Just Say No!

Attention Texas Engineers
TSBPE Proposed Rule Change

The Texas State Board of Professional Engineers has proposed a change to the rules that will negatively affect the way you do business. http://www.tbpe.state.tx.us/proposed.htm

This is a bad proposed rule and if, like me, you are concerned about this proposed change, then you need to submit your comments to the board against it. Your comments must be in to the Board by February 13, 2009.

In addition, please go ahead and comment the hell out of things here on this blog to let others know how YOU feel.

You know, one thing I would like to know is how, with all the talk of government intrusion into things, such a proposal even made it this far. What is it going to be next? Are they going to make another rule after this one fails to "do the trick" that to be "clear" to the client our calculations have to be done in Color #45334 ink, on paper having a yellow#34 tint, and that we will have to determine the color blindness level of the client and that it is a Rules Violation if we have not?

BTW Mr Kinney, -- contrary to what you say about how this thing will have no financial impact to the engineers of small firms ... Where do I sent the bill for the $800 that I had to pay our corporate attorney to comb through your proposed rule and draft up this letter?? How many other engineer dollars are having to be spent responding to something that should have never been proposed in the first place?


So then my fellow engineers, here is a copy of a letter that is going out today (2/2/09) at my request, and on my dime, from our corporate attorney.

___________________________________________________

Lance Kinney, P.E.
Deputy Executive Director
Texas Board of Professional Engineers
1917 IH35 South
Austin, Texas 78741

Dear Mr. Kinney:

I have an engineering education, and, prior to going to law school, practiced engineering and was licensed in Ohio as a P.E. Over the past 40 years I have, as an attorney, represented engineers, architects, developers and construction contractors from time-to-time in contract negotiation and dispute resolution. From the vantage point of that background, I have been asked to comment on your proposed additions to Board Rule 137.63 (b)(4). The proposed additions address two issues – the first attempting to define the engineer as a "faithful agent" for employers in subpart (A), and the second attempting to define the engineer as a "faithful agent" for clients in subpart (B). Both attempts are, in my opinion, ill-advised for the reasons stated below.

Subpart (A) goes far beyond the requirement to avoid conflicts of interest, and is overly broad. If enforced to its logical conclusion it would penalize engineers who are common-law employees of business organizations and engineering firms for simply exercising their legal rights to change employment and take their acquired knowledge with them to a new employer. Subpart (A) requires that the employer’s time, equipment, resources and project information be used "only for the benefit of their employer and not for personal gain or the benefit of any outside employment purposes." Yet every engineer learns on the job and acquires skills and useful knowledge from utilization of the employer’s resources of time, equipment usage and project information. That is how engineers (and all other professionals and trades persons) grow in their ability to serve the public. The law does not allow employers to restrict, even by contract, the transfer of acquired knowledge for the benefit of new employment, except under very limited conditions. There is a large body of law in Texas which defines the extent and limits which are placed on employers and employees in this regard. Subpart (A) broadly interpreted conflicts with the statutory and common-law rights of engineer employees, and should not be enacted by the Board.

Subpart (B) states principles of good contract drafting and performance, but goes too far in that it elevates less than perfect drafting and performance to an ethical violation. This opens the engineer to professional disciplinary action where a breach of contract claim is much more appropriate. It also opens an engineer involved in a law suit to the argument that the applicable "law" (as embodied in the Board ethical rules) always requires the engineer to meet every requirement of subpart (B), and that failure to do so is somehow always actionable malpractice. Any lawyer worth his license will make this argument in a dispute, and a jury that knows nothing of professional practice may well accept the argument. If you enact the proposed language, you will open engineering practitioners to unjustified risk of legal judgments which have no basis in common sense. The language of subpart (B) fails the interests of both the engineer and his or her clients in the following respects:

Defining the responsibilities of the engineer and client for a project is a two way street subject to negotiation between the engineer and client – yet (B)i places the burden of definition solely on the engineer. What is meant by "clearly"? – What is clear to two particular contracting parties may not be clear to two others. Circumstances of the parties vary all over the map. Whether or not something was clearly defined is better left to the flexibility of the legal process rather than rigidly imposed through ethical rules.

Clarity of the allocation of responsibilities is frequently the subject of contract disputes and of suits by third parties to recover for injuries suffered when something goes wrong. The law and legal practice is well developed to determine the issue under particular circumstances. Making clarity of responsibilities an ethical responsibility of only the engineer exposes him or her to substantial legal risk that may often belong to the client or to a plaintiff himself.

Making timely completion of services an ethical responsibility also places the Board’s disciplinary process in the position of deciding contract disputes when that decision would be better left to the parties through negotiation, mediation, and if necessary litigation. It provides the client with the leverage of threatening an ethics complaint, and places the engineer at a distinct disadvantage in settlement negotiations and litigation. All professional practitioners and their clients know that any number of circumstances can cause delays in performance, and that delays are often justified by circumstances beyond the engineer’s control – circumstances such as delays in decision making by a client or problems dealing with regulatory agencies. Again, where timeliness of performance is an issue, that issue is better left to the legal process for resolution if the parties themselves cannot resolve it by negotiation.

(B)iii requires that the engineer always communicate matters related to changes in writing. That may be advisable for large complex projects, but is not necessarily advisable for smaller projects, particularly where there is a relationship of mutual respect and trust between the client and engineer. To always require written communication can increase costs without corresponding benefit to the client, and can create a paper work nightmare for the engineer. Even where contracts require written communication, the law recognizes that the requirement may be waived by practice of the parties. Your proposed rule does not provide for that.

(B)iv makes it an ethical violation to be untimely in responding to client communications. This is appropriate in extreme cases. Timely communication is always good client relations practice. However, every delay in communication should not be an ethical violation, as such a delay is not necessarily a breach of the relationship between the engineer and client.

The commentary which precedes the changes states a determination that "there are no fiscal implications for the state or local government as a result of enforcing or amending the section as amended." That assessment could not be more mistaken. There are so many issues raised by the language of the amendment that any disciplinary action would require the same effort, Board involvement, and state expense for hearings, as is required of the parties in a civil trial. These issues include identification of key provisions in the allocation of responsibilities between engineer and client, the size of type font or other emphasis to flag the key provisions, and location of the key provisions in the body of a contract, and determination of what detail failed to be "clear." The issues also include whether accounting and project management systems and software are adequate to control schedules and costs, and which party should be responsible for which systems. If the Board greatly expands the rules to deal with specific issues of adequate performance, as is often done in consumer protection statutes, it would still find that one size does not fit all situations and that it accomplished nothing of practical significance.

The responsibility for sorting out the issues should be left to the engineer and client for resolution by negotiation, mediation, or litigation under already well established legal procedures and use of state resources already tailored to that task. The only sensible approach is to have the Board rules simply state that conflicts of interest are prohibited and sound engineering practice is required, and then leave it to the legal process with aid of technical expert witnesses to assess and resolve specific issues between specific parties.

The commentary also states that there "is no adverse fiscal impact to the estimated 1,000 small or 5,300 micro businesses currently regulated by the Board of Engineers." This also is mistaken. Just the requirement of always requiring written advice of changes creates a paper work burden on the small offices. Requiring an engineer to defend himself or herself on two fronts – before the Board and in civil courts, places an extraordinary burden on the small office. The proposed changes will divert the engineer’s time and attention from sound engineering practice to defensive practices in anticipation of potential law suits, driving up the cost of engineering services.

In summary, the Board’s proposed amendments may stem from good intentions. However they will accomplish no more than to provide plaintiffs’ attorneys making client claims or third party injury claims with more ways to get specious claims past the judge and in front of a jury. That does not serve the public, the client, or the engineer.

Yours truly,
Loren W. Peters