August 25, 1997 New Castle County - Civil Division- (302-577-8400) Carol Ellis, Director Division of Professional Regulation Cannon Building, Suite 203 P.O. Box 1401 Dover, Delaware 19903 Re: Twenty-four Del. C. § 3520 Dear Ms. Ellis: You requested our opinion of whether 24 Del. C. § 3520 is a criminal statute enforceable only through criminal prosecution by this Office or whether it may be enforced by the Board of Examiners of Psychologist. You have further asked, if our answer is that it is a criminal statute which may only be enforced by criminal prosection through this office, whether the Board contact acts merely in an adversary capacity or whether the Board must approve the decision of the Deputy Attorney General to proceed against the unlicensed person or not. For the reasons stated below, we conclude that 24 Del. C. § 3520 is a criminal statute, the prosecution of which is within the constitutional and statutory authority and responsibility of the Attorney General and, although the input of the professionals on the Board may be helpful in advising the Attorney General regarding professional issues, the decision of whether to prosecute the matter or not is to be determined solely by the Attorney General. Twenty-four Del. C. § 3520 provides:
"A person not currently licensed as a psychologist, or registered as a psychological assistant, under this chapter, when guilty of engaging in the practice of psychology, or of acting as psychological assistant or using in connection with the practitioner's own name, or otherwise assuming or using any title or description conveying, or tending to convey the impression that the practitioner is qualified to practice psychology, or to act as a psychological assistant, such offender shall be guilty of a misdemeanor. Upon the first offense, the practitioner shall be fined not less than $500 no more than $1,000 for each offense; and in addition, may be imprisoned for not more than one year. For a second or subsequent conviction, the fine shall be not less than $1,000 nor more than $2,000 for each offense. Superior Court shall have jurisdiction over all violations of this chapter."
This section clearly states that the offense shall constitute a "misdemeanor." Misdemeanors are classifications of crimes and are defined in the Delaware Criminal Code at 11 Del. C. § 4202 as either Class A misdemeanors, Class B misdemeanors, or unclassified misdemeanors. Subsection (b) of that section specifically states "Any offense defined by statute which is not specifically designated a felony, a Class A misdemeanor, Class B misdemeanor or a violation shall be an unclassified misdemeanor." Therefore, 24 Del. C. § 3520 is an unclassified misdemeanor defining a criminal offense. Pursuant to 29 Del. C. § 2504(6) the Attorney General has charge of all criminal proceedings. The question of whether a criminal charge will be brought is solely within the authority and responsibility of the Attorney General. Having said this, it is often useful for the Attorney General to
have the advice of the professional board that is charged with regulating the profession. However, the ultimate decision whether a charge should be brought, subject to the requirement for an indictment, rests with the Attorney General. Should you have any questions, please do not hesitate to contact me. Very truly yours, Malcolm S. Cobin Assistant State Solicitor Approved: _______________________ Michael J. Rich State Solicitor
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