ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
The Appellant, Boyd C. Holt, brought this action to challenge the decision of the Board of
Registration for Geologists ("Board"), which is administered as part of the Department of Labor,
Licensing and Regulation. In its decision, the Board refused to grant the Appellant registration as
a registered professional geologist in South Carolina. Appellant asserts the Board is required to
grant him a registration based on a reciprocal licensing agreement between this State and Virginia,
where he holds a geologist certification. As well as challenging the underlying Board
determination that the Appellant's Virginia certification is not based on comparable licensing
requirements, Appellant alleges the Board committed several procedural violations compromising
his due process rights, including, inter alia, assertions that the Board erred by entering into
agreements with other states and by going into executive session to discuss the Appellant's case.
For the reasons discussed herein, which are based on the briefs and oral arguments of the parties,
the decision of the Board is AFFIRMED.
DISCUSSION
In August 1996, when he was certified in Virginia, the Appellant applied for registration
as a professional geologist in South Carolina. The Appellant had obtained a certification from
Virginia through an exemption to that commonwealth's examination requirements. The Board
considered the application during its meetings of October 4-6, 1996, December 3, 1996, March
19, 1997, and June 17, 1997. Appellant received notice of the Board's final decision to deny his
request on July 19, 1997 and filed his appeal through his letter of August 19, 1997 to the
Administrative Law Judge Division. The Division has jurisdiction over this matter pursuant to
S.C. Code Ann. § 40-77-320 (Supp. 1997).
The key issue in this matter is whether or not the substantial rights of the Appellant were
prejudiced by any error of the Board in its decision not to grant the Appellant registration as a
professional geologist in South Carolina. The Administrative Procedures Act sets the scope of
review in an appeal from the Board: An Administrative Law Judge may modify or reverse a
decision of the Board
if substantial rights of the appellant have been prejudiced because the
administrative findings, inferences, conclusions or decisions are: (a) in violation
of constitutional or statutory provisions; (b) in excess of the statutory authority of
the agency; (c) made upon unlawful procedure; (d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative and substantial evidence on
the whole record; or (f) arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.
S.C. Code Ann. § 1-23-380 (Supp. 1997). The Board made no error that would justify
modification or reversal of its decision under § 1-23-380.
Legislative Delegation of Authority
The Board did not exceed its authority by entering into agreements with other states and
entities. The state legislature may grant its licensing power to boards and commissions. See 51
Am. Jur. Licenses & Permits § 51. Further, the federal Constitution does not prevent a state
legislature from delegating to an administrative board the function of determining what
qualifications should be possessed by an applicant to practice a profession, as well as the function
of determining whether the applicant complies with the detailed standard of fitness. Douglas v.
Noble, 261 U.S. 165 (1923). A state may legitimately vest a state board with discretion to grant
licenses to licensees of other states with which it maintains reciprocal relations, provided that such
licensees have complied with prescribed rules and regulations. 61 Am. Jur. Physicians & Surgeons
§ 68. The Board did not exceed its authority in by entering into agreements with other states as
the legislature granted the Board the specific authority to administer Chapter 77 under S.C. Code
Ann. § 40-77-30 (Supp. 1997).
Reciprocity Licensing boards generally have discretionary power with respect to the granting or
refusing of applications for a reciprocal licenses. See 52 Am. Jur. Mandamus § 219. Although the
Board has discretion to decide licensing matters, its discretion is limited by statute:
A person holding a license to practice geology, based on comparable licensing
requirements by a state, territory, or possession of the United States, the District of
Columbia, or of any foreign country and who, in the opinion of the board,
otherwise meets the requirements of this chapter may, upon application, and
payment of applicable fees be licensed without further examination.
S.C. Code Ann. § 40-77-210 (Supp. 1997) (emphasis added). Consequently, the Board may only
issue a registration to a licensee from a state with comparable licensing requirements. The Board
did not err in denying Appellant a registration based on reciprocity with Virginia because
Appellant's Virginia certification is not based on licensing requirements comparable to South
Carolina's.
Appellant's Virginia certification to practice geology is not based on licensing requirements
comparable to those of South Carolina, as the Virginia certification did not require a written
examination where this state's registration would have. Compare S.C. Code Ann. § 40-77-150
with Va. Code Ann. § 54.1-1404. Virginia grants a certification solely based on work experience
where South Carolina does not. Under 27 S.C. Code Regs. 131-3.02(5), an "applicant must pass
such examinations established by the Board designed to demonstrate that the applicant has the
necessary knowledge and skill to exercise the responsibilities of the public practice of geology."
Cf. S.C. Code Ann. § 40-77-150 (Supp. 1997). The requirement of passing a written examination
is a valid exercise of its discretion and is within the state's police power.
A state's police power with regard to the protection of health, morals, and welfare
of the public includes the right to regulate, by requiring a license as a prerequisite
to the carrying on of certain activities, commonly designated as businesses,
occupations, vocations, trades, or callings.
51 Am. Jur. Licenses & Permits § 14; see Clark v. Department of Prof. Reg., Bd. of Prof.
Geologists, 584 So.2d 59 (Fla. Dist. Ct. App. 1991) (state has legitimate interest in protecting the
public from substandard conduct by professionals).
The South Carolina registration and Virginia certification contrast further in that geologist
registration is mandatory in South Carolina, but not in Virginia. South Carolina enforces a strict
regulatory scheme for those practicing geology:
In order to safeguard life, health, and property and to promote the public welfare,
any person engaged in the public practice of geology or offering to engage in the
public practice of geology is required to submit evidence that he is qualified to
practice and must be registered. It is unlawful for any person to offer or engage in
the public practice of geology in this State, as defined in § 40-77-10, or to use in
connection with his name or otherwise assume, use, or advertise any title or
description tending to convey the impression that he is a registered professional
geologist, unless he has been duly registered under the provisions of this chapter.
S.C. Code Ann. § 40-77-20. Virginia's regulatory scheme is decidedly more lax: "The
certification program set forth in this chapter is voluntary and shall not be construed to prevent or
affect the practice of geology by uncertified geologists. . . ." Va. Code Ann. § 54.1-1401.
The reciprocity agreement between South Carolina and Virginia does not exempt the
Appellant from the examination requirement. In 1993, the Board endorsed a Statement of
Reciprocity and Waiver of Examination with the Virginia Board of Geology. The agreement
provides that a written examination taken in one state is good in another and that either state may
require an examination relating to geology peculiar to that state. As the Appellant did not take a
written examination in Virginia, the agreement does not serve as a justification to grant the South
Carolina registration. The agreement also provides that
[a]pplicants for certification or registration by reciprocity that were certified or
registered under the grandfather provisions of the state in which they currently hold
certification or registration may be exempted from a written examination upon
verification of at least seven years or responsible professional work experience
since the date of their certification or registration.
For applicants who were originally certified or registered under the grandfather provisions
of the state where first licensed, each state required verification of at least seven years of
responsible professional work experience since the date of certification of registration. The
Appellant's Virginia certification was issued on July 25, 1996; therefore, the grandfather clause
in the reciprocity agreement does not require the Board to issue him a registration.
Appellant must either accumulate the necessary amount of professional work experience
since the issuance of his Virginia certificate or else pass the South Carolina examination in order
to receive a South Carolina registration.
Executive Session -- Due Process
Appellant argues that the Board's meeting in executive session to discuss his case was
without legislative authority to do so under S.C. Code § 30-4-70(a). On March 19, 1997, the
Board voted to deny Appellant's request for registration. On June 17, 1997, the Board entertained
arguments by Appellant in reconsideration of its March 19, 1997 decision. The Board then met
in executive session to discuss the merits of Appellant's request, which it again denied.
The Board's discussion of the Appellant's case in executive session was authorized by the
South Carolina Freedom of Information Act of 1972, S.C. Code Ann. §§ 30-3-10 et seq. (Rev.
1991 & Supp. 1997) ("FOIA"), which requires that meetings of public bodies must be open to the
public, except under certain circumstances. 1984 Op. Att'y Gen., No. 84-111, p. 256 (public body
is required under FOIA to act collectively in formally convened open meeting when acting upon
matters within its authority, unless specific exemption is applicable); see also 1983 Op. Att'y Gen.,
No. 83-55, p. 81 (FOIA applies to any meeting of a public body, whether the meeting is designated
as formal or informal and whether action is taken upon public business or merely discussed).
Notably FOIA "must be construed so as to make it possible for citizens, or their representatives,
to learn and report fully the activities of their public officials at a minimum cost or delay to the
persons seeking access to public documents or meetings." S.C. Code Ann. § 30-4-15 (Rev. 1991).
The Board is a public body and is subject to FOIA. S.C. Code Ann. § 30-4-20(a) (Rev.
1991). Further, the Board's executive session discussion of the Appellant's application
represented a "meeting" as a "convening of a quorum of the constituent membership of a public
body . . . to discuss or act upon a matter over which the public body has supervision, control,
jurisdiction or advisory power." § 30-4-20(d) (Rev. 1991). S.C. Code Ann. § 30-4-70 (Rev. 1991)
(emphasis added), however, describes circumstances under which a public body may hold
executive session:
(a) A public body may hold a meeting closed to the public for one or more of the
following reasons:
(1) Discussion of employment, appointment, compensation, promotion,
demotion, discipline, or release of an employee, a student, or a person regulated by
a public body. . . .
As the Board was discussing a person regulated by it, executive session did not amount to an error
of law. Even if the FOIA exception in § 30-4-70(a)(1) did not apply, the error would not have
constituted a substantial prejudice against the Appellant, as the Board lacked discretion to grant
the relief sought. Likewise, as the Board did not reach an arbitrary result, but a statutorily
mandated one, the executive session did not violate Appellant's substantive due process rights.
The Board's deliberation in executive session did not violate Appellant's procedural due
process rights either. The Fourteenth Amendment protects procedural due process rights by
ensuring that the government shall not deprive a person's life, liberty, or property without due
process of law. Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972). In order to
trigger procedural due process analysis, a party must show that his property, i.e., a legitimate claim
or entitlement, is at stake. The Appellant, however, has no legitimate property interest in a South
Carolina registration. "[P]roperty interests . . . are not created by the Constitution. Rather, they
are created and their dimensions are defined by existing rules or understandings that stem from an
independent source such as state law. . . ." Board of County Comm'rs, Wabaunsee County, Kan.
v. Umbehr, ___ U.S. ___, 116 S.Ct. 2361, 2368 (1996) (quoting Perry v. Sindermann, 408 U.S.
593, 602, n. 7 (1972) (internal quotation marks and citation omitted)). For the reasons discussed
supra, South Carolina law establishes that Appellant has no right, vested or otherwise, to a
registration in this state; therefore, procedural due process is irrelevant. Even if such a property
interest were established, however, the Board afforded Appellant the process due.
[D]ue process generally requires consideration of three distinct factors: first, the
private interest that will be affected by the official action; second, the risk of an
erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards; and
finally, the Government's interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural requirement
would entail.
Anonymous (M-156-90) v. State Bd. of Medical Examiners, ___ S.C. ___, 473 S.E.2d 870, 874
(Ct. App. 1996) (quoting Mathews v. Eldridge, 424 U.S. 319 (1976) (United States Supreme Court
uses a balancing test in deciding procedural due process questions)), rev'd on other grounds, No.
24754 (S.C. January 26, 1998). Here, forbidding the Board from meeting in executive session
would not have furthered Appellant's private interest. Further, the risk of error would not
outweigh the fiscal and administrative burdens that would be involved in such a requirement.
ORDER
For the foregoing reasons, the decision of the South Carolina Department of Labor,
Licensing and Regulation, Board of Registration for Geologists, denying Appellant's application
for certification as a registered professional geologist is AFFIRMED.
__________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
February 9, 1998
Columbia, South Carolina |
