[CITE: Parker v. Bd. of Lic. Pro. Geologists, 13 CADDNAR 164 (2013)]
[VOLUME 13, PAGE 164]
Cause #: 13-051Y
Caption: Parker v. Bd. of Lic. Pro. Geologists
Administrative Law Judge: Lucas
Attorneys: pro se (Parker); Steinmetz (Board Chair)
Date: June 12, 2013
FINAL ORDER
Jeffery Michael Parker has not sustained his burden of proof. The decision by the Board of Licensure for Professional Geologists in denying Parker 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) and 305 Ind. Admin. Code § 1-3-2(c)(3), is affirmed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. The proceeding was initiated on March 4, 2013 when Jeffery Michael Parker (“Parker”) 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 Parker a license to engage in activities regulated in Indiana under Ind. Code § 25-17.6 and 305 Ind. Admin. Code § 1. Stipulation of Facts (1) and (2) from “Report of Prehearing Conference” (the “Prehearing Conference”) entered on April 9, 2013. 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.[1] Parker and the Board are collectively the “Parties”.
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. A Commission administrative law judge was appointed 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. Parker has the burden of proof to establish that he is entitled to licensure by the Board.
6. Ind. Code § 25-17.6-4-1 provides in pertinent parts:
To
qualify for licensure, an applicant must meet all of 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 advanced degree in geology,
geophysics, geochemistry, geological engineering, or geotechnical engineering
from an accredited college or university. At the discretion of the board,
courses dealing with applied geological science that are given under the
auspices of an academic department other than geology may be considered toward
the fulfillment of this requirement.
(2) Experience in professional
geological work consisting of one (1) of the following:
(A)
Five (5) years of teaching geology as a faculty member at the college or
university level.
(B)
Five (5) years of geological research by an applicant at the college or
university level.
(C)
Five (5) years of geological work performed under the supervision of, or in
collaboration with, a licensed professional geologist.
(D)
Seven (7) years of geological work that is acceptable to the board.
(3) A passing score on an
examination required by the board that has been designed to demonstrate that
the applicant has the necessary knowledge and skill to exercise the
responsibilities of the public practice of geology.
Prehearing Conference Stipulation (3).
7. 305 Ind. Admin. Code § 1-3-2 provides in pertinent parts:
(a) Qualification as a licensed professional geologist is based on a person’s knowledge of the principles and techniques of geology and on the level of experience in the application of those principles and techniques. This section establishes standards that must be satisfied by an applicant for a new license.
(b) The board shall approve general principles for a written examination to determine whether an applicant possesses a comprehensive knowledge of geological science. The examination shall be provided by the survey at least twice in each calendar year. A reasonable examination fee shall be set and revised from time to time by the board. An applicant who files a completed application for a new license must also successfully complete the written examination.
(c) An applicant for a new license must also establish that the applicant meets each of the following requirements before approval as a licensed professional geologist:
(1) Has not engaged in unethical conduct.
(2) Meets the following educational requirements: 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. At the discretion of the board, courses dealing with applied geological science that are given under the auspices of an academic department other than geology may be considered toward the fulfillment of this requirement.
(3) Experience in professional geological work consisting of some combination of the following:
(A) Five (5) years of teaching geology as a faculty member at the college or university level.
(B) Five (5) years of postdoctoral research in geology, geophysics, geochemistry, geological engineering, or geotechnical engineering at an accredited college or university.
(C) Five (5) years of geological work performed under the supervision of, or in collaboration with, a licensed professional geologist.
(D) Seven (7) years of professional geological work.
(4) The following criteria of education and experience qualify toward accumulation of the required number of years of professional geological work under subdivision (3):
(A) One (1) year of credit each for a master's degree or doctoral degree in geology, geophysics, geochemistry, geological engineering, or geotechnical engineering.
(B) Each year of teaching in the geological sciences at the college level equals one (1) year of professional geological work, where the total teaching experience includes six (6) semester hours per semester for at least two (2) semesters (or the equivalent if other than a semester system) of third-year or fourth-year undergraduate level courses or graduate level courses….
Prehearing Conference Stipulation (4).
[VOLUME 13, PAGE 165]
8. The Parties agreed Parker satisfied the requirements referenced in Ind. Code § 25-17.6-4-1 and 305 Ind. Admin. Code § 1-3-2 to qualify for a license, except they do not agree whether Parker demonstrated the experience required by Ind. Code § 25-17.6-4-1(2) and 305 Ind. Admin. Code § 1-3-2(c)(3). The duration of Parker’s experience would satisfy the statute and rule if measured before and after obtaining a baccalaureate degree, but not if measured exclusively after receiving a baccalaureate degree. The Board asserted only experience received after “culminating in a baccalaureate…degree”[2] can be considered. Parker asserted experience received before or after “culminating in a baccalaureate…degree” can be considered. Prehearing Conference Stipulation (5).
9. The Parties agreed the Board has been consistent in its implementation of Ind. Code § 25-17.6-4-1 and 305 Ind. Admin. Code § 1-3-2 in considering only experience received after a license applicant receives a baccalaureate degree. Parker contended the Board interpretation was erroneous, even if consistently so. Prehearing Conference Stipulation (6).
10. The Commission ruled previously 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. Cited favorably was 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 there found to require experience “after the degree has been obtained…. [U]ntil 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 reasoned 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) cited in Sadowski v. IBLPG, 11 Caddnar 220, 221 (2007).
11. The Florida Court of Appeals held a legislative structure for the licensure of geologists could properly require an applicant to complete educational requirements in geology and then obtain professional work experience. “It is not for this court to say that a person who studies geological subjects while pursuing degrees in engineering is necessarily similarly qualified.” Clark v. Dept. of Pro. Regulation, 584 So.2d 59, 61 (Fla. App. 1991).
12. During the prehearing conference, Parker stated he would not have pursued Indiana licensure as a professional geologist if he understood the Board would consider only experience received after obtaining a baccalaureate degree. He urged that if the Board is to consider experience only if received after obtaining a degree, the Board should amend 305 Ind. Admin. Code §1-3-2. The timing element should be made explicit for the benefit of other potential license applicants.
13. An administrative law judge lacks authority to amend or to require the Board to amend 305 Ind. Admin. Code §1. The consistent practice of the Board, and the civil and administrative decisions cited in these Findings, support a conclusion only experience after obtaining a degree can lawfully apply. Even so, Board illumination may be well considered through a rule amendment under Ind. Code § 4-22-1 or through a nonrule policy document under Ind. Code § 4-22-7-7.