Alabama Advisory Opinions December 10, 2001: AGO 2002-088 (December 10, 2001)

AGO 2002-088.

Dear Captain Gray:

This opinion of the Attorney General is issued in response to your request on behalf of the State Pilotage Commission.

Where the statute governing selection of bar pilots by the State Pilotage Commission sets certain minimum qualifications to become a bar pilot, does it violate the statute for the Commission in a procedurally valid manner [in accordance with the Alabama Administrative Procedure Act] to adopt an Administrative rule or regulation that allows the Commission -- in selecting a few people for the Register of Applicants from the many who apply -- to look to qualifications that are higher than the minimum requirements set by statute to become a bar pilot?

In 1947, the U.S. Supreme Court dealt with the issue of selection of bar pilots in New Orleans, and wrote that "[t]he number of people, as a practical matter, who can be pilots is very limited. No matter what system of selection is adopted, all but the few occasionally selected must of necessity be excluded."(fn1) That is a problem in Alabama as well. Therefore, the State Pilotage Commission must, using some criteria, select one or more applicants who will move up through the system, from among the many more who have applied.

Section 33-4-31(a) of the Code of Alabama states:

In order to prevent delays in the apprenticeship and branching of bar pilots, the commission shall when necessary maintain a register of applicants containing no more than nine applicants for apprenticeship, who must be not less than 18 years of age.

Section 33-4-34 of the Code of Alabama states in pertinent part:

A person, to be eligible to be branched or licensed as the next bar pilot, must meet the following criteria at the time of branching or licensing:

(1) Must be the senior apprentice, with seniority to be determined by date of satisfactory completion of all requirements to be a pilot except the written examination given by the State Pilotage Commission;

(2) Must be a good citizen of the United States and of Alabama;

(3) Must be of good moral character;

* * *

(10) Must be a high school graduate.

The statutes do not specify how the Commission should decide which particular applicants, from among the many who meet the stated minimum, should be selected to move up through the application and selection process. There are a number of ways the Commission may proceed: (1) pick the best qualified, (2) "first come, first served," without regard to merit, or (3) some lottery system, and probably other possible methods. The system used must be announced before the selection process begins, under the Alabama Administrative Procedure Act.

The Commission decided that, in the absence of statutory guidance on how to select a few pilots from the many applicants who meet the minimum standards, and considering the very great risk involved in steering giant ships in Alabama waters, its duty was to select from the qualified applicants only those few who, in the judgment of the Commission, would ultimately become the best qualified bar pilots. In order to do that, the Commission acted under the Alabama Administrative Procedure Act and proposed, published, and duly adopted a rule designed to tell the public exactly how the Commission makes its decisions. In this particular instance, the rule tells the public exactly how the Commission will go about choosing -- from among the many qualified applicants -- the few whom the Commission finds to be best qualified to become, ultimately, the best bar pilots:

Findings by Commission

The State Pilotage Commission makes the following findings: there are very few bar pilot positions and fewer vacancies. The Commission consists of members who serve only for the civic good and it has no state office space, no state file space, and no state operating funds. Record space is quite limited. Under the circumstances, there is need for only a modest and simple Register of Applicants, and this rule is to establish a simple method of operation.

1. " Open Period. " If the Commission establishes and maintains a Register of Applicants, [it] shall from time to time establish an "open period" for the receipt of applications for apprenticeship, which shall be published in Port of Mobile Magazine.

2. Applications Other Than In "Open Period." Except during open periods, the Commission need not accept and need not retain applications for apprenticeship.

3. Operation of "Open Period." When it establishes an "open period," the Commission will state the maximum number of applications that it will accept. If the actual number of applications exceeds the number of openings, then the Commission, within its statutory power as "the sole judge of the seniority and statutory qualifications of applicants to be apprenticed" [section 33-4-30(b) of the Code of Alabama] shall select those persons that it considers to be the best qualified among the applicants to fill the available slot on the Register based upon the following factors:

i. a minimum age of 18 years (as required by statute);

ii. degree, extent and continuity of progress toward meeting the statutory qualifications;

iii. degree of cooperation with the Commission in its attempt to determine the best qualified applicants;

iv. citizenship (as required by statute);

v. holding of or progress toward the necessary Coast Guard licenses;

vi. the nature and extent of appropriate maritime employment and experience (not necessarily limited to the statutory minimum);

vii. college education, it being the clear view of the Commission that in the current shipping world an appropriate college education is an essential requirement to be a bar pilot;

viii. the views in writing, if any should be submitted, of the Mobile Bar Pilots Association, the private organization comprised of all current licensed bar pilots; and

ix. good moral character, as required by statute.

Your question is, where the statute sets certain minimum qualifications, does it violate the statute for the Commission to adopt validly an administrative rule or regulation that allows the Commission to look to qualifications that are higher than the minimum requirements set by statute to become a bar pilot? Provided that it is done in a manner consistent with the Alabama Administrative Procedure Act, the State Pilotage Commission has full legal authority to adopt a rule or regulation stating that, when the Commission is selecting from among a large number of applicants, it may consider the applicants' level of formal education as one of eight different factors it considers in determining the most qualified applicants. The language in the regulation, here, does not merely state that a college degree may be considered but that it is an "essential" requirement to be a bar pilot. In the opinion of this Office, stating that a college degree is "essential" in the regulation makes a college degree mandatory for applicants and the regulation invalid. Rules and regulations and administrative action cannot subvert or enlarge upon the statutory policy or the rules and regulations therein set down. Alabama State Bd. of Optometry v. Busch Jewelry Co. , 75 So. 2d 121, 125 (Ala. 1954); Jefferson County Bd. of Educ. v. Alabama Bd. of Cosmetology , 380 So. 2d 913, 915 (Ala. 1980). The Commission may not require an applicant to meet any higher requirements than the minimum requirements in the Code to be considered a qualified applicant. See Stenstrom v. Smith , 534 So.2d 234, 235 (Ala. 1988) (Legislature does not have the authority to impose additional requirements for the State Adjutant General in addition to those requirements listed in the Alabama Constitution); see Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 844 (1984); see also McGregor v. Autozone, Inc. , 180 F.3d 1305, 1307 (1999). State law permits a person who has a college degree to be a bar pilot. The regulation, in effect, requires a person to have a college degree before becoming a bar pilot and would prohibit a person without such degree from becoming a bar pilot.

The Commission may use "tie-breakers," such as level of education or experience, in deciding between qualified applicants, but may not use non-statutory factors in deciding who is a qualified applicant. Section 33-4-34 of the Code of Alabama sets out the qualifications for applicants, and the Commission may not add to those minimum requirements. Among qualified candidates, the Commission may, however, use subjective factors to determine the most qualified candidate.

It is the opinion of this Office that no violation of section 33-4-34 of the Code of Alabama occurs if the Commission validly promulgates a regulation allowing consideration of subjective criteria that are higher than the statutory minimum requirements to be considered to distinguish between applicants that have met the minimum requirements. It is the opinion of this Office that the language of the regulation as written requires an applicant to have a college degree. The Commission may not institute a requirement that is higher than the minimum requirements stated in the Code.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Carol Jean Smith of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

BP/CJS

52443v1/29257

1. Kotch v. Bd. of River Port Pilot Comm'rs for the Port of New Orleans , 330 U.S. 552, 563 (1947).