2010 End of Session Legislative Report


This is the New York State Society of Professional Engineers (NYSSPE) 2012 End of Session Legislative Report By Mark C. Kriss, Esq. (NYSSPE Legislative and Legal Counsel).

The New York State Legislature continues to grapple with the 2010 – 2011 State Budget and as of late July, faces a projected $9.2 billion budget deficit for the 2010-11 fiscal year. (2 billion is expected to be secured via deferral of business tax credits over the next three years; 1.5 billion by amortizing a portion of contributions otherwise payable to the state pension fund; 1.2 billion via new taxes and fees and the balance by “magic” including enhanced tax audits, phantom workforce cuts, etc.)

Two areas of expenditure, health care and education, consume the lion’s share of state and local tax dollars. Despite some efforts to cut spending in these areas, including a cut of 1.5 billion in Medicaid expenditures for the current fiscal year, New York State’s spending level remains extremely high in comparison to other states. For example, New York, with its population of 19.5 million, continues to spend more money on Medicaid than the states of Texas (population – 24.7 million) Florida (population – 18.5 million) and Illinois (population – 12.9 million) combined!New York , one of the highest taxed states in the nation, must reign in state spending (and the attendant taxes needed to fund its spending), particularly in the areas of health and education, in order to compete for private sector investment dollars and private sector jobs. While other areas of state expenditures have grown, education and health care continue as the big cost drivers, leading to a record 8 billion dollars in new or higher taxes and fees last year and, as noted above, a projected 1.2 billion dollar increase in new taxes and fees this year.

The growth of Medicaid and education funding has strained resources available for infrastructure needs across the state. The state’s infrastructure has become more and more dependent upon federal dollars. Governor Paterson’s latest budget includes appreciable cuts in highway funding. The state’s underfunded two-year capital program is symptomatic of a weakening transportation financing structure that, if left unaddressed, will lead to declining investment in roads and bridges and negatively impact the State’s quality of life. Compounding these issues is the troubling condition of the State’s Dedicated Highway and Bridge Trust Fund (DHBTF), which was created as a dedicated, pay-as-you-go source for transportation investment. The DHBTF has been continuously restructured to divert funds away from direct capital investment and into debt service and operation costs for the Departments of Transportation and Motor Vehicles.

The Legislature’s preoccupation with the Budget has diverted attention from other matters including substantive law changes urged by NYSSPE. While the Legislature’s budgetary focus has hindered progress on the Society’s affirmative agenda, legislation opposed by NYSSPE has faced the same headwinds. I am pleased to report all of the bills which were opposed by the Society have been held and are not likely to be reconsidered during the balance of the year. All 212 legislators face re-election in November and prefer to focus on politics in their respective districts, rather than debate legislation in Albany over the next several months.


Bills Directly Impacting the Profession

QBS-
(S3531-B/A7056-B – Senator Dilan/Assemblyman Benedetto)
On the affirmative front this legislation, which requires the use of Qualifications Based Selection by Public Authorities and Public Benefit Corporations, in addition to state agencies, has passed the Assembly but remains in the Senate Finance Committee. Expanded utilization of QBS has been a long sought after goal of NYSSPE. QBS assures that price is not the sole criteria in the selection of professional engineering services by affording due consideration to the respective qualifications of consulting firms participating in the procurement process. Continued opposition from the Metropolitan Transportation Authority has prevented further progress on this measure.

Bachelors’ Degree Requirement–
(S4981 – 2008 – Senator LaValle)
Requires a Bachelor’s Degree as the minimum requirement for licensure. Despite strong support from NYSSPE and the State Education Department, union opposition from the Public Employees’ Federation has created a roadblock to progress regarding this proposal. The bill passed the Senate in 2006.

Liberalization of Firm Ownership –
(S3226-A/A6787-A – Senator LaValle/Assemblyman Canestrari)
The Society supports legislation to permit non-licensees to own not more than twenty-five percent (25%) of a Design Professional Service Corporation (i.e. firms permitted to practice professional engineering, architecture, landscape architecture and/or land surveying). The bill would help to level the playing field among consulting firms, by allowing non-grandfathered companies the ability to offer a minority stake in the design firm to non-licensees. Grandfathered firms current enjoin an unfair advantage over the vast majority of other consulting firm, since the grandfathered firms can be entirely owned by non-licensees.

Despite the support of more than twenty legislators in the Assembly, the Legislature has been reluctant to permit non-licensees to own a portion of a professional practice firm due to strong opposition to the precedent by organized medicine and the accounting professions. The medical community is opposed due to fears that passage may provide a precedent paving the way for the corporate practice of medicine. At the same time the accountants are opposed due to fear that the bill may harm passage of their proposal to liberalize ownership restrictions for accountancy. The accountants want to permit ownership of 49% by non-licensees. However, our effort to distinguish the design and CPA professions from the medical profession continues to gain some momentum.

Statute of Repose –
(A4394 – Assemblyman Canestrari)
This legislation creates a 10-year Statute of Repose requiring that actions for personal injury and wrongful death be commenced not more than 10 years after a project is completed. The bill continues to face vociferous opposition from the New York State Trial Lawyer’s Association. NYSSPE has joined New Yorkers for Lawsuit Reform a broad coalition of professional organizations, business organizations, builders, municipalities, and concerned citizen fighting to advance tort reform in New York including the passage of a statute of repose for PEs, RAs, contractors and manufacturers.

NYSSPE – Support/Neutral

Licensure of professional geologists-
(S2784-B/A4774-C – Senator Thompson / Assemblyman Englebright – See also S1116 Marcellino)
NYSSPE supports legislation licensing geologists, provided geologists are not authorized to provide design services and professional engineers are not precluded from undertaking all aspects of geology within the province of a professional engineer. The Society supports this legislation, which has been amended to ensure that qualified PEs may continue to prepare sign and seal geological reports, without limitation. The legislation has passed the Senate and is in the Assembly Higher Education Committee.

NYSSPE – Opposed

The Society to date has been successful in our efforts to defeat a litany of other measures which threaten the interests of the profession as well as the public. Following is a partial list of bills defeated to date:

Expansion of Exemptions to Engineering Licensure Requirement –
(S5487/A8257 Senator Aubertine/Assemblyman Koon)
This legislation expands a number of provisions in the Education Law which exempt certain projects from the requirement that design services be provided by a professional engineer. Firstly, pursuant to existing law, professional engineering services required for public projects must be performed by licensed professional engineers, subject to an exemption for minor public works, wherein the project requires an expenditure of less than $5,000.00. NYSSPE emphatically opposes an increase of 900% (to $50,000) in this monetary threshold that, if increased, will seriously jeopardize the public health, safety and welfare. Secondly, pursuant to present law, alterations to buildings and structures costing $10,000 or less, which do involve changes affecting structural safety or public safety, do not require a professional engineer. This bill increases the ceiling 400% to $50,000. Simply put, this change will jeopardize public safety. The determination of whether an alteration affects public safety should not, in the first instance, be left to the general public. Leaving these determinations to individuals lacking a professional engineering license is simply irresponsible. Building department officials and code officers are not professional engineers, they lack the experience needed to insure public safety.

Land Surveyor’s Scope of Practice –
(S 1776 – Senator LaValle – See also A 1927 – 2008 Assemblyman Canestrari)
The NYS Association of Professional Land Surveyors supports legislation to greatly expand the scope of practice of land surveying to include significant aspects of professional engineering and severely limit surveying and other services by Professional Engineers. The legislation reserves the “location of man-made structures and other objects related thereto” to land surveyors, thereby essentially prohibiting non-boundary surveying, including the preparation of site plans, regularly provided by Professional Engineers.

Designed Delegation –
(S5272/A2687 – 2008 – A Senator DeFrancisco/Assemblyman Cusick)
Requires that portions of an overall project design prepared by a secondary designed professional retained by a contractor or subcontractor be reviewed and approved by the primary designed professional (PE or RA) with limited exceptions for pre-engineered or manufactured components and means and methods of construction. Presently, the State Education Department permits some additional latitude respecting the scope of review and approval by a primary design professional properly allocating responsibility between design professionals. The NYSSPE supports the present regulation and will continue to oppose this legislation that would improperly shift liability to the primary design firm in specific circumstances.

Wastewater Treatment –
(S4821/A6031 – Senator Aubertine/Assembly Koon)
This legislation permits the design of specific wastewater treatment systems (less than 1,500 gallons per day), by individuals not holding a license as professional engineers. NYSSPE has opposed this bill and earlier versions that limited the exception to 1,000 gallons per day systems.

Indoor Air –
(A2075 – Lupardo – no same as)
Requires building owners to put in place an indoor environmental plan pertaining to building operations and maintenance and sets forth other indoor environmental standards. The Society has opposed the legislation insofar as it fails to expressly require plans and related activities to be undertaken/ overseen by a Professional Engineer or Registered Architect.

Outdoor Lighting –
(A7281-A/S2714-A Assemblyman Rosenthal/Senator Thompson- See also S858 Senator Marcellino)
This legislation provides for the management of outdoor night lighting promoting health, safety, and energy efficiency and reducing the harmful effects of outdoor lighting. The Society has voiced concerned regarding the portion of the legislation which could be construed to permit public officers to make engineering determinations.

The New York State Society of Professional Engineers, Inc.
6 Airline Drive, Albany, NY 12205
Phone: 518-283-7490 Fax: 518-283-7495
www.NYSSPE.org

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