Bruns v. Kansas State Bd. of Technical Professions, 69,350

• Decision Date: 08 July 1994
• Docket Number: No. 69,350,69,350
• Citation: 877 P.2d 391,255 Kan. 728
• Parties: Ronald C. BRUNS, Appellant, v. KANSAS STATE BOARD OF TECHNICAL PROFESSIONS, Appellee.
• Court: Kansas Supreme Court

Page 391

877 P.2d 391

255 Kan. 728

Ronald C. BRUNS, Appellant, v. KANSAS STATE BOARD OF TECHNICAL PROFESSIONS, Appellee.

No. 69,350.

Supreme Court of Kansas.

July 8, 1994.

Syllabus by the Court

1. Generally, a rule or regulation is a policy which is of general application and has the effect of law.

2. An internal policy of a state agency which is adopted to govern the agency's enforcement or administration of legislation is a rule or regulation as a matter of law under K.S.A.1993 Supp. 77-415(4) and to be effective must be filed and published as a rule or regulation.

3. A policy which is, in fact, a rule or regulation under K.S.A.1993 Supp. 77-415(4) is a nullity and of "no force or effect" under K.S.A. 77-425 unless it has been filed and published as a rule or regulation as required by law.

4. Under the facts of this case, the Board of Technical Professions erred in denying an application for licensure as a professional engineer by reciprocity when it did so based on its internal written "policy," which had not been filed and published as a regulation.

Ronald C. Bruns, pro se, argued the cause and was on the briefs for appellant.

Glenda L. Cafer, of Bennett & Dillon, Topeka, argued the cause and was on the briefs for appellee.

SIX, Justice:

This is an administrative law professional licensing case. Ronald Bruns appealed from the trial court's order affirming the refusal of the Kansas State Board of Technical Professions (BTP) to license him as a professional engineer. Bruns sought a license based on reciprocity and waiver of the Kansas examination. The Court of Appeals reversed the district court and returned the case to the BTP. Bruns v. Kansas State Bd. of Technical Professions, 19 Kan.App.2d 83, 864 P.2d 1212 (1993). We granted the BTP's petition for review.

The question for review is whether the BTP properly interpreted K.S.A. 74-7024(a) in applying an internal policy to deny Bruns a license. We answer the question "No" and affirm the result and syllabus of the Court of Appeals.

The authority for judicial review of the BTP's decision is statutorily defined by the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. K.S.A. 77-623 provides that agency actions are reviewable by appellate courts as in other civil cases. K.S.A. 77-621 sets forth the applicable scope of review. We exercise the same review of the agency's action as does the district court. Peck v. University Residence Committee of Kansas State Univ., 248 Kan. 450, 456, 807 P.2d 652 (1991).

"We extend deference to an agency's interpretation of its own regulations. The interpretation will not be disturbed on appeal unless it is clearly erroneous or inconsistent with the regulation. In re Tax Appeal of Newton Country Club Co., 12 Kan.App.2d 638, 647, 753 P.2d 304, rev. denied, 243 Kan. 779 (1988). The extension of deference, however, does not mean that we abdicate our responsibility of judicial oversight in the review of agency actions." Reed v. Kansas Racing Comm'n, 253 Kan. 602, 610, 860 P.2d 684 (1993).

Facts

The relevant facts are set forth in the Court of Appeals' opinion:

"Bruns took the professional engineering exam in the state of Georgia in 1964. He passed the exam and received his Georgia license, which he held until 1972. Later, Bruns moved to Florida and obtained a Florida license through reciprocity. In 1972, Bruns allowed his Georgia license to expire. He has maintained his Florida license and, at the time he sought a license in Kansas, Bruns held a valid, current license from the State of Florida.

"The BTP has what it refers to as a written internal 'policy.' That policy provides that it will not grant a license by reciprocity when the applicant's license in the state of original examination is no longer valid. This policy is in writing and reads specifically as follows:

'The Kansas board shall not approve an application for license as a Professional Engineer ... by comity with another state board if the applicant's original license has been revoked by the state board of original license or suspended ... or if the applicant has allowed his or her original license to lapse or expire.'

"In this case, Bruns' base state of original licensure is Georgia. Since that license has expired, the policy of the BTP required it to deny Bruns a license based on reciprocity. Under the BTP's action, Bruns must now take and pass the Kansas professional engineer examination in order to obtain a Kansas license." 19 Kan.App.2d at 84, 864 P.2d 1212.

The BTP concurs in the Court of Appeals' statement of facts with the following additions. Bruns has never taken a professional examination in Florida. The BTP explains that Bruns may obtain a Kansas license by taking and passing the Kansas professional engineering examination or he can reinstate his Georgia license and reapply for licensure in Kansas based on reciprocity with Georgia.

The Court of Appeals also addressed the issue of jurisdiction. See 19 Kan.App.2d at 85, 864 P.2d 1212. The issue was resolved in Bruns' favor and not advanced in the BTP's petition for review.

The Statute

K.S.A. 74-7024 states, in part:

"(a) Any person who holds a current license or certificate of qualification or registration to practice any branch of the technical professions issued by the proper authority in any other state or political subdivision of the United States or in any other country may be exempted from examination for licensure in this state if the requirements under which said license or certificate was issued are of a standard accepted by the board and if the person's record fully meets the requirements of this state in all respects other than examination."

The BTP's Contentions

The BTP believes the Court of Appeals has interpreted K.S.A. 74-7024(a) to mean that it must look at the standards of the state under which the original license was granted, i.e., Georgia, not those of Bruns' current licensing state, Florida. K.S.A. 74-7024(a) specifically restricts its review to Florida standards and does not allow it to look at Georgia standards. Bruns' Georgia license is no longer current. Kansas' standards require a certain level of education and experience, as well as passage of the Kansas examination. The Florida license was based on reciprocity, so no examination was given by that state. Florida's reciprocity does not meet the standard required from applicants for original licensure in Kansas. Therefore, K.S.A. 74-7024 does not allow waiver of Bruns' examination requirement.

The BTP believes its internal policy is justified based on the fact that it is difficult, or at times even impossible, to obtain information about licensure applicants from states where the applicant is no longer currently licensed. According to the BTP

"[n]on-licensees are deleted from the current computer data base, files are moved to archives where they are unaccessible, states are reluctant to devote time and money to provide information on individuals from whom they no longer receive fees, and when information or documentation is received from a state where the applicant's license is not current, there is no guarantee that the information is complete since the state has had no interest in keeping the individual's file accurate once the individual's license lapsed."

When a reciprocal license is granted, the BTP endorses another state's findings regarding the applicant's education, experience, and examination performance as a courtesy to other states and their licensees. The BTP relies upon the representations of the state of original licensure (the base state), which takes responsibility for having approved the applicant's qualifications and abilities through references and examination. Many states require an applicant to have a current license in the base state before granting reciprocity. The base state requirement provides an incentive for individuals to keep their license current at all times in the original state so that there will be an uninterrupted historical record available to other states. The base state requirement assists state boards in preventing applicants from moving state to state to avoid disciplinary action, creditors, and disgruntled clients.

The BTP reasons that its interpretation of K.S.A. 74-7024 is based on the unambiguous language of the statute and experience in licensing applicants through reciprocity. Therefore, it believes that the policy has a rational basis and should command our respect. The BTP claims it is in the best position to protect the public health, safety, and welfare because it deals with applications for examination waiver on a daily basis.

Bruns' Contentions

Bruns explains that Florida granted him a license based on written examinations taken in Georgia. Florida advised BTP that he had a current license and that the basis of the Florida registration was his Georgia examinations. Georgia informed the BTP that Bruns' license was not current but indicated that he had a grade of 70 or above at the time of his original licensure. Bruns believes that when Georgia provided the BTP with the test records, it took responsibility for the administration and grading of his examinations.

Bruns sets out the history of the denial of his application. He indicates that the letter of denial dated February 27, 1990, stated: "Pursuant to Kansas Statute and Rules and Regulations, your base state must be current in order to obtain a reciprocal license in Kansas". The denial letter dated March 20, 1990, explained: "The Board has denied your application on the basis that your base state of Georgia is not current." Bruns asserts he could not locate the authority for the base state requirement so he retained two attorneys to give him an opinion concerning the interpretation of K.S.A. 74-7024, the statute he hypothesized the BTP was relying on. He was informed that the statute did not require base state registration so he wrote the BTP...