LICENSURE
Texas Sunset Commission Prolongs Life of Texas Board of
Professional Geoscientists
John Berry, Texas PG-2709, CPG-4032, Editor, TPG, and Councilor-at-Large, AIPG Texas Section (
http://aipg-tx.org/officers-biographies/#Berry)
At its meeting on November 14th, the Sunset Commission of the Texas Legislature recommended continuing the Texas Board of Professional Geoscientists for another six years. This result was achieved by the dedication and perseverance of many AIPG Members and Texas PGs. The effort was coordinated through the Texas Geoscience Council (https://
www.txgeoscience.org/) and the Texas Lobby Group, which was hired by the Council for this purpose. Both the national AIPG (
http://aipg.org/) and AIPG Texas Section (http://aipg-tx. org/) made considerable financial contributions to this effort, as did many other organizations, particularly the Association of Engineering Geologists and individual licencees (www.
aegweb.org/group/TX).
Texas Lobby Group said that it required an intense effort on their part, as the Sunset Commission’s staff had made an unequivocal recommendation to abolish the Board, and the general political environment is heavily against the existence of all occupational licensing by the state government: powerful and well-funded national organizations such as the American Legislative Exchange Council (ALEC, see
https://www.alec. org/ and click on “About”) and the Institute for Justice (see
https://www.facebook.com/instituteforjustice/ and click on “About”) promote model laws against it, and geological licens- ing in particular has already been threatened in several states.
The phrase “avoiding a North Carolina situation” came up repeatedly in the Commission’s discussion: a recent US Supreme Court decision (North Carolina State Board of Dental Examiners v. Federal Trade Commission (2015)) in a case against the NC Board of Dental Examiners over tooth whitening by unlicensed practitioners decided against the Board, stressing that
“The need for antitrust law (is) particularly great “in light of the risks licensing boards dominated by market participants (i.e. in this case, the board had a majority of dentists) may pose to the free market.” The Court declined to exactly fix a line for what constitutes excessive control of a licensing board, saying only that the determination is context-dependent. The Court also agreed with the FTC’s position regarding the lack of state oversight of the Board, reaffirming the requirements of active state supervision: (1) supervision is substantive, not merely procedural; (2) the supervisor may veto or modify deci-
www.aipg.org
Map Source: Texas Interactive Web Site, Geology Base Map, USGS
sions of the Board; (3) the mere potential for review is not a substitute for actual supervision; and (4) the supervisor may not itself be a market participant. Since the Board of Dental Examiners was not subject to any state oversight at all and was largely dominated by market participants, it clearly did not meet these requirements.”
This decision is thus a threat to all occupational licensing boards in the country as generally presently constituted. In particular, it will require that the TBPG be dominated by non-geologists, and will be directly supervised by another agency. The Sunset Commission, however, has only begun to consider the implications of the decision and is not yet ready to implement any changes in the TBPG (or any other board).
Even the Economist, an international, generally liberal publication, recommended against professional licensing in its November 17th-23rd, 2018, issue (p.5):
“…governments should tear down barriers to entry such as non-compete clauses, occupational licensing requirements, and complex regulations written by indus- try lobbyists. More than 20% of American workers must hold licenses in order to do their jobs, up from just 5% in 1950.”
We are thus placed in bad company: in the same issue the Economist actually promotes a resurgence of trade unionism!
This is not the end of the fight to save TBPG. A bill to implement the Sunset Commission’s decision must be written, passed by the legislature, and signed by the Governor, who is known to be against regulation of any kind. Therefore, starting immediately, all geologists in the State of Texas need to con- tact their local Senators and Representatives, and even their Federal Legislators (apparently, letters from their federal col- leagues greatly influence state legislators). Fund-raising for the Texas Geoscience Council is also a priority because this effort will require additional lobbying efforts.
The six-year extension was expressly chosen so that the TBPG will come up for review again in the same session as does the Texas Board of Professional Engineers. The intent is to examine the two Boards in parallel, with a view to assessing the advantages of combining them (perhaps with the Board of Land Surveyors as well).
Continued on p. 45
Jan.Feb.Mar 2019 • TPG 3
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