It is 2009, and as many readers are aware that for the first time in more than forty years both houses of the New York State Legislature have Democratic leadership. While Assembly Speaker Sheldon Silver continues with a juggernaut veto proof majority (109 D - 41 R), the Senate is just barely in the hands of the new Senate Majority Leader Malcom Smith (32 D - 30 R). Senator Smith has signaled that he intends to move very deliberately given his conference’s unfamiliarity with its new roll.

Senator Smith is from Queens. Both Governor Paterson and Speaker Silver have a downstate base. Clearly, one of the biggest changes for 2009 is the shift of power downstate in the wake of the retirement of former Senate Majority Leader Joseph Bruno (Rensselaer) and the loss of control of the Senate by the Republicans. Senator Bruno retired after twelve years as the Senate Majority Leader under the threat of a federal indictment. The loss of the upstate power base has strengthened downstate’s hand in the ever growing cry for more state spending. Despite a projected deficit of some 13 billion dollars for the upcoming fiscal year (April 1, 2009 - March 31, 2010), spending will continue to grow, just more slowly. The budget proposed by Governor Paterson is expected to grow just over 1%. New York will rely heavily upon federal help to address its profligate ways. Given the size of the "stimulus package" under consideration in Washington, it is likely New York may well be able to continue to spend beyond its means. Unfortunately, due to our state’s heavy tax and regulatory burdens, the prospects for robust economic growth are not favorable.

In light of the focus on budgetary concerns and the new Senate paradigm, 2009 is likely to be challenging for all parties hoping to secure favorable action on their legislative agendas. Nevertheless, NYSSPE continues to advance a broad affirmative agenda as detailed below. At the same time, the Society remains focused on defeating legislative proposals which threaten the interests of the licensed professional engineer, as well as the public.

Illegal Practice (A1928 - 2008) Majority Leader Canestrari

The illegal practice of professional engineering by non-licensed individuals and firms continues to be a top priority. (The recent decision by the Society’s Board of Directors and the Voluntary Legal Fund to sue NYC and Mayor Bloomberg for attempting to circumvent State Law and appoint a non-licensee to the position of NYC Building Commissioner demonstrates that commitment.) At the same time the Society is working diligently in cooperation with other design professional organizations, certified public accountants and health professionals, as well as the Education Department, to secure funding for the prosecution of persons engaged in the illegal practice of the Title XIII professions, including professional engineering. Funding is essential to enable the program to work as intended.

Qualifications Based Selection (S8305-2008/A11204-2008) Senator Robach/Assemblyman Schimminger

This legislation requires the use of Qualifications Based Selection by Public Authorities and Public Benefit Corporations, in addition to state agencies. In 2007, this bill was approved by both houses after a multi-year effort spearheaded by NYSSPE and other design professional organizations. Unfortunately, then Governor Spitzer vetoed the legislation citing "technical objections". While the Governor suggested that his veto was based on technical grounds, strong opposition to the bill on substantive grounds voiced by the MTA was a contributing factor leading to the veto. Expanded utilization of QBS has been a long sought after goal of NYSSPE. Our efforts will be renewed in 2009.

Bachelors' Degree (S4981-2008) Senator LaValle

This bill requires individuals to secure a Bachelor’s Degree in order to be licensed as a Professional Engineer. The present examination and experience requirements are not altered by this proposal. Union opposition from the Public Employees Federation (PEF) has created a roadblock to approval of this measure in the Assembly. The bill passed the Senate in 2006. However, the Society has reached out to PEF and progress is being made on a framework to permit a limited transition period to permit qualified individuals, who demonstrate substantive supervised design experience, if any, an opportunity to sit for the licensing examination.

Liberalization of Firm Ownership (S930b-2008/A2060a-2008) Senator LaValle / Majority Leader Canestrari

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 from the medical profession continues to gain momentum as evidenced by the approval of the bill by the Senate. While the Society continues to advocate for this legislation, some consideration is being given to an alternative approach which would require an amendment to the Rules of the Board of Regents pertaining to fee-splitting. This regulatory approach would permit non-licensed employees of a design firm the opportunity to share in the net income of the firm based on a percentage basis, subject to a cap, which could be as high as 25% - 35%. While revenue sharing is an attractive approach, the non-licensees would not be shareholders.

Statute of Repose (S4228-2008/A2179-2008) Senator Volker/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. Presently, all professional malpractice actions are subject to a three-year Statute of Limitations. However, the timeframe respecting Statutes of Limitations does not commence to run until the date of an injury, which can occur decades after a design professional has completed his work and is no longer involved with the project. New York remains one of less than a handful of states without a Statute of Repose for the design professions. This legislation continues to face vociferous opposition from the New York State Trial Lawyer’s Association.

Land Surveyor's Scope of Practice (S4396a-2008/A1927-2008 not "same as") Senator Lavalle/Assemblyman Canestrari

The New York State 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, such as environmental studies. 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.

NYSSPE has expressed a willingness to assist land surveyor representatives with their efforts to assure that the integrity of the land surveying profession is not undermined by non-licensees performing services within the scope of the licensed land surveyor, while at the same time making clear that efforts to overstep boundaries into engineers will not be condoned.

Expansion of Exemptions - Engineering Licensure Requirement (S3225a-2008/A6686a-2008) 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 education and 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.

Designed Delegation - (S5272-2008/A2687a-2008) Senator DeFransico/Assemblyman Cusick

This legislation 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.

Alteration of Surveys (S4395-2007/A7778-2007) Senator LaValle/Assemblyman Canestrari

This legislation has had more than a dozen iterations. NYSSPE does not oppose the most recent legislation, vetoed by Governor Spitzer, 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.

Wastewater Treatment (S922-2008/A11193-2008) Senator Winner/Assemblyman Koon

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.

Indoor Air (A2075-2009/no same as) Assemblyman Lupardo

Requires building owners to 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 to be undertaken/ overseen by a Professional Engineer or Registered Architect.

Outdoor Lighting (S858-2009/A7438-A-2008) Senator Marcellino/Assemblyman 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 determination.

Licensure of Occupational Safety and Hygiene Professionals (A2198-2009) Assemblyman Morelle

This legislation provides for the licensure of new health and safety professionals and expressly authorized safety professionals to employ engineering principals in carrying out their professional duties. The legislation requires careful consideration by the Society before further action by the Legislature.

Licensure of Professional Geologists (S1116-2009/A8844-2008) 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 to an amendment to ensure that qualified PEs may continue to prepare geological reports, without limitation. The bill has passed the Senate in past years and has not been considered by the Assembly Higher Education Committee.

In closing, the Society remains vigilant to protect both the profession and the public in the face of a myriad of legislative and regulatory proposals which threaten to weaken the framework respecting the practice of professional engineering in New York. In total, the Society monitors more than two hundred bills introduced annually and intervenes whenever necessary. The foregoing bills represent some of the more pressing issues which we anticipate will unfold during the upcoming session. We welcome input from all members on these and other issues of importance to the profession.