From COMMITTEE RECOMMENDATIONS (To the Pennsylvania Division, Allegheny Society of American Foresters June 23, 1994 presented by Donald P. Oaks Chair, Licensing and Registration Committee)

Provided to the Forestry Task Force members on July 31, 1998.

The following are excerpts from a series of essays by Robert E. Tepel, National Manager, Committee on Professional Registration for the Association of Engineering Geologists (Status as of above date.), which were published in AEG News. Bob Tepel is also President of the Association of Engineering Geologists (Status as of above date.). Bob is anticipating that the essays will be published in book form and was reluctant to grant permission to reprint the articles in that, he felt that they were somewhat unpolished and would soon be in book form and that the series of articles were not complete at this time. Bob's book should be published soon. I am greatly indebted to him and wish to share pertinent information contained in the essays for your consideration as follows:

If the practice of a profession vitally impacts the public health, safety, and welfare, the public has an interest in such practice and has the right to regulate the profession so that the public's interest is served.

CONCERNING THE ASPECTS OF A PROFESSION:

The necessary aspects of a profession have been defined by Alan B. Stover in his 1990 work entitled Registration Laws, Types and Trends as follows:

• existence of a body of specialized knowledge requiring advanced study;
• application of such specialized knowledge or skills, primarily of a mental rather than a physical nature;
• professional standards governing practice of the profession, often evidenced by a code of conduct;
• an organized body of practitioners; and,
• exercise of skill and judgment on behalf of the client or employer.

John Ladd in his 1980 work, entitled The Quest for a Code of Professional Ethics, adds the criterion that "they (professionals) exercise control over the nature of their job and the services they provide."

Evan R. Kennedy in his 1986 work Professionalism is it Going or Coming? Journal of Professional Issues In Engineering, v 112, no. 1, p 47-49 remarks of the professionals that "the parties they serve may not fully comprehend what is being done for them."

Donald Schoen in his 1983 work The Reflective Practitioner (subtitled How Professionals Think in Action) Basic Books, New York, 374 p. notes that "We look to professionals for the definition and solution of our problems, and it is through them that we strive for social progress.

In all of these functions we honor what Everett Hughes has called 'the professions' claim to extraordinary knowledge in matters of great social importance' and in return, we grant professionals extraordinary rights and privileges."

Schoen in his 1983 work also provides this comment on the nature of professional practice: "The situations of practice are not problems to be solved but problematic situations characterized by uncertainty, disorder, and indeterminacy."

Bob Tepel asks: "Other than extended training and the principally intellectual nature of our work, what separates the learned professional from the nonprofessional is, in my opinion, merely two things. We take ultimate responsibility for our decisions and actions, and we are constrained to take the public's interest into account in our work, along with the interest of our employer, our client, and ourselves. Indeed, if a situation arises in which the public interest is counter to the interest of our employer or client, the learned professional should attempt a reconciliation of these interests, and place higher value on the public interest than on the private interest. To recognize that one's practice comes under the purview of the public interest is to recognize that one is a professional. To state that one is a professional is to state that one's work comes under the purview of the public interest. I, as do others on the committee, share this view. But what of the application of a Professional Code of Ethics? Regrettably, relatively few professionals choose to be a member of a professional Society. A registration law, however, applies to all those who must be registered, whether or not they are a member of a professional society that has a code of ethics. This leads to an interesting proposal given that:

1. Registration laws are justified by and in agreement with the principles of professional ethics, and that,
2. Registration laws therefore make considerably more professionals subject to ethical constraints than do professional associations, then,
3. If a professional association has a Code of Ethics which recognizes the duty of the professional to the public interest and to the publics health, safety, and welfare, - shouldn't that professional association and its members be actively promoting strong registration laws because registration laws extend their concept of professional ethics to more professionals?

It seems that members of professional associations which have a strong code of ethics face a moral dilemma if, on the one hand, they subscribe to the code of ethics of the organization (and thus affirm their professional duty to the public health, safety, and welfare), and on the other hand (when they want to argue that they should not be subject to professional registration) they deny that their practice or the practice of their cohorts, has any impact on the public health, safety, and welfare, or is subject to the public interest.

I (Donald P. Oaks) also might add my own personal viewpoint, that if members of a professional association does not subscribe to the associations Code of Ethics in their practice, the case for professional licensing and registration becomes even stronger.

In Bob Tepel's summary he states "Professionals accept a high level of responsibility to the public, as well as to their employer or client, in the prosecution of their work." The supremacy of the professional's responsibility to the public is generally set forth in professional codes of ethics. Registration laws are based on and consistent with this same ethical concept. Registration laws apply to far more professionals than do professional association codes of ethics. Registration laws are a means of ensuring that all professionals practicing before the public, and not just those who subscribe to a professional association's codes of ethics, must acknowledge ethical constraints.

A rather odd question isn't it, stated that way? Anything humans do, make, or craft is likely to be less than perfect in some way or another. Yet this question turned around and used as an assumption or presupposition, is often encountered when we talk about issues in professional registration. Bob Tepel suggests that some of us tend, perhaps subconsciously, to view the proposal of a registration law as an assertion that we are not fully professional or are lacking in integrity, and that we need to have "big brother" watching over us. It is viewed as an accusation that we are not perfect, or not perfect enough. Bob Tepel further states that "No serious proponent of registration says that registration is perfect or will make us perfect practitioners." So, if a registration opponent finds imperfections in registration they really haven't proved anything because they are not responding to a premise put forth by registration proponents. Again, I, as do others on the committee, agree with Bob Tepel. Tepel's conclusion is as follows: "The assumption that a registration law is or should be universal in it application, perfect in its administration, and that it guarantees perfect performance by registrants, is a common but incorrect assumption made by many who question the value of, and rationale for, professional registration.

ARE PROPONENTS OF PROFESSIONAL REGISTRATION REALLY SEEKING NOTHING MORE THAT STATUS, POWER, AND TURF?

Tepel states "Many people who question the utility of professional registration espouse a view that, in essence, the driving purpose of those who seek professional registration is merely, and perhaps exclusively, a desire to achieve higher status in society, protect or define professional "turf," and to get more power, impliedly, perhaps, some monopoly power in the marketing of professional services." This critique is offered by economists and social scientists, some of who are inclined to criticize anything they deem to be tainted with a desire for economic monopoly. Yet some philosophical thinkers recognize that professionals play an important part in our society and that if they are to do it well, they should be granted some power and privilege as stated by Schoen in 1983. Many of those who oppose professional registration are strong believers in the strength and effectiveness of market forces in controlling professional behavior. "The market will drive the incompetent professional out of business" seems to be their attitude. For the market to be efficient, we must assume both

1. Widespread technical knowledge on the part of the public
2. and
2. A high level of concern among the public for the influence of their decisions on third parties.

The market is not perfect, Economists use the term "market failure" to describe this situation. Carolyn Cox and Susan Foster in their 1990 work The Costs and Benefits of Professional Regulation, Federal Trade Commission, Washington DC describe the types of market failure pertaining to professional licensure. One of these is "asymmetric information on quality," which they describe as "...a failure (in which is it more difficult for consumers than for sellers to determine the quality of a service offered." Clearly, this is likely to be the case when a lay person retains a professional. Another type of market failure is controlled by "externalities." This type of market failure could occur when "professionals and consumers do not take into account the effect on their decisions on 'third parties' not directly involved as stated by Cox and Foster in their 1990 work.

Why do members of a profession work for registration? Because the market is not efficient, because the public lacks sufficient knowledge or impetus to demand registration with vigor (barring a catastrophe), and because some members, at least, of the profession recognize the need for registration because they too often encounter examples of poor practice that harms, or could potentially harm, the public. Who better to recognize poor practice than the practitioners? Who better to act on behalf of the public in implementing registration than the professionals who are ethically bound to protect the public interest by doing so? It would be folly to maintain that professional registration does not confer at least some semblance of status, power, and turf protection on those registered. But professionals who have been registered in other jurisdictions know from experience that the amount of status, power and turf protection they have is pitiful when compared to the amount that they have and seek in the imaginations of those who abhor professional registration. Tepel also states: "I think it is also safe to say that some of those who snipe away at registration proponents for seeking status, turf, and power are not themselves immune form the syndrome. Do they not also belong to professional or trade associations or unions that must, by their own arguments, also exist merely to provide their members with status, turf, and power? Are they demanding that proponents of registration be angelic while reserving to themselves the right to be mortal? What is the right perspective? That the only legitimate purpose for professional registration is to protect the health, safety, and welfare of the public. That any status, power, and turf protection that comes along with professional registration should be merely incidental to the degree that it benefits the profession regulated, and should work for the benefit of the public on balance.