STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6677

March 20, 1991

CIVIL SERVICE:

Subject to statutory licensing requirements

LICENSING & REGULATION:

Licensing counselors

The licensing provisions of 1988 PA 421 do not infringe upon the plenary authority of the Civil Service Commission under Const 1963, art 11, Sec. 5, and are, therefore, binding upon employees in the state classified civil service.

Employees in the state classified civil service are required to become licensed under 1988 PA 421 only if they engage in clinical counseling and also are held out to the public as "licensed" or "professional" counselors.

Gerald H. Miller

Department of Social Services

P.O. Box 30037

Lansing, Michigan 48909

By means of 1988 PA 421, MCL 333.18101 et seq; MSA 14.15(18101) et seq, the Legislature added a series of new provisions to the Public Health Code, 1978 PA 368, MCL 333.1101 et seq; MSA 14.15(1101) et seq, which, for the first time, require licensure of certain professional counselors. My opinion has been requested on two questions, both of which concern the application of these newly enacted provisions to certain employees in state classified civil service positions within the Department of Social Services.

The first question is whether the application of the licensing provisions of 1988 PA 421 to employees in the state classified civil service would constitute an infringement upon the plenary authority of the Civil Service Commission under Const 1963, art 11, Sec. 5. This question essentially concerns the relationship between the authority of the Legislature to license and regulate professions and occupations and that of the Civil Service Commission to determine the qualifications for positions in the state classified civil service.

Const 1963, art 11, Sec. 5, p 4, specifies the powers and responsibilities of the Civil Service Commission:

The powers of the Civil Service Commission are derived from the constitution; these powers are plenary when the Commission is acting within the sphere of its constitutional authority. Council No. 11, AFSCME v. Civil Service Comm, 408 Mich 385; 292 NW2d 442 (1980), Viculin v Dept of Civil Service, 386 Mich 375; 192 NW2d 449 (1971), Pec v. Liquor Control Comm, 322 Mich 691; 34 NW2d 524 (1948), Robinson v Dept of State, 20 MichApp 231; 173 NW2d 799 (1969). Because the power of the Civil Service Commission is derived from the constitution itself, any attempt by the executive, legislative or judicial branches of government to usurp or limit that power is unavailing. Council No 11, supra, p 408.

The sphere of authority of the Civil Service Commission includes the power to make rules and regulations governing all personnel transactions and to regulate conditions of employment. Council No 11, supra, p 406. In Viculin, supra, at p 393, the Supreme Court recognized the plenary power to regulate employment related activity involving internal matters such as job specifications, compensation, grievance procedures, discipline, collective bargaining and job performance. See, Council No 11, supra, p 408. Courts have also recognized that the Civil Service Commission may not exceed the scope of its authority and may not regulate activities beyond that scope. Council No 11, supra, p 408 (off-duty political activity not affecting job performance), Dept of Civil Rights ex rel Jones v Dept of Civil Service, 101 MichApp 295, 303; 301 NW2d 12 (1980) lv den 411 Mich 1034 (1981) (long-term disability eligibility for pregnancy leave).

Accordingly, the Civil Service Commission has the authority to set the qualifications for all positions in the state classified civil service. The Civil Service Commission even has the authority to require that a person have a license as a qualification for a position within the state classified service. See, Parnis v Civil Service Comm, 79 MichApp 625; 262 NW2d 883 (1977).

However, the Legislature likewise has its own constitutional sphere of authority. Among the powers plainly reserved to the Legislature is the power to license and regulate professions and occupations whose activities affect the public health and welfare. "[T]he legislature has power to define the qualifications of those who shall be licensed to practice those callings or professions the exercise of which may affect the public health or safety,...." People v Phippin, 70 Mich 6, 23; 37 NW 888 (1888). See also, Locke v Ionia Circuit Judge, 184 Mich 535, 539-540; 151 NW 623 (1915), People v Carroll, 274 Mich 451, 453-454; 264 NW 861 (1936). Thus, it is the prerogative of the Legislature to determine that, as a matter of sound public policy, individuals in this state must be licensed in order to perform certain activities affecting the health of the public; this policy determination is outside the plenary grant of authority to the Civil Service Commission.

OAG, 1987-1988, No 6517, p 323 (May 25, 1988), examined a statute purporting to require that classified state civil service positions in the timber harvest program or the forest fire program must be filled by graduate foresters. The opinion concluded that the statute was unconstitutional, stating, at p 324:

The distinction drawn here is crucial. The Legislature may not establish job requirements for state classified positions. To do so would plainly be an invasion of the constitutional prerogatives of the Civil Service Commission. However, the Legislature does have the power, by means of legislation of general or statewide application, to impose licensure requirements upon all persons performing such activities within the State of Michigan. This is true even if the legislation has the ancillary effect of requiring the licensure of persons engaged in those activities within the state classified civil service. The Civil Service Commission, in turn, has the exclusive authority to set the duties, responsibilities, and general qualifications of a position within the state classified service. However, if those duties, responsibilities and qualifications include activities which, by a valid statute of general application, may be performed only by individuals possessing a license, then employees performing such activities must be licensed. Thus, by way of example, civil service employees who are employed to engage in activities which constitute the practice of law or medicine must be licensed to practice their respective professions. The Civil Service Commission is without authority to exempt such individuals from an otherwise valid licensing statute. The same conclusion applies to a statute requiring licensure of professional counselors.

It is my opinion, therefore, in response to the first question, that the licensing provisions of 1988 PA 421, MCL 333.18101 et seq; MSA 14.15(18101) et seq, do not infringe upon the plenary authority of the Civil Service Commission under Const 1963, art 11, Sec. 5, and are, therefore, binding upon employees in the state classified civil service.

The second question posed by this inquiry is whether a series of specific state classified civil service positions within the Department of Social Services involve duties which require the incumbent employees to become licensed as professional counselors under MCL 333.18101 et seq; MSA 14.15 (18101) et seq. A total of sixteen positions are identified:

I am advised that, as of June 23, 1990, there were 8,255 filled positions in these classifications in the Department of Social Services.

A license to engage in the practice or profession of counseling was first required by the Legislature on January 1, 1989, the effective date of 1988 PA 421, MCL 333.18101 et seq; MSA 14.15(18101) et seq, as an amendment to the Public Health Code, supra. The amendatory act defines the practice of counseling as follows:

MCL 333.18101(d); MSA 14.15(18101)(d).

In order to qualify for a license, a person must be 21 years old and must possess a masters or doctoral degree in counseling or student personnel work in a program approved by the Board of Counseling. MCL 333.18107; MSA 14.15(18107). MCL 333.18105(2); MSA 14.15(18105)(2), prohibits a person from engaging in the practice of counseling unless licensed or otherwise authorized under the Act.

The Act contains a number of provisions exempting various individuals from its requirements. For example, MCL 333.18115(1); MSA 14.15(18115)(1), provides:

Also exempted are ordained members of the clergy, volunteers for public or private nonprofit organizations, churches or charities, and individuals employed by or volunteers who work in programs licensed by the office of substance abuse services. MCL 333.18115(2); MSA 14.15(18115)(2). Finally, the Act also exempts:

Significantly, another provision of the Act expressly permits unlicensed individuals to hold themselves out as "counselors" without penalty so long as such individuals do not hold themselves out as "licensed" or "professional" counselors. MCL 333.18115(3); MSA 14.15(18115)(3), provides:

This provision, particularly when considered in light of the foregoing exemptions, suggests that the Legislature intended to license and regulate only those persons who use clinical counseling principles, methods and procedures and who also hold themselves out to the public as "licensed" or "professional" counselors.

Professional or occupational licensing acts usually prohibit an unlicensed person from engaging in the types of activities which comprise the practice of an occupation or profession regardless of how the individual describes his or her qualifications or credentials. For example, one not licensed as a physician cannot order the dispensing of prescription medicines whether he or she is trained as, or styles himself or herself as, a "physician."

However, the language of the "licensing" provisions here at issue is unusual in that, when read in conjunction with the exemptions contained in the Act, it appears not to be a prohibition against the unlicensed use of counseling methods, principles or procedures per se. Although ambiguous, when read in their entirety, the provisions appear rather to prohibit the use of such counseling methods and procedures in the conduct of other professions only if one also holds himself or herself out as a "professional" or "licensed" counselor while engaging in such activities. In this regard, the statute appears to operate more in the nature of a statute which certifies credentials than as a pure licensing act. Given this unusual language and the ambiguity of the provisions, resort must be had to legislative history to determine the actual legislative intent.

1988 PA 421 was originally introduced as Senate Bill 386. As introduced, the bill did not contain the provision now found in MCL 333.18115(3); MSA 14.15(18115)(3), supra, permitting unlicensed individuals to hold themselves out as "counselors" so long as they did not represent themselves to be "licensed" or "professional" counselors. Significantly, this provision was added before the bill was even reported out of committee, as Substitute S-2. The addition of this amendment to the original bill clearly evidences the Legislature's intent, very early in the legislative process, to significantly narrow the scope of the original bill.

In attempting to determine legislative intent, resort may be made to the bill analyses done for the legislature. Tomiak v Hamtramck School Dist, 426 Mich. 678; 397 NW2d 770 (1986).

During the course of the Senate's consideration of this bill, a series of four separate bill analyses were prepared by the Senate Fiscal Agency. These were: (1) SB 386 (S-1): Revised Committee Summary (November 3, 1987); (2) SB 386 (S-2): First Analysis (November 12, 1987); (3) SB 386 (S-3): Second Analysis, and (4) SB 386 (as enrolled): Enrolled Analysis (January 30, 1989). Each of these bill analyses contained the following observation:

Similar observations were contained in a subsequent analysis prepared by the House Legislative Analysis Section. In its June 8, 1988, analysis of Senate Bill 386, Substitute H-1 (which eventually became 1988 PA 421 with a few minor amendments of no significance herein) the House Legislative Analysis Section observed, at p 3, that:

This legislative history clearly establishes that the Legislature intended to license only those persons who engage in clinical counseling and who also hold themselves out to the public as "licensed" or "professional" counselors.

The primary rule of statutory construction is to ascertain and give effect to the intent of the Legislature. Browder v International Fidelity Ins Co, 413 Mich 603, 611; 321 NW2d 668 (1982). A statute is to be read in its entirety so as to harmonize the meaning of its separate provisions. In re Vellenga Estate, 120 MichApp 699, 703; 327 NW2d 340 (1982); County of Delta v Dept of Natural Resources, 118 MichApp 458, 462; 325 NW2d 455 (1982), lv den 414 Mich 954 (1982).

It is my opinion, therefore, that employees in the state classified civil service are required to become licensed under 1988 PA 421, MCL 333.18101 et seq; MSA 14.15(18101) et seq, only if those employees engage in clinical counseling practices and also are held out to the public as "licensed" or "professional" counselors.

Frank J. Kelley

Attorney General