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. 5376 October 23, 1978 FORENSIC POLYGRAPH EXAMINERS ACT: Internship training program LICENSES & PERMITS: Forensic Polygraph Examiners Act ADMINISTRATIVE LAW & PROCEDURE: Authority to adopt rules The State Board of Forensic Polygraph Examiners may adopt rules requiring both academic and practical training in fulfillment of the internship requirement of the Forenisc Polygraph Examiners Act. The Board also has authority to adopt rules requiring that the academic phase preceed the practical phase. The Board may not require an applicant for an examiner's license to complete a formal course of instruction in polygraph testing as equivalent to internship training program where section 10(e)(ii) authorizes licensure to an applicant who satisfies the board that he has training and experience equivalent to an internship training program. The Board may issue an intern's license to an applicant who does not meet the educational requirements of a polygraph examiner stated in section 10(d) of the Forensic Polygraph Examiners Act. The Board may issue an intern's license to an applicant who, as part of his application, agrees to fulfill the educational requirements of section 10(d) of the Forensic Polygraph Examiners Act. The Board may issue an intern's license to applicant who, at the time of application, has not attended a polygraph training course of instruction. Colonel Gerald L. Hough Director Department of State Police 714 South Harrison Road East Lansing, Michigan 48823 You have requested my opinion concerning the Forensic Polygraph Examiners Act, 1972 PA 295, as amended, 1975 PA 278, MCLA 338.1701 et seq; MSA 18.186(1) et seq, hereafter referred to as 'the Act'. The pertinent provisions of the Act are the following portions of subsection 3(c); subsection 7(1); subsections 10(d) and (e) and section 11 which state: 'Sec. 3. As used in this act: '(c) 'Intern' means a person who is actively engaged in an approved training program pursuant to becoming an examiner.' 'Sec. 7. (1) The board shall promulgate rules consistent with the provision of this act for the dissemination, retention and destruction of polygraph results to protect the general public, in accordance with and subject to the provision of Act No. 306 of the Public Acts of 1969, as amended, being sections 24.201 to 24.315 of the Compiled Laws of 1948, for the administration and enforcement of this act. . . .' 'Sec. 10. Upon application and payment of the required fee, a person is qualified to receive a license as an examiner: '(d) Who has either 1 of the following: '(i) An academic degree, at least at the baccalaureate level, from an accredited college or university, with such academic degree to include specialized study in 1 academic major, or 2 academic minor areas which the board determines to be suitable for and related to specialization as an examiner. '(ii) A high school diploma or its equivalent from an accredited high school and at least 5 years of continuous investigative experience with a recognized governmental law enforcement or governmental investigative agency. '(e) Who has either 1 of the following: '(i) Who has satisfactorily completed an internship training program approved by the board. '(ii) Who satisfies the board that he has training or experience equivalent to such an internship training program.' 'Sec. 11. A person is qualified to receive a license as an intern who satisfies the board that he is engaging in an approved internship training program and that he substantially fulfills the basic requirements of this act for licensing as an examiner. The applicant shall not be required to fulfill the experience or residence requirements in subdivisions (e), (f) and (j) of section 10 in qualifying for an intern's license.' Seeking interpretations of these provisions, you have asked the following 7 questions: (1) May the Board require both 'academic' and 'practical' training in fulfillment of the internship requirement? (2) May the Board require that the 'academic phase' precede the 'practical phase'? (3) May the Board require completion of a formal course of instruction in polygraph testing as 'equivalent to such internship training program' allowable under section 10(e)(ii)? (4) May the Board issue an intern's license to an applicant who does not meet the educational requirements stated in section 10(d)? (5) May the Board issue an intern's license to an applicant who, as part of his application, agrees to fulfill the educational requirements of section 10(d) but who, during the internship agrees to, and does, fulfill the educational requirements in section 10(d)? (6) May the Board issue an intern's license to an applicant who, at the time of application, has not attended a 'polygraph training course of instruction'? Your questions will be answered seriatim: (1) May the Board require both 'academic' and 'practical' training in fulfillment of the internship requirement? Although the Act neither defines nor describes an 'approved internship training program,' section 7(1) authorizes the board to promulgate rules for the administration and enforcement of the Act and this authority includes that of requiring both academic and practical training in fulfillment of an internship program. I am, therefore, of the opinion that the board has authority to adopt rules requiring that an approved internship training program include both an academic program and practical training. (2) May the Board require that the 'academic phase' precede the 'practical phase'? The rule-making authority delegated to the board by section 7 also allows it to require that an academic course of study precede the practical phase. (3) May the Board require completion of a formal course of instruction in polygraph testing as 'equivalent to such internship training program' allowable under section 10(e)(ii)? The answer to this question is negative. Inasmuch as section 10(e)(ii) allows a person's 'training or experience' to be equivalent to an internship training program, it would violate the clear intent of the statute for the board to require completion of a particular formal course of instruction as an equivalent to an internship training program. In this regard the decision of the Michigan Court of Appeals in Schweitzer v Board of Forensic Polygraph Examiners, 77 Mich App 749; 259 NW2d 362 (1977), lev den 402 Mich 837 (1977), is both instructive and controlling. In Schweitzer, supra, an applicant for licensure was rejected by the board on the ground that experience gained as a private investigator could not be equated with the investigative experience of a 'governmental law enforcement or governmental investigative agency' which is the requisite under section 10(d)(ii). The court noted, however, that an applicant may be licensed under section 9 if he or she meets the requirements of section 9(a) and substantially fulfills the requirements of section 10. Explaining the ground for this decision, the court noted, 77 Mich App at 757-758: '. . . The substantially fulfills requirement of Sec. 9 applies to each of the requirements of Sec. 10 and means the applicant must have or be the equivalent of the specific legislative requirement. Cf., Rogers Plaza, Inc v S S Kresge Co, 32 Mich App 724, 745-746; 189 NW2d 346 (1971) (substantial performance means not the exact thing promised, but something just as good). Stated another way, an applicant must meet each of the statutory requirements of Sec. 10 or a reasonable equivalent to take advantage of Sec. 9(b). (Emphasis added) The court then added: '. . . If investigative experience has any relevance to qualification as a polygraph examiner, certainly private experience as a state licensed and regulated private investigator, MCLA 338.821 et seq; MSA 18.184(1) et seq., is the equivalent of governmental experience for purposes of Sec. 9(b) and Sec. 10(d)(ii) . . ..' (Emphasis added) From these excerpts, it may be seen that, where the Act requires the board to accept qualifications which are equivalent to those specified by statute, it becomes the duty of the board to embark upon an evaluation process for each applicant to determine whether the credentials offered by the applicant are 'equivalent' to the statutory qualifications. Therefore, it is my opinion that if the board were to impose a requirement that an applicant complete a particular formal course of instruction in order to meet the 'equivalency' standard of section 10(e)(ii), it would exceed its statutory powers. (4) May the Board issue an intern's license to an applicant who does not meet the educational requirements stated in section 10(d)? Section 11 of the Act, supra, states, in part, that 'A person is qualified to receive a license as an intern who satisfies the board that he is engaging in an approved internship training program and that he substantially fulfills the basic requirements of this act for licensing as an examiner.' The term 'substantially fulfills' cannot be construed to require strict compliance. Schweitzer v Board of Forensic Polygraph Examiners, supra, 77 Mich App at 757. Therefore, although an applicant for an intern's license does not meet the educational requirements stated in section 10(d), the board may, pursuant to section 11, issue an intern's license to that individual. (5) May the Board issue an intern's license to an applicant who, as part of his application, agrees to fulfill the educational requirements of section 10(d) but who, during the internship agrees to, and does, fulfill such educational requirements? Although section 11, supra, states that 'a person is qualified to receive a license as an intern who satisfies the board that he is engaging in an approved internship program,' the words 'is engaging' may reasonably be construed to refer to a person who is about to engage in the internship program as distinguished from being licensed as an examiner under section 10(d), supra. If the person completes the training program, he or she will have been engaged in the program and will thereby have met the requirement of having been a licensed intern while engaging in the approved internship training program. To construe the words 'is engaging' to mean that an applicant for a license as an intern must already be an intern would result in an absurd catch-22 situation in which no person could ever become an intern because he is not already engaged in being an intern. The same logic applies to an applicant who completes the other requirements for licensure as an examiner under section 10(d) and it is therefore my opinion that the Board may issue an intern's license to an applicant who agrees to fulfill the educational requirements of section 10(d). (6) May the Board issue an intern's license to an applicant who, at the time of application, has not attended a 'polygraph training course of instruction'? It is my opinion that the board may not impose a requirement that a course of instruction be completed prior to the issuance of an intern's license. Section 11 of the Act specifically provides that an applicant is qualified to receive a license as an intern if he or she satisfies the board that he or she 'is engaging' in an approved internship training program. The board may not impose upon an applicant for an intern's license greater training standards than are provided for by the Act. Compelling an applicant to complete a course of instruction as a prerequisite to being awarded an intern's license, would exceed the requirements of section 11. Frank J. Kelley Attorney General