The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5094

November 30, 1977

LICENSES AND PERMITS:

Scope of architectural and engineering activities

STATE BOARDS OF REGISTRATION FOR ARCHITECTS, PROFESSIONAL ENGINEERS AND LAND SURVEYORS:

Scope of activities of architects and engineers

ADMINISTRATIVE LAW:

Adoption of rules interpreting a term used in a statute

Although it is not lawful for a person licensed as an architect or engineer to perform the services of another regulated profession for which the person is not licensed, the statute authorizes a professional engineer to perform architectural services if incidental to an engineering project and authorizes an architect to perform engineering services if incidental to an architectural project.

The Board of Registration for Architects may not regulate professional engineers and the Board of Registration for Professional Engineers & Land Surveyors may not regulate architects.

Since an interpretation by a board of the term 'incidental' as used in the statute regulating architects, professional engineers and land surveyors is intended to be more than 'merely explanatory' and the interpretation will have an impact upon the rights and responsibilities of licenses, such an interpretation must be promulgated and published as a rule pursuant to chap 3 of the Administrative Procedures Act.

Mr. Jack C. Sharpe

Administrative Secretary

Board of Registration for Professional Engineers

808 Southland

Lansing, Michigan 48910

You have requested my opinion on the following three questions related to the powers and duties of the Board of Registration for Professional Engineers:

1. Can either Board of Registration [Architects or Engineers] restrict incidental professional services offered by a person registered by that Board if the services are offered in another profession?

2. Would the following resolutions, as passed by each Board, apply to persons registered by the other Board?

'Architects, April 13, 1976: 'All buildings intended for human use, with those exceptions as stated in Act 240 of 1937, as amended, require the service of an architect.'

'Professional Engineer, May 20, 1976: 'All buildings intended for human use, with those exceptions as stated in 1937 PA 240, require the services of a Registered Professional Engineer."

3. Can each Board's interpretation of 'incidental' as used in section 15a(2) be presented in resolution form or must the interpretations be presented in the form of administrative rules?

Turning to your first question, the registration act for architects, professional engineers and land surveyors, 1937 PA 240; MCLA 338.551 et seq; MSA 18.84(1) et seq, prescribes the powers and duties of the respective boards and sets forth the basic requirements for licensure of the three regulated professions.

1937 PA 240, supra, Sec. 3, provides that '[e]ach board shall be vested with the administration of the provisions of [the] act applicable to the profession to which the board pertains', and 1937 PA 240, supra, Sec. 6, grants each board power to promulgate rules to implement the act.

The professions of architecture, engineering and land surveying as regulated by 1937 PA 240, supra, are separate and distinct professionals. Nemer v State Board of Registration for Architects, Professional Engineers, and Land Surveyors, 20 Mich App 429; 174 NW2d 293 (1969). People v Babcock, 343 Mich 671; 73 NW2d 521 (1955). Therefore, it is unlawful for a person licensed as an architect, engineer or land surveyor under the act to perform the services of another profession regulated by the act which are outside the scope of his respective profession. (1)

1937 PA 240, supra, Sec. 15a(2), however, specifically allows professional engineers and architects to perform certain work within the scope of the other's profession; thus architectural services may be performed by an engineer if incidental to an engineering project and engineering services may be performed by an architect if incidental to an architectural project. This subsection states:

'Where overlapping of the professions is involved, the registered practitioner who seals the plans, drawings, specifications and reports may perform services in the field of the other if such other services are incidental to the architectural, or engineering project as a whole.'

Thus, where the work to be performed is incidental to the project, the legislature has expanded the scope of professional activities to permit a registered practitioner to perform the services normally within the practice of another profession regulated by 1937 PA 240, supra.

An administrative agency may not legislate under the guise of its rule-making power and may not limit or enlarge the act or a right granted thereunder. 1 Am Jur 2d, Administrative Law, Sec. 132, p 944; Coffman v State Board of Examiners in Optometry, 331 Mich 581; 50 NW2d 322 (1951). Therefore, in response to your first question, neither board may limit or restrict incidental services performed by a licensee which are specifically allowable under statute.

Your second question refers to two resolutions, one adopted by the Board of Registration for Architects and the other by the Board of Registration for Professional Engineers and you have asked whether the resolution adopted by one of the boards applies to persons registered by the other board. The answer to your question is: No. Each board may only regulate the profession which the legislature has designated to be regulated by that board. Each of the three professions included in 1937 PA 240, supra, is regulated by a separate licensing board and the Act provides each of the boards with authority to regulate only one of the three professions.

Thus, the State Board of Registration for Architects may not enact rules or regulations defining the scope of activities of professional engineers and the Board of Registration for Professional Engineers may not adopt rules or regulations governing the scope of practice of architects for, as creatures of the legislature, these boards may only exercise authority granted to it by statute. In addition, in establishing the scope of practice of architecture, the architectural board must include within that scope those activities of architects which may constitute the practice of professional engineering but are incidental to the practice of architecture. The same principle applies to the State Board of Registration for Professional Engineers.

In your third question, you have asked whether the Board's interpretation of the term 'incidental' as used in 1937 PA 240, Sec. 15a(2), supra, may be by resolution or must be in the form of administrative rule. It must be noted that an administrative interpretation may neither enlarge nor diminish an exemption created by the act.

The term 'rule' is defined by the Administrative Procedures Act of 1969, 1969 PA 306, as amended; MCLA 24.207; MSA 3.560(107), as follows:

"Rule' means an agency regulation, statement, standard, policy, ruling or instruction of general applicability, which implements or applies law enforced or administered by the agency . . . but does not include the following:

'(h) A form with instructions, in interpretive statement, a guideline, an informational pamphlet or other material which in itself does not have the force and effect of law but is merely explanatory.'

The interpretation by the Board of 'incidental' as used in 1937 PA 240, Sec. 15a(2), supra, is intended to be more than 'merely explanatory' and would impact upon the rights and responsibilities of persons registered under the Act. It must therefore be promulgated and published as a rule pursuant to Chapter 3 of the Michigan Administrative Procedures Act of 1969, 1969 PA 306, Secs. 31-64; Baker v State Board of Dentistry, 63 Mich App 729; 235 NW2d 157 (1975).

Frank J. Kelley

Attorney General

(1) There are five exemptions contained in 1937 PA 240, supra, Sec. 19, which permit certain persons to perform the regulated professional activities without licensure; therefore, this prohibition would not apply if the activity was covered by one of the exemptions.