2011 Legislative Summary

This is the New York State Society of Professional Engineers 2011 Legislative Summary prepared by Mark C. Kriss, Esq. (NYSSPE Legislative and Legal Counsel).

The election of Governor Andrew Cuomo has ushered in a hoped for new era for New York State. For decades, virtually unrelentlessly, the State had adopted annual budgets with unsustainable spending growth leading to the search for more and more tax revenues. The expansion of governmental programs served as the drug of choice for governors and legislators alike engendering economic devivstation on the Empire State with particular harm to formerly thriving upstate communities. Simply put, the State’s tax burden leads the nation, discouraging business.

In commenting upon the State of New York’s economy, E.J. McMahon, Senior Fellow with the Manhattan Institute, recently noted:

From 1990 to 2010, the private-sector job base in the Empire State expanded by a net 6 percent — a performance that ranked 45th out of 50 states during that period. Nationally, by contrast, private employment in late 2010 was still 19 percent above the 1990 level, despite millions of job losses during the latest recession.

Nearly all of New York’s weak job growth has been concentrated south of the mid-Hudson Valley. Upstate has been a picture of stagnation, producing no net new private jobs outside the heavily government-subsidized Capital Region.

This can’t be simply written off as a syndrome of the nation’s old, cold places: While the basket-case state of Michigan has lost jobs and Ohio has barely gained any over the last 20 years, private-sector employment has grown 9 percent in Pennsylvania, 11 percent in Indiana, 18 percent in Wisconsin and 25 percent in Minnesota.

(Original Source: http://www.nypost.com/p/news/opinion/opedcolumnists/right_target_andrew_9pGrz6iE7Zqpfoaj1jwdZJ)

The new Governor is to be commended for recognizing that the answer to a TEN BILLION DOLLAR projected deficit for the current fiscal year was not to found in additional governmental spending and increases in taxes, fees, and assessments. Badly needed spending cuts (actual cuts, not cuts to an expected cost increase) were made, and they were made across the board.

ow the Legislature is debating a proposal by Governor Cuomo to impose an across the board property tax cap of 2%. At this time it seems likely some version of a cap is likely to pass in 2011.

However, just as pressing is the need for mandate relief which could alleviate the fundamental cause driving local tax hikes.

For example, one of the single most significant factors impacting local governmental budgets is the cost for New York’s Medicaid program. Local governments (counties) are required to pick up approximately 25% of the cost of the program with the State carrying another 25% and the federal government responsible for 50%. New York’s lawmakers have fashioned the most expensive medicaid system in the nation. The cost of New York’s program is approximately the same as the cost of the medicaid programs in the states of Texas, Florida and Illinois combined. This is a remarkable statistic when you consider that New York State’s population of 19.5 million people is approximately one-third the combined populations of these three state – 54.3 million (Texas 23.5 million, Florida 18 million and Illinois 12.8 million).

Bills Directly Impacting the Profession

Liberalization of Firm Ownership – Passed by both Houses
S2987/A4581 – Senator LaValle/Assemblyman Canestrari
S2987/A4581 was passed by both houses of the legislature. This bill amends the business corporation law to authorize a new type of professional service corporation to be known as a “design professional service corporation”, which includes professional engineering, architecture, landscape architecture and land surveying. This new type of corporation allows up to 25% of the owners to be non licensees, bringing it in line with the 120 grandfathered corporations who have always had this benefit and making it easier for firms to attract and retain the talent of many non-licensed professionals who are vital to their success. Of course, there are safeguards built in to protect the integrity of the decision making processes, such as 75% of the stock must be owned by design professionals and 75% of the directors and officers must be licensed design professionals. Additionally, the president, chief executive officer and the chairman of the board of directors also must be licensed design professionals and a non-licensee cannot be the single largest shareholder.

QBS- S1363/A6814 – 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 been introduced in both houses and most recently passed the Assembly in 2010. 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.

Statute of Repose – S4782/A2475 – Senator Griffo/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.

Bachelor’s Degree Requirement for Licensure
This bill requires a Bachelor’s Degree as the minimum requirement for licensure. Despite a concerted effort to pass this legislation and strong support from the State Education Department, union opposition from the Public Employees’ Federation has created a roadblock to progress regarding this proposal. In addition to union opposition a number of key legislators oppose the bill arguing that increased formal educational requirements hurt those who are economically disadvantaged. The bill passed the Senate in 2006.

NYSSPE – Support/Neutral

Licensure of professional geologists-S2406/A4319 – Senator Thompson / Assemblyman Englebright

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 been favorably reported from the Senate Higher Education Committee to the Senate Finance Committee 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 – A5827/S4357 Assemblyman Gunther/Senator Young
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 – S4603/A7110 Senator LaValle/Assemblymember Glick
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.

Indoor Air – S3471/A3122 Senator Oppenheimer/Assemblyman Lupardo
Requires that, with respect to state owned leased or operated buildings, owners shall 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 – A1478 Assemblyman Rosenthal
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.

Design Build – S3035/A4735 Senator Lavalle/Assemblyman Canestrari
This legislation would permit a variety of state agencies and state and local authorities to broadly utilize alternative project design and construction methodologies, including design build and construction manager at risk. The legislation applies to projects undertaken by the New York State Department of Transportation, large city school districts, SUNY Construction Fund, CUNY Construction Fund, the NYC Educational Construction Fund, the Dormitory Authority of the State of New York, the Triborogh Bridge Authority, the Metropolitan Transit Authority and the New York City Transit Authority.

Pursuant to current law in New York, projects in both the public and private sectors, with limited exceptions, must utilize a design-bid-build methodology. In New York, design build has only been utilized when expressly authorized by virtue of project specific enabling legislation . (Limited exceptions also apply to some federal and tribal land projects.) This legislation sets forth some safeguards to protect against the dangers inherent in vesting too much authority in a general contractor. Safeguards include the use of qualifications based selection of design professionals and the use of qualified professional engineers and architects in the preparation of contract documents. Consideration should be given to the use of additional safeguards such as the licensure of contractors before enactment of this legislation.

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

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