Lance Kinney, P.E.
Deputy Executive Director
Texas Board of Professional Engineers
1917 IH35 South
Austin, Texas 78741
Subject: Proposed Changes to Board Rule
§137.63 Engineers’ Responsibility to the Profession
http://www.tbpe.state.tx.us/proposed.htm
Dear Mr. Kinney:
I am responding to your request for comments concerning the proposed changes to Board Rule
§137.63 Engineers’ Responsibility to the Profession.
- I OPPOSE this proposed change
- I OPPOSE any later modification and re-submission to public comment of the proposed language to make it more palatable
- I OPPOSE revisiting this issue in attempts to, under different camouflage, introduce matters similar to those which have been proposed .
Comments -
#1 I note that nowhere in the Notice of Proposed Rule Change has there been given any explanation of the reasons or justifications for this proposed change. Surely, it did not just materialize out of thin air. Not to put too fine a point on things, it is improper for a public body, simply by edict, to propose a new rule to the public without a statement of rationale. There must be some reason(s) given so as to make the matter ripe for placement into public comment status in the first place. There is no indication in the preamble to the proposal that meets any scintilla of rationale as to why the change is warranted, so, therefore, I believe that the issuing of a proposed change to public comment is improper in its form and that it must be withdrawn on that basis alone.
#2 I note that in the preamble, it is said that there will be no costs, etc. First, I note that apparently there must be a requirement for the Board to indicate a cost assessment, and that is why such information was put into the preamble. This then implies that failure to do so would cause the issue of the proposed change to public comment to be defective and invalid. Because of this then, that very notice requirement itself is support for the point I have above with respect to a notice requirement for the "why" of this rules proposition. Second, the assertion that there are no costs is NOT correct. There are all sorts of costs, and, based on this, the submission of this proposed rule to public comment is again defective and the proposal must be withdrawn.
As far as costs that will accrue:
There will be costs to the State of Texas (paid for by the public) as the Board spends day after day playing referee on games that should better be left to the courts, or to the parties. Apparently the Board is sensitive to "costs" because it is proposing, in another proposed change to the Rules, to reduce the time it is required to spend, from a minimum of meeting twice a year to meeting "as required". This then means that meetings of the Board cost public money, and this then means that cost will be expended by the State for the Board to handle complaints brought under these new provisions. In association with this, it seems odd that the Board is attempting to write itself out of work requirements, yet at the same time setting up additional rules that will require engineers to spend their time and money defending against legal claims and Board complaints that will be easily brought about due to these proposed rule changes that are nothing more than open-ended invitations to engage in controversy.
Still concerning costs, I have had to pay others to do the work that I would have done had I not been discussing this matter with my colleagues, who, by the way, are uniformly OPPOSED to this proposed change.
Still concerning costs, I have had to spend money for my corporate attorney to review what essentially is a proposed law that the board wants to issue.
Still concerning costs, I have had to spend money now instructing my staff and attorney to be vigilant for attempts by the Board to recraft or resubmit this proposed change under different cover.
Again, implementation of this proposed rule will bring about horrendous costs as engineers are hauled into court for specious claims of "The engineer did not make it clear that X, Y, or Z".
Think about it - Are you married? If, so, how many times do you think you are being perfectly clear, but your spouse thinks, and can argue quite effectively, that it is otherwise?
This brings up a real life story that happened but 2 weeks ago. I was sitting at a coffee house and at the next table was a plaintiff's attorney that I knew. He was in conversation with a friend of his who was congratulating him on his recent win. The attorney indicated that it was a hard case, and he was happy to make the jury see things his way. He continued by saying ...
"You know, the reality in the courtroom in not the real reality. Reality in the court is whatever you can make the jury believe is reality. It is a play that I stage for an audience."~ Plaintiffs Attorney - Overheard having a conversation his friend
This then, direct from the mouth of one of the false-reality makers.
Now then, think of what this lawyer is saying. He is saying that when he sues an engineer in a contract dispute (and contract disputes invariably contain allegations of somebody not being clear), in addition to negligence being part of the pleadings, he will also bring a complaint to the Board, because there it is, plain as day and in writing no less, that the engineer by law is required to "communicate clearly".
Why bring the complaint to the Board? Two reasons - First, he does it to bring pressure (a.k.a. legal intimidation) to bear on the engineer to settle the case - partly out of the expense of now defending in two actions. Second, he is doing it so that when the non-Court-of-Law Engineers Board (that now, of its own making, has 15,0000 of these "The engineer was not clear" complaints on its docket), hears his presentation of "reality", they may be swayed with his rhetoric and pronouncement of things that he could not get away with in a courtroom. Having then this finding, he will then take it back to the court at law and file a summary judgment because of what is now a "rules violation" - which now in fact will be used to bolster an amended pleading of negligence per se. And, do not think that any attorney worth his or her salt will not be able to make their case to the Board. I have worked with enough of them to know that most of them, even the most poorly trained in public rhetoric, can by the end of the day, have people believing that you shot your own grandmother - when in fact your grandmother is sitting on the jury.
Essentially, the Board is attempting to legislate the Standard of Care, and attempting to legislate a Standard of Care for the Running of An Engineering Business. Both are improper. The concept of Standard of Care, which requires a plaintiff's burden of polling of the industry as to what the industry is doing at a place and time, is a protocol that is an encapsulating boundary for professionals. It is in place, in this form, for a reason , and any attempt to provide "rules" for "client relations" is a step onto the slippery slope from which there is no recovery, because next you will have to propose a rule that we MUST set up a client communication blog, or that we MUST use electronic data capture in the geotechnical laboratory because that eliminates transcription and calculation error and thereby protects the health safety and welfare of the public. Following this then, we may thus at some short time in the future be faced with a rules violation if our firms do not have a certain percentage of electric cars in our fleet., of if we do not all fall in line with the teachings of the politically correct re-education brown-shirt committees concerning global warming, now debunked, and called "climate change'.
A good way to view the bigger picture as to the inappropriateness of this proposed rule change is to consider that in NOWHERE in the engineering examinations required by the Board are there questions about the proper format for communication with the client, or questions about clear letter writing. Indeed, as a candidate for registration as an engineer, the Board will absolutely NOT let me get away with statements on my SER that "I wrote good letters", or "I always kept the client informed", or that "My writing was always clear".
NO - in order to get registered, the Board requires that I tell them:
"I calculated",
"I performed the strength calculations."
"I performed the aquifer drawdown analysis using the USGS Standard protocol 8765" or,
" I kept bridges standing by determining the design loads of the bridge, sizing the beams and stringers by calculating the shear and moments created during ice storms as well as normal loading conditions, and executing the gusset plate calculations according to the AISC."
Art Koenig, PE
#53218
President
MDI Labs, Inc
San Antonio, TX
Attachment (Proposed Board Rule)
Attachment #1
Proposed Board Rule
Omitted from this post - see orignal message this blog "Just Say No" or Click the link up above in the first part of this post .... or click here
http://www.tbpe.state.tx.us/proposed.htm
2 comments:
COMMENTS RE:
MR. KINNEY’S PROPOSED AMENDMENT TO THE TBPE
Rules Concerning the Practice of Engineering and Professional Engineering Licensure
§137.63 Engineers’ Responsibility to the Profession
(Kinney Proposal)
Citation:
TEXAS ADMINISTRATIVE CODE
Title 22: Examining Boards
Part 6: Texas Board of Professional Engineers,
Rules Concerning the Practice of Engineering and Professional Engineering Licensure
(Board Rules)
Chapter 137: Compliance and Professionalism
Subchapter C: Professional Conduct and Ethics
Kinney Proposal 1: The section of the Board Rules proposed to be amended
Sentence #1 – “The Texas Board of Professional Engineers proposes an amendment to
§137.63, relating to the engineers’ responsibility to the profession.”
[existing context with amendment text in bold italics follows below]
§137.63 Engineers’ Responsibility to the Profession
(b) The engineer shall: …
(4) act as faithful agent for their employers or clients
through actions that include, but are not limited to, the following:
(A) as faithful agents for employers by utilizing their employer’s time, equipment, resources and project information only for the benefit of their employer and not for personal gain or the benefit of any outside employment purposes; and
(B) as faithful agents for clients by:
i. clearly defining expectations and responsibilities of the engineer and client for a project;
ii. completing all engineering services for projects under the scope, terms, costs and established time frames of verbal or written agreements between the engineer and the client or the client’s representative;
iii. providing their client or the client’s representative with written communication in a timely manner of any changes to the scope, terms, costs and established time frames for projects; and
iv. keeping lines of communication open and responding verbally or by written communication in a timely manner to any requests for information from their client or the client’s representative pertaining to a project.
(5) conduct engineering and related …
Kinney Proposal 2: The amendment’s objective, content, and reference
Sentence #1 – “The proposed rule clarifies the expectations of engineers as it relates to being a faithful agent to their employers and to their clients.”
Comment – The wording of this sentence is misleading. The existing wording of §137.63(b) states, “The engineer shall:” As such, that wording establishes a mandatory requirement, which the Board is empowered to enforce by prosecution, fines, and other sanctions, including revocation of license to practice. Furthermore, the Occupations Code, Title 6, Subtitle A, Chapter 1001, Engineers (the Texas Engineering Practice Act – TEPA), Subchapter L, §1001.552, Criminal Penalty, (a) and (b) define a violation of Chapter 1001 (TEPA) as a
Class A misdemeanor, which is a criminal offense, one step short of a felony. Yet, the wording of this sentence mischaracterizes this prosecutable requirement as a mere “expectation.” Such a mischaracterization is not truthful, is misleading, and appears to be a violation of §137.57(a) and (b) by Mr. Kinney, a license holder.
The wording of this sentence is misleading. The phrase, “the expectations of engineers,” is ambiguous. By omitting the Board’s role as the “expectors,” the reader is misled to believe that the “expectations” are “of engineers [license holders],” not of the enforcing state licensing agency, the Board. Ironically, this sentence lacks clarity, as does the Kinney Proposal.
Sentence #2 – “The rule also includes examples of what constitutes being a faithful agent.”
Comment – The Kinney Proposal offers no examples. It uses no language explicitly describing or implying that any of the newly amended specific procedural practices are merely selected examples illustrating some more general set of practices. In fact, (B)(i)-(iv) are joined by the conjunction “and,” which requires that all of the listed procedural practices be performed.
Furthermore, the Kinney Proposal only addresses procedural practices; no illustration is given of the ethical qualities of a faithful agent’s relationship to either employer or client, as would be appropriate for a section titled, “Engineers’ Responsibility to the Profession.” Such a mischaracterization is not truthful, is misleading, and appears to be a violation of §137.57(a) and (b) by Mr. Kinney, a license holder.
Sentence #3 – “In developing this amendment, the Board consulted the Code of Ethics of the American Society of Civil Engineers (available at [website]).”
Comment – Throughout Mr. Kinney’s presentation, there is no consistent styling of “the Board.” In the first sentence of the following Paragraph 3, the lower case form is used: “the board.” In most instances, the context does not clearly corroborate that “the Board” refers to a majority of the members of the Texas Board of Professional Engineers appointed by the governor. Rather, it seems that Mr. Kinney more frequently uses “the Board” as the euphemistic reference the Board Staff commonly makes to itself. Considering the gravity of the Kinney Proposal, the distinction between actions taken by the Staff vs the true Board is of vital significance to the affected license holders and needs to be clearly presented. Such a mischaracterization is not truthful, is misleading, and appears to be a violation of §137.57(a) and (b) by Mr. Kinney, a license holder.
If adopted, the amended Board Rule would apply as an element of the prosecutable mandated standard of care for all the specialty practice areas of professional engineering throughout Texas. Civil engineering is only one of those specialty practice areas. It seems inappropriate and disrespectful of the unique qualities of practitioner-client relationships in the other specialty practice areas to impose the new burdens of the Kinney Proposal, derived from such a narrow and irrelevant sole reference, upon the non-civil engineering practitioners.
Kinney Proposal 3: Fiscal effects on governments or small or micro businesses
Sentence #1 – “Lance Kinney, P.E., Deputy Executive Director for the board, has determined that for the first five-year period the proposed amendment is in effect there are no fiscal implications for the state or local government as a result of enforcing or administering the section as amended.”
Comment – This assertion lacks credibility. To the extent that license holders would be aware of the new sweeping scope of the proposed amendment and choose to comply with it, the agency (TBPE) may expect to devote more manhours to answering questions about acceptable means of compliance during the first five-year period the Kinney Proposal would be in effect. Alternatively, to the extent that potential complainants, such as clients and other involved or affected parties, would be aware of the vague and undefined wording of the new sweeping scope of this proposed amendment to the standard of care for the practice of engineering in Texas, the TBPE may reasonably expect both negative and positive fiscal implications as a result of the increased costs of enforcing and administering the Kinney Proposal and as a result of the increased revenue from fines for violation, respectively. In 2005, Ms. Beebe-Farrow described the TBPE as, “one of three agencies in Texas that is Self-Directed and Semi-Independent (SDSI). That means we are self-funded and run our agency like a business.”
The Board Rules establish the uniform statewide standard of care for the practice of engineering in Texas. If this vaguely worded amendment is adopted, civil tort cases alleging failure to conform to the standard of care may also be prudently expected to increase, thereby increasing the docket load and costs to local government for adjudicating those disputes. Thus, this assertion is not truthful, is misleading, and appears to be a violation of §137.57(a) and (b) by Mr. Kinney, a license holder.
Sentence #2 – “Mr. Kinney has determined that there is no additional cost to the agency, licensees, or individuals.”
Comment – Recent revisions to the Board Rules have consistently adopted the term “license holders” to refer to licensees. For clarity and consistency, Mr. Kinney’s use of “licensees” should likely be replaced with the official TBPE term, “license holders.”
Mr. Kinney’s reference to “individuals,” as distinct from “license holders” and “the agency” (TBPE), is not clear. Indeed, this terminology is totally undefined. Applying a logical analysis, Mr. Kinney’s universal set is “cost-incurring individuals.” Although “the agency” incurs cost, it is not an “individual” and is therefore not a member of Mr. Kinney’s universal set. As “the agency” only licenses “individuals” and these incur costs, “license holders” are a special subset of Mr. Kinney’s universal set, by definition. The remainder of Mr. Kinney’s universal set are the “cost-incurring individuals” who are not license holders. Elsewhere in TEPA and the Board Rules, this group, which also includes graduate and practicing employee engineers who are not license holders, is referred to as “the public.” This subset of non-license-holder, “cost-incurring individuals” also includes clients and their representatives, involved and affected parties to engineering projects, and their trial lawyers, thereby comprising the “individuals.”
In order for Mr. Kinney’s determination to be true under a Time-and-Materials client relationship, each license holder would have to first determine some hypothetical baseline cost for the amendment activities that would have been incurred prior to the adoption of the Kinney Proposal. Then, each license holder could not invoice their clients for any incremental time or material costs that would have been greater than that hypothetical baseline. According to the Kinney Proposal, this hypothetical incremental cost would be that directly attributable to the discovery, confirmation, or written documentation and communication of the initial assessment and subsequent revisions to the:
Ø expectations and responsibilities of the engineer and client for a project;
Ø scope, terms, costs and established time frames for projects established by verbal or written agreements between the engineer and the client or the client’s representative;
Ø timely verbal or written communication response to any requests for information pertaining to a project.
In order for Mr. Kinney’s determination to be true under a Fixed-Price client relationship, after establishing the aforementioned hypothetical baseline, license holders could not include any estimate of this hypothetical incremental cost in the bid price or in the final negotiated contract price. Similarly, in order for Mr. Kinney’s determination to be true under a Cost-Plus-Fixed-Fee client relationship, license holders could not include any estimate of this hypothetical incremental cost in their fee or invoice for any such actual costs incurred during the course of the project, all of which would necessitate extra bookkeeping expenses by the license holder.
In either of the latter two cases, accurately estimating such a hypothetical incremental cost would be pure guesswork because there are not now and could not likely be in the future any reliable quantified parameters on which to base such an estimate. As is current practice, estimating non-quantifiable contingencies must always err high. Thus, by reasonable expectation, Mr. Kinney’s determination is not credible for license holders, if these incremental costs are not invoiced, and is not credible for clients, if they are. Furthermore, it is not credible to allege that Mr. Kinney was able to accurately and reliably make such an assessment for all the license holders in all the specialty practice areas and all their future clients. Thus, this assertion is not truthful, is misleading, and appears to be a violation of §137.57(a) and (b) by Mr. Kinney, a license holder.
Sentence #3 – “There is no adverse fiscal impact to the estimated 1,000 small or 5,300 micro businesses regulated by the Board of Engineers.”
Comment – This assertion is not directly attributed to Mr. Kinney, but the context of the enclosing paragraph strongly implies that he is the putative author. Accordingly, his wording of Sentence #3 seems to hugely inflate the mission of the Board to encompass regulation of engineering businesses, rather than respecting the far more narrow role defined by the TEPA statute to administer the professional engineering licensure of individual applicants. Such misrepresentation seems inappropriate in his presentation of a mere amendment he has proposed to an existing Board Rule that only pertains to the engineers’ ethical responsibility to the profession.
A credibility appraisal of this assertion must also examine Mr. Kinney’s bona fides as an expert in the field of the fiscal dynamics of small and micro businesses. My limited research into Mr. Kinney’s background finds no elements pertinent to that highly specialized expertise. The current TBPE website roster shows Mr. Kinney’s license, TBPE#92656IND, was granted 12/10/2003. The first mention of Mr. Kinney in TBPE publications I have read occurs in the agenda for the 21Apr04 Board Meeting, where he is listed as the presenter of proposed changes to the Board Rules. From these, it appears that Mr. Kinney received his license in Industrial Engineering immediately prior to his employment by the TBPE.
This implication is substantiated by the similarity of literary style and conceptual content between the current Kinney Proposal and the fifth paragraph of the previous, unattributed
23Jan04 TBPE website News Item:
January 23, 2004 – Engineering Evaluations of Residential Foundations,
Paragraph 5 – “Therefore, the Board expects that professional engineers will fully communicate with a client to ensure that both the professional engineer and the client understands [sic] what the expectations of an inspection are, how detailed an evaluation will be performed and what the limitations may be for differing levels of evaluations. The
Board also expects that engineering reports will fully cover this same information.”
Of the many areas of specialty practice TBPE recognizes, industrial engineering seems unlikely to encourage a small or micro business activity in which Mr. Kinney might have gained direct experience with the fiscal dynamics of such a practice. Accordingly, Mr. Kinney does not define “micro business.” Reasonably, a solo practitioner, having no employees by definition, could be accurately described as a micro business, regardless of dollar-volume in either gross or net revenue. In fact, it is specifically the absence of employees that is pertinent to the credibility appraisal of the assertion in Sentence #3.
As is characteristic of professional practices, the practitioner invoices for his time. Thus, for a solo practitioner, all non-billable business activities subtract from the fixed number of hours in the day and reduce the net billable hours. Therefore, any increase in non-billable business activities have an inescapably adverse fiscal impact on solo practitioner micro businesses, due to the absence of any other employee to execute such activities.
The Kinney Proposal directly refutes this Sentence #3 assertion by inestimably escalating professional service hours for a project. Aspects of my commentary on the 23Jan04 News Item
seem applicable to the Kinney Proposal:
Paragraph 5 - Achieving understanding of the expectations and level of detail for a selected level of evaluation of a residential foundation problem and, also, possible limitations for differing levels of evaluations not selected, is certainly a comprehensive and laudable goal. Communication between professional engineers and their clients would certainly promote progress toward that goal. However, because of the Board’s authority to impose severe disciplinary measures on license holders, the description of the Board’s expectations seems very burdensome and hazardous to license holders.
The wording of the description requires that the engineers under the Board’s authority continue communicating with their clients until sufficient fullness is attained to consistently succeed in accomplishing this laudable goal so thoroughly as to ensure a common understanding in both the engineer and the client, regardless of the client’s initial comprehension of the technical aspects involved. This effort might often amount to a college-level seminar in soil mechanics and residential foundation performance issues followed by some type of standardized, fully comprehensive testing of both the client and engineer until equal levels of understanding were achieved. This seems impractical.
Imposing the added requirement to repeat in all written engineering reports any such oral communication exercises as are implied mandates a page-count and resulting invoiced cost for reports far beyond the professional work products commonly delivered in current practice. Few current clients, including insurance companies, would likely be willing to bear such expense. If the Board intends to so greatly raise the standard of care for professional engineering involvement in this specialty area, it would seem that a more
formal process than posting this News Item on the TBPE website would be required.
The 23Jan04 News Item was ultimately withdrawn from the TBPE website. Respecting the enormously greater authority of the Kinney Proposal to amend the Board Rules, withdrawal of the Kinney Proposal is enormously more strongly recommended.
Specifically, the wording of Kinney Proposal (A) ends by overlooking the unfortunately self-contradictory reality that one takes employment “for personal gain.”
Separately, the non-amended existing wording of §137.63(b)(4) properly preserves the singular “engineer,” from the general opening clause “The engineer shall:”, to the specific “act as faithful agent,” but the Kinney Proposal begins both (A) and (B) by ungrammatically supernumerating to the plural, “as faithful agents.” More than a commonplace illiteracy, this error seems to strongly indicate a failure to comprehend the meaning of the non-amended wording. The non-amended wording omits the adjective “a” and uses “faithful agent” as the title of a professional role, not as some clerical job description. For “The engineer” to “act as faithful agent,” that license holder must exhibit the laudable qualities of professional conduct implied by the more colloquial, “faithful Indian companion, Tonto.”
Indeed, (B)(i)-(iv) of the Kinney Proposal is a linked chain of vaguely described nits appropriate to a job description of the record-keeping tasks for a project scribe, rather than the professional ethos of a license holder. On this point, many ill-conceived elements of the Kinney Proposal intersect. By instituting a prosecutable body of ill-defined nits, reminiscent of Levitical Law, the enforcing SDSI agency enjoys an expanded field from which to harvest revenue-producing fines for violations.
(B)(i) – No license holder could possibly clearly define the expectations and responsibilities of either the engineer or the client for a project, let alone of both, as worded. The impossibility is guaranteed, first, by the word “clearly.” The “clearness” of a written definition can only be assessed by the reader. Unless the writer of the definition knows who the reader will be, he cannot possibly assure the clarity of the written communication, as required under threat of prosecution by (B)(i) and (iii).
Worse still, if such a written definition happened to be clear to one reader, say the knowledgeable engineer who wrote it, there is no reasonable prospect it would be equally clear to the uninitiated lay-client, or to the client’s attorney, or to the TBPE complaint investigator. In fact, the failure of that authoring engineer’s written definition to be clear to any one of the last three aforementioned readers would assure a successful prosecution and revenue to the
SDSI TBPE. Thus, we see the Kinney Proposal revealed as a thinly disguised revenue scheme.
(B)(ii) – The vast, vague scope of the wording sweeps in different versions of verbal agreements between the engineer and the client or the client’s representative. In the event the representative may not have precisely communicated his version to the client, then that client might submit a complaint against the engineer’s failure to perform the client’s version. No experienced practitioner would be surprised by this scenario, I’m sure. Thus, the language of the Kinney Proposal is revealed to be impractical and unenlightened by pertinent experience. If Mr. Kinney misperceives this as one “example” of “actions that include, but are not limited to” Right Conduct, adhering to the TBPE Standard of Care for Engineers Practicing in Texas, what other non-listed actions are implied by the general-case interpretation of the proposed wording?
(B)(iii) and (iv) – Empirically, the “timeliness” of a manner is defined by the unpleasantness of the consequences attributable to the time the action was taken. Thus, beforehand, accurate perception of timeliness requires a Class A crystal ball and other conjurer’s props. But, to the revenue advantage of the SDSI TBPE, hindsight affords crystal clear perception of timeliness and, simultaneously, deprives the complaint-Respondent license holder of any effective defense.
(B)(iv) – The cost of “responding verbally or by written communication in a timely manner to any requests for information from their [sic] client or the client’s representative pertaining to a project” is immeasurably high, inflated by the limitless size of “any” and the potentially prolonged parade of qualifying “client’s representative[s].” The vast, vague scope of this wording is revealed to be impractical and unenlightened by pertinent experience. If Mr. Kinney misperceives this as only another “example” of “actions that include, but are not limited to” Right Conduct, adhering to the TBPE Standard of Care for Engineers Practicing in Texas, what other non-listed actions are implied by the general-case interpretation of the proposed wording? If the Kinney Proposal were adopted, no prudent license holder could afford to continue to practice in Texas. Thus, this assertion is not truthful, is misleading, and appears to be a violation of §137.57(a) and (b) by Mr. Kinney, a license holder.
Sentence #4 – “A Regulatory Flexibility Analysis is not needed because there is no adverse economic effect to small or micro businesses.”
Comment – This assertion seems to retroactively reveal the purpose of the foregoing unsupportable assertions. Apparently, if Mr. Kinney had not denied adverse economic effects on small or micro businesses attributable to the Kinney Proposal, then a Regulatory Flexibility Analysis would have to have been performed and additional implementations proposed for small businesses and, perhaps, separately for micro businesses.
This potential nightmare of conflicting implementations and the attendant need to clearly define characteristic boundaries between small and micro businesses, alone, strongly recommends rejection of the Kinney Proposal. Else, Mr. Kinney’s foregoing misrepresentations of the adverse economic effects on small and micro businesses resulting from adoption of the Kinney Proposal independently recommend rejection. Thus, this assertion is not truthful, is misleading, and appears to be a violation of §137.57(a) and (b) by Mr. Kinney, a license holder.
Kinney Proposal 4: Anticipated benefit to the public
Sentence #1 – “Mr. Kinney also has determined that for the first five years the proposed amendment is in effect, the public benefit anticipated as a result of enforcing the proposed amendment is a clarification of rule language.”
Comment – Here, Mr. Kinney reveals his focused interest on the “result of enforcing the proposed amendment.” Because the Kinney Proposal lacks sufficient clarity for experienced and knowledgeable practitioners to voluntarily comply, the prospect of improved “clarification of rule language” for the uninitiated lay-public’s benefit is logically prohibited. The predictable more likely result is an increase in complaint fines paid to the SDSI TBPE, but this windfall should prudently be expected to diminish “for the first five years the proposed amendment is in effect” as license holders elect not to renew and applications for new licenses stop. Thus, this assertion is not truthful, is misleading, and appears to be a violation of §137.57(a) and (b) by Mr. Kinney, a license holder.
Kinney Proposal 5: Comment period and recipient
Sentence #1 – “Comments may be submitted no later than 30 days after the publication of this notice to Lance Kinney, P.E., Deputy Executive Director, Texas ….”
Comment – Respecting the sweeping expansion of potential wrong-doing the adoption of the Kinney Proposal would impose on the entire population of license holders, allowing only 30 days for a small fraction of that population to accidentally discover this threat to their livelihood in a random perusal of the TBPE website seems unfair. A traveling statewide seminar program of town-hall style meetings given by actual TBPE Board members, not staff, at local TSPE chapters would seem more respectful of the profession. Furthermore, protecting Mr. Kinney by directing comments only to him, and not to the governor, gives this entire proposal the aura of an On-the-Job-Training exercise for Mr. Kinney’s career advancement.
Kinney Proposal 6: Authority for proposing the amendment
Sentence #1 – “The amendment is proposed pursuant to the Texas Engineering Practice Act …, which authorizes the board to make and enforce all rules and regulations and bylaws consistent with the Act as necessary for … the regulation of the practice of engineering in this state; … .”
Comment – Respecting the sweeping expansion of potential wrong-doing the adoption of the Kinney Proposal would impose on the entire population of license holders and the proposed expansion of Board authority into the “businesses regulated by the Board of Engineers,” it strongly appears that the Kinney Proposal exceeds the authority allocated by TEPA. Thus, this assertion does not appear to be truthful, is misleading, and appears to be a violation of §137.57(a) and (b) by Mr. Kinney, a license holder.
Kinney Proposal 7: The affect on other statutes, articles or codes
Sentence #1 – “No other statutes, articles or codes are affected by the proposed amendment.”
Comment – The Kinney Proposal lacks clarity and this bold assertion lacks credibility. At the very least, the Texas Civil Practices Code would be heavily affected by this mandatory increase in the cost-baggage attendant upon engaging expert engineering witnesses. Thus, this assertion is not truthful, is misleading, and appears to be a violation of §137.57(a) and (b) by Mr. Kinney, a license holder.
And it was said that there would be no costs to anybody.
Think of how much time could have been saved, had these 2 engineers not had to comb through this thing. If a couple of engineers, pressed for time, can write so much about this proposed rule, then just think what a plaintiff's attorney will be able to do..... TO YOU.
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