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. In 2009, to date, New York showed little evidence of improvement.

While the NYS Assembly concluded its 2009 legislative session as scheduled on June 22nd, 2009, dysfunction on steroids hit the NYS Senate. The scheduled end of session was derailed by an attempted coup by two dissident New York City Democrats (Senator Pedro Espada and Senator Hiram Monserrate). The self-proclaimed “friends” sought to leverage their allegiance to either Democratic or Republican brethren, in exchange for enhanced leadership positions and attendant political power. Their effort at “reform” deformed into a month long legislative stalemate, the blatantly unconstitutional appointment of a Lieutenant Governor by Governor Paterson, and a series of lawsuits still underway. The political warfare cost the State and local governments tens of millions of dollars. Additionally, the failed coup has resulted in a bitterly fractured Senate Democratic Majority Conference, largely divided upon ethnic and racial lines. While some Senate Rules changes were adopted (e.g. eight year term limits respecting leadership and committee chairmanships, full Senate consideration of legislation upon the approval of 3/5th of the Senate (38 Senators), fairer distribution of member items and staffing resources), all of the changes may be reversed upon a simple majority vote. In contrast, the rules in the Assembly remain unchanged and are not likely to change.

In April, in a “timely manner”, the Legislature and the Governor produced what is arguably the worst budget in State history. Early in his tenure as the “Accidental Governor” (a/k/a Governor Paterson), spoke loudly and often respecting the need for fiscal restraint in the face of the meltdown on Wall Street and the worst economic recession since the Great Depression. In fact, soon after taking office in early 2008, Governor Paterson sounded as strident as former Governor Carey who in the face of record Rockefeller Era deficits memorably declared "the days of wine and roses are over". However, despite the rhetoric, in April 2009, the Governor caved to legislative demands and agreed to a budget that increases spending a staggering 9% (including new federal funds flowing to localities) and boosts taxes and fees by a record amount, including a personal income-tax hike.

With revenues eroding as the April 1st start of the 2009-10 fiscal year approached, the Governor and Democratic leaders agreed to a secretive budget deal that approached the worst of all worlds. The $132 billion plan increased state spending by at least $11 billion from 2008-09, including $6.2 billion of temporary stimulus aid that will carry into future budgets. The plan also calls for over $6 billion in higher taxes and fees. This includes $4 billion to come from an income tax hike that will raise the state's top rate by 31% and kick in at $200,000 for single filers.

The income-tax increase is supposed to expire after three years. However, current fiscal and economic trends, including the scheduled disappearance of stimulus funds after fiscal 2010-11, provide little grounds for confidence that the "sunset" will occur.

Asked in April if it made sense to raise taxes in a recession, Mr. Paterson replied "none of this makes sense." Occasionally the Governor is right.

With respect to issues of primary concern to the professional engineering community, 2009 thus far has proven to be a mixed year. Although we were able to defeat all of the bills which posed real threats to the profession, our efforts to secure affirmative legislation to date have met with a good deal of frustration. The chaos in the Senate and opposition from various interest groups including the NYS Trial Lawyers, the Medical Society of the State of NY, the Public Employees Federation and others has largely obstructed our efforts.

Illegal Practice (A8219/S4200) Assemblywoman Glick/Senator Stavisky

Legislation permitting the State Education Department to include a 15% surcharge on professional fees has passed both houses and is expected to be signed by the Governor. (The legislation is similar to legislation supported by NYSSPE which would have increased triennial registration fees by $10.) (A4426 Canestrari) While some of our members have expressed reservations about this increase and the possibility that the monies will be misappropriated, we are hopeful that the monies will enable SED to implement legislation permitting SED to civilly prosecute those engaged in the illegal practice of engineering. For way too long the failure to prosecute illegal practice cases has encouraged non-licensees to engage in the practice of engineering to the detriment of the public and the professional engineering community. Illegal practice has been indentified by our members as a top priority and we are pleased that some progress is underway to help.

Whistleblower Protection (A7144-A/S 5737) – Assemblyman Benedetto/Senator Klein

Also of interest to the engineering community is legislation which enhances protection to employees who disclose illegal conduct on the part of employers. The legislation has passed both houses of the legislature and is also expected to be signed by the Governor.

Qualifications Based Selection (S3531-B/A7056) – Senator Dilan/Assemblyman Benedetto

Also, on the affirmative front, legislation to require the use of Qualifications Based Selection by Public Authorities and Public Benefit Corporations, in addition to state agencies, has passed the Assembly but remains in the Senate Rules Committee. Expanded utilization of QBS has been a long sought after goal of NYSSPE. Continued opposition from the Metropolitan Transportation Authority has slowed passage.

Bachelors' Degree (S4981 - 2008) - Senator LaValle

This legislation requires a Bachelor’s Degree to be licensed as a PE. Despite strong support from NYSSPE and the State Education Department, 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 (S3226/A6787) - Senator LaValle/Assemblyman 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 and the accounting professions. The medical community is opposed due to fears that passage may provide a precedent, paving the way for the corporate practice of medicine. At the same time, the accountants are opposed due to fear that the bill may harm passage of their proposal to liberalize ownership restrictions for accountancy. The accountants want to permit ownership of 49% by non-licensees. However, our effort to distinguish the design and CPA professions from the medical profession continues to gain some momentum.

Statute of Repose (A4394) - 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. The bill continues to face vociferous opposition from the New York State Trial Lawyer’s Association. NYSSPE has joined NYTort ReformNOW.org a broad coalition of professional organizations, business organizations, builders, municipalities, and concerned citizen fighting to advance tort reform in New York including the passage of a statute of repose for PEs, RAs, contractors and manufacturers.

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:

Land Surveyor's Scope of Practice (S 1776) - Senator LaValle – See also (A 1927 – 2008) Assemblyman Canestrari)

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.

Expansion of Exemptions to Engineering Licensure Requirement (S5487/A8257) Senator Aubertine/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.

Designed Delegation (S5272/A2687 - 2008) - A Senator DeFrancisco/Assemblyman Cusick

This legislation requires that portions of an overall project design prepared by a secondary design professional retained by a contractor or subcontractor be reviewed and approved by the primary design professional (PE or RA). Limited exceptions are made 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.

Indoor Air (A2075) - Assemblywoman Lupardo - no same as - See also (S3322) - Senator Oppenheimer

This legislation requires building owners to establish and implement an indoor environmental plan pertaining to building operations and maintenance. Plans are required to satisfy detailed 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/A7281/S2714) Senator Marcellino/Assemblyman Rosenthal/Senator Thompson

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 bill has passed the Assembly and is before the Senate Rules Committee. The Society has voiced concerned regarding the portion of the legislation which could be construed to permit public officers to make engineering determinations.

Wastewater Treatment(S4821/A6031) - Senator Aubertine/Assembly 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.

S2784 B- Senator Thompson /S1116 - Senator Marcellino - See also A4774 C 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, which has been amended to ensure that qualified PEs may continue to prepare sign and seal geological reports, without limitation.

Finally, I would be remiss if I failed to thank John Przepiora, P.E. for his leadership as President of Society during the past twelve months. Despite a very busy year for the Society, in light of a myriad of new (and some old) challenges, John was always available to provide sound and timely stewardship for the profession.