Mississippi Administrative Code › Title 7 - Education K-12 › Part 3 - Board Policies › Chapter 4 - Administration Procedures Act › Rule 7-3-4.2.1 - Declaratory Opinions

Current through June 25, 2024
1. Scope
Part III of these Rules is promulgated pursuant to MS Code
				  Ann. §
										25-43-2.103(2)
				  (1972) of the Administrative Procedure Law,
				  and is intended to set forth the Department's rules governing the form and
				  content of requests for declaratory opinions, and the Department's procedures
				  regarding the requests, as required by MS Code §
										25-43-2.103(1972).
				  These rules are intended to supplement and be read in conjunction with the
				  provisions of the Mississippi Administrative Procedures Law, which may contain
				  additional information regarding the issuance of declaratory opinions. In the
				  event of any conflict between these rules and the Mississippi Administrative
				  Procedures Law, the latter shall govern.
2. Persons Who May Request Declaratory
				Opinions.
Any person with a substantial interest in the subject matter
				  may request a declaratory opinion from the Department by following the
				  specified procedures. "Substantial interest in the subject matter" means: an
				  individual, business, group or other entity that is directly affected by the
				  Department's administration of the laws within its primary jurisdiction.
				  "Primary jurisdiction of the agency" means the agency has a constitutional or
				  statutory grant of authority in the subject matter at issue.
3. Subjects Which May Be Addressed In
				Declaratory Opinions.
The Department will issue declaratory opinions regarding the
				  applicability to specified facts of: (1) a statute administered or enforceable
				  by the Department or (2) a rule promulgated by the Board. The Department will
				  not issue a declaratory opinion regarding a statute or rule which is outside
				  the primary jurisdiction of the agency.
4. Circumstances in which Declaratory
				Opinions Will Not Be Issued.
The Department may, for good cause, refuse to issue a
				  declaratory opinion. The circumstances in which declaratory opinions will not
				  be issued include, but are not necessarily limited to:
a. lack of clarity concerning the question
				presented;
b. there is pending or
				anticipated litigation, administrative action, or other adjudication which may
				either answer the question presented by the request or otherwise make an answer
				unnecessary;
c. the statute or rule
				on which a declaratory opinion is sought is clear and not in need of
				interpretation to answer the question presented by the request;
d. the facts presented in the request are not
				sufficient to answer the question presented;
e. the request fails to contain information
				required by these rules or the requestor failed to follow the procedure set
				forth in these rules;
f. the
				request seeks to resolve issues which have become moot, or are abstract or
				hypothetical such that the requestor is not substantially affected by the
				statute or rule on which a declaratory opinion is sought;
g. no controversy exists concerning the issue
				as the requestor is not faced with existing facts or those certain to arise
				which raise a question concerning the application of the statute or rule;
h. the question presented by the
				request concerns the legal validity of a statute or rule;
i. the request is not based upon facts
				calculated to aid in the planning of future conduct but is, instead, based on
				past conduct in an effort to establish the effect of that conduct;
j. no clear answer is determinable;
k. the question presented by the
				request involves the application of a criminal statute or a sets of facts which
				may constitute a crime;
l. the
				answer to the question presented would require the disclosure of information
				which is privileged or otherwise protected by law from disclosure;
m. The question is currently the subject of
				an Attorney General's opinion request or has been answered by an Attorney
				General's opinion;
n. A similar
				request is pending before this agency or any other agency or a proceeding is
				pending on the same subject matter before any agency, administrative or
				judicial tribunal, or where such an opinion would constitute the unauthorized
				practice of law.
o. Where issuance
				of a declaratory opinion may adversely affect the interests of the State, the
				Board, the Commissions appointed by the Board, Department or any of their
				officers or employees in any litigation which is pending or may reasonably be
				expected to arise;
p. The question
				involves eligibility for a license, permit, certificate or other approval by
				the Department or some other agency, and there is a statutory or regulatory
				application process by which eligibility for said license, permit, certificate
				or other approval would be determined.