LEGISLATIVE UPDATE
By Mark C. Kriss, Esq., Legislative Counsel
Day One – “Everything Changes” – Reality or Just Hopeful Thinking
In 2005 the New York State legislative process was identified as the most dysfunctional among all fifty states in a widely disseminated study compiled by the Brennan Center for Justice at NYU Law School. Governor-Elect Spitzer committed to radically change in New York and repeatedly stated that “Everything Changes on Day One”. His prognostication has proven to be inaccurate and results to date are at best mixed.
The road to reform has proven rocky. Some of the Governor’s priorities have been enacted into law, while much of his agenda remains. Ethics Reform has lead to the elimination of most gifts by lobbyists and others to state and legislative officials, meaningful Workers’ Compensation Reform has been enacted, significant increases in state aid for education has been put in place and a dramatic expansion of programs to provide health insurance coverage for children is underway. At the same time the Governor’s insistence on capping campaign contribution limits for individuals, businesses and unions has met with vociferous resistance from the Republican controlled State Senate. Additionally, his early effort to interject himself into legislative process used to select a new State Comptroller, in the wake of Alan Hevesi’s resignation due to improper use of state recourses and personnel, was unsuccessful and demonstrated poor political judgment. Lastly, the Governor’s efforts to rein in the growth of Medicaid spending, which has been off the charts in comparison to other states, are likely to produce modest success.
A litany of the issues remained unfinished as of the close of the regularly scheduled session – June 22nd 2007. These include Congestive Pricing in NYC, Wick’s Reform, major Capital Project funding (including the Javits Center in NYC), increased accountability for State Authorities and Benefit Corporations and the Governor’s effort to transfer authority for the determination of State legislative district lines from the Legislature to an “independent non-partisan” commission.
Bills Directly Impacting the Profession
For the professional engineering community the 2007 Session thus far has provided mixed results. On the affirmative front legislation (S2162/A5933 – Senator Robach/Assemblyman Schimminger) to require the use of Qualifications Based Selection by Public Authorities and Public Benefit Corporations, in addition to state agencies, has passed both houses and will be forwarded to the Governor for his consideration. Expanded utilization of QBS has been a long sought after goal of NYSSPE.
At the same time, legislation strongly opposed by the Society vesting authority in New York City to independently sanction Professional Engineers and Registered Architects for professional misconduct arising out of the improper use of NYC’s Department of Building’s Self-Certification procedures has passed both houses (S4603/A7746 – Senator Padavan/Assemblyman Brennan). The legislation, if approved by the Governor, could lead to the fragmentation of the mechanism presently in placed to disciple design professionals. Currently professional misconduct cases are under the statewide jurisdiction of the Board of Regents. The Society will be working diligently to secure a veto of this bill. NYSSPE supports the State Education Departments handling of professional misconduct cases and has urged increased funding to insure proper oversight regarding both professional misconduct and illegal practice cases.
Additional NYSSPE Priority Bills include:
Bachelors’ Degree - (S4981Senator LaValle)
Requires a Bachelor’s Degree to be licensed as a PE. Union opposition from the Public Employees’ Federation has created a roadblock to approval of this measure. The bill passed the Senate in 2006.
Liberalization of Firm Ownership - (S930A/A2060A Senator LaValle/Assemblyman Canesrari)
The Society supports legislation to permit non-licensees to own not more than Twenty-Five Percent of a Design Professional Service Corporation (i.e. firms permitted to practice professional engineering, architecture, landscape architecture and/or land surveying). The Legislature has been reluctant to permit non-licensees to own a portion of a professional practice firm due to strong opposition to the precedent by the medical community. However, our effort to distinguish the design and CPA professions from the medical profession continues to gain momentum as evidenced by the approval of the bill by the Senate
Statute of Repose - (S4228/A2179 Senator Volker/Assemblyman Canestrari)
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. This legislation continues to face vociferous opposition from the New York State Trial Lawyer’s Association.
NYSSPE – Support/Neutral
Licensure of professional geologists- (S5307/A8844 Senator Marcellino/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, subject a technical amendment to ensure that qualified PEs may continue to prepare geological reports, without limitation. The bill has passed the Senate and has not been considered by the Assembly Higher Education Committee.
Alteration of Surveys - (S4395/A7778 Senator LaValle/Assemblyman Canestrari)
This legislation has had more than a dozen iterations. NYSSPE does not oppose the most recent legislation, vetoed by former Governor Pataki that would have barred the use of a survey update by visual inspection undertaken by a land surveyor in connection with a title transfer or mortgage of real property. Prior versions of the legislation would have prevented a PE from altering a land boundary survey prepared by a land surveyor, including preventing the preparation of a site plan. NYSSPE has been instrumental in preventing enactment of unacceptable legislation in this area. The bill, in an acceptable form, has passes both houses.
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 - (S3225-A/A6686-A Senator Winner/Assemblyman Koon)
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. Lastly, the bill increases the size of residential buildings exempt from the license requirement (3,000 square feet v. 1,500 square feet). As a consequence, if this bill is enacted, the vast majority of new residences in the entire state will be exempt from the protections afforded by licensing statute.
Land Surveyor’s Scope of Practice - (S4396-A/A1927 Senator LaValle/Assemblyman Canestrari (not “same as”))
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.
Designed Delegation - (S5272/A2687-A Senator DeFrancisco/Assemblyman Cusick)
Requires that portions of an overall project design prepared by a secondary designed professional retained by a contractor or subcontractor be reviewed and approved by the primary designed professional (PE or RA) with limited exceptions for pre-engineered or manufactured components and means and methods of construction. Presently, the State Education Department permits some additional latitude respecting the scope of review and approval by a primary design professional properly allocating responsibility between design professionals. The NYSSPE supports the present regulation and will continue to oppose this legislation that would improperly shift liability to the primary design firm in specific circumstances.
Wastewater Treatment - (S922 Senator Winner)
This legislation permits the design of specific wastewater treatment systems (less than 1,500 gallons per day), by individuals not holding a license as professional engineers. NYSSPE has opposed this bill and earlier versions that limited the exception to 1,000 gallons per day systems.
Copies of text for both Assembly and Senate legislation can be obtained via the internet-
Senate Website-
www.senate.state.ny.us
Assembly Website-
www.assembly.state.ny.us
