(dissenting)
[¶ 16.] I respectfully dissent.
[¶ 17.] As noted by the majority, the term “agency” is defined by SDCL 1-26-1(1). Under the statute CCB is not a “board ... the state,” nor is it “vested with the authority to exercise any portion of the state’s sovereignty.” It is not an agency.
[¶ 18.] We have not previously decided if a particular nonprofit corporation or association is an agency. Other jurisdictions, with similar statutes, have; their analysis is helpful.
[¶ 19.] The Michigan Administrative Procedures Act defines agency as “A state department, bureau, division, section, board, commission, trustee, authority or officer, created by the constitution, state, or agency action.” League Gen. Ins. v. Catastrophic Claims, 435 Mich. 338, 458 N.W.2d 632, 635 (1990). In League Gen. Ins. the Michigan Supreme Court was called upon to decide if the Michigan Catastrophic Claims Association (MCCA), an unincorporated, nonprofit association of private insurers, was an agency subject to their Administrative Procedures Act. The Court made a two-pronged inquiry. First, was the MCCA a state board and, second, was it created by the constitution, statute, or agency action? The second prong was not in dispute; their analysis focused on the first prong. That Court used a functional analysis of the MCCA:
We must ... look behind the name to the thing named. We must examine its character, its relations, and its functions to determine, indeed, whether it is an agency or instrumentality of State government. Id. at 636, 458 N.W.2d 632 (quoting Advisory Opinion, 380 Mich. 554, 158 N.W.2d 416 (1968)).
The Michigan State Commissioner of Insurance appointed five directors to the MCCA Board and was an ex officio nonvoting member; the MCCA levied mandatory assessments against its members. However, the Michigan Court determined that his partie-ipation was not pervasive or controlling enough to make the MCCA a state agency. Their Administrative Procedures Act did not apply.
[¶20.] Iowa’s Administrative Procedures Act defines agency as “Each board, commission, department, officer or other administrative office or unit of the state.” Graham v. Baker, 447 N.W.2d 397, 399 (Iowa 1989). In Graham the Iowa Supreme Court determined that a nonprofit organization which had contracted with the state to provide farm mediation services was not an agency. In making that determination, the Court used a functional test. Among the factors it considered in making this determination were “the scope of the putative agency’s' authority, how it was administered and controlled, source of its funds, the derivation of its rules, and the selection of its members.” Id. at 399.
[¶21.] CCB is governed by a thirteen member board of directors. Five directors must be representatives of the South Dakota Chemical Dependency Association. The other eight directors consist of one representative from each of the following: Department of Human Services, Division of Alcohol & Drug Abuse; Department of Human Services, Division of Mental Health; USD Alcohol & Drug Abuse Studies; Department of Human Services, Division of Rehabilitative Services; Indian Health Services; Licensed Attorney, State of South Dakota; Prevention Specialist; and Aberdeen Area Alcoholism Program Directors Association. The board of directors fills vacancies by electing directors from nominees solicited by CCB’s nominating committee. CCB has no members. Its purpose, as set out in its bylaws, is to certify chemical dependency counselors with generally accepted standards of professionalism and competence. According to its Certification Standards Manual, certification establishes credentials for a counselor’s ability to deliver competent and professional counseling services; qualifies a counselor to receive third-party pay reimbursement; gives a counselor reciprocity and credentials in thirty-nine states, District of Columbia, Canada and the U.S. Air Force and Navy; allows agencies to qualify and maintain accreditation by meeting state and federal *856standards for certified counselors; assures the public that counseling for individual and family needs meets official standards and requirements; and assures the public that counselors meet requirements for third-party pay when it applies. The record contains no information regarding CCB’s finances and funding.
[¶ 22.] Although the South Dakota Department of Human Services has some representation on CCB’s board of directors, it does not dominate or control the board. Applying the functional analysis of League Gen. Ins. and Graham, CCB is not a board of the state.
[¶ 23.] Second, CCB does not have authority to exercise any part of the state’s sovereignty. The majority concludes that CCB certification is required of chemical dependency counselors at accredited facilities. It is not. ARSD 44:14:27:05 requires that chemical dependency counselors at accredited facilities meet standards published by CCB as of January 1,1985. Although certification by CCB is evidence of meeting these standards, this certification is not required. If a counselor meets CCB standards, the counselor may be employed at a facility accredited by the division, regardless of whether or not the counselor holds CCB certification. The assertion in paragraph 11 and footnote 5 of the majority opinion that Division would require actual CCB certification has no basis in the record. It is based upon a Division letter which is not part of the settled record.
[¶24.] CCB revocation of Bruggeman’s certification denies him the benefits of certification set forth in its Certification Standards Manual. It also prevents him from holding himself out to be a licensed or certified chemical dependency counselor. SDCL 36-32-11.
[¶ 25.] However CCB’s revocation does not prevent Bruggeman from obtaining a determination by Division that he meets CCB standards. With this determination, he could be employed as counselor by an accredited facility. Since Division is an agency, Brug-geman would be entitled to judicial review from an adverse decision by Division.
[¶ 26.] Finally, CCB revocation does not prevent Bruggeman from obtaining a license to practice counseling under SDCL Chapter 36-32.
[¶ 27.] The majority unnecessarily elevates CCB, a nonprofit corporation, to the status of a state agency. I would affirm.