Ward v. State, Board of Registration for Architects, Engineers & Land Surveyors, 051812 AKAEL, 3AN-11-8665 CI

Docket Nº:3AN-11-8665 CI
Opinion Judge:Pat Douglass Judge
Party Name:MICHAEL WARD, Appellant, v. STATE OF ALASKA, BOARD OF REGISTRATION FOR ARCHITECTS, ENGINEERS & LAND SURVEYORS Appellee.
Case Date:May 18, 2012
Court:Superior Court of Alaska
 
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MICHAEL WARD, Appellant,

v.

STATE OF ALASKA, BOARD OF REGISTRATION FOR ARCHITECTS, ENGINEERS & LAND SURVEYORS Appellee.

No. 3AN-11-8665 CI

Superior Court of Alaska, Third Judicial District, Anchorage

May 18, 2012

ORDER ON ADMINISTRATIVE APPEAL

Pat Douglass Judge

On June 6, 2011, Appellant Michael Ward appealed the administrative decision by Appellee Board of Registration for Architects, Engineers & Land Surveyors (Board) denying his application for registration as an engineer in Alaska by comity pursuant to AS 08.48.191(b) and 12 A AC 36.105.1 After the Board initially denied his application in August 2010, an administrative law judge recommended the Board "exercise its discretion to approve his application" based on Appellant's subsequent showing, by a preponderance of the evidence, that he satisfies the "good character" requirement for registration as an engineer."2 Without explanation, the Board rejected the judge's recommendation and issued a final decision denying Mr. Ward's application.3 For the following reasons, the Court SETS ASIDE the Board's decision and REMANDS for further findings.

Statutory Background

The Board administers and is empowered to regulate the registration process for licensing engineers in Alaska.4 The Board has regulated standards of professional conduct for registered engineers focusing on a dedication to "the safety, health, property, and welfare of the public."5 The governing statutes provide that engineers seeking registration, whether applying by examination or comity, "must be of good character and reputation."6 When applying for registration by comity, the applicant must satisfy this requirement "in the opinion of the board .. . based on verified evidence."7

If the Board denies the application, an applicant can appeal the denial and request a hearing.8 After the hearing, an administrative law judge issues a proposed decision while the Board retains discretion to make a final decision.9 The Board then issues a final decision adopting the judge's proposed decision, revising and adopting it, or rejecting it.10 Rejections and revisions must be done in writing noting the basis for the final decision, and any affected findings and reliance on testimony and evidence must be specifically identified.11 Judicial review is available within 30 days of the Board's final decision.12

Facts and Proceedings

On January 11, 2010, Appellant Michael Ward submitted his application to the Board for registration as an engineer by comity.13 When asked if he had ever been convicted of a felony or misdemeanor, Mr. Ward checked "yes" and, on the requested separate sheet, he outlined that he had a DUI conviction in 1999, two 2001 convictions, one for breach of peace and a DUI, a 2002 conviction for driving without privileges and a 2003 conviction for delaying an officer.14 In February 2010, Mr. Ward pleaded guilty to 2009 DUI and controlled substance charges, which he voluntarily disclosed to the Board in May 2010.15 He also provided the Board with requested paperwork detailing his convictions.16 The Board denied his application at its August 2010 meeting and sent a letter to Mr. Ward describing the basis for its decision:

"Specifically, the board determined that your application does not meet the requirements of AS 08.48.171 because of excessive citations for driving under the influence (DUI). AS 08.48.171 states in part that 'An applicant for registration as an architect, engineer, land surveyor, or landscape architect must be of good character and reputation.'"17

Mr. Ward appealed this decision. Prior to the hearing, Mr. Ward offered to enter into a two-year term of probation should his application be accepted, where any conviction related to controlled substances or alcohol in any jurisdiction would result in his license being immediately forfeited.18 In a preliminary ruling, the administrative law judge found the Board "must show a nexus between Mr. Ward's criminal history and the practice of the profession in engineering" which Mr. Ward would have to disprove or otherwise show "he is of good character as his character relates to the practice of the profession of engineering.19

In February 2011, following a hearing, the administrative law judge issued his opinion regarding Mr. Ward's appeal.20 He found the Division of Corporations, Business and Professional Licensing successfully demonstrated a nexus existed between Mr. Ward's convictions and the practice of engineering as "they show poor judgment, an inability to comply with rules of proper behavior, and a disregard for the safety and welfare of others."21 Mr. Ward did not disprove this nexus, but did successfully prove, by a preponderance of the evidence, that he had sufficiently good character and reputation that the Board should, in its discretion, approve his application notwithstanding his convictions. Mr. Ward had provided additional evidence on appeal concerning his character and conduct as a professional engineer, including eight persuasive letters of character reference addressing his recovery, community service and superior professional conduct22

In consideration of the arguments and evidence, the judge found Mr. Ward met his burden of demonstrating good character, that his convictions were "lapses in judgment" which he acknowledges as serious and "has taken steps to reform."23 The judge encouraged the Board to "exercise its discretion to approve his application to be a registered civil engineer in Alaska."24 On May 5, 2011, without explanation, the Board rejected the judge's decision and issued a final denial of Mr. Ward's application.25

On June 6, 2011, Mr. Ward filed his Notice of Appeal in this matter and his Statement of Points a few weeks later. In late October, he filed his brief"26 Mr. Ward highlighted his arguments and evidence presented at the hearing demonstrating his good character and reputation, noting he had no addiction indicators and had taken steps to acknowledge and reform his behavior.27 He also highlighted the administrative law judge's findings that he had satisfactorily shown good character and reputation to merit registration and asked the Court to affirm those findings and compel the Board to approve his application.28

In November 2011, the Board was allowed to file its brief under seal.29 It described the issue on appeal as "whether the Board acted reasonably" in finding Mr. Ward "lacked the requisite character" under AS 08.48.171 for registration.30The Board implied it was influenced by evidence volunteered by Mr. Ward detailing additional traffic offenses, which the application specifically excluded from disclosure, and the 2009 charges he was also not required to mention.31 It argued the administrative law judge's role was to "develop a recommended decision" under AS 44.64.060(d) and highlighted the judge's assessment of Mr. Ward's criminal history as it related to the Board's determination of his character.32 The Board argued its decision that three DUT...

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