Opinion No. 79-003 (1979) Ag ( 1979 )

By letter dated January 8, 1979, you requested an official opinion from the Attorney General of the State of Oklahoma with respect to the following question: Can the Oklahoma State Board of Registration of Social Workers adopt a service charge for providing registration services to the social workers of Oklahoma? Administrative bodies or agencies exist solely by virtue of statutory enactments which create them. These bodies or agencies have no powers except those expressly given them by statute. The Oklahoma State Board of Registration of Social Workers, hereinafter referred to as the Board, was created in 1965 by Senate Bill Number 257, Title 59 O. S. 1251 — 59 Ohio St. 1273 [59-1273] (1971). These statutory provisions, together with the Oklahoma Administrative Procedure Act, Title 75 Ohio St. 301 [75-301] — 75 Ohio St. 327 [75-327] (1978), hereinafter referred to as the OAPA, govern the activities of this Board. Title 59 Ohio St. 1256 [59-1256] (1971) specifically gives the Board the power to adopt and, from time to time, revise such rules and regulations not inconsistent with the other provisions of the statute as may be necessary to enable it to carry into effect the provisions of the statute. Under 301 of the OAPA, a "rule" is defined to mean any agency statement of general applicability and future effect that implements, interprets or prescribes substantive law or policy, or prescribes the procedure or practice requirements of the agency. The term includes the amendment or repeal of a prior rule but does not include the issuance, renewal or denial of licenses or the approval, disapproval or prescription of rates. The assessment of a service charge for registering social workers, as one of the requirements for registration would be part of the process of approving, renewing or denying licenses and would be excluded from the statutory definition of a "rule." In addition, if a service charge was levied on some basis other than as a registration requirement, it would be excluded from the statutory definition of a "rule" because it would be a prescription of a rate. Therefore, the statutory power given the Board to adopt rules and regulations does not include the power to adopt a service charge for registering social workers by virtue of the definition of a "rule" under the OAPA. Title 59 Ohio St. 1263 [59-1263] (1971) provides for a five dollar ($5.00) yearly registration fee and empowers the Board to establish rules for the reinstatement of lapsed registrations. Since the statute specifically sets forth the amount to be charged by the Board and makes no provision for increasing or charging additional fees, the adoption of a service charge by the Board would be inconsistent with the language of the statute. Even where an administrative agency is empowered by statute to adopt rules and regulations, such rules and regulations cannot be inconsistent with or change the statutory provisions. The power to amend statutory enactments remains at all times in the hands of the Legislature. With respect to fees which an administrative agency may charge wherein the amount of such fee has been set by statute, as in this situation, the remedy to increase the amount of the fee or an additional fee is accomplished by a Legislative amendment of the statutes. Therefore, under 59 Ohio St. 1263 [59-1263] et. seq. (1971), it is the opinion of the Attorney General of the State of Oklahoma that the Oklahoma State Board of Registration of Social Workers cannot by rule or regulation, adopt a service charge for providing registration services to the social workers of Oklahoma. (LEE ANNE WILSON-ZALKO) (ksg)