GATHERING ASSAULT ON PROFESSIONAL LICENSURE
representatives that drafts model state- level legislation for distribution among state governments. ALEC’s mission is “to advance the fundamental principles of free-market enterprise, limited gov- ernment, and federalism at the state level.” ALEC’s model bill has been the basis for efforts in several states to limit licensing, including Arkansas, Arizona, Indiana, Missouri and Florida. If passed, the bill requires that the state prove in court or in administrative hearings that it is enforcing an occupational law for health and safety reasons and not as a barrier to entry.
The second event occurred in 2015 when the United States Supreme Court ruled against the North Carolina Board of Dental Examiners in its efforts to stop nondentists from offering teeth-whiten- ing services. The Supreme Court said that licensing boards that are dominated by the professionals being regulated— eight of the ten North Carolina board members were dentists— and don’t have “active supervision” from the state are not immune from antitrust challenges.
“This ruling lands at the interface of policy and politics,” says Folk. “The North Carolina case was correctly decid- ed based on some very bad facts, but it is not representative of how professional licensing boards for design professionals operate. Politicians who are so inclined misuse that decision to justify deregu- lating a profession or bringing state licensing boards under direct control of elected officials.”
What is A Trained Geologist?
Both of these issues came to the fore in Arizona in 2016, when Gov. Doug Ducey and his allies in the legislature proposed House Bill 2613, aiming to abolish state licenses for geologists and landscape architects, as well as yoga instructors, food-packing contractors, driving school teachers, and assayers.
Doug Bartlett, a geologist and prin- cipal of Clear Creek Associates in Scottsdale, helped to lead the Arizona section of the American Institute of Professional Geologist’s opposition to the bill. “Taking on the engineers would have been quite a feat because they are the largest professional group,” he says. “I think they figured we wouldn’t have the resources to fight.”
The bill also called for rolling all independent state regulatory boards— including the Arizona State Board of Technical Registration, which licenses
www.aipg.org
engineers, architects, landscape archi- tects, geologists, and assayers—into the state’s Department of Administration, putting them under Ducey’s control. “Two previous governors analyzed the costs and benefits of consolidation and determined that it didn’t benefit the pub- lic or save the government any money,” says Folk. “With consolidation, if a board made a decision the governor didn’t like, he could veto it. Or, if he didn’t like the executive director, he could fire her. That’s not what the legislature had in mind when it created this board.”
The landscape architects were able to extricate themselves from the legis- lation, leaving the geologists to fight, although Bartlett says the engineering community helped a lot. “They lobbied against the bill with their legislators, voicing their concerns,” he says.
Bartlett says the arguments support- ing the bill were flimsy.
The governor’s office asserted in a press release that the bill included geolo- gists because “licenses should only be required when they are truly designed to protect the public health and safety.” By that logic, geologists should be licensed, Bartlett says. “Geologists are involved in countless instances that involve public safety, such as water quality, seismic issues, and underpinning for highway overpasses,” he says.
Licensing isn’t a barrier to entry, Bartlett says, and doesn’t prevent anyone from getting a job as a geologist. “What it does is prevent an inexperienced geologist from getting into a posi- tion where they are mak- ing decisions that impact public health and safety,” he says. Furthermore, Bartlett argues that independent licensing boards are not expensive and inefficient. He points out that the board is funded entirely through licensing fees and provides revenue to the General Fund.
One argument that wasn’t raised, but may have played a part, is that licensing
increases the salaries of professionals. “I think there’s a motivation to reduce the cost of hiring professional consultants,” Bartlett says.
A modified version of H.B. 2613 even- tually passed the legislature and was signed into law by the governor, creating a new unregulated category of “trained geologist.” While trained geologists do not need to have a license, they are required to have a geology degree from an accredited university, have at least four years of experience, and must dis- close their lack of licensing to a prospec- tive employer or client.
“Unfortunately,” says Bartlett, “since the trained geologists are not licensed, there is no regulatory agency that has the authority to police them to ensure that they are conforming to these stan- dards.”
Adequate Regulatory Oversight
Licensing for engineers has faced legislative challenges in at least two other states.
In 2014, the Indiana legislature formed the Jobs Creation Committee (JCC) to look at deregulating occupa- tions under the Indiana Professional Licensing Agency, which oversees 38 boards that issue more than 70 profes- sional licenses to 470,000 professionals in the state.
In 2015, the JCC recommended by a 5-0 vote that the state stop regulating and licensing engineers and 10 other professions, including home inspectors and hearing aid dealers. The draft min- utes of that meeting include, “It is the JCC’s opinion that there is adequate regulatory oversight from other govern- mental agencies when it comes to the work performed by the engineer in their construction/design.”
The engineering community, led by ACEC/Indiana, mobilized. “We assem- bled a coalition of stakeholders that would be affected,” says Ross Snider, president of USI Consultants, Inc., in Indianapolis. “We provided testimony on the value of registration, both for public safety and because it actually helps busi- nesses in the state, allowing engineering firms to operate across state lines.”
The coalition reached out to then- Governor Mike Pence, urging him to add his voice to the debate, and in late July, 2015, Pence’s office released a statement, “The governor believes it is a mistake not to license engineers and Continued on page 44
Oct.Nov.Dec 2017 • TPG 9
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