07-116y.v11.htm

[CITE: Sadowski v. IBLPG, 11 CADDNAR 220 (2007)]

[VOLUME 11, PAGE 220]

Cause #: 07-116Y

Caption: Sadowski v. IBLPG

Administrative Law Judge: Lucas

Attorneys: Sadowski (pro se); Steinmetz (Chair of IBLPG)

Date: November 9, 2007

FINAL ORDER

The decision by the Board of Licensure for Professional Geologists in denying Robert J. Sadowski a license to engage in the activities governed by Ind. Code § 25-17.6 and 305 Ind. Admin. Code § 1, based upon his failure to satisfy the experience requirement set forth in Ind. Code § 25-17.6-4-1(2)(D), is affirmed.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. This proceeding was initiated on May 18, 2007 when Robert J. Sadowski (“Sadowski”) filed correspondence with the Natural Resources Commission (the “Commission”) seeking administrative review of a determination by the Board of Licensure for Professional Geologists (the “Board”) denying Sadowski a license to engage in activities regulated in Indiana under Ind. Code § 25-17.6 and 305 Ind. Admin. Code § 1. The activities are those that can be performed lawfully only by a licensed professional geologist or by a person who is exempted from the law.

2. The proceeding is governed by Ind. Code § 4-21.5 (sometimes referred to as the “administrative orders and procedures act” or “AOPA”) and 312 Ind. Admin. Code § 3-1, rules adopted to assist in the implementation of AOPA by the Commission and by the Board. In addition, Ind. Code § 25-17.6-9 applies.

3. Stephen L. Lucas was appointed by the Commission to serve as the administrative law judge for this proceeding. Pursuant to Ind. Code § 25-17.6-9, the administrative law judge is the “ultimate authority”, as defined under Ind. Code § 4-21.5-1-15 of AOPA, for the disposition of the final agency order.

4. A person seeking to have an agency take action has the burden of going forward and the burden of persuasion (sometimes collectively referred to as the “burden of proof”). For a licensure action, the applicant seeks to have an agency take action by granting the application, and, thus, has the burden of proof. Ind. Code § 4-21.5-3-14.

5. Sadowski has the burden of proof to establish that he is entitled to licensure by the Board.

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6. For consideration is whether Sadowski has established experience in professional geological work consisting of five years of geological work performed under the supervision of, or in collaboration with, a licensed professional geologist. Ind. Code § 25-17.6-4-1(2)(D). As stated on April 18, 2007 in its letter denying licensure, the Board:

…only allows professional experience to accumulate after the baccalaureate degree is received. Any geological experience acquired before the degree is received is not considered in the total of professional experience. The [Board] has been consistent in applying this policy.

Emphasis supplied by the Board.

7. The Commission has previously ruled that work supportive of Board licensure is limited to geological work performed after obtaining a baccalaureate degree or advanced degree in the science of geology. Although no reported decision was identified regarding Indiana geologist licensure, an analogous analysis for professional licensure was identified from Illinois.

In Hansell v. Ill. Dept. of Reg. & Educ., 448 N.E.2d 1, 2 (Ill. App. 1983), a statutory experience requirement for registration as a professional engineer was found to anticipate experience “after the degree has been obtained.” The court reasoned that “until the applicant obtains the degree, he would not be likely to be in a position to do ‘engineering work of a grade and character which indicates that he may be competent to practice engineering.’”

The Commission ruled that to hold otherwise would thwart the legislative purpose in establishing minimum standards of competency for licensed geologists and upon whom members of the public rely in making critical personal and professional decisions. Beegle v. Bd. Licensure of Prof. Geologists, 9 Caddnar 14 (2001).

8. In 1994, Sadowski received a baccalaureate degree in general studies with concentrations in chemistry and physics from the University of Michigan. He received a master’s degree from Indiana University in business administration with a concentration in management and with minors in finance, business economics, and public policy in 1999. The crux of his claim to relief arises from courses taken in securing the master’s degree in business administration.

9. During the course of his studies for the degree in business administration, Sadowski successfully completed several courses which pertain to geology. He lists these courses as the following:

GEOL 103 Earth Sciences—Marterials/Processes

GEOL 171 Environmental Geology

GEOL 104 Earth Sciences—Evolution of Earth

GEOL 406 Introduction to Geochemistry

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GEOL 221 Introduction to Mineralogy

GEOL 300 Environmental & Urban Geology

GEOL 334 Sedimentation & Stratigraphy

GEOL 415 Geomorphology

GEOL 550 Surface Water Hydrology

GEOL 551 Advanced Hyrdogeology

GEOL 451 Principles of Hydrogeology

GEOL 600 Advanced Techniques

GEOL 690 Advanced Geology Seminar

SPEA 539 Aquatic Chemistry

GEOL 700 Geological Problems

GEOL 690 Processes in the Deep Earth

These courses resulted in a total of 46 credit hours.

10. The Indiana General Assembly has established that to:

qualify for licensure [by the Board], an applicant must meet the following requirements:

(1) Successful completion of at least thirty (30) semester hours or forty-five (45) quarter hours of course work in geology, culminating in a baccalaureate or advance degree in geology, geophysics, geochemistry, geological engineering, or geotechnical engineering from an accredited college or university.” IC 25-17.6-4-1.

A baccalaureate or advance degree in one of these subjects is collectively referenced in these Findings as a “geological sciences degree”.

11. Until a geological sciences degree is obtained, an applicant cannot establish credit for professional geological work performed.

12. Sadowski asserts he has sufficient credits for a geological sciences degree but does not demonstrate that he has not been awarded a geological sciences degree from an accredited college or university.

13. In a proper case, the Board (or, on administrative review, the Commission) might consider whether “an accredited college or university” awarded a geological sciences degree. Under the legislative structure, however, neither the Board nor the Commission has the authority to grant licensure based upon a determination of equivalency. If the Indiana General Assembly had intended to grant this authority, Ind. Code § 25-17.6-4-1(1) might have provided:

(1) Successful completion of at least thirty (30) semester hours or forty-five (45) quarter hours of course work in geology, culminating in a baccalaureate or advanced degree in geology, geophysics, geochemistry, geological engineering, or geotechnical engineering, ~~from an accredited college or university~~ or education determined by the board to be equivalent to a baccalaureate or advanced degree in the geological sciences.

[VOLUME 11, PAGE 223]

Our legislature has not made this provision.

14. Ind. Code § 25-17.6-4-1(1) is clear and unambiguous on its face and need not and cannot be otherwise interpreted. This principle of statutory construction was applied to a state agency in Indiana Alcoholic Beverage Comm’n v. Osco Drug, Inc., 431 N.E.2d 823 (Ind. App. 1982). Ind. Code § 25-17.6-4(1) does not authorize compliance based upon an analysis of education equivalency. An applicant must have received a baccalaureate or advance degree from an accredited college or university in the geological sciences.

15. Sadowski had referenced language, from the Board’s Meeting Minutes (November 10, 2005), which he said showed the Board granted a geologist license to a person with a baccalaureate degree in environmental sciences. He urged that this “precedent” should be applied in his favor. The Board’s November 2005 Meeting Minutes are cursory and understandably subject to misunderstanding, but a careful reading reveals that for consideration was a transcript evaluation and not a licensure determination.

16. The Board clarifies the substance of the Minutes, through a November 5, 2007 email, that it had “evaluated the transcript of a potential applicant, an individual who was interested to know in advance of application if the Board would accept his Bachelor of Environmental Science degree that included the required number of geological course credit hours.” [Emphasis supplied by the Board.]

17. If the potential applicant referenced in Finding 16 were in the future to become an actual license applicant, the Board would be governed by the entirety of Ind. Code § 25-17.6 (including Ind. Code § 25-17.6-4-1) in evaluating the application. The Board must properly strive to achieve consistency in application of its licensure provisions, yet a transcript evaluation and a license determination are not the same things.

18. The Board has not questioned the applicability or authenticity of the 46 credit hours described in Finding 9. Without using the phrase, the Board has here effectively made a “transcript evaluation” similar to the one referenced in Finding 16. Sadowski’s 46 credit hours could support the basis for a geological sciences degree.

19. Sadowski has not carried the burden of proving, however, that he has the requisite geological sciences degree. Only an accredited college or university can award such a degree.

20. Sadowski is not precluded from applying some or all of those credits, as determined appropriate by an accredited college or university, toward a geological sciences degree. But he does not today have a geological sciences degree. In the absence of a geological sciences degree, Sadowski cannot properly be credited for professional geological work that is required to satisfy the experience requirement set forth in Ind. Code § 25-17.6-4-1(2)(D).