The Pros and Cons of Licensing in California

Don Staples dstaples at livingston.net
Wed Jun 3 09:06:29 EST 1998


Reprinted curtesy of The Consultant, publication of the Association of
Consulting Foresters

The Pros and Cons of Licensing in California, by GEORGE GENTRY

Several of you have inquired of me about the licensing of professional
foresters.  The main reason I have
received these inquiries is owed to the fact that as a California
forester, I have had some experience with
the pros and cons of professional registration.

I realize that in states without licensing, the process is looked upon
as being a way to weed out those
individuals who may take advantage of the public with unscrupulous
business practices.  That is exactly
what was intended by the State of California.  In fact, the laws have
achieved that, but they have also had
some unexpected consequences.

To get a license in California, individuals must first obtain seven
years of experience in forestry, and their
experience must be under the supervision of a Registered Professional
Forester (RPF).  An undergraduate
degree in forestry counts for four of the seven years.  When individuals
apply to the state, they must
demonstrate that their experience shows a logical progression of
forestry skills and responsibilities.  Their
applications are then submitted to a licensing board for review.

This board is known as the Professional Foresters Examining Committee or
PFEC.  There is an executive
director who is a state employee, and a board of eight members appointed
by the Board of Forestry to
serve for a term of four years.  I will talk about the PFEC more later.

When candidates are accepted, they are assigned a location to take a
written exam.  The exam itself
consists of two sessions, one in the morning and one in the afternoon. 
In both these sessions the
candidates are required to answer four of five questions designed to
test the scope and depth of their
knowledge in all classical forestry disciplines.  The tests are graded
by two former instructors in forestry,
and after several weeks, the candidates learn whether they have achieved
the necessary score of 75
percent in order to pass.  Failure rates have varied from 80 percent to
50 percent.

Once their licenses are issued, the candidates become registered
professional foresters or RPFS.  The
license allows them to render advice on forestry matters, and to submit
timber harvest plans.

In terms of the positive aspects of licensing, it has had the intended
effect of removing those individuals
who previously took advantage of the public.  It has also established a
standard of expertise for those
wishing to practice forestry.  In essence, it has elevated foresters to
a professional level.

One of the ways that the law achieves this higher standard is by
providing continuing enforcement
throughout a forester's career.  In other words, if a forester is not
providing services of high ethical and
professional capability, charges may be brought against the forester,
and may result in the suspension or
revocation of the individual's license.

While no one would dispute that such a standard is desirable, consider
what happens when this kind of
law exists in a politically charged state like California.  It is easy
to imagine how charges could be
brought against an individual for merely proposing a controversial plan.

This is really the heart of any licensing issue.  Without a way of
continually enforcing the standards, the
law really only serves to act as an entry point.  What follows is how
the state of California attempts to
enforce standards.

A registered professional forester is subject to disciplinary action
when:

1.  convicted of a felony substantially related to the qualifications,
functions, or duties of a registered
professional forester.

2.  found guilty by the board of any deceit, misrepresentation, fraud,
material misstatement of fact,
incompetence, or gross negligence in his or her practice. 

3.  found guilty of any fraud or deceit in obtaining his or her
registration.  

4.  aiding or abetting any person in the violation of any provision of
this article. 

5.  failing in any material respect to comply with the provisions of
this article.

Note that foresters found to be in violation of any of these provisions
are guilty of a misdemeanor.

Now, how might foresters in California have a charge leveled against
their license?  The first step is a
complaint lodged with the PFEC.  This complaint may be filed by any
person in writing.  At this point,
the executive officer must verify that the complaint is legally subject
to possible action.

If the complaint is found by the executive officer to have merit, the
executive becomes the accuser and
the identity of the person lodging the complaint is kept confidential. 
The statute used as justification for
this procedure originally was enacted for the purpose of protecting the
identities of drug informants.  The
rationale used for protecting confidentiality is that potentially the
person filing the complaint may be an
employee of the accused.

At this point, the executive officer may take the case to the PFEC for
their examination.  He may also
incorporate the use of an investigator, who may or may not have a
forestry background, from the
Department of Consumer Affairs.  If the investigator approaches the
accused, the accused may make a
statement concerning the allegations, however, any statement made can be
used against that person in the
process.

The RPF may not even be informed at this point if, in the opinion of the
executive officer, there is the
possibility of evidence being altered or destroyed.

Some foresters, when faced with the potential of charges being brought
against their license, choose at
this point to enter into a stipulated agreement to avoid the charges
being made public.  It also avoids a
potentially costly legal battle.

The PFEC will make a determination based on the facts gathered by the
executive officer.  Their
determination may range from exoneration to probation to revocation of
the accused's license.  If the
accused has chosen to fight the accusation and has lost the case, the
state will publish the outcome of the
hearing in the accused's hometown newspaper.

At this point, the accused may opt to appeal the decision to an
administrative law judge.  This hearing
follows a more traditional procedure, but is not a jury trial.

The problems associated with this system may be obvious to some of you. 
The first aspect that strikes
many as unfair is the inability to face your accuser.  Although the
sequence is designed to give the
accused due process, the state considers it to be an administrative
action.  Therefore, they do not see the
situation as requiring additional protection of the accused's civil
rights.  However, if convicted, the
accused is guilty of a crime.

Also associated with this process is the situation that arises when
there are conflicts in personality or the
work under examination is controversial from an environmental
standpoint.  It is possible that an
accusation could be filed to harass the forester.  Even if the executive
officer recognizes that the charge is
without merit, the accused may still have the anxiety of facing a
pending action.

Consider also that a valid charge can be material misstatement of fact. 
As an example, a forester might
identify a watercourse as being of a lower classification than an agency
inspector might.  The agency
might then file a non-concurrence and the forester risks having the plan
denied.  So to facilitate the plan's
approval, the forester agrees with the agency's conclusion.  If this
happens on several plans, a pattern and
practice is established, and a charge may be filed.  This may sound
extreme to some of you, but it is a
realistic scenario in the State of California.  Note that nowhere in
this discussion have I mentioned
anything pertaining to damage to the environment or damage to the
landowner-this is a charge based on
how well the report was completed, in the state's opinion.  It also begs
the question of what occurs in a
personality conflict between the inspector and the RPF.

Those of you considering licensing in. your state, here is my advice. 
First, you must maintain a presence
on a licensing board you create.  Review of technical forestry issues by
any others but your peers creates
a difficult situation for you to explain yourself.

We have been fortunate enough to have six RPFs of the eight PFEC
members.  However, future actions
of the electorate could change this composition.  We have already seen
the Board of Forestry's com¬
position change through the years to reflect more public
representation.  In this state, public
representation means members of the environmental community, and they
have never demonstrated any
sympathy for the RPF's position.

Second, you should ' insure that any hearing allows for the right to
face your accuser.  I find this to be
one of the most onerous of the conditions.  If RPFs are to face a
possible loss of their ability to practice
forestry, and hence lose their ability to earn. a living, then they
should be able to face the individual who
has lodged the charge.  I think that this is a fundamental problem with
our system.  If the situation is
serious enough to place RPFs in this kind of jeopardy, then we should be
extremely cautious in protecting
their civil rights.

Third, any punishment should relate to actual damage caused by the
accused's actions; a license should
not be revoked because of the concern that damage could have occurred. 
We see this situation hap¬
pening more and more often.  It is not unlike how the ESA has been
interpreted in that an endangered
animal need not be actually banned, only its habitat need be altered for
a crime to be committed.

I believe that in any instance where the RPF has been accused of not
having enough information in the
timber harvest plan, and there has been no intent to mislead, at most
they should receive a confidential
letter with possibly a requirement of continuing education.  It should
never escalate beyond that.  Without
a willful intent to deceive, I have difficulty with revoking an
individual's ability to earn a living.

To avoid being put in this situation, it is important for foresters to
document all their actions.  Without a
well documented course of action, it becomes difficult to reconstruct
the chain of events.  It is equally
important that ACF members be involved in the process from the
beginning.  Without that involvement,
you will get what you may not deserve.  


GEORGE GENTRY is a partner at Gentry & Gilliam, Forest Consultants in
Eureka, California.  He can be
reached at (707) 443-8047 or fax (707) 443-1459.
-- 
Don Staples
UIN 4653335

My Ego Stroke:  http://www.livingston.net/dstaples/



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