March 19, 1998
Mr. Robert Upton, Board Administrator North Carolina Board for Licensing of Geologists
P.O. Box 41225 Raleigh, NC 27629
Re: Advisory Opinion; Board for Licensing of Geologists’ Code of Professional Conduct; Applicability to state employees; N.C.G.S. Chapter 89E.
Dear Bob:
By letter of February 27, 1998 you asked our opinion regarding the applicability of the North Carolina Board for Licensing of Geologists’ Code of Professional Conduct ("the Code") in the case of a registered Professional Geologist performing assigned duties as a state official or employee.
The North Carolina Geologists Licensing Act ( "the Act", N.C. Gen. Stat. §89E, et seq.) provides for the regulation of the practice of geology in the State. N.C. Gen. Stat. §89E-6 provides that "(a)ny person except as specifically exempted below who shall publicly practice or offer to publicly practice geology in this State is subject to the provisions of this Chapter." N. C. Gen. Stat. §89E-6(2) lists "(o)fficers and employees of the United States of America and the State of North Carolina practicing solely as such officers or employees" as exempt persons under the Act. Pursuant to N.C. Gen. Stat. §89E-19, the North Carolina Board for Licensing of Geologists ("the Board") "may refuse to grant or renew, may suspend or may revoke the license of any person licensed under this Chapter who has violated the provisions of this Chapter or a rule or regulation of the Board…"
Taken together, these provisions mean that an unlicensed state official or employee practicing solely as such is not subject to the provisions of the Act or to the rules and regulations of the Board. Furthermore, a state official or employee is not required to seek licensing under the Act. However, if a state official or employee has been certified as a licensed geologist under the Act, the Board may take action if this person is in violation of the Act or a rule or regulation of the Board. The Code is binding "upon every person holding a certificate of license as a geologist" in North Carolina and qualifies as a Board rule.
It is therefore our opinion that the Board has the authority to investigate written charges that a licensed geologist in this State has acted in violation of the Code. After such investigation, the Board may refuse to grant or renew, may suspend or may revoke the license of any geologist licensed under the Act who has violated the Code, including a state official or employee performing his or her assigned duties. However, a state official or employee who loses his or her license for violations of the Code is still exempt from the provisions of the Act, and thus would not be prevented from practicing geology for the State without a license should the agency decide to retain the person.
signed by:
Daniel C. Oakley
Senior Deputy Attorney General
Brian J. McGinn
Assistant Attorney General