This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Cynthia Schultz,


Minnesota Board of Psychology,

Filed November 30, 1999
Schumacher, Judge
Dissenting, Kalitowski, Judge

Minnesota Board of Psychology
File No. 97B-364


Gary A. Debele, Walling & Berg, P.A., 121 South Eighth Street, Suite 1550, Minneapolis, MN 55402 (for relator)

Mike Hatch, Attorney General, Michael J. Weber, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul MN 55103-2106 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Mulally, Judge.[*]

U N P U B L I S H E D   O P I N I O N


On petition for writ of certiorari, relator Cynthia Schultz challenges respondent Minnesota Board of Psychology’s denial of her application for licensure as a "licensed psychologist," claiming the Board improperly determined that she failed to complete the required amount of supervised employment. We reverse.


Schultz applied for licensure pursuant to the grandfather clause provisions of the licensing statute, Minn. Stat. § 148.907, subd. 3 (1998). In a five-to-four vote, the Board denied Schultz’s initial application on the basis that she had failed to complete the required "one full year" of supervised employment before December 31, 1998. Minn. Stat. § 148.907, subd. 3(b)(3). Schultz completed over 1,800 hours of supervised employment between mid-March and December 18, 1998. Schultz contends she has fulfilled the statutory requirement for supervised employment as defined by the Board in its administrative rule pertaining to time requirements, Minn. R. 7200.2500 (1997), which defines "full-time employment" as "at least 1,800 hours during a 12-month period."


Review by certiorari is limited to an inspection of the agency record to determine whether the agency action was arbitrary, oppressive, unreasonable, fraudulent, made under an erroneous theory of law, or without any evidence to support it. Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992). This court independently reviews an agency’s decision on a question of law or statutory interpretation. In re Dougherty, 482 N.W.2d 485, 488 (Minn. App. 1992), review denied (Minn. June 10, 1992). An administrative agency "may adopt regulations to implement or make specific the language of a statute." Green v. Whirlpool Corp., 389 N.W.2d 504, 506 (Minn. 1986). The court gives considerable deference to an agency’s reasonable construction of its own regulation where its language is unclear or susceptible to different interpretations. St. Otto’s Home v. Minnesota Dep’t of Human Servs., 437 N.W.2d 35, 40 (Minn. 1989).

1. The licensing requirements under Minnesota’s Psychology Practice Act contain a grandfather clause by which master’s level applicants must,

before December 31, 1998, completed at least one full year or the equivalent in part time of post-master’s supervised psychological employment.

Minn. Stat. § 148.907, subd. 3(b)(3) (1998). The Board’s administrative rule provides:

To meet employment requirements, the applicant shall have completed 24 months of full-time employment or their equivalent in part-time employment, under supervision * * * with regularly scheduled vacation periods and holidays considered as days worked. Full-time employment consists of at least 1,800 hours during a 12-month period.

Minn. R. 7200.2500 (1997) (emphasis added).[1]

Schultz contends the Board’s denial of her application was arbitrary and unfair because, under a reasonable construction of the statute and the rule, the requirement of "one full year" of supervised employment is met by completion of 1,800 hours in a 12-month period and therefore adequate supervised employment should be measured in terms of the number of hours completed, rather than by a strict durational requirement of 12 full months. The Board responds that the meaning of the statute is plain and that the rule’s reference to "1,800 hours" does not change the statute’s durational requirement that an applicant experience his or her supervised employment over a full 12-month period.

We find that the statutory phrase "one full year" is susceptible to interpretation. In so concluding, we note that if the statute were entirely unambiguous, the Board would not have found it necessary to further define supervised employment by imposing the 1,800-hour requirement. The Board’s discussion at the hearing on Schultz’s application reveals that individual Board members disagreed about the appropriate interpretation of the statutory requirement.

We conclude the Board’s rule is ambiguous, and thus fails to adequately inform applicants of what they must do in order to achieve licensure. Thus, while we will generally defer to an agency’s reasonable interpretation of its own interpretative regulation, we decline to do so in this instance. We find that, because the Board failed to adequately clarify a known ambiguity in its rules on supervised employment requirements, it is now equitably estopped from denying Schultz licensure, given the degree of harm she will suffer as a result.

2. While Schultz does not expressly phrase her claim in terms of equitable estoppel, she has essentially asserted that the Board’s application of its ambiguous rule was unfair, particularly as to her. As argued by Schultz, the record supports a finding of all the necessary elements of an equitable estoppel claim.

The remedy of equitable estoppel is available at the discretion of the court. Setka v. Aitkin County, 541 N.W.2d 349, 353 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996). It exists to prevent a party from asserting an otherwise valid right. Brown v. Minnesota Dep’t of Public Welfare, 368 N.W.2d 906, 910 (Minn. 1985). In order to establish a claim for estoppel, a plaintiff must show: (1) the defendant made specific representations or inducements; (2) the plaintiff reasonably relied on the representations; and (3) the plaintiff will be harmed if the defendant is not estopped from asserting its strict legal rights. Department of Human Servs. v. Muriel Humphrey Residences, 436 N.W.2d 110, 117 (Minn. App. 1989), review denied (Minn. Apr. 26, 1989) (citing Brown, 368 N.W.2d at 910).

While a court should not freely apply estoppel against the government, the remedy is available against a government agency if justice so requires. Muriel Humphrey Residences, 436 N.W.2d at 118. When applying estoppel to a governmental agency, courts must carefully weigh the equities of the case against any public interests that may be infringed by estoppel. Id.

The Board generally represented through its promulgation of Minn. R. 7200.2500 that for purposes of obtaining licensure, "full-time employment" consists of "at least 1,800 hours in a twelve-month period." Schultz maintains she was told by a Board staff member that she would fulfill the requirement so long as she completed 1,800 hours by December 31, 1998.

Although nothing in the record suggests that Board staff expressly authorized Schultz to complete her requirements in less than 12 months, the record reflects that Board staff follow a policy of responding to all telephone inquiries about licensing requirements by quoting directly from the statute and the rule. Testimony at the hearing revealed that on more than one occasion, other individuals applied for licensure after having obtained 1,800 hours of supervised employment in less than 12 months. The Board would simply advise these prior applicants to correct the deficiencies by working a few more weeks or months and then resubmit their applications.

These two facts, when read together, confirm that the Board failed to rectify a known ambiguity in its substantive regulations. This representation was a matter of little consequence to previous applicants, since prior to December 31, 1998, they could easily correct any deficiencies. For Schultz, however, the consequences of the Board’s ambiguous rules concerning the supervised employment requirement were more severe.

Schultz reasonably relied on her interpretation of the Board’s representations in pursuing her application for licensure. There is no dispute that Schultz undertook her efforts to obtain supervised employment in good faith, and that when she began her supervised employment, she believed she would qualify for licensure if she could manage to complete 1,800 hours by December 31, 1998. Relying on her understanding of the Board’s policies, she worked in excess of full time.

The harm Schultz will suffer if the Board denies her licensure is significant. She completed 1,800 hours of supervised employment, working more than full time for a period of over nine months and expending her own funds to obtain supervision. Because the grandfather clause has expired, she will now have to obtain a Ph.D. if she is to obtain licensure as a "licensed psychologist."

In balancing the equities, it does not appear that the public will suffer any harm if the Board grants Schultz licensure as a licensed psychologist. The Board did not base its denial on any concerns that Schultz is not competent to perform as a licensed psychologist or that the quality of her supervision was inadequate. At the hearing, individual Board members openly acknowledged that granting Schultz licensure would pose no risk of harm to the public. Finally, granting Schultz a license will not have any effect on subsequent applicants, since the grandfather clause has now expired.

We agree that, as a general matter, a grandfather clause is to be strictly construed because it represent the legislature’s crafting of a narrow exception to a statutory scheme. We conclude, however, that the legislature was not concerned with severely curtailing the licensure of individuals with master’s degrees when it enacted the grandfather clause contained at Minn. Stat. § 148.907, subd. 3(b)(3). The legislature originally enacted the grandfather clause in 1991, and extended it several times over the ensuing years.[2] If anything, the legislature actually appears to have adopted a liberal approach to the licensure of master’s level candidates, which militates against a strict construction with respect to this particular grandfather clause.

Schultz pursued licensure in reliance on a reasonable interpretation of a regulation that the Board failed to clarify, despite a known ambiguity. Moreover, no harm will result to the public by granting licensure to Schultz. We therefore conclude that the Board is estopped from denying Schultz’s application for licensure on the basis of her completion of 1,800 hours of supervised employment in 9½ months rather than over a full 12-month period.



KALITOWSKI, Judge (dissenting)

I respectfully dissent. Because the Minnesota Board of Psychology’s action in denying relator’s application was not arbitrary, unreasonable, or based on an erroneous theory of law, I would defer to the Board’s determination that relator did not meet the statutory requirements to be a licensed psychologist.

Relator contends that the statute at issue is ambiguous. I disagree. On its face, the language of the statutory grandfather clause is clear. It provides that master’s level applicants must have

before December 31, 1998, completed at least one full year or the equivalent in part time of post-master’s supervised psychological employment.

Minn. Stat. § 148.907, subd. 3(b)(3) (1998) (emphasis added). The general rules of statutory interpretation in Minnesota Statutes Chapter 645 define a "year" as a "calendar year." Minn. Stat. § 645.44, subd. 13 (1998). Moreover, as noted by the Board, the grandfather clause’s requirement that supervision last for "one full year" suggests even more strongly that the legislature intended that applicants receive 12 full months of supervision. If the words in a statute are clear and unambiguous, the court must give effect to the plain meaning of the language. Tuma v. Commissioner of Econ. Sec., 386 N.W.2d 702, 706 (Minn. 1986).

Even if, as relator contends, the statute read together with the Board’s rules is ambiguous, I would affirm the Board’s decision. This court gives considerable deference to an agency’s reasonable construction of its own rule where its language is unclear or susceptible to different interpretations. St. Otto’s Home v. Minnesota Dep’t of Human Servs., 437 N.W.2d 35, 40 (Minn. 1989).

The legislature has given the Board the power to adopt and enforce rules for licensing psychologists, including any rules "necessary to define standards or to carry out the provisions of sections 148.88 to 148.98" of the Minnesota Psychology Practice Act. Minn. Stat. § 148.905, subds. 1 and 2 (1998). Testimony at relator’s hearing revealed that the rule defines full-time employment in terms of hours to provide a standard by which the Board can enforce the supervision requirement for part-time applicants. Moreover, Board members noted at the hearing that the "full year" requirement in the statute prevents applicants from "cramming" their employment requirement into less than 12 months, thereby increasing the likelihood that they will have a quality supervised employment experience. The Board is in the best position to carry out its statutory duties in such a way that protects the public. In light of the Board’s reasonable concerns, its interpretation of the statute and the rule is entitled to deference as an appropriate exercise of the power granted to it by the legislature.

Finally, the Board’s consistent application of the rule to other applicants negates relator’s contention that its actions were arbitrary with respect to her. The uncontroverted evidence at the hearing was that the Board’s past practice was to apply the statute and rule to other applicants in the same manner that it did to relator. The Board was aware of the consequences of denying relator’s application. Nonetheless, after thorough discussion and inquiry into the statute, the rule, and its own past practices, the Board decided to hold relator to the same durational requirement that it consistently applied to all other applicants. When an agency makes a reasonable determination based on valid statutes and rules, a reviewing court has no authority to overturn that decision simply because it produces a harsh result in a particular case. Magoon v. Commissioner of Pub. Safety, 494 N.W.2d 922, 924-25 (Minn. App. 1993).


[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The rule refers to applicants completing "24 months of full-time employment" because it has not been updated to reflect the 1997 statutory amendment reducing the period of supervised employment from "two full years" to "one full year." Compare Minn. Stat. § 148.907, subds. 2(7), 3(b)(3) (1996) with Minn. Stat. § 148.907, subds. 2(7), 3(b)(3) (1998).

[2] See Minn. Stat. 148.921, subd 2 (Supp. 1991) (requiring prospective applicant to file notice of intent by November 1, 1992); Minn. Stat. § 148.921, subd. 2 (Supp. 1993) (extending deadline for filing declaration of intent to December 31, 1993); Minn. Stat. § 148.921, subd. 2 (Supp. 1995); (eliminating altogether requirement that applicant file declaration of intent); Minn. Stat. § 148.907, subd. 3(b)(3) (1998) (reducing required period of supervised employment from two years to one year).