The following was written by Mark C. Kriss, Esq., The New York State Society of Professional Engineers (NYSSPE) Legislative and Legal Counsel.
Overview
The 2014 legislative session convenes with the governor’s State of the State Address on January 8th. The Assembly, which is controlled by a super majority of Democrats (105 D 42 R 3 vacancies), is headed by Speaker Sheldon Silver, who aspires to continue to lead the lower house despite a tumultuous 2013. The Speaker was accused of failing to refer cases of sexual harassment respecting two members of the Assembly to the Assembly Ethics Committee in accordance with Assembly rules. Litigation commenced by two former Assembly employees against the Speaker for his alleged role in covering up the misconduct is pending. Nevertheless, the Speaker has apologized for errors in judgment and continues to have the support of a strong majority within the Assembly Democratic Conference. He is expected to retain his leadership role. The Speaker has not been found to have committed any ethical or other violations in connection with the matter.
In the New York State Senate, it is anticipated that the coalition government consisting of four moderate Democratic senators headed by Senator Jeff Klein (the Independent Democratic Caucus or IDC) and thirty Republican senators, together with Democratic senator Simcha Felder, will continue in joint control of the upper house, with Senator Skelos (R) from Long Island and Senator Jeff Klein (NYC) serving as co-Senate majority leaders. In order for legislation to reach the floor of the Senate, both Senators Skelos and Klein must agree on it. Despite some skepticism to date, the Senate coalition has worked reasonably well, with prompt action on gun control legislation aggressively promoted by Governor Cuomo, minimum wage legislation and adoption of a timely state budget for the 2013-2014 fiscal year.
In July 2013, amid a legislative session riddled with political corruption, Governor Andrew Cuomo established an investigative committee by executive order under the Moreland Act and New York executive law. The committee, joined by Attorney General Eric Schneiderman, was tasked with examining public corruption, including potential wrongdoing by legislators in campaign fundraising. Each branch of the state government is under the authority of the committee, which has recommended changes to law and ethics rules in addition to referring misconduct cases for prosecution. A preliminary report was issued on December 1, 2013, and called for changes to New York’s notoriously lax campaign finance rules and adoption of a public financing campaign law similar to the law in place for NYC local elections. The report also notes that the committee has uncovered acts of criminality which will result in referrals to prosecutor upon completion of the investigative process. A final report is expected by the end of 2014.
A major focus of the 2014 legislative session will be the state budget and an anticipated surplus. Governor Cuomo has announced his intention to push for targeted business tax relief and property tax relief to spur economic development. He has strongly endorsed consolidation of local governments, which has largely met with widespread regional resistance as parochial governmental interests continue to dominate the debate. Assembly and Senate Democrats have expressed concern for education funding, including resources for early childhood education, and argue that education funding must remain among the state’s top priorities.
Design Build
Governor Cuomo’s 2013-2014 budget submittal included a proposal which would have substantially expanded the 2011 design build pilot program. The 2011 pilot applies to public-sector projects under the aegis of the New York State Thruway Authority, the Department of Transportation, the Office of Parks, Recreation and Historic Preservation, the Department of Environmental Conservation and the New York State Bridge Authority costing in excess of $1.2 million. The 2013-2014 budget proposal would have expanded the pilot to include virtually all state agencies and public authorities (excluding SUNY and CUNY) and permitted smaller projects (< $1.2 million) to qualify in specified instances. The final 2013-2014 budget left the pilot program unchanged. However, design build in the public sector continues to be a topic of substantial discussion, and expansion of the 2011 budget authorizing design build by a limited number of state agencies is virtually certain to move forward during the course of the 2014 legislative session.
The NYSSPE, which has historically recommended incorporation of a number of quality-assurance safeguards with the adoption of design build, will continue to fight to ensure that the protection of public health, safety and welfare remains paramount. Mandated employment of a bridging engineer to act as the project owner’s expert for all design build projects is an essential safeguard. NYSSPE further supports the use of QBS with respect to the selection of professional engineering services across the board. The recommendation applied to retention of a project engineer (owner’s representative or bridging engineer), as well as in connection with selection of the principal design firm (PDF). Other recommendations included amendments to ensure that PDF engineers have unfettered access to an owner and/or his project representative and the use of independent testing firms with direct reports to the owner and/or his project representative. Finally, NYSSPE recommended inclusion of mandatory contractual indemnification language to prevent inequitable liability allocations to designers in the event of property and/or casualty losses.
(The status of all bills referenced below can easily be obtained from the NYS Senate and/or NYS Assembly websites, readily accessed via a Google search. Copies of bill texts and sponsors’ memoranda in support are also available.)
Additional Bills Directly Impacting the Profession
Good Samaritan – Support
(S 3942/A4380A Senator Hannon/Assemblyman Englebright)
This legislation provides enhanced immunity to professional engineers who volunteer to assist victims in the wake of natural or man-made disasters. Federal law provides liability protection under specified circumstances for a 30-day period following a triggering event. Pursuant to federal law, ordinary acts of negligence are covered, and the entity which requested assistance will stand in the shoes of the volunteer and be responsible for any losses. This proposal would provide similar protection for up to 90 days. NYSSPE is working with the bill sponsors and other legislators to broaden this measure to provide additional protections to engineers who are retained in a post-disaster period as well as volunteers. Post-disaster recovery entails exposure to unusual liability risk, which should be borne by the state or political subdivisions and not transferred to the design community. For example, in the wake of the 9/11 terrorist attacks, recovery workers sought compensation for exposure to toxic chemicals via ambient air. Structural engineers assisting in the rescue and recovery phases of the post-9/11 operations had no control over the atmospheric analysis or the determination to proceed with rescue and recovery notwithstanding the atmospheric conditions. The EPA, DEC and other governmental bodies responsible for rescue and recovery should have been required to defend and indemnify the engineering community for its work performed during the entire rescue and recovery period, notwithstanding that a number of firms were retained soon after briefly volunteering.
Bachelor’s Degree Requirement for Licensure – Support
(NYSSPE – Draft Legislation)
Establishes a bachelor’s degree (or its equivalent) as the minimum educational standard for licensure. NYS remains one of the minority of states which does not set the bar for licensure at the bachelor’s level or higher. Despite a concerted effort to pass this legislation by NYSSPE over a number of years, union opposition from the Public Employees’ Federation (PEF) has created a roadblock to progress. However, recent efforts to secure reconsideration of the issue by PEF’s leadership are underway, and strong support for the bill is expected from the NYS Education Department. In addition to union opposition, a number of key legislators oppose the bill, arguing that increased formal educational requirements hurt those who are economically disadvantaged. The bill passed the Senate in 2006.
Indemnification – Support
(S5038/A7275A Senator Martins/Assemblyman Schimminger)
This bill mandates the use of statutorily prescribed indemnification provisions for all municipal professional design service contracts. The legislation is intended to delineate clearly the scope of indemnification and assure that such contracts do not place an unreasonable burden on either party. Some municipalities have routinely included indemnification terms in professional service contracts which unreasonably shift costs for the defense of liability claims and claims costs to design firms. The offensive provisions have required design firms to provide indemnification for losses flowing from wrongdoing committed by the municipality or third parties. Professional design liability policies do not provide coverage for these losses.
QBS – Support
(S414/A7268 – Senator Dilan/Assemblyman Benedetto)
This legislation requires the use of qualifications-based selection by public authorities and public benefit corporations, in addition to state agencies. Expanded utilization of QBS has been a long-sought-after goal of NYSSPE. QBS assures that price is not the sole criterion in the selection of professional engineering services by affording due consideration to the respective qualifications of consulting firms participating in the procurement process. This legislation passed the Assembly in 2010.
Statute of Repose – Support
(S3334/A5301 – Senator Griffo/Assemblyman Pretlow)
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 Lawyers Association. NYSSPE has been assisted in its fight by other organizations including architects, builders, municipalities, and concerned citizens, all fighting to advance broad-based tort reform in New York, including passage of a statute of repose for PEs, RAs and contractors.
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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 of significant interest:
Licensure of Professional Geologists – Oppose
(S3810B/A4753B – Senator Marcellino/Assemblyman Englebright)
NYSSPE for many years has supported legislation which provides for licensure of geologists. In fact, the Society supported a prior version of this legislation which unequivocally provided that geologists are not authorized to provide design services, and which further provided that professional engineers may provide any and all aspects of geology, subject to the general ethical constraint that the geological work to be undertaken by a professional engineer is within his or her area of competency. The Society also supports legislation which expressly permits professional geologists to become principals in firms providing inter-professional design services (engineering, architecture, land surveying, landscape architecture and/or geological services). However, the most recent version of the legislation precludes the offering of “geological services” per se by a professional engineering firm. The legislation would permit engineering firms to offer “geotechnical services,” but reference to “geological services” would be limited to firms having a principal who is licensed as a geologist.
Expansion of Exemptions to Engineering Licensure Requirement – Oppose
(S4333/A1267A – Senator Young/Assemblyman Gunther)
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. NYSSPE emphatically opposes an increase of 900% (to $50,000) in this monetary threshold that, if undertaken, 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 not 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 ensure public safety.
Land Surveyor’s Scope of Practice – Oppose
(S4827A/A7486A – Senator LaValle/Assemblymember Glick)
The New York State Association of Professional Land Surveyors (NYSAPLS) supports legislation to greatly expand the scope of practice of land surveying to include significant aspects of professional engineering. This legislation is crafted to secure an expansion of the scope of practice of land surveyors and may be construed to limit discrete aspects of practice currently within the scope of professional engineering. NYSSPE continues to oppose NYSAPLS’ efforts to enact this legislation, which is clearly inconsistent with NCEES model laws pertaining to the definition of the practice of land surveying.
Indoor Air – Oppose
(A3599 – Assemblyman Lupardo)
This requires that, with respect to state-owned, leased or operated buildings, owners shall 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 – Oppose
(S4224/A751 – 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 concern regarding the portion of the legislation which could be construed to permit public officers to make engineering determinations.
Mold Inspection – Oppose
(S3667A/A5117A – Senator Savino/Assemblyman Weisenberg)
This bill provides for the licensure of mold assessment and remediation specialists. NYSSPE generally is supportive of the objective of the bill; however, an amendment is needed to ensure that professional engineers are exempt from the licensure requirement.
Elevator Design/Alteration – Neutral
In addition to the foregoing, during the 2013 session, the Society was successful in securing amendments to legislation respecting the design, construction, operation, inspection, maintenance and alteration of elevators and other conveyances to ensure that the role of the professional engineer/architect is preserved. (See S2917C/A5233B Senator Bonacic/Assemblyman Wright.)
In total, NYSSPE monitors more than three hundred bills during a typical legislative session in furtherance of its mission to promote the role of the professional engineer in protection of public health, safety and welfare. NYSSPE leadership welcomes the input of its members and encourages dialogue regarding pending legislation and new proposals which may warrant legislative action.
Note: NYSSPE facilitates posting on this blog, but the views and accounts expressed herein are those of the author(s) and not the views or accounts of NYSSPE, its officers or directors whose views and accounts may or may not be similar or identical. NYSSPE, its officers and directors do not express any opinion regarding any product or service by virtue of reference to such product or service in this blog.
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