Fall 2012 Legislative Report


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

Overview

Both houses of the NY State Legislature are expected to reconvene shortly after election day November 6th. It is anticipated that the post election agenda will be limited to a half dozen or so proposals, almost all of which are being pushed by Governor Andrew Cuomo. Surprisngly, almost two years after assuming office, Governor Cuomo continues to enjoy unprecedented approval ratings hovering around 70%. A tentative agenda includes consideration of: (i) increasing the minimum wage, (ii) decriminalizing minor pot possessions during stop-and-frisk procedures, (iii) campaign finance reform, including partial taxpayer financing of state elections and (iv) legislative ethics reform, including increase transparency respecting the disposition of complaints lodged against legislators and staff and related expenditures of legislative funds. In addition, Senate Republicans have been advancing a proposal to provide modest tax relief to small businesses in a balanced approach to increasing the minimum wage.

Senators and Assemblymen have also quietly been working to secure legislation to increase base compensation to lawmakers which has remained unchanged since 1999. Presently, lawmakers (Senate and Assemblymen) receive a base pay of $79,500.00. In addition legislative leaders, committee chairs and ranking members are paid additional compensation for their leadership positions ranging from $9,000 – $41,000. Legislators also can collect per diem reimbursement of $165 per session day.

Focusing on the engineering profession, during the special session the Legislature is likely to pass legislation which will add specificity to the law governing the conversion of a professional corporation to a design professional corporation. (See A 4581* and A 10281.*) NYSSPE was instrumental in securing passage of this legislation which, subject to significant safeguards, permits a non-licensee, including an ESOP, to own a limited interest (not to exceed 24.99%) in a NY engineering firm.

2013 Legislature – Post Election

Polls presently suggest that control of the Assembly will continue to remain firmly in the hands of the Democrats who currently enjoy a veto proof majority (100 Dem. 49 Rep. 1 Ind.). The Senate currently is controlled by Republicans who enjoy a razor thin majority (33 Rep. 29 Dem.). Earlier this year the legislature enacted changes to district lines which, with judicial approval, now provide for 63 versus 62 New York Senate seats. The number of Assembly seats (150) remain unchanged. It is anticipated that, despite the strong registration advantage enjoyed by Democrats, Senate Republicans are likely to gain at least one seat thereby strenghtening control of the upper house.

2013 Budget

When the Legislature reconvenes in January the State will again be facing a significant budget deficit. The shortfall is expected to exceed one billion dollars for the current fiscal year and a significantly larger deficit is projected for the 2013-2014 fiscal year. Despite mounting strains on local governments due the prolonged recession, and the potential for some municipal bankruptcies, it is not expected that significant additional aid to local governments will be forthcoming from Albany, nor is significant mandate relief expected.

Design Build

A key cornerstone of the December 2011 Budget was legislation authorizing the use of design build for design and construction projects undertaken by a number of state agencies and authorities.

Specifically, the legislation applies to projects under the aegis of the New York State Thruway Authority, the Department of Transportation, the Office of Parks, Recreation and Historic Preservation, the Department of Environmental Conservation and the New York State Bridge Authority costing in excess of 1.2 million dollars.

The legislation had an immediate effective date and is subject to a three-year sunset provision.

Legislation, without a sunset provision, to permit design build and other alternative project delivery methodologies, such as construction manager at risk, for most state and local projects, is expected to generated a great deal of interest in 2013. (See Senate Bill 3035-A Senator Lavalle.) NYSSPE favors broad adoption of alternative procurement methodologies on the state and local level, provided authorizing legislation includes all of the Quality Assurance Safeguards viewed as essential by NYSSPE, as well provisions which insure that liability risks are not unfairly shifted to design professionals. Good features of the Lavalle Bill include the following Quality Assurance safeguards:

  • Broad use of QBS for the selection of PEs and RAs for both design build and construction manager at risk
  • The use of a PE or RA as the owner’s project representative independent from the principal design firm for design build projects
  • Mandatory inspections and testing by properly credential inspectors with direct reports to the project owner

Despite the foregoing a number of amendments are needed to correct deficiencies in the bill. Proposed amendments to the bill include:

  • Remove provisions in the bill which authorize some governmental entities to use alternative project delivery methodologies without sufficient detail and Quality Assurance safeguards
  • Amend the bill to insure that the scope of responsibility respecting the design of buildings is consistent with current law for both professional engineers and architects (insure coterminous practice respecting buildings)
  • Add a provision prohibiting blanket indemnification of a general contractor by a design professional
  • Add a Quality Assurance provision applicable to all design build contracts which affords a primary design firm unrestricted access to a project owner or owner’s design representative

A number of additional amendments to the bill, including without limitation, the licensure of contractors and sub-contractors and/or prequalification of contractor and sub-contractors require additional consideration.

Additional Bills Directly Impacting the Profession

NYSSPE – Support

QBS-
(S1363-A/A6814-A – Senator Dilan/Assemblyman Benedetto)
On the affirmative front this legislation, requires the use of Qualifications Based Selection by Public Authorities and Public Benefit Corporations, in addition to state agencies. 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. This legislation passed the Assembly in 2010.

Licensure of Geologists-
(S2406-B/A4319-C – Senator Thompson / Assemblyman Englebright)
NYSSPE supports this legislation licensing geologists. The bill insures that professional engineers are permitted to practice all aspects of geology within the province of professional engineering and that geologists are not authorized to provide professional engineering.

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 been assisted in its fight by other organizations including, architects, builders, municipalities, and concerned citizen, all fighting to advance broad-based tort reform in New York, including passage of a Statute of Repose for PEs, RAs, contractors and manufacturers.

Bachelor’s Degree –
(NYSSPE – Draft Legislation)
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 enactment of the bill. 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 – 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 be undertaken/overseen by a Professional Engineer or Registered Architect.

Outdoor Lighting –
(S4105-A/A1478 Senator MarcellinoAssemblyman 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.

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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