r checking f o r weight or determining what percent AA q u a l i t y eggs you
have i n a carton of eggs marked AA Grade Large. The eggs could be a
month old and weigh out only Medium and not be rejected under the USDA
Surveillance Program i f they d i d n ' t exceed the tolerance f o r r e s t r i c t e d
eggs
Your chart on performance measurements I s misleading as t o the actual time
spent inspecting eggs a t r e t a i l locations and inspecting eggs a t wholesale
locations. Eleven of the twenty- three routes that the state i s divided
i n t o f o r inspection coverage are out of the metropolitan areas of Phoenix
and Tucson and are inspected 1 time per year. On some of the routes the
d r i v i n g time almost exceeds the inspection time. Because the major pack-ing/
warehouses are located i n o r near the metropolitan areas, almost a l l
of that time would be inspecting time.
You recommend that procedures should be established f o r spot- check sam-p
l i n g of eggs. Amendments t o the Rules o f the Board were properly f i l e d
with the Secretary of State, and the Board proposes t o amend ~ 3 - 6 - 0 6 ,
subject t o approval of the Attorney General, a t a meeting t o be held
December 21, 1981. Part ( A) i s new language pertaining t o spot- checking.
( B) has been amended f o r c l a r i f i c a t i o n and ( B) 1. i s new language.
( Attachment ## I)
You state there should be w r i t t e n c r i t e r i a f o r reinspection of rejected
eggs. Prior t o July of 1972, no provisions were i n the Regulations f o r
reinspection of rejected lots. A t that time a good share of the rejected
eggs were being regraded/ repacked/ remarked and sold a t the same or a
lower grade. There appeared t o be a d e f i n i t e need f o r better control at
that time, and I recommended that the Board adopt provisions f o r reinspec-tion.
The Board amended R3- 6- 09 and gave authority t o reinspect l o t s that
had been rejected and t o g i v e i n s t r u c t i o n s f o r reinspection. We cannot
t e l l the f i r m they must remove the undergrades and regrade/ repack them to
be sold a t the same or lower grade. They may do whatever i s necessary
t o bring the eggs i n t o compliance w i t h the Arizona laws. They may wish
Douglas R. Norton, Auditor General
December 9, 1981
Page 3
t o send the rejected l o t t o an o f f i c i a l USDA breaking plant or may wish
t o return the e n t i r e l o t t o t h e i r out- of- state supplier. A survey of the
7 major firms that supply approximately 90% of the eggs sold i n Arizona,
indicated that of the eggs rejected by inspectors, 16% were sent to a
breaking plant, 28.5here returned t o the packer, 3 2 . a were sold d i r e c t l y
t o consumers a t the warehouse locations as Grade C " Checks" and 23.5%
were regraded/ repacked t o be sold under the same or iower grade. This
regulation, and the way it i s being administered, has been very beneficial
t o the consumer and egg inspectors and has resulted i n fewer rejected
eggs being regraded/ repacked. More o f the eggs are now returned to the
out- of- state packer or sent t o a breaking plant. When we are informed
that eggs are being returned t o California, the California inspector i s
n o t i f i e d and he i n return n o t i f i e s us when the eggs are released.
Not knowing your d e f i n i t i o n of " unspecified a c t i v i t i e s i ' and the statement
that I am unable to account f o r 44% o f my time i s not true and certainly
i s not the fact. I do not remember being asked to s p e c i f i c a l l y j u s t i f y
44% or any part of my time but was asked what function I did that could
be considered c l e r i c a l functions. You did make a very b r i e f reference t o
my job description on f i l e with the Department of Administration. ARS-Ch
5- 3- 709 i n part states that the State Egg Inspector shall provide
administrative, secretarial and o f f i c e services required. The job descrip-t
i o n on f i l e with the Department o f Administration describes the duties
that I must perform ( not l i m i t e d to) i n order t o f u l f i l l the statutory
responsibilities. I n fact, t h i s description states that 95% of the State
Egg Inspector's time i s used i n administrative and o f f i c e functions, and
5% i n inspection work. In establishing t h i s 95%, with the a i d of the
Personnel Commission, it was determined that approximately SYo would need
t o be performed by the State Egg Inspector and approximately 36% could
be performed by c l e r i c a l s t a f f ,
This o f f i c e did have a f u i l time Clerk Typist I I I u n t i l July of 1974.
The Egg Inspection Board i s s e l f supporting, and the appropriations are
based on fees received from the amount of eggs sold i n Arizona by egg
dealers. Because of budget r e s t r a i n t s , I could not j u s t i f y not f i l l i n g
an inspectors position and recommended not t o f i l l the c l e r k t y p i s t po-s
i t i o n , A f t e r reorganizing the functions of the Deputy lnspectors and
the State Egg Inspector, and with occasional help from the Chief Deputy
Inspector, I am able t o perform a l l o f the administrative and c l e r i c a l
functions required. A telephone answering device i s used when I am
required to be out of the office.
Comments t o Your Findinqs and Recommendations I l l
I n an e f f o r t t o remain w i t h i n our operating budget, and not take monies
away from the inspecting program and d i v e r t i n g it t o mailing and related
costs f o r each quarterly meeting date, the Board has established d e f i n i t e
meeting dates of the f i r s t Wednesday of the months of November, February,
May and August. A l l licensees, both i n state and out of state, have
received t h i s notice and as always it was sent t o the Arizona Poultry
Federation and the " Press Roomi1 Senate Wing, Room 106, State Capitol.
( Attachment # 2)
Douglas R. Norton, Auditor General
December 9, 1981
Page 4
This n o t i f i c a t i o n i s i n accordance with ARS 38- 431 - 02 and the Attorney
General Memorandum dated August 19, 1975. The Retail Grocers Association
has been added t o the meeting notice mailing l i s t ,
The correct meeting location was f i l e d with the Secretary of State on
Septeaber 25, 1981. ( Attachment ## 3)
The following are comparisons of the year before the Board was created by
the Legislature and the f980- 81 report t o the Governor.
1966- 67 - 7 employees ( 5 inspectors i n travel status)
1980- 81 - 5 employees ( 3 inspectors i n travel status, 1 i n USDA plant)
1966- 67 - 72,000 miles t r a v e l l e d f o r the state program
1980- 81 - 35,000 miles t r a v e l l e d f o r the state and federal programs
1966- 67 - 62,068 dozens were rejected under the state program
1980- 81 - 337,176 dozens were rejected under the state and federal programs
1966- 67 - Retail and dealer rejections were not kept separate
1967- 68 - 36.1% were rejected a t dealer locat ions ( 1st y r of ~ o a r d )
1980- 81 - 77.2% were rejected a t dealer locations
1966- 67 - 31 m i l l i o n dozens were reported sold i n Arizona
1980- 81 - 56 m i l l i o n dozens were reported sold i n Arizona
1966- 67 - Approximately 40.0% of the eggs were shipped i n t o Arizona
1980- 81 - Approximately 80.0% of the eggs were shipped i n t o Arizona
1966- 67 - - 05 per 30- dozen case was the inspection fee rate
1980- 81 - - 05 per 30- dozen case was the inspection fee rate
I respectfully request that t h i s l e t t e r and the attachments becme part
of your Performance Audit Report of the Egg Inspection Board.
Sincerely,
Carl R. Biehler
State Egg Inspector
Enc. 3
Pursuant t o A. R. S. 3- 712, t h e S t a t e of Arizona Egg Inspection Board hereby adopts
the f o l l o w i n g r u l e :
~ 3- 6- 06. Sampling: schedule and methods f o r evidence
A. In an attempt t o locate l o t s of eqqs t h a t may not meet the minimurn q u a l i t y
o r weight standards, inspectors may spot check a t random by s e l e- c t i n q and
i n s p e c t i n z a n y reasonable amount o f samples.
B. The f o l l o w i n g schedule i s the minimum_ number o f samples thatat
inspector s h a l l select and inspect t o issue a - w- a-- r ninq n o t i c e h o l d tag- on eqqs
t h a t do not meet the minimum q u a l i t y or weight standards. The schedule i s
- als o used t o determine the o f f i c i a l grade and size o f a l o t .
Minimum Minimum
en lot size is cartons for When lot size is cases for
inspection in 30 doz. cases
101 - 200 Cartons ( inc)
201 - 300 Cartons ( inc)
for each additional
See new chart
D
Attachment I
Minimum Minimum
When l o t s i z e i s eggs f o r When l o t size i s cases f o r
i n cartons o f - in spection i n 30 doz. cases inspection
( 1)
1- 4 Cartons A1 1
5- 30 Cartons ( inc) 5 0
31- 120 cartons ( inc) 100
121- 210 Cartons( inc) 200
21 1- 315 Cartons ( i n c ) 3 00
1 Case
2- 10 cases ( i n c )
11- 25 ~ a s e s ( i n c )
26- 50 ~ a s e s t i n c )
51- 100 Cases( inc)
101- 200 cases ( i n c )
201 - 300 Cases ( i nc)
301- 400 Cases ( i n c )
401- 500 Cases ( i n c )
501 - 600 cases ( i nc)
f o r each a d d i t i o n a l
or f r a c t i o n thereof
600 Cases
1 Case
2 Cases
3 Cases
4 Cases
5 Cases
8 Cases
11 Cases
13 Cases
14 Cases
16 Cases
50 Cases
i n excess o f
1 Case
( 1) The inspector s h a l l take 100 eggs
frov each case f o r inspection.
1 . The inspector may draw a d d i t i o n a l samples t o- s a t i s f y himself and/ or
4 - t o d- eterm- i- n- e that the l o t d- oes or does not mee- t- t he m- in- im - u- m requ- i- r- e ne- n-- t s.
5 2 . Unchanged
6 Former B. becomes C. Language unchanged.
7
8 Former C. becomes D. Language unchanged.
' CARL R. BlEHLER
STATE EGG INSPECTOR
1937 WEST JEFFERSON, BLDG. E. SUITE 1
PHOENIX. ARIZONA 85009
NOTI CE OF REGULAR MEETINGS
OF THE
STATE EGG INSPECTION BOARD
Pursuant to A. R. S. 38- 431- 02, notice is hereby given to the
general public that the State of Arizona Egg Inspection Board will
hold their regular quarterly meetings that are open to the public
on the First Wednesday of the months of November, February, May and
August. The meetings will be held at 1937 W. Jefferson, Bldg. E,
Phoenix, Arizona, and will commence at 10: 30 A. M..
Information concerning the Boardls agenda for the meetings
may be obtained by call ing 255- 5741.
Notification of meetings, other than the above stated regular
quarterly meetings, will be published under a separate " Special
Meeting Notice" and will give a specific date for the meeting.
Dated this 20th- day of October, 1981.
State Egg Inspection Board
State Egg Inspector
Attachment 2
t
CARL R. BIEHLER
STATE EGG INSPECTOR
1937 WEST JEFFERSON, BLDG. E, SUITE 1
PHOENIX, ARIZONA 85009
TO: THE HONORABLE SECRETARY OF STATE
and THE CITIZENS OF ARIZONA
Pursuant t o A. R. S. Ch. 38- 433.02, thz Egg lnspection Hoard
hereby states that all notices of the nmtfngs of the Egg
Inspection Coard w i l l be posted in the east o f f i c e window, so
that it can be viewed From the outside at a l l tlses, at 1937
\ Jest: Jefferson, Bldg. E, Phoznix, Arlzona, and sent t:, the
press roan of the State Senate i! uildIng, 1700 West Glashingtm,
Phoenix, Arizona. Such notice w i l l indicate the tine and piace
of the meeting and shall Include or indicate the manner in which
the public may obtain infornation concerning the Board's agenda
for the meeting.
Dated t h i s 25th. day of September, I981
EGG I NSPECTI ON bGAhD
Attachment 3
State Egg l nspector
APPENDIX I
LEGISLATIVE COUNCIL MEMORANDUM 0- 81- 82,
AUGUGT 26, 1981
T C.: D o r ~ ~ l ia:. s Norton
Auditor General
FKOR'I: Arizona Legislative C o u ~ c i !
RE: Request for Research and Statutory Interpretation ( 0- 81- 82)
This i s in response t o a request submitted on your behalf by G e r d d A. Silva in a
memo dated August 18, 1981. No input was received from t h e Attorney General
concerning this request.
FACT SITUATION:
Arizona Revised S t a t u t e s ( A. R. S.) section 3- 710, subsection E requires that:
cr vio!; rEis. il A ; Cf OZI;: Y- np~ la, i- notf. i~ l. ie jd, " w" ii i- j t h;;,; it. sh ea ,- b; oiCar? d, ~ c!~~- a., :. a gjilneig i na vn; roin. iicioigm ap, l> ida snicgen ewd itbhy,
the complainant.
The s t a t u t e s do not provide for hearing procedures for complaints brought before
t h e S t a t e Egg Inspection Board ( board).
The S t a t e Egg Inspector ( inspector) interprets the s t a t u t e as follows:
1. Consumers' telephone complaints are not regarded as " formal" complaints and
a r e therefore not required t o be signed by the complainant. They are recorded on a form
signed by t h e investigator. The inspector and/ or his deputies investigate and make a
disposition of the complaint as soon as possible. If, a f t e r investigation of a consumer
complaint, i t is determined by t h e investigator t h a t there is a definite violation, the
complainant is advised t h a t a formal complaint may be f i l e d against the alleged violator.
No complainant has chosen t o do so. The board is given a quarterly reporting by the
inspector of the number of complaints handled. Those persons named in complaints are
not identified.
2. A signed, " formal" complaint ( i. e., a s t a t u t o r y complaint) has only been filed
once ( November, 1970). The board held a hearing on the complaint a t i t s regular quarterly
meeting and dismissed the comp! aint.
QUESTIONS PRESENTED:
1. Do these procedures conflict with the provisions of A. R. S. section 3- 710,
subsection E regxding board complaint- handling?
2 If these procedures for recording and reviewing complaints are allowable, does
the inspectw have the legal authority t o review and dispose of " informal" complaints
without any fcxmal board action?
3. What is the e f f e c t , if any, of a failure t o define procedures f o r a formal
cornplaint handling cn the agency's ability to protect the p~: k,! ic or operate iri compliance
with the law?
4. ', Vhat is the e f f e c t , if any, o f the failure of t h e inspector to provide the board
and the ? uSlic with information r e g a r d i n , ~ -'. a !>: indlin;; of thzse " formal" consumer
compizin:~?
ANS\\' ERS:
I --.
1. i; ie procedures tii. rsiied by the gi3; en f a c t si;: iatiorl do no: conilict wit11
provisions of A. R. S. section 3- 710, subsection E. Within certain broad limitations, the
c'eterr?, InatIcn of ~ ; r c n - r com? lzll: h3. ndliz. 0-; . src ce6:~ rt. z is pro.., - er!.~ , an acin? inistrstl~; z
function which need nor be specified by statl; te.
2. Yes, assuming t h a t such d i s ~ ~ s i t i i~ s : 7;? 111 11: ccrnplaining party's consent. The
inspector or the board, however, has no s t a t u t o r y authority t o preclude or inhibit in any
fashion a consumer from filing a complaint in v; riti?..-, with the board and demanding the
resolution thereof through a formalized hearing process.
3. Complaint handling proczdnres neftd not Sz creclseiy structured in every case t o
properly protect the public o r o p e r a t e in compliance with the law.
4. See discussion.
DISCUSSION:
1. Administrative agencies a r e creatures of legislation without inherent or
common law powers. The general rule app! iecl t o s t a t u t e s ~ r m t l n gpo wers t o them is that
they have only those powers t h a t a r e conferred either expressly or which follow by
necessary implication. Sutherland, Statutes and Statutory Construction section 65.02 ( 4th
ed., Sands, 1972); Corporation Commission v. Consolidated 63 Ariz. 257,
161 P. 2d 110 ( 1945); Garvey v. Trew, 64 Ariz. 342, 170 board must
follow the clear d i c t a t e s of the Arizona Revised S t a t u t e s in exercising i t s administrative
powers and duties.
A. R. S. section 3- 7 10, subsection E provides that:
E. A complaint filed with the board charging a noncompliance with,
or violation of any provision of this a r t i c l e , shall be in writing and signed by
the cornplainant.
No other s t a t r ~ t eo r regulation specifies what procedures the inspector or the board should
follow in the investigation of these complaints.
I t is helpful t o remernber t h a t the board holds the administrative a u t h o r i t y f o r the
regulation of eggs and egg products in this s t a t e , but t h a t authority is exercised through
the inspector and his deputies. A. R. S. section 3- 709, subsection F provides:
F. The duties of i n s ~ e c t o r ss hall be t o inspect, 1;* 1. e: g,? and examine
dried eggs, frozcn egss and eggs ir, the .; hell bein2 advertised qr offered for
sale to deterrnine the condition, qualiry, grade arid weight thereof. They
may esarnine records of a pprson advertising or offerin? for sale egys or egg
prouucts. They shall enforce the provisions of t h ~ sa r t i c l e and other laws
relating t o t h e sale of eggs under the supervision and direction of the board.
The ir~ spectora nd his deputies s l ~ a l le nforce the provisions of this a r t i c l e in
3 . cni ,, i> i-; ~ r ; i ~ iWi y ~ Tr~ uIle s hnd reji: in;; ons prcxlA:, a;- ci by ii? e ~ c ~ r d .
It is reasonable t o assume t h a t the authority for t h e inspector, under the overall
supervision oi rhe board, ro cieterrnine proper cornplaint iiarid; ir! g procedures wocId fol! ow
from this general s t a t u t o r y enforcement authorlt- I.
Support for the above proposition can be gathered from the f a c t t h a t there is a
general policy of judicial liberalness toward responsible agency interpretations of their
own administrative powers. This policy is often manifested in judicia! decisions giving
broad legal e f f e c t t o adrninisrrative actions within t h e scope of applicable staturory
authority. Consequently, where the proper exercise of administrative powers is dependent
on a fr; ct determinstion, the findings and conc! usions of t h e agency a r e normally assumed
to be correct on judicial review. Sutherland, supra, section 65.05.
The complainr handing procedures aeiailed in i h e s m t e o f a c t siruation do not
conflict with A. R. S. section 3- 710, subsection E. There is in f a c t l i t t l e room for such
conflict in t h a t A. R. S. section 3- 710, subsecrion E reiers sirnply t o obligations of the
complaining party t o register a complaint in writing r a t h e r t h a n t o minimum complaint
handling procedures t o be observed by the board and the inspector. The conflict between
applicable s t a t u t e s and the complaint handling procedures followed by the inspector
would, in any case, be indirect. The only specific s t a t u t o r y standard by which such
procedures can be measured is the general enforcement and r e g u l a t o r y a u t h o r i t y of the
inspector and his deputies contained in A. R. S. section 3- 709, subsection F and section
3- 710, subsection F.
. . .
2. Yes, assuming that rhe dispss?;! or, is v. llr'l: tl: c complaining party's permission or
consent. As noted above, t h e inspector i s the enforcement agent for the board. As such,
the inspector and his deputies a r e required t o eniorce the provisions of A. R. S. Title 3,
chapter 5 and other Jaws relating t o the sale of eggs under the supervision and direction of
the board. A. R. S. section 3- 709, subsection F. As previously discussed, t h e r e is a general
policy of judicial liberalness to7xard responsible agency interpretations of their own
administrative powers. Sutherland, supra, section 65.06.
If the investigation by the irlspector of what is classified as an " informal" telephone
complaint indicates a lack o f sufficient grounds for advancing the complaint t o the
hearing stage, and the complainant agrees, ther? there is nothing in current s t a t u t e s which
would require that the complaint be pursued.
However, the inspector has no s t a t u t o r y autF: ority t o ~ r e c l u d er n y consumer from
filing a co: nplaint in \ vriting before the board and dernmding resolution of the complaint
through a formalized hearing process.
3. Complaint handling procedures need not be precisely structured in every case t o
properly protect the public or to operate in compliance with t h e law. Review of t h e
Arizona Revised S t a t u t e s indicates tlut the Legislature has chosen t o specify by s t a t u t e
c-.. o .- m.. p. l- a i- n- t - h andling. procedures in some instances while in other instances an approach ?, <- -.
. ., -' .. .;. 1 , T: 2 3, ~ ' i a i > ~ 5e ris used.
Within certain l i ~ n i t a t i o n s , t h e r e is a public i n t c r e s t in providing administrative
agencies with sufficient discretionary a u t h ~ r i t y: c? i- er,? oncf t o the ~ ztcr?+ iz! v s r i e t : ~ o f
s i t \ ~ a ~ i otnhsz y wi! l be cailed upon t o regulate. As Sutherland, s u p r a , s e c t i o n 65.03, notes
" / ~ e g i s l a t u r c s c r e a t e a d m i n i s t r ~ r i v e agencies with the desire m d expectation t h a t they
will perform efficiently t h e taslcs committed t o them." Given the subject m a t t e r , a n
administrative age3cy mi+ CI" find I: difficult t o perform efficiently with r e s p e c t t o
complaint resolut~ on if t h e procedures were s p e c ~ f i e d in detail by s t a t u t e and not
responsive t o specific and changing regulatory needs.
Even without detailed complaint handling procedures, other provisions of Arizona
law provide a structured r e ~ u l a t o r y foundation from which the board and the inspector
and his deputies must o p e r a t e . F o r example, t h e Administrative Procedures Act ! P.. R. S.
section 41- 1001 et sea.) c c n t r r ! ~ th e r!- cze?:-! r31 oneraticns of a! l state administrative
agencies except t o t h e extent o i any coniiict with the s t a r u t e s specifically governing the
agency. The p r i m v y requirements of the Admiriistrative Procedures Act include
adequate and timely notice and opportunity t o be heard to a f f e c t e d parties potentially
subject to disciplinary sanctions and notice t o parties potentially a f f e c t e d by propxed
rule making. In t h e resolution of complaints which extend beyond t h e investigation stage,
r . - L -, re~ .\; ai-; sii'i d t i l e ifispcc7ci- a rc ob; igated -; oic iio; ir ~ ir;' t . dirii; iisirai;.# e Frocedurej n~;.
It would seem b e n e f i c i d for t h e inspector, the board, the complainant and the
person who is the subject of the complaint t o have clezr guidelines for handling cornplaint
procedures. A routine process f a - reviewing complaints would help t o ensure t h a t the
inspector conduc;~ e f f e c t i v e investigations plus ir would provide procedural safeguards for
the person involved in t1- e complaint. Ycu may wish t o recommend legislation in this
regard.
4. In your f a c t s i t u t i o n , you s t a t e that no telephone complainant has yet chosen
t o file a " formal" co, nplnint with the board. It is also s t a t e d that a signed " formal"
c~ i?? lsir, t ( i. c., z s t n t t i t o r ; ~ csx; lzint) 112,: ~:; i:>, r: ic f;\ : i! ed cnce ( in Novernbe; 1972).
Assuming that your qu- stion references t h e s a m e type of complaint; t h a t is, one filed
p u r s u n t to s t a t u t e with the board, the inspector should not be continually expected t o
provide information t o the public and the board on the o n e f o r m a l complaint filed in
November 1970.
If, however, your ref crence t o " formal" consumer corn plaints includes consuincrs'
telephone complsin's, then, based on your s t a t e d f a c t situation, t h e inspector already does
provide tk board with c e r t a i n complaint information ( i. e., a quarterly report on ti=
number of complaints handled with persons named in the complaints not identified). Tlie
complaint infcrmation provided to the board through t l x referenced quarterly rcport
wou! d in fact be a p b l i c record.* Eased on the stated fact sitmtion m d using this
interpretation of " formal compiaint", wc are rlnable to accept the premise of your
question concerning the " failure" on the part of the inspector to provide the board and the
pub! ii \ vi: h inforination conccrnii) g the handling of consumer cornpiainz,.
Furthzr information worlld be required before a definitive answer could be given to'
thiz qu: sticn.
If your audit indicates t i n t s t a t e regulation of the egg industry would benefit from
a s t a t u i o r i ! ~ structured coinplzint hmd! Ir, g process, corrective legislation should be
recornrna~ dedt o the Legislature.
cc: Gerald A. Silva
Performance Audit Tvlanager
* The Arizona Supreme Court has deiined a public record as ' my record which " is
required by law to be kept, or necessary to be kept in the discharge of a duty imposed by
law to serve as a memorial or evidence of something written, said or done". Mathews v.
P le 75 .9riz. 76, 251 P. 2d 893 ( 1953). A. R. S. section 39- 121 provides thath- 2- 7
records or other rnatters in the office of any officers at all times during office hours shall
be open to inspection by ' my person!'
APPENDIX I1
LEGISLATIVE COUNCIL MEMORANDUM 0- 81- 83,
SEPTENBER 28, 1981
TO: D o ~ g i R~. s S orton
Auditor General
RE: Request for Research and Statutory Interpretation ( 0- 51- 83)
September 28, 1981
This is in response to a formal request s c b ~ i t t e don your behalf by Gerald A. Silva
in 3 memo dated S e ~ i e m b e r2 5, 1> 6i. No ir. s~! t ~ . 2 rse ceived from the A t r o r ~ e yG eneral
conerning this request.
FACT SiTUATION:
The ~ ~ ' " i d e l i nTeosr appointments t o the S t a t e E :: Ixspectlon Board ( board) pio1; ided
by Arizona Revised Staxutes ( A. R. S.) section 3- 709 require t h a t board members a r e t o be
nominaied by the Arizona Poultry Federation ( APF) and at t h e t i m e of their appointment
are t o be actually engaged in the production or wholesale distribu~ ion of eggs or +-. Loo
products.
All current board members are members of APF, and one board member is also the
APF President. Also, the prior president of the APF served concurrently as chairman of
the Egg Inspection Board. A review of the minutes of ?, P4 board meetings shows t h a t t h e
APF acts as a lobbyist for the industry at the board meetings.
QUESTIONS PRESZNYES:
1. Does a conflict of interest exist when regulatory board members are
officeholders in an industry organization such as the APF?
2. What 3re the legal ramifications of regularory board nomizations being made by
an organizaxion which actively engages i n lobbying for t h e industry at board meerings?
1. A. R. S. section 35- 503, subsection B provides that:
B. Any public officer or employee who has, or whose relative has, a
substantial interest in m y decisiorl of a public agency shall make known such
interest in the official record; of such public agency and shall refrain from
participating in arty manner as an officer or employee in such decision.
A member of the board, being an appointed o f f i c e r of a board of this s t a t e , is subject t o
the requirements of ti-, is section. A. R. S. section 38- 5Gl.
A " subsrantid interest" is defined broadly as " any pecuniary or proprietary
inrerest, e i ~ h e rd irect or indirect, other than a remote interest." Thus, any pecuniary or
proprietary interest which a member or employee of the board has in a board rbiing would
be a conflict of interest under Arizona law unless the L e g ~ s l a t u r eh as specificall defined
i~ as a " remote interestu. ' ietman v. Yaurnann, 16 Xriz. App. 314, 492 P. 2d 1252 1 1972).
Among the several classificarions whit!] ? he Legislature has deiined 2s a " remote
interest" in A. R. S. section 38- 502, paragraph 10, two seem t o apply under the f a c t s
presented in your quesrion. Cndec tile iegisiative S C ~ P Z 2~ '~! T,~ T R C Z = inreres:" is " that of a
nonsalaried officer of a nonprofit corporation" or " that of a member of a nonproii- i
czopera: i~ e marketinqo associa~ iail." P..?.. S. cecticn 33- 502, p a r a g r ~ p h1 0, subdivisions ( a)
and ( d). Consequently, assuming the APF is a nonprofit corporation or a nonprofit
cooperative marketing association, the f a c t that a member of the board is the president
of the ,\ PF or t h a t members cf + he bnard 3re m-~ 513- s~ f: + kc > PC does not! without
more, present a conflict cf interes-;. Cji course xkese exempyions do nor extend if the h? F
employs a board member as a salaried employee o r if the association with the APF is such
;!: zit i: wculd be impossible for a board mernber t o make 2 fair and impartial decision.
The above discussion follows 79 Op. Att'y .. G . e n. .1 .7 9- 142 ( 19791, in which the ~ ~ : .~ -: e ;,; zzrrii~ c~- n:: i~ \. id t k ? t .:?( i-; r , Arlzs;.. c's 32,:: l; C; ~ i . ' : 3 : * 2 ~ - 1 2 ~ 2s member of the
Arizona aoard o i Dental Examiners, who was a practicing dentist ma a n o n d a r l e d
officer of the Stase Eeztal r?.; szclz: lcn. could ru! e on an applicznt's competency f o r a
s t a t e dental license where the board melnaer's pecuimry cr proprietary interest in the
ruling was no greater than t h a t of other members of the profession generally.
2. The fact t h a t members of the board are appointed from a list of candidztes
chosen by the APF r! o-? s not seem to present a constitutional problem. Friedman
. .-. ; l c : v p , \ - . vh. e lRdo gtehrast, 4a4 0p eUr. s5o. n i; h 3a4s 3a. C . c;. o nstit\ uit/ ioi n, ia. l Tr? igOhWt~ Vt oS : , a1 ; :, 5f ariJrn i: aend d Sirtnapraers- tS. iau. ip r. ie; e m~ e... r., C i? o~ u'i. nr t ahnays
licensing or disciplinary proceeding conducted by a s t a t e regulatory board. See Friedman,
171 supra; Gibson v. Berryhill, 411 U. S. 564, 93 S. Ct. i689 ( i; i'/? j; ~ 2!! v. A m e r i c ~ n
Optometric rlssn., 379 F. Supp. 175 ( ND Ga.), aff'd., 419 U. S. SSS; 95 S. Ct. 166 ( 1974).
Therefore, 2 cons: ituticnal issue could be r ~ i s e dif a member cii the board al! ov/ ed the
spec,^; jAZeTesi : he ;," I;;; 2f= 5. z; A L: i- j.,= bc; arG men3er'; j ~ ! d g r ~ ~ cn: ~ a board mztter.
If a conflict of interest exists, A. R. S. section 33- 508; subsection B s t z t e s that:
8. If the provisions of section 35- 503 prevent a public agency from
acting as required by law in its official czipacity, such action shall not be
prevented if members of the agency who have apparent conflicts make
kno: vn their substantial interests in the official records of their public
agency.
Consequently, if official action is taken in the face of an apparent conflict of
inrerest, tne board should t; iiz he grearest possiuie care io ;) ro; ect rhe ccnstituzicnal
rights of those persons appearing before the board.
I. The f a c t that a member of the State Egg Inspection Board is the President of
the Arizona Poultry Federation does not, w i i h o ~ mt ore, present a conflict of interest.
2. A constl: utional due process issue could be raised i i a board member allowed
the special i ~ t e r e s t so f the federation t o a f f e c t the board member's judgment on a board
matter.
cc: Gerald .3\. Silva
Performance Audit Manager
APPENDIX I11
LEGISLATIVE COUNCIL MEMORANDUM 0- 81- 89,
SEPTEMBER 15, 1981
TO: Douglas R, Norton
Auditor General
FROM: . Arizona Legislative Council
RE: Request for iiesearch and Statutory Interpretation ( 0- 81- 89)
T2. s is in ret; poEse 7 9 , a :.*~,; IJ<?-:; , ,-!::. j? zlt.*,:: d ce vc::: i.-= lia 7.. l; by C. er. lld - 4.. Siivx in a
memo dated Augt; st 27, 1981. N ~ Ji nyct was ~ n c e i v t df rom the zttsrney general
concerning this request.
The members of the state egg inspection board ( board: are employed by five of the
majcr egg dealers licensed. by : he board. Cine oi rhe piirzary duties of the board is to vote
on chmges in inspection fee rates, as provided for by P, rizona Revised Statutes, ( X. R. S.)
section 3- 716, subszcrion 3. Such shzrlges in fee rates directly affect the firrr; s which
@ employ board members.
A. R. S. section 38- 502 requires t5at public officers El!? signed statements disclosing
substantial interest. Egg inspection board mexbers have not signed such statements.
QU ESTIONE PRESENTED:
D
I. Should board members be required to sign statements disclosing substantial
interest, giver: their ernploym ent with firms regulated by the board?
2. is there an inherent conflict of interest i:: the egg inspection bowd s t a t u t e s in
thzt b o a d mernbers are required to 1) be employed in the egg industry a. ad 2) vote on
C matters affecting their erapioyers, such as changes in inspection fee rates?
DISCUSSION:
1. X. 3. S. section 38- 303, subsection B provides that:
B. - Any pcblic officer or enploqtee who has, or whose relative has, a
substantial interest in any decision of a public agency shall make known such
interest in thz official records of such public agency and shall refrain from
participati~ gin any manner as an officer or employee in such decision.
X member of tke board, being an appointed officer of a board of this state, is
@ subject to the requirements of this section. A. R. S. section 35- 501.
- 4. II. S. section 38- 502, paragraph 3 deiines " nake kU~ ownna :
-
-/?/ he filing of a paver si~? e.' Sp a public officer or employee which
fully discloses a substantial interest of the filing of a copy of the official
minutes of a public agency which fully discloses a substantial interest. . . .
nus, if members of the board have a substantial interest in a matter before the
bozrd, they must either I) file a signed paper disc! osir. g this interest ar 2) file a ccpy ~ f
the official minutes which discloses : his interest.
13. XI? csr, struicg rhe r n e ~ ~ i nogf " sabstaii: i2. ' rAterertn, the Arizona Court of
Xp2eals slated ia Ye:=~ lzVn. N ; i u m ; ~ s ,1 6 -% riz. Api). 3i4, 492 2.2d 1252 ii972), that:
The prohibition a% akst paticipatlon i a decisicn of an
admmistrarive board by a member haviag a " substantial interest" in the
decision is c! eaily for tfie ? ur? ose of p r e v ~ n t i ~ ag b oard member Erom
placing himself in a position whereby he would have a possible confiict of
isterest. ( Citation omitted.) The object of conflict of in+? re. st statutes is
to rerrove or lirnit the possibiZit- T of pe;- zonal influence which might b o a
- L.> c: 1 2- 1 c ---:;- 2 . A< z: sAu-.-. s .
We do not conceive that the term " substantial interest" suffers from
vagueness, as respondent co~ tends. The legislature itself has defined the
term, section 38- 502, subsec. 6, and such definition is binding on the courts.
( Citations omitted.) It is clear that in order to guard against conduct of a
public officer or employee porentially iniinlcd io t:,? ; c> lir i1.:;: esi, the
legis! a: ure deemed it necessary to qive the t e r n " substmtia! interest" a
L* -.. 4pLc- Q - e-> Lc---*- z-.-- A- F- :. . --. . . ---: rc.:,;~, ~ c,,_ s: 7_. .; to the legislative
definition, any interest which does not fall within the seven classifications
set out in A. R. S. section 38- 502, subsec. 5 constitutes a " substantial
interest." We do lot believe however, that the leg~ slaturei ntended that the
word " interestn for purposes of disqualification was to include a mere
abstract interest in ihe general snbject or a mere pcssi51e co~ tingent
interest. Rather the t e r n refers to a pecunizry or proprietzry intezest, by
which a person will sain or lose something , as contrasted to general
sympathy! feeling or bias.
n u s , there is no inherent conflict of interest in the board statutes because
mernbers of the board must be employed in the egg industry. The question of a possible
confiict of interest arises oniy in : hose cases vhere a board c; e: x'= ler appears to have a
peca~ iaryo r proprietary izterest which would affect the member's decision in the matter
before the boaid.
Under A. 2. S. section 3- 716, s~ bsectionsA and B:
An inspection fee of not more than two mills per dozen on shell eggs
imd six c2nts per thirty- pcwd can on egg products shall be paid by a dealer,
producer- dealer, manufacturer or producer on all eggs and egg products
reg~ rdless of origin, sold zo a retailer, ; lotel, hospital, bakery, restaurant,
other eating ? lace c: consumer for human consumption within this state.
L~ spection fees on eggs used for the purpose of brezking, freezing or dyiing
shall be paid by the manufactuer, dealer or distributor if sold or offered ior
sale to retailers or consumers for human consumption within this state.
If i t appears that the revenue derived from inspecticn fees is more
~ ilanis required ior the admiilisrrarion of this ar: icie, the b o a d shall have
power to decrease the inspection fee and a t any time th. e r- e. a fter it may increzsc or d~ clrezsc. t he ix~ ecticr.! . lo: k:. t a. t xo !, ire s n z i it exceed an
cLrLc. sA- , b-- i ,-. ..-...-, -&--.- ; it : I'?;' ~;; L: FZs ii :-::-:; ll 2;. ,;; I cents per :- ii- ty- pcund , J z
can on egg products.
cnr+ y: he ; l& io 2.5 st&;; J.:. 2.- : ' yetrr; a- n, i-; :;- oili& a ppea;. - L- i- i. l t a k3~ 1- da memher 7~ hoW ~ S
an employee of a dealer, manufacturer or producer of eggs or egg products would have a
conflict of interest in those c a e s involving a p ~ s s i j l ein crease in inspection fees which
@ are paid by his employer. As statec: ! a Vitt V. ! v i t _ r ~ 7, G Z; ii . App. 3d 817; 139 Cal R. p t. r . 161 ( 1977), " a pcxsax ~ h noius t = die decisions which ma;: affect his em? loyerrs TIL'SO : S : 1:
a situation ivhere he may not give full consideration to the merits of the decision."
However, if there is a declared conflict of interest by all board members pursuant
to A. R. S. section 33- 303, the boar6 would not 3e prevented from fulfilling its required
B statutory duties. A. R. S. section 38- 505, subsection B provides:
B. If the provisions of section 38- 503 prevent a public agency from
acting a required by law in its official capacity, such c t i o n shall not be
prevented if merobers of the agency who have apparent conflicts make
known their substmtial interests in the official records of their public
B agency.
Thus, even if all the board members had a conflict cf interest, the board could act
if the members disclosed their conflict in the official records of the board and acted
pursumt io - 5. R. S. secticil 3 3 - 3 2 , slr> section 3. see aiso, 74 Sp. Atr'y Sen. i79- 26i
( 19.791.
I
CC?! CLUSION:
1. If members of the state ~ tggi r, spection board have a substantial interest in a
matcer before the hoard, they musr eirner ii! e a signed paper disclosing the interest or
file a copy or' the official minutes which discloses this interest.
D
2. There is no iri'ercnt ccnflict of inrerest in the board statutes becaus? bozrd
rnernbers are required to be eaployed in the egg industry. A conflict of interest would
xise if a board irierober voted. cr. a matter .- hich affected kis ercployer. Elovever, the
statutes provlde a procedure for the board to deal with the situation where all the board
members face aE apparent ccnflict of interest.
CC: Gerald A. Silva
Ferformance - Audit Manager
1< 3- 6- 01. Tllp stnrld; uds of q ~ ~ ? l ioffy c ! licker~ eggs in tlie sl~ ella s dctcr~ ni~ icbdy
c3lle.! ill;:
St:~ nd;~ rdosf qu: ilit).:
1. :\ A QU,\ LIn'. Tile s! lell n?\ lst bc clc3n. unbroken, ; lnd pr:~ ctically rlonnal.
The air ccll nus st not cscccd 1 / Y inch in depth, inay show uillirrli~ ctln lovcnlcnt, and
may bc free or 1, uI) bly. Tlrc wliite must be clear anti firm so 11131 tile yolk ih or~ ly
sli;! l[!!, dCfiIlcd\ ~ ! ~ ~!\ 1rc1 c gs is ! IV~:! C(! bcfnr? : IIC c:! ndlir? cl light. Tllc yolk must be
pr3c1ic:. ll:: fr0! 11 :~ pp; iic: t( ili'kcrs. Refer tu silrnrnary chart.
2. 11 QUXLITY. Tlic sl~ cll must be clean, unbroken, and practically normal.
Tile air cell rnust not exceed 3/ ib iilcit in iieprh, : my s!~ o.. u~ n limited movcrncnt,
and inxy be lrcc or bubbly. Tlle white must be clear and at least reasonabiy firm so
tlrst thc yolk ou: lir? e is oilly fairly well defined when the egg is twirlcd before the
candling 1i:: Iit. T! le yolk must be practicaily free froin appxen; ilei- ec: s. Refer to
suniri! aiy chart.
3. 13 QUI\ LLTY. Thc sllell must be unbrokcn and may be sliglltly abnormal and
n1ay sflow slidit st: lins but no : idheririg dirt. Provided, that tliey do not appreciabiy
detract f'roril the : lpI> carance of the cgg. LVlien the stain is localized, approxirnately
1/ 32 oillie shtli surf'; icc rnzy be siighciy stained, 2nd wIlei- r ? he slig! itiy S ~ S ~ I ImCa~ s
arc scattered, approsirna! c! y 1/ 16 of the slieil surface may be slightly stained. The
air ccll niust not cxcced 318 inch in depiii, iriaj: & ow un! Imi; ed movement, and
may be free or bubbly. Thc white must be clear and rnay be sligiitly weak so that
the yolk outlinc is well defined when the egg is twirled before tile candling ligllt.
The yolk niny appear sliglitly enlarged and sliglltly flattened and may show otlier
delinitc, but not serious, defects. Refer to summary chart.
4. C QUALITY. The shell must be unbroken, rnay be abnormal and may have
sliditly stained areas. hloderatel;~ stained areas are permitted if they do not cover
more than 114 of the shell surface. Eggs having she! is with prominent stains or
idhering dirt : Ire not pcrrnittcd. The air ccll may be over 3/ S inch in depth, nlay
show unlimitcd movement, and may be free or bubbly. The white may be weak and
wattry so tl!.- t ! flc yolk outline is plainly visible rvhen t t ~ ceg g is t\ virled before the
candling light. The yolk rnny appear dark, enlarged, and flattened, and may show
clearly visible gcrrn development but no blood due to such devcloprncnt. It may
sllow othcr serious defects that do not render the egg inedible. Small blood clots or
spots ( aggreg: lting not more tl1311 118 inch in diameter) may be present. Refer to
su: nrxiy chart.
5. DIRTY. Tile sl~ cll must bc unbroken, it has adhering dirt or forcign
inaterial, pronlinciit stains, or moderate stains covering more than 11.1 of the sfrell
surface.
6. CIIECK. An individual egg that ! ins a broken shcil or crack in tlie shell but
with its sllcll niembranes intact and its contents do not ! eak.
IV- 1
Sreciflcations f o r F a c S ~ a l i t yFa ctor
1 '-- ..> n I
- - - - . a . ! --- G... I ~ l e a r . : -. o I clean: to
I Ii sli,:!-~~ l-{ ! ?-+ c-~:+ I-- I I
...-.
- C..:..,, il 1 I I stairled. I staized.
II I'nbroken. I IJnbrokrn. I 1Jnbroken. I Unbroken. 1 1I Pra cticall; 1 i4ay be sli< htPjr 1 ;, I27 be
I EOY- 21. I : or- 21. I abnor- 21. 1 zbzorr- 21.
1 / . r / jfi; ? rich or
l
I 3/ a i x h or ' :+- 5.- 0- rf. r
. A 5:. I l e s s i n depth. l e s s i n dench. 1 l e s s In depth. II / 2 i nch In
Cell I I I I depth.
! r!? L;.~ ited rove- UrJLnited cove- Unlhited move- I Unlimited move-
- . ! .,. ::- -, . ; .- -- . .
I ..-.'. . ! - 5 . 2 be I nent . E'hy be
Free or b:; jbl:;. I froa or bu- oij.. I : lea .;>. '-.-'..:.- -- I -
--,--,. I f r ~ cer bubbly.
I c l e a r . I Clear. I Clear. 1 ) lay be weak
I I and \ iatary.
I...~. n i t c I r- . l r x . 1 Kay be I i. Iay be I C , ~ a 1 1h 1osl- l
I 1 reasonsbljr I s l i g h t l y I c l o t s or
I I f i r a . I weak. I spots my be
I I I present."
1 I O c t l i r e Outline my be Outline my be O ~ t l i n em y
I r j I fsir- ly i r z l l 1 well defi7. d. I be p l a i n l y
defined. defined . I v i s i b l e . I P r a c t i c a l l y I Pract% call:; I Hap be s l i ~ h t l y I Xay be er.-
I f r e e from I f r e e from I enla:- ged and I la- ged and
Yolk I defects. I defects. I flattened. I flattened.
I I I May show def- I !. lay show c l e a r l y
I I I i n i t e but not I v i s i b l e < ern
I I I serious defects. 1 develoynent but
I I - I I no blood.
I 1 - I May show other
I
I I I I s c r t o c s defects.
3:. I, C t!. ey are sm11 ( agGregating not more than 1 / Y inch i n diameter)
!' or e ~ g sw ith d i r t y or broken s h e l l s , the standards of q u a l i t y
provide three additional qruli!. ics. These are:
1 1
Cirt.,; I Check I 1. eaker
---
Ijnbroken. i Checked or cracked but Broken so contents
:, lay be dirLy I not leaking. I are leaking.
I 1
I;;- b- CS. S! n~ ici~ rodf sire: c; eicrniHiation by ? vuig: it: c l ~ ~ s e s
A. The \ vcigIit c1: isscs for shcll eggs shall be as indicated in Table I and shall
apply to gr; idcs I\,\ - il - B. Grade C is esernpt frorn sizc or weight clxses.
TdIIILE - STilTE OF , llilZONA WEICIiT CLASSES FOR Sf1ELL EGGS
c; y?-.?. 2z .!,. A - .'. - 2
Minimum
Size or hi~ nimum hfinlnium weight for
\ VzirJit Class rlct wc~ ght net wciglit i: idiviausl
-, L, I ~ J L C ? ~ per 22 dcztn e ~ z ast rate
per dozen
Ounces Pounds Ounces
Jurnbo 3 0
Extra Iiirge 27
h r g e 24
hlediurn 2 1
Small 18
Pee Wee 15
B. A lc: x; crqz toir;~. zce of 3.3 pzrccr.; fc: i; iJi- iidcal e g s i;; the next ! o:. rer
weidit class is pcrrn~ tted as long as no individual case within the lot exceeds 5
percent.
@
It3- 0- 0.3. Gr;~ dcsa ~ ntlt olerances
1. Tl~ cse grades arc ai~ plizable to cdible shell eggs in " lot" quantities rather
rl~ nrO~ II ; In " ir~ ciivitiaal" egg basis. X loi ~ i u yco ntain any quantity of two or more
c ~ sI.< s l'crencl: in tlicsc standards to the term " case" means 30- dozen egg cascs as
11jc. d in co~ ilnlcrcisl practices in the Unircd S!; li~ s. The rlumbi. r o i samples used
( luring inspcc! ior~ to c! ctci- niine gradcs sii:~ ll be on the basis of tlie rcquircrnents of
Il3- 6- 06.
ii. GIL* IL) EA" I
1. Cr: ltfc t i l i ( at origin) shall consist of eggs wllich are S5 pcrcent AA quality.
Tllc n ~ a s i ~ i i uto~ lncr lnce of IS percent witicl? Inay be below AA quality niny consist
ot':? or B c;!!:! lity in : my coinbination, with not more than 5 percent C quality or
cliccks in any combinrtior~ and ! lot more than 0.3 percclit Ieakzrs or loss ( due to
111~ aot r blood spots) in any combination. No dirties or loss other than as specified
are pcrrnittcd. 1? cfcr to Tsble i of sumlnary chart.
7. Grade St\ jdsstii: aiionj shail ~ oilsist or' s g s whiii~ are $ 9 e r c e n t XA
clu;~ lity. The maximum tolerance of 20 percent wiiich may be below AA quality
rtiay consist of ti or B quality in any combination with not more than 5 percent C
cl~:;~ iit: G,' r C!: X;: S iil S: i!/ ~ 3~ 11jinatio131r 1d not niore than 0.5 percent leakers,
dirtics, or loss ( due to meat or blood spots) in any combination, except that such
loss rnny nct csceed 0.3 percent. Other types of loss arc not permitted. Refer to
Table I of sulnniary chart.
C. GRIZDEA
1. Grade A ( at origin) shall consist of eggs which are 55 percent A quality or
bcttcr. Within the lnasimurn tolermce of 15 percent which may , be below A
quality, not more than 5 percent nizy be C quality or checks in any combination,
and not Inore tliari 0.3 pcrcent leakers or loss ( due to nicat or blood spots) in any
conlbination. No dirties or loss oilier than as specified arc perrniit2d. 3efer to Table
I of surnrnary cliart.
2. Grade A ( destination) shall consist of eggs which are SO percent A quality or
better. \ Yitl! irl : he maxinlurn tolertince of 20 pcrcent which may be below A
qlr: ility, not rr1ore than 5 percent Inay be C quality or checks ir~ a ny cornbination.
311d riot riiore than 0.5 percent lcakers, diriies, or loss ( due to meat or blood spots)
in ar~ yc orlibin; ltion, except tliat such loss rnay not exceed 0.3 percent. Otller types
of loss arc not pcrri~ itted. Refer to T; lble I of surnrnary chart.
D. GlbiDE U
I . Gr;~ dc I{ ( at origin) shall corisist of eggs \ vliich are S5 percent B quality or
bcttcr. \ Vitl~ iri tlie niaxirnwn tolerance of 15 perccnt wl~ icli niny be below B
qu~ lity, not ri: ore tlinri 10 percent ; nay be clltcks and not more than 0.3 percent
Ieukcrs or loss ( due to rneat or blood spots) in any combination. No dirties or loss
otl~ crrl ~ ari: IS specified arc permitted. Refer to Table I of summary clinrt.
2. Grade B ( destination) s1i; ill corisist of eggs which arc 80 pcrcent B quality or
)) ettcr. \ Vitliiri tlie ~ naxirnuni tolerance of 20 percent wllich may be below B
clu: ility, rlot iliorc tllari 10 percent may bc cliccks, and not more than 0.5 pcrcent
1e: lkcrs. dirties, or loss ( due to mcat or blood spots) in any combination, except
t11at sucli loss m2y not csc- cd 9.3 pcrcc~ lt. O tl~ crt ypcs of loss are not permitted.
I< cfcr to T; lhlc I of summary chart.
E. CRAl) I: C
I . Cr: lii~ C sh;~ llc :) n:; ist oi edible e; r'; s wllicll nlsy he cflecks :: idlor dirties 2nd
not cor~ tairllr~ rgli orc tlinr~ 1.0 percent ieakers. Grdde C' is c? tcr; lp~ i ior11 strc or ,
\ r. eigllt cla> ics. S11o11ld3 prod~~ ceor i); lc!: er C ! ~ O ~ S L: O' sell by size tile standards of
, ?.. :! lr. L,.!::,:;:. i:: t rc. c.: z!.! < l- s.;. s :;;?; i :!! en ; lppiy. ?. cFc: i- bi. 2 1 ~; f:;::~:: m;; y iha;[.
2 . " 0ii2~ 11g r; ldli~~ i" s a grad~ rigo r inspeciion \ l ; i i i ~ t ~ is peri'ormrd orilei rllsn
uficre tile cgss : IIC retailed or consur~ ied.
. " No grade" riicdns eggs o i posriblc edible quaiity that f a 1 to meet tile
reqi1ir~' 11ic'rlts of official grade or that tlrr:~ been contarninared by smoke,
cllcr? i~ c~ losr, other foreign materid which has ~ criouslya ffected the charactc:,
3PpC; ll;! iliC. or ! ~ Y O0If ti!" t; l; S.
4. A g r c y t e toierur~ cssa re permitred within each grade orlly as ; n ailowail~ e
f'or variab! c et'f; ciency and inter? ie~ atiorl of srzdcrj. noritla! chrlgrs under
favorable conditions during reasonable period: between grading, and reasonnble
variation of gnders' irlterpreration.
5. 3~~ 5siito: i!; n tii!: i; l~ cr nuz! ities for the lower oualities specified is permitted.
...-.-.: I, ~~;~:--..?: oe L (;.; ;: crrcr. t lcs'ers o : l s s s ( d- 2 to ncat or bled S ~ O ~ iS~ ) a ny
. . . : :.: a s i r t i e s 01-~ ':.: i. rtj?: i o s s are pel-.- ittea.
C- rzic tt: . . . . . . . . 29 percent AA . . . . . . . Up t o 20 . . . . . . . k or G
:, Jot over 5 . . . . . . C or Chock G:. adc A . . . . . . . . i' 2 prrccnt A or better . . . ': p t o 20 . . . . . . . B
Iiot over 5 . . . . . . C or Check Grade B . . . . . . . . SO rercent B or b e t t e r . . . LT0 50 20 . . . . . . . C
! i o ~ o ver 19 . . . . . . Chsc: i
-. 1, tolcrznce of 0.5 percc:: t leakers, d i r t i e s , or l o s s ( due t o meat or blood srots)
: n zry cc, rr. b'.??, ion i s ~ e r ~ i t t e dex, c ept that such loss pay not exceed 0.3 percent.
2: n. jr t j T r s of l o s s art. 1; s: perr? Ltted.
2", n a'l cofislst > f edi'sle ' e ~ z: s: tl icn yay be checks and/ or
Crndc C . . . . . . . . . r i i r t l c s and not contain nore than 1.0 percent leakers.
zr;,~~ -- I: II - ; Cml'! iICC 1.09 Nd IIiDIVICi;,' J, CASE YITi! Iri A WT
Gradc I< i rlL: ux Qilality Griein Destination
Gr.? de A/,. ........... AA h o.. r . B. ........................................
C or Check ................
( Ir.? dc A . . ....... .'. .. ' 1.. .......................
B .........................
C or Check ................
C:. ade 3 ............. 3. ........................
C. ........................ Check.... .................
I- l o t s of two or more cases see Table I1 for tolerances for an individual case
; r l t h ~ n - i l o t .
To: 1\ 11 Statc r\ g:. r: ci~~
From: I3r~ rcs E. Babbitt, Attorney General
Kt.: The Public Sotice and ?+ linute Takinz
Rcquiremt. nts Under Ari~ ona's Open
blesting r\ ct. as amended Laws 1975
Sc\ cral que\ rions have arisen as to the spec~ fic requirements imposed hy Arirona'.;
Open \ leer~ nc: lst ~ v i t hrc .; nect t . t~ he @ ivinco f no! ice of ? tlh! ir me- rlngs. i n addition. the
.- iL: d~ a:~: c. ,,-. .* ,.: c : c+. L.:: :.::>. ::. : vz: q i2.2 ;:: O r r n \ feetiny . Act by includtng speci! ic
rcquiremenrs \ rith respect to the t a l ~ n gof minutes o i p ublic meetln: s. This memorandum 15
des~ gncd to clarify the public noricr requirements imposed under rhe . Act and to Inform all
stare agencies of the recently enacted minure tak~ ngre quirsmenrs.
I f ! ou ha\ e any quesrions recarding this memornndurn. pltasc call Roderick G.
;\ lcDoug; 111. Ch~ eCf ounsel of the C i \ ~ Dl i ~ i s i o nat 271- 3562.
PUBLIC SOTICE REQUlREllESTS
I t has been stated than an " open mtetinz- is oprn only in theory i i t h e public has no
knowledge of the rime and place at which it is ro he held. 75 tlar\. l.. Rev. 1 I99 11962). The
right to attend and participate in an open meeting IS contingent upon suificicnc norice being
gi\ cn. Like orher acts. Arirnna's Open llt. erin_ e . Act afford, fc\ v starurory requirements for
thc mechanics of gi\ ing notice of meetings of go\ erntng bodies.
A. K. S. 8 38- 43 1.02. added Laws 1973. which sets forth the puhlic notice rcquiremenrs.
provides as iollou$:
A. f'ubllc notice of all regular mcetingd o i : o\ erning hodies
shall he given as folio\\\:
I . The state and its agencies. boards and conimi.; sic) n> s11aII lilt s
st;~ rcmcnt with the iccrcrary o f r t a t r sratins \\ here all notices 01 thcir niccrinp,
and the nlectlngs o i thcir conirnltrccs and \ uhco~ nni~ trcr.\ s\ i ll he pc>> tcila nd
\ hall 31\ e \ IIC~ public n~ iticeSI; is rcarondhIs nnd pr; lc~ ii. ihle ; I\ to r l ~ ~ r ~ r n c ; l i i d
place of all regular meetings.
2. The counties and thcir ascncteh. ho.~ rds 2nd comrni>\ io~ is.
school Ji\ tricts. and orher specla1 distrlctb shall iilc ; I , tatemcnt with the clerk
of tlic hoard of \ c~ pervi.; ors staring \\ hew ; ill noriccs of their nicctir~ g;\ III~ til e
mectlng, of t h c ~ cr om~ nitrecsa nd \ uhcon1r11tee \\~ hlel po\ tcd ; ind \ h: iIl si\ c
such puhl~ cn otlce as 15 rca\ otl:~ hlsa nd practicable a\ to the time ; md p1.1ce of
a11 rcgular mccrlnps.
3. The cities and totvn, and their agencies. hoard* and e o n ~ t ~ l i \ -
< ion\ \ h. lll file . I \ tarement uirh the c ~ tc\ le rk or rna! or'\ ntl'icc\ t:~ r~ n\ c\ liere all
nottce\ III rllclr meetings and the I1leerincs ol their comni~ ttces and \ k! hr. trni-rnirtcc\
he p o k t ~;~ iiild \ II. III ~ I \ C( u ch pi~ hltcII OIIC~ ; I\ I\ r~ a\ on: lhleJ II~
pracricahle 3s to the t ~ m ea nd place ot all regular nlceting\.
3 . If 211 e\ ccuti\ e \ c.;\ l<> n onl! \\~ hlel held. the n~ rticc~ h; ihllc cc\ cn
to the rncmher\ 01 thc co\ ernlng h,) d\. .~ nd14 ) the gencr. 11 pirhlic. st; lrltls the
\ pcctllc pro\ l\ ion 01 lau ; iurhor~ r~ ntghe c\ ecutlrc \ e\* ion.
C \ leet~ ng\ other than rr. cularl\ \ cheilulcd rneetlnc\ \ hall nor hs
VI- 1
held \ r~ thout. I t 1e; lrt t\ rent!- four hour,' notice to the nicmhcr\ of the @)\ ern-irig
hod\ ~ nthde r. ncra1 public. In caw ofan actual erncr$ rncy. ; I mectlng rllay
he held upon \ uch nottcc . I> 15 appropr~; rtr to thc clrcurn> tJncrs. $
I). :\ mertlng can be rrco\ ed and hcld \ kith \ horter notice ~ f public
notice I> ci\ sn a> requlrcd rn par:~ graph A of this \ cctlon.
The Open \ letting ~ \ c t uhen originall! enacted in 1962 mads no specific provision
for the g ~ \ ~ nofg n otice. \ \ h i l t the requlrcments 5c. t forth In the 1974 amendments prorlde
some gutdcl~ nc,. the partii. ul:~ r mechanics o i g i \ ~ n gno tlee ha\ c not been \ et forth. > loreover.
the Ian: uagc u ~ Ind th e 1974 ; imendments relating to noricr Ir amhiguous. cant- u5ing and
olten contr3d1ctt1ry. \\'~ thout engaging in a long d~, cussion of the many problem\ ~ n\ olved.
\\ r ulier the i o l l o u ~ n ggu tdelines to be iollo\\ rd in compl!~ ng n i t h the noticc rcqulrements
ol .\. K. S. $ 3s-- l? 1.02. /\ lrhough an agency in iollo\ v~ ngth ese gu~ aelincsu lll in some cases
do more than requ~ redb y the Act. il should nt.\ sr fall short of rhr Act's requ~ rrmcntsB. eing
o \ ~ ' r - c a u t i o uii~ c erta~ nlyju st~ ficd. h ourver. In view of the serioussonsequence, for \~ olatrng
the :\ ct. For example. a dcc~, ion made in a meeting for which dciectlve notice uas glren
m3y I ~ l c l ybe dcc1; lrc. d null and v o ~ db y reason o i A. R. S. Q 38- 431.05.
Each 51atc agency uhich is a governing hody 35 defined in A. R. S. 38- 43 I mu,[ iile a
statement u ~ t thhe Stcretar) of State stating where notices o i all its meetings and the meet-ing,
of 11, cornmlttecs or , ubcommittcrs % ilhl e pokted. See Appcrldix ..\ lor a sample , late-mcnt.
The purpobe of the statement is l o provide tn( ormation to the puhl~ cre garding thc
placc u here tt can find noticcs of the governins body's rncetings. Generally. a governing hody
u11Ip o\ t notlccs of ~ t sm eetings d~ rcctlyo utside the door to its o f i i c o or on a bullrtiri hoard
in the lobhy o i the bu~ ldlngin \\ hich the governing bodk's oflices are located. Govrrning
bodlc\ u hlch hold rsgular nicerings on the same day ofeach month n i ~ pyo \ t notices oisuch
rnrctln:, by proxtd~ ngth e ~ niormationu nder the body's namc in the hulldin: directory. For
cxarnple. the d~ rcctoryI ~ stingin tlie lobhy of the bullding ni~ ghlto oL ; IS follo\ rs:
..\ rl/ on~ Account:~ ncy Roard Room 202
( I< egular mcctlngs every 2nd hlonday of each mcinth)
K c g u l ~ mr ectlngh are gcner; rlly tli<)\ c rcquirccl to he conducted on a rcgul. rr h. lzis h!.
rt. rtutc .~ ndt hc d ~ t c 0r1 \ t h~ cl; iI re \ et hy \ t; ltute. rulc. nrctin~ rice. r c\ olirt~ c> tol r cit\ tom. t'air
c ~ c hre gular riiretlng. tlie goternlng hod! mu\[ pobt ; I SOIIC~ o i I< cguI~ r\ I~ Ca~ t thIeI I~
~ I: ILdcY\ r. rlhcd In the \ l; itc~ iicnt I ~ l c d\ r lth the Sccret;~ ry o i Stiltc ; ir clczcrrhcd J~< I\ c. S CC*
, \ p p c n d ~ I~$ lo r ; l 5.1rnplc Sotlce of I< cgular > lceting. - The p o r t r n g ~ i i t lrir~ ot~~ cern urt hsclonr
a\ Iar tn ; ld\ ancc <) tIh c regul~ rm ectlng 35 IC rea* onahlc arid In no C\~ III lei\ th. ln 24 Ii( iurs
prtur to tlie rncctirig. In ;~ ddltl~) nth. c gokernins body mu\ t g ~ \ c.~ clJitic) n.~ Il~ OIICC SI. ib
rc.~\ on.~ t~ uleri dcr the ctrcurn\ tclncc.\. Sc\ cral types o i a J ~ i ~ t ~ o nri: oltll ceh \\ titch rn~ glith e
grrcrl .! re dc\ crth~. d In I1; lragraph I: hclou..
Si'c'nal mectlnpr . Ire JII nicctlngb ort1c. r than r~. pirl;~~ r iiec~ t~ riI'gti\ r. e. 1c. h \ pc. c~. ll rncet-
111c. the go\ crntn, c hod! rii\ r\ t pc>\ t A hotic. e 01 Spcc1.11 \ fccttn: . lt thr p1. l~~ t. l c\ ir~ hcd11 1 the
\ t. llzriic. nt I11d\ r ~ t ltlh c Sccretar! 0I'St. rte. Sc. c: \ ppcn( l~ x C' it) r . I \.~ rnplc \ t, tlze 0 1 Slicc. 1~ 1
\ lcct~ nS. Ih e yo\ crlllng hod? \ houlil . IIw) g~ se\ uch . I~ ILJI~ I, n) oI~ taAceI A \ I\ rc, r\ o~~.~ hlr
unttcr the c . ~ r c u m ~ l . ~ n. 5~ t, tc* \ I' , tr: lsraph 1 hclotk. 1 III%; I ~ < I I ~ I ~ I1I ~ 11JiIt1 ccr li~~, tt n~. ludc1 1~~ ticc
h,~ th the ccncr. 11 puhlti . lnd tach riicrrihcr 01 the gt)\ crntn< hod\. lhc \ e\ cr.~ l rlcltlze\
sl\ r. n. tr~ cluJtnct he \ c ) t ~ i s0 1 \ pec1.11 \ lcctrng po* tccl J* tlc, cr~ hcd ~ h g ~ \ em. i l\ t he JC-i
~ ~ i r l p l ~ \. hI: c!~ cf~ \ 2t1 hollr\ prlalr to the ttrnc $ 11 fhc\ pcclal nicr. llng. e~ ccptin thc c ~ 8 c11 1 311
Cril< rCrtli\ rncetlng c,)\ t. rt'd under f'dragrdph I) hclou
Emergency niectingb arc thozc \ pee131 rnretingc in u hich the go\ rrnlng body i\ un. ihlc
to gi\ e the rsquircd 21 hour, nt) tice. I n the care of an 3 ~ 1 ~ r3m1er _ rency. ! he \ pacia1 mfctinc
ma!. he held " upon ruch notice a\ I\ ay> propri; 1tr to tht: c~ rcum\ tance.;" I h c nature 01 Ihc
ntltlcc rrqu~ rcdin cmergcncy case\ 15 ob\ ~ ou\ l! s ubject to a case by ca\ c a r ~ ~ i l ya\ n~ d\ c annol
be zpcc~ iledh \ gcncrsl rules. tlo\\ c\ cr. any relaxallon or dc\ iat~ onin thc norm: il mdnncr ol
p r o \ i d ~ n gn otlsc uf mcctlnas. eithrr to the gr. ncr3l rublic or to rnemhcrc of the go\ c. rning
hod!. mu\[ he carelull! scrutinttccl :! nd can hc! u\ t~ licd cnl: for con: pclling pract~ csIll rnlta-lions
on the ab~ lir! o i the governing bod! to follow its normal notice procedures.
An c. rccuti\ e xzsion is nothing more than a mertin_ r ( resular or special) uhere~ nth e
governing body is alloucd under rhc Oprn Xlcet~ ngA ct to discuss and d:. liberatr on matters
in 3ecrct. Sce A. K. S. 9 38-- 131.03. Scpdratc notice need not be given of an executl\ rscssion 11
11 is hrld in conjunction u i t h a properly noticed regular or special nr- rtlng. Ho\ re\ er. \\ here
only an r. xccuti\ t > es> ion\ \ illb e hcld. a11 noticrs of the nicering must statc the sprc~ iicp ro-vis~
on of law authorizing the executi\ e selsion. including a refrrrnce to the appropriate
parclrrsph of Subsection \ of :\. R. S. ,' 38-- l? 1.03. Site Appendix D lor a sample S o t ~ i eof
EXCCU~ I\ SCe ssion.
I nd sci2: r. y xi.?: types cf ao: ic: 55r! l bc_ ri\ rn 1- addition to ~ o s r i ~ . g o c e r n i nbpod ies
should consider the follo\ v~ ng:
I n many carer. notice of meetincs can bc disleminatcd by providins
presc relcarcc to nr\ vrpapt. rs pubiishrd in the arc:] in u hich notice i z to be _ ei\ en.
I n addition. paid legal notlees in such ncuspapsrs may be purchased by the
governing body.
Some bodies may wish to providc a mailing libt uherchy pcrwns
dchiring to o b t i ~ i nn otices of meetings may ask to bc placed on II rn; tilirlg li3t.
,\ I1 notice\ of meeting5 ibsucd uill then be rnailcd to those appe. lrlng on thc
current ma~ lingli st.
In ~ d d ~ t i o tnh. e ~ o r e r n i n gb od? may tlh! ain puhlic3tit) n of ;~ rt~ clct> sr
nottccs In ! nr? sc profes~ onaa! nd b u ~ ~ n pcuvb licatic~ nsr clatinc ti) the aycnc!'\
field of r: gul. itn) n.
It i\ not ncce\ 5ary that a11 of theze : yyc, o i notice\ he si\ cn. ! ndcrd. nlcrely pro\ id~ nl:
nolicc throusll the uic of a m ; ~ ~ l i nligst arid br po\ ting should be huTficient In moxt c. i\ c>.
Seithcr \ hould thc :~ hn\ cl i \ ~ i n y \ h e conhidered c t c l u \ ~ \ ca 11d. to the cxtcnt other i(' rnl\ of
notice are re: rcon; lbly availahlc: they \ houlJ be u> cd.
Thc lir\ t requirement fcrr t; iktrlg \\ rittcn minutcb meeting\ c~ lytl\ crninghc ~ clic\\ \. I\
~ ncluclccIl n the Op~. riX lcct~ ng:\ ct hy the I. cg~\ l, rturc In 10' 1. I'hc I971; ~ r~ lcndnlc! lIti. c l\\ c\ cr.
pro\ idcJ \ cr! ! I;:!- 6-:. it1 as to