Jeffrey A. Modisett
Attorney General of Indiana
Deputy Attorney General
Attorney for Appellee
C. Gregory Fifer
IN THE INDIANA SUPREME COURT
Appellants (Defendants below ),DAVID R. EBERENZ, Appellee (Plaintiff below).
) Supreme Court No.
) Court of Appeals No.
ON PETITION TO TRANSFER
On March 25, 1997, an administrative law judge (
AALJ@) issued an order denying
Eberenz=s application finding that he suffered from a Alack@ of education credit.
Eberenz then sought review of the ALJ=s decision before the full Board.
On May 30, 1997, the full Board issued its final order in which
it affirmed and adopted the ALJ=s order.
Eberenz then petitioned the trial court for judicial review of the full Board
final order. He subsequently filed a motion for summary judgment. In
his brief supporting that motion, Eberenz requested that the trial court reverse the
Board=s final order and also decree that he be registered, pursuant to the
principle of comity, as an Indiana professional engineer. On February 12, 1998,
the trial court granted Eberenz summary judgment in an order which was supported
by enumerated findings and which held, among other things, that the Board=s decision
was not in accordance with law and was not supported by the evidence.
The trial court then remanded the cause both to the Agency and
the Board Awith instructions to take the appropriate action regarding [Eberenz=s] comity application
consistent with the findings of this order.@ (R. at 172.)
The Board appealed the trial court
=s grant of summary judgment,
and the Court
of Appeals affirmed. State Bd. of Registration for Prof=l Eng=rs v. Eberenz,
701 N.E.2d 892, 902 (Ind. Ct. App. 1998).
Indiana Code ' 2531121 (1993) provides the rule of law for Areciprocal@ or Acomity@ registration of out-of-state professional engineers. It states in relevant part that the
[B]oard may, upon application and payment of a fee established by the [B]oard in the [B]oard =s rules, issue a certificate of registration as a professional engineer to an individual who holds a valid certificate of registration as a professional engineer, issued to the applicant by the proper authority of any state or territory or possession of the United States if the requirements for registration of professional engineers that the certificate of registration was issued under do not conflict with the provisions of this chapter.
Id. (emphases added). Therefore, we must determine whether the Board properly
applied the relevant Aprovisions@ or Arequirements for registration,@ when it denied Eberenz his
comity application on the grounds that he obtained his Kentucky engineer license under
provisions or requirements which Aconflict@ with those established for registration in Indiana.
The Court of Appeals determined that the Board did not act in accordance
iana law in denying Eberenz=s comity application because A[n]o language in Indiana
Code Section 25-31-1-21 indicates the existence of an additional education requirement [outside the
statute] for comity registration.@ Eberenz, 701 N.E.2d at 897. Thus, the
Court of Appeals reasoned, the Board improperly Aengraft[ed] such a requirement into this
statute by insisting that Eberenz satisfy the strictures of Indiana Administrative Code
title 864, rule 1.1-2-2.@ Id.
The Board counters that it Ais permitted
to promulgate rules@ prescribing the appropriate educational requirements because the legislature A[did] not
specify exactly what educational requirements are necessary for licensure,@ leaving that determination to
the Board=s rule-making authority. See Appellants= Br. in Support of Transfer, at
8-9. We agree with the Board.
We begin our analysis by identifying Indiana
=s basic licensing requirements. Indiana Code
' 25-31-1-12(a) (1993) establishes the minimum evidence, or Arequirements for registration,@ that must
be demonstrated by an applicant in order to qualify for registration as a
professional engineer. The statute reads as follows:
(a) The following under
either subdivision (1) or (2) shall be considered as
minimum evidence that the applicant is qualified for registration as a professional engineer:
(1) All of the following:
(A) Graduation in an approved engineering curriculum of four (4) years or more.
(B) A specific record of four (4) years or more of progressive experience
on engineering projects of sufficient quality acquired subsequent to graduation, which experience indicates
that the applicant is qualified to be placed in responsible charge of eng
work requiring the exercise of judgment in the application of engineering sciences to
the sound solution of engineering problems.
(C) The successful passing of an examination as provided for in section 14
of this chapter.
(2) All of the following:
specific record of eight (8) years or more of engineering education
and experience in engineering work, which indicates that the applicant has acquired knowledge
and skill and practical experience in engineering work approximating that required for registration
as a professional engineer under subdivision (1).
(B) The successful passing of an examination as provided for in section 14
of this chapter.[
Id. (emphases added).
Eberenz acknowledges that because he has not obtained a degree
Ain an accredited
engineering curriculum,@ his claim for comity registration rests solely on the provisions or
requirements for registration of Asubdivision (2).@ See Br. of Appellee in Opposition
to Transfer at 6-7. By the plain language of the statute, Eberenz
must present evidence that he has acquired A[a] specific record of eight (8)
years or more of engineering education and experience in engineering work.@ Ind.
Code § 25-31-1-12(a)(2) (emphasis added.)
Our legislature created the Board to
Aenforce and administer@ Indiana Code ' 25-31-1,
specifically directing that it Ashall adopt rules establishing standards for the competent practice
of engineering.@ Id. ' 25-31-1-7(a) (1993). The Board=s rule-making authority is
necessary for it A>to make reasonable rules and regulations,=@ for without this authority,
A>it would be impossible in many instances to apply and enforce the legislative
enactments, and the good to be accomplished would be entirely lost.=@ Podgor
v. Indiana Univ., 178 Ind. App. 245, 251, 381 N.E.2d 1274, 1279 (1978)
(quoting Financial Aid Corp. v. Wallace, 216 Ind. 114, 121, 23 N.E.2d 472,
475 (1939)). And while Aan administrative agency has only those [express] powers
conferred on it by the General Assembly,@ Fort Wayne Educ. Ass=n v. Aldrich,
527 N.E.2d 201, 216 (Ind. Ct. App. 1988), it is nonetheless Aa wellsettled
principle of law that an administrative agency . . . also has such
implicit power as is necessary to effectuate the regulatory scheme outlined by the
statute,@ Barco Beverage Corp. v. Indiana Alcoholic Beverage Comm=n, 595 N.E.2d 250, 254
(Ind. 1992) (collecting cases).
In carrying out its legislative mandate to regulate
Athe competent practice of engineering,@
the Board adopted Administrative Rule 1.1-2-2, which provides as follows:
This section establishes the minimum education and experience requirements under IC 2531112
for admission to the professional engineer examination.
(b) The following table establishes provisions for evaluating combined educ
ation and experience to
determine if it is sufficient to satisfy minimum registration requirements under IC 25-31-1-12
for professional engineer registration applicants holding the stated degrees:
* * *
education of all applicants except those who have obtained a baccalaureate
in an approved engineering curriculum must include the following:
(1) At least twelve (12) semester credit hours in college level math
college algebra and trigonometry, which must include a minimum of nine (9) semester
credit hours of calculus and a minimum of three (3) semester credit hours
of advanced calculus based mathematics.
(2) At least eight (8) semester credit hours in college level courses in
the physical sciences which must include a minimum of three (3) s
hours of calculus based physics and a minimum of three (3) semester credit
hours of laboratorybased chemistry.
(3) At least twelve (12) semester credit hours of engineering sciences which require
calculus as a prerequisite or corequisite.
* * *
Ind. Admin. Code tit. 864, r. 1.1-2-2 (1996) (emphases added).
As set forth under
Background, supra, the Board denied Eberenz=s comity application on
the basis that he did not satisfy the education requirements outlined above in
requirements (1) - (3) of subsection (c). See also Eberenz, 701 N.E.2d
at 895-96. Eberenz emphatically argued to the Court of Appeals
Board has Awholly failed . . . to address the delimiting nature of
subsection (a),@ see Br. of the Appellee at 16, thus misconstruing its own
regulation to Aostensibly justify its refusal to grant Eberenz the registration to which
he is entitled,@ id. at 17. Phrased differently, Eberenz claims that Athe
educational requirements established for >applicants= under subsection (c) of [the] regulation is [sic]
for applicants to the professional engineer examination, and not for applicants for comity
registration under the statutory provisions of IC 25-31-1-21 and IC 25-31-1-12.@ Id.
at 17 (emphases added). And because Eberenz passed the nationally administered professional
engineer examination, he contends the entire regulation is inapplicable to his application.
As an initial matter, we agree with Eberenz that subsection (a) plausibly appears
to delimit or control the remaining subsections,
however, A[w]hen the meaning of an
administrative regulation is in question, the interpretation of the administrative agency is given
great weight unless the agency=s interpretation would be inconsistent with the regulation itself.@
State Bd. of Tax Comm=rs v. Two Market Square Assocs. Ltd., 679
N.E.2d 882, 886 (Ind. 1997).
=s position to the contrary is that each regulation subsection operates independently
so that subsection (a) does not necessarily control or delimit the scope of
subsection (c). Eberenz=s argument clearly stands or falls on the meaning of
the term Aapplicant@ as it is used in subsection (c). We look
to the regulation=s ADefinitions@ section to determine the meaning of the word Aapplicant.@
There, it is defined as Amean[ing] any individual whose application has been
received by the [B]oard for consideration to be registered as an engineer .
. . in the state of Indiana.@ Ind. Admin. Code tit. 864,
Applying this definition, we find nothing sinister, contrived or inconsistent about the Board
contention that the minimum education requirements outlined in subsection (c) apply to Eberenz
Awhose application has been received by the [B]oard for consideration to be registered
as an engineer . . . in the state of Indiana.@ Id.;
see Indiana Dep=t of Public Welfare v. Payne, 622 N.E.2d 461, 465 (Ind.
1993) (AIn interpreting an administrative regulation, the rules applicable to construction of a
statute apply to construction of the regulation.@) (collecting cases), rehg denied; Poehlman v.
Feferman, 717 N.E.2d 578, 581 (Ind. 1999) (AClear and unambiguous statutory meaning leaves
no room for judicial construction.@); Consolidation Coal Co. v. Indiana Dep=t of State
Revenue, 583 N.E.2d 1199, 1201 (Ind. 1991) (AWhere the General Assembly has defined
a word, this Court is bound by that definition . . . .@).
Even if we were not able to conclude by looking at the wording
of the statute that su
bsection (c) sets minimum requirements that apply to all
applicants, including those seeking comity registration, there is persuasive case law construing a
nearly identical statute for licensing land surveyors
that convinces us of this result.
State Board of Registration for Land Surveyors v. Bender, 626 N.E.2d 491
(Ind. Ct. App. 1993), Bender=s application to take the land surveyors examination was
denied by the State Board of Registration for Land Surveyors (ASurveyor Board@) because
Bender lacked educational requirements that the Surveyor Board had established in the Indiana
Administrative Code. When Bender sought administrative review of the Surveyor Board=s decision,
his application was again denied, initially by an ALJ and subsequently by the
full Surveyor Board. Bender petitioned the trial court for review of the
administrative action. The trial court vacated the Surveyor Board=s decision, instructing the
Board to permit Bender to take the examination. The Surveyor Board appealed.
Among the issues on appeal was whether the trial court erred in holding
that the ed
ucational requirements established by the Surveyor Board were in excess of
its statutory authority. The Surveyor Board=s statutory authority was set forth in
an Indiana Code section (which is nearly identical in wording to that currently
before this Court) that stated in part:
The following shall be considered as minimum evidence that the applicant is qualified
for registration as a land surveyor:
. . . .
. . . A specific record of eight (8) years or more of land surveying education and experience in land surveying work, which indicates that the applicant has acquired knowledge and skill and practical experience in land surveying work approximating that required for registration as a professional land surveyor. . . .
Bender, 626 N.E.2d at 494 (emphasis added) (citing a section of the Indiana
Code recodified at Ind. Code ' 2521.552).
Similar to the case currently before this Court, there existed additional education r
in an Indiana Administrative Code rule adopted by a regulatory board. Among
the rule=s requirements was the successful completion of college level credit hours in
the fundamentals of land surveying, mathematics, and the physical sciences.
Not unlike Eberenz, Bender had conceded that he did not have the requisite
college curriculum required by the regulatory board
=s administrative rule, but that the board=s
statutory authority merely required that an applicant have a combination Aof eight (8)
years or more of land surveying education and experience.@ Id. at 495
(emphasis added). As Eberenz has argued in this appeal, Bender had likewise
contended that the college courses required by the administrative rule were not required
by statute and that the regulatory board, Aby adopting a requirement to the
contrary[,] . . . ha[d] attempted to impose additional and different minimum educational
requirements.@ Id. (emphasis added).
Finding that the
educational requirements established by the Surveyor Board were within its
statutory authority, the Court of Appeals reversed the trial court, observing the following:
ALand Surveyor@ is defined as a Aperson who, by reason of his special
knowledge of mathematics and surveying principles and methods which are acquired by education
and practical experience, is qualified to engage in the practice of land surveying
as attested by his registration as a land surveyor.@[
] The Legislature has authorized
the State Board of Registration [for Land Surveyors] to Aadopt rules establishing standards
for the competent practice of . . . land surveying.@ Those standards
necessarily include specific educational requirements. It is true, as Bender asserts, the
enabling legislation requires noncollege graduates to have a combination of eight (8) years
or more of land surveying education and experience. However, other than stating
that the education must indicate that an applicant has acquired the knowledge, skill,
and practical experience in land surveying work approximating that required of a degreed
applicant, the statute is silent on the quality, quantity, or meaning of a
Aland surveying education.@ If the [Surveyor] Board had not adopted ascertainable educational
standards, then any decision denying an applicant the opportunity to take the Land
Surveyors Examination on educational grounds would violate due process. The requirement of
ascertainable standards is designed to make certain that administrative decisions are fair, orderly
and consistent rather than irrational and arbitrary.
By adopting a regulation outlining specific
educational requirements, the [Surveyor] Board acted within
the scope of its statutory authority.
Id. at 49596 (final two emphases added).
We fail to see how the facts of this case differ from those
Bender. There, it was determined that an administrative regulation imposing
educational requirements for land surveyors C not specifically set forth by the legislature
C was valid because it was Areasonable and consistent with and necessary to
carry out the purposes of the [licensing] statute.@ Bender, 626 N.E.2d at
We acknowledge that the
Bender court was concerned with the validity of non-statutory,
regulatory educational requirements as applied to persons taking a licensing examination, while this
appeal concerns similar educational requirements as applied to comity registration, but the reasoning
is the same: the statutes in both instances are silent on the
quality, quantity, or meaning of a Aland surveying education@ and Aengineering education@ respectively.
In both instances, the regulatory boards adopted ascertainable educational standards so that
any decision denying applicants the opportunity to ultimately become licensed in the respective
professions would not violate due process. And in both instances, the boards
acted within the scope of their respective statutory authority by adopting regulations outlining
specific educational requirements.
After reviewing the statutory language before us and case law interpreting nearly ide
language, we agree with the Board=s position that Indiana=s requirements for comity registration
necessarily include those educational requirements found in Indiana Administrative Code, tit. 864, r.
We assume a more limited role in reviewing the Board
=s decision that Eberenz
obtained his Kentucky engineer license under requirements which Aconflict@ with those established for
registration in Indiana.
Proceedings before the Board and judicial review thereof are governed by the Admi
Orders and Procedures Act (AAOPA@). See Ind. Code '' 421.511 et seq.
(1993). Under the AOPA, the scope of a court=s judicial review is
limited to a consideration of (1) whether there is substantial evidence to support
the agency=s finding and order and (2) whether the action constitutes an abuse
of discretion or is arbitrary or capricious. Indiana Dep=t of Envtl. Management
v. Conard, 614 N.E.2d 916, 919 (Ind. 1993). In reviewing an
administrative decision, this Court will not try the facts de novo nor substitute
its own judgment for that of the agency. Id.
It follows from our analysis in Part I of this opinion that we
now find there existed substantial evidence to support the Board
=s finding that Eberenz
Alack[ed]@ the requisite educational credits. The Board properly concluded that Indiana=s requirements
for comity registration included those educational requirements established in its own regulation, and
we will not second-guess the Board=s finding that Eberenz did not present evidence
satisfying this standard. See Indiana State Ethics Comm=n v. Nelson, 656 N.E.2d
1172, 1174 (Ind. Ct. App. 1995) (AThe court on judicial review of an
agency decision is governed by the presumption that the agency=s decision is correct
in view of its expertise.@), transfer denied.
As for the determination that a
Aconflict@ existed between Kentucky=s and Indiana=s licensure
requirements, we recognize that the Board anticipated a need to define the term
Aconflict@ in the context of A[c]omity registration standards.@ Thus, Rule 1.1-5-1 provides
[u]nder IC 2531121, one (1) requirement for an individual who is registered as a professional engineer outofstate to become registered in Indiana is that the requirements under which the outofstate registration was issued do not conflict with IC 25311. One (1) such provision is that all other requirements for registration be completed before taking the principles and practice examination. Therefore, an applicant must have obtained the qualifying work experience following graduation and prior to the taking of the principles and practice examination. Any other sequence of events shall be considered to be in conflict with IC 25311.
Ind. Admin. Code tit. 864, r. 1.1-5-1 (emphases added).
At first blush, this language appears only marginally helpful in the context of this case: the single example (or A(1) such provision@) provided therein concerns an applicant needing to take the nationally administered principles and practice examination. See footnote We nonetheless acknowledge and accord great weight to the Board=s consistent and obvious concern throughout its rules that all applicants complete the Arequirements for registration.@ See Indiana State Bd. of Registration for Prof=l Eng=rs & Land Surveyors v. Nord, 600 N.E.2d 124, 128 (Ind. Ct. App. 1992) (AWhen an agency interprets its own statute, the reviewing court should accord the agency interpretation great weight, but is not bound thereby.@) As such, we find that the Board=s determination that a conflict existed with Eberenz=s comity application was not an abuse of discretion, nor arbitrary or capricious.
Finally, we note that it is axiomatic that a state licensing board will
occasionally deny a comity application on the basis of one or both of
=s most significant requirements for licensure: education and work experience. After
all, these two requirements logically distinguish licensed professionals from the remainder of society,
and Hoosiers and Kentuckians alike have a stake and an interest in seeing
that regulatory boards are free to enforce and administer the competent practice of
professionals in their respective states.
We therefore grant transfer, vacate the opinion of the Court of Appeals, reverse
the trial court
=s judgment, and remand to the Board for further proceedings consistent
with this opinion.
SHEPARD, C.J., and BOEHM and RUCKER, JJ., concur.
DICKSON, J., concurs as to Part I but dissents as to Part II.