The 2013 regular session of the New York State Legislature was scheduled to end on June 20th, 2013. In fact, the session ended in the early morning hours of Saturday, June 22nd, just before sunrise. In a manner consistent with tradition, the end of session played out as a series of marathon days leading to the July 4th holiday break. In its entirety, the session has been viewed by many as a lost opportunity to address major obstacles impeding economic growth in the state, particularly upstate. Mandate relief, including Wicks Reform and Municipal Tort Reform, was left on the table. (The legislature did approve legislation authored by Governor Cuomo which grants targeted tax relief to new businesses locating in specified zones including SUNY campuses, but this legislation has not generally been viewed favorably by the business community.) Additionally, the failure to enact broad, sweeping legislation to ensure womens’ rights and legislatively address political corruption and campaign finance reform were viewed as major disappointments. However, it is likely that the legislature will return to Albany before the year is out, as discussions continue on a range of topics, including those touched upon above.
With regard to the New York State Society of Professional Engineers and the professional engineering community, the session can be categorized as a success in light of the defeat of a series of bills strongly opposed by NYSSPE. A brief description of some of the more prominent bills DEFEATED is set forth immediately below.
Licensure of Professional Geologists – Oppose
(S3810/A4753 – Senator Marcellino / Assemblyman Englebright)
This legislation provides for the licensure of geologists. NYSSPE generally is supportive of legislation to license geologists in New York and in fact has supported a previous iteration of this very bill. However, as the 2013 regular session drew to a close, the bill was amended in a manner which can be construed to prevent professional engineers from offering services which are “geological” in nature, despite other bill language which expressly authorizes professional engineers to provide all manner of geological services. In effect, the bill could be construed to bar an engineering firm from advertising that it provides “geological analysis ” or “ geological services ” , or from responding to a RFP for geological services, despite having a PE competent in all aspects of geology. The bill stipulates that geologists are not authorized to provide engineering or other design services. The legislation further expressly permits professional geologists to become principals in firms providing inter-professional design services (engineering, architecture, land surveying and/or landscape architecture). NYSSPE has requested that the bill be amended to ensure that competent PEs and PE firms be permitted to offer “ geological ” services.
Expansion of Exemptions to Engineering Licensure Requirement – Oppose
(A1267-A/S 4333 – 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. NYSSPE emphatically opposes an increase of 900% (to $50,000) in this monetary threshold that would 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 education and experience needed to ensure public safety.
Land Surveyor’s Scope of Practice – Oppose
(S4827-A/A7486-A – Senator LaValle / Assemblymember Glick)
The NYS Association of Professional Land Surveyors has pressed the legislature to adopt this bill, which greatly expands the scope of practice of land surveying to include significant aspects of professional engineering. In effect the bill threatens to allow land surveyors to practice “minor engineering” in a fashion similar to the “n” exemption currently applicable to a very limited number of grandfathered land surveyors. In addition to the foregoing, the legislation would impose restrictions on professional engineers related to the use of photogrammetry for site plans unrelated to the determination of land boundaries. Finally, the amended bill also raises concerns regarding the ability of professional engineers to continue to provide all services relating to the laying out of alignments, positions and elevations for construction. NYSSPE will continue to strongly oppose legislation which would authorize land surveyors to practice engineering without comparable education, examination and experience requirements or would threaten to restrict the practice of professional engineering.
Elevator Contractor Licensing
(S2917-C/A5233-B Senator Bonacic / Assemblyman Wright)
This legislation requires the licensing of persons engaged in the design, construction, operation, inspection, maintenance, alteration and repair of elevators and related equipment. NYSSPE opposes the use of the term “design” and “alteration” in reference to contractors to be licensed pursuant to the statute and has supported recent amendments to the bill to clarify the roles of PEs and RAs in designing the manner that an elevator or similar device is integrated into a building.
(S3667-A Savino / A 5117-A Weisenberg)
This legislation provides for the licensure of mold assessment and remediation specialists and minimum work standards related to mold remediation projects. NYSSPE fundamentally concurs with the objectives of the bill, and opposition to the measure is predicated solely upon the need for the legislation to include an express exemption for professional engineers. Without the incorporation of such an amendment, a professional engineer engaged in the assessment and design of mold remediation projects may be precluded from continuing his or her engineering practice in the absence of specialty certification (i.e., licensure pursuant to the proposed statute). In accordance with the vast majority of sister states, New York’s professional licensing law respecting professional engineering does not require specialty certification. Pursuant to New York law, a professional engineer must restrict his or her practice to areas of competency and therefore can only undertake to provide mold assessment and remediation services if competent to do so.
While the legislative session can be viewed as a success in light of the defeat of legislation strongly opposed by NYSSPE, a number of bills FAVORED by the Society also failed to advance. For many years, NYSSPE has attempted to secure adoption of legislation to require a BACHELOR’S DEGREE or equivalent as a prerequisite for licensure. Currently, a party seeking licensure can utilize a decades-old provision in the law which permits an applicant to sit for the PE licensure exam provided that he or she has appropriate design experience and/or education. (This is commonly known as the twelve-year ladder.) Public-employee union opposition has hindered adoption of the proposal. During the balance of 2013, the Society will enhance efforts to address public-sector union opposition to the proposal.
In addition to the BS degree proposal the NYSSPE has worked to advance the following bills:
Good Samaritan – Support
(S 3942A/A4380B – Senator Hannon / Assemblyman Englebright)
This legislation provides enhanced immunity to professional engineers who volunteer to assist victims in the wake of natural or man-made disasters. Federal law provides liability protection under specified circumstances for a 30-day period following a triggering event. Pursuant to federal law, ordinary acts of negligence are covered, and the entity which requested assistance will stand in the shoes of the volunteer and be responsible for any losses. This proposal would provide similar protection for up to 90 days. NYSSPE is working with the bill sponsors and other legislators to broaden this measure to provide additional protections to engineers who are retained in a post-disaster period as well as volunteers. Post-disaster recovery entails exposure to unusual liability risk, which should be borne by the state or political subdivisions and not transferred to the design community. For example, in the wake of the 9/11 terrorist attacks, recovery workers sought compensation for exposure to toxic chemicals ingested via ambient air. Structural engineers assisting in the rescue and recovery phases of the post-9/11 operations had no control over the atmospheric analysis or the determination to proceed with rescue and recovery despite the atmospheric conditions. The EPA, DEC and other governmental bodies responsible for rescue and recovery should have been required to defend and indemnify the engineering community for its work performed during the entire rescue and recovery period, notwithstanding that a number of firms were retained soon after briefly volunteering.
QBS – Support
(S414/A7268 – Senator Dilan / Assemblyman Benedetto)
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 criterion 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.
Statute of Repose – Support
(S3334/A5301 – Senator Griffo / Assemblyman Pretlow)
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 Lawyers’ Association. NYSSPE has been assisted in its fight by other organizations including architects, builders, municipalities and concerned citizens, all fighting to advance broad-based tort reform in New York, including passage of a Statute of Repose for PEs, RAs and contractors.
Indemnification – Support
(S5038/A7275-A – Senator Martins / Assemblyman Schimminger)
This legislation provides for the use of statutorily mandated contractual indemnification provisions when a municipality retains a professional design firm. The proposal applies to professional engineering, architecture and land surveying. The proposal is designed to ensure that indemnification agreements are fair and balanced and to prevent overreaching on the part of either party to an agreement. Professional engineers and other design professionals will be required to indemnify municipalities for professional design errors and omissions in a manner which parallels insurance overages afforded by professional design liability policies.
In addition to the aforementioned legislation, the Society monitors over two hundred bills which impact the professional engineering community and intercedes on an as-needed basis to ensure that the interests of NYSSPE members are protected. Questions regarding legislation can be addressed to Mark C. Kriss, Esq., legislative and legal counsel, at email@example.com.
Note: NYSSPE facilitates posting on this blog, but the views and accounts expressed herein are those of the author(s) and not the views or accounts of NYSSPE, its officers or directors whose views and accounts may or may not be similar or identical. NYSSPE, its officers and directors do not express any opinion regarding any product or service by virtue of reference to such product or service in this blog.