The following was written by Mark C. Kriss, Esq., The New York State Society of Professional Engineers (NYSSPE) Legislative and Legal Counsel.
Overview
January 7th 2015 marks the commencement of a new year two-year legislative cycle with members of both the State Senate and Assembly serving identical two-year terms. [All statewide office holders (Governor, Lt. Governor, Comptroller and Attorney General) will also begin new terms in 2015, but each statewide office is subject to a term of four years.]
Last November Democrat Governor Andrew Cuomo and his new running mate Kathy Hochul won election by a margin of 53% to 40% over Republican Rob Astorino and his running mate Christopher Moss with Green Party candidate Howie Hawkins taking about 5% of the vote. Cuomo’s margin was not nearly as large as expected. In June 2014 privately many insiders said that the Governor was hopeful that he would be able to beat his father’s 1986 margin of 64% of the vote. Kathy Hochul is new to the Lieutenant Governor role, the Buffalo native and former Congresswoman replaced former Lieutenant Governor Robert Duffy.
State Senate
After witnessing tens of millions of dollars spent on both sides, control of the Senate has gone to the Senate Republicans, 32 seats to 31. The Republicans accomplished this by winning three formerly Democrat seats. The three seats are:
- Senator Cecilia Tkaczyk’s seat where Republican George Amedore cruised to victory;
- Out in Rochester where Senator Ted O’Brien lost to Republican Rich Funke; and
- Republican Susan Serino’s win over Senator Terry Gipson.
On the other side of the coin, the Republicans lost a seat when incumbent Senator Mark Grisanti lost to Democrat Marc Panepinto. As previously mentioned, this leaves the Senate with a current composition of 32 Republicans and 31 Democrats, but it is very likely that Democrat Senator Simcha Felder will continue to caucus with the Senate Republicans as he has done for the past two years, that would effectively give the Republicans an operating majority of 33 seats. A huge question mark in the Senate is the role of the Independent Democrat Conference (IDC), consisting of five Democrats and led by Senator Jeff Klein. The IDC shared power with the Senate Republicans in a coalition for the past two years but now the Republicans do not need the IDC to conduct an operating majority.
State Assembly
For many many years the Democrats have held a supermajority controlling over 100 seats out of 150 total members. In 2015 the Democrats in the Assembly have enlarged their majority and will seat at least 112 members.
Bills Directly Impacting the Profession
(Please note – Bill numbers below refer to 2013-2014 Legislative Session.
All legislation requires re-introduction and will carry new bill numbers for the 2015-2016 Session.)
Design Build
Legislation to extend the 2011 3-year design build pilot program, which applies to 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 dollars stalled in late 2014, but is expected to be addressed early in the 2015. NYSSPE has advocated for the addition of a comprehensive list of quality assurance safeguards, adding its voice to a similar position advanced by the State Boards for Engineering and Land Surveying, as well as the State Board for Architecture. Many of these safeguards have been incorporated into the procurement process at the agency level, but the Society continues to advocate for express inclusion in statute. The original design build program expired in early December 2013, subject to a saving provision authorizing the completion of all pending projects. A major area of contention is a dispute between organized labor and representatives for the general contractor community over the Governor’s proposal to add the mandated use of project labor agreements for all projects have a cost in excess of ten million dollars.
Good Samaritan/Emergency Responder – Support
(S5672/A 7715 Senator Savino / Assemblyman Cusick
S3942/A4380-A Senator Hannon/Assemblyman Englebright)
S5672/A7715 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 loses. 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 professional engineers who are retained in a post disaster period as well as volunteers. The broader legislation is referred to as the “Emergency Responder Bill” (as opposed to “Good Samaritan”) and will include protection for contractors who similarly provide services in emergency circumstances. See S3942 /A4380-A.
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 or contractor communities. For example, in the wake of 911 terrorist attacks recovery workers sought compensation for exposure to toxic chemicals ingested via ambient air. Structural engineers assisting in the rescue and recovery phases of the post 911 operations had no control over the atmospheric analysis and 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 preformed during the entire rescue and recovery period notwithstanding that a number of firm were retained soon after briefly volunteering.
Indemnification – Support
((S5038A/A7275B Senator Martins/Assemblyman Schimminger)
This bill mandates the use of statutorily prescribed indemnification provisions for state and municipal professional design service contracts. The legislation is intended to clearly delineate the scope of indemnification and assure that such contracts do not place an unreasonable burden on either party. Some state entities and municipalities have regularly 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 loses.
Bachelors’ Degree – Professional Engineering Licensure A 9694 (Glick) – Support
This legislation updates the engineering licensing requirements by removing the provision allowing for a substitution of 12 years working experience for a bachelor’s degree or higher based on a program in engineering. Persons with substantially equivalent educational credentials may also qualify to sit for the PE examination, provided all other requirements for licensure are satisfied. (For example, a party holding an undergraduate degree in mathematics who secures a master’s degree in engineering may also qualify to sit for the FE examination.) The legislation also contains some technical amendments respecting interim titles, the timeframe respecting when students can sit for the examination and examination fees. Finally, a person seeking licensure pursuant to the current 12 year experience ladder is authorized to file an application within 2 years of the effective date of the legislation in order to preserve the ability to qualify for engineering licensure based on experience. This bill passed the NYS Assembly for the first time in the final days of the 2014 session. Unfortunately, the Senate did not take up the bill in 2014 despite having passed earlier versions of the bill in prior sessions. The Society will continue to advocate for this measure in 2015 which is reflective of the law in the majority of sister states.
QBS – Support
(S6639-A/A7268-A – Senator DeFrancisco/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 criteria 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 Senate in 2014 and similar legislation has passed the Assembly in prior years.
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 Lawyer’s Association. NYSSPE has been assisted in its fight by other organizations including, architects, builders, municipalities, and concerned citizen, all fighting to advance broad-based tort reform in New York, including passage of a Statute of Repose for PEs, RAs and contractors.
In prior legislative sessions the Society has been successful in its efforts to defeat a litany of other measures which threaten the interests of the profession as well as the public. Below is a list of key bills which in all likelihood will be re-introduced during the upcoming session. NYSSPE fully intends to intervene as necessary.
Expansion of Exemptions to Engineering Licensure Requirement – Oppose
(S4333/A1267-A – 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 $5,000.00. 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.
Land Surveyor’s Scope of Practice – Oppose
(S4827-A/A7486-A – 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 professional engineering practice currently within the scope of the practice 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)
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 concerned regarding the portion of the legislation which could be construed to permit public officers to make engineering determinations.
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 insure that role of the professional engineer/architect is preserved. (See S2917-C/A5233-B Senator Bonacic/Assemblyman Wright.) Similarly, in 2014 legislation providing for the licensure of mold assessment and remediation specialists was amended to exempt professional engineers from a licensure requirement. (See S3667-D/A5117-C – Senator Savino/Assemblyman Weisenberg.)
In total NYSSPE monitors approximately three hundred bills during a typical legislative session. The Society intervenes whenever necessary thereby carrying out its mission to promote the role of the professional engineer in furtherance of public health, safety and welfare. NYSSPE leadership welcomes the input of its members and further welcomes a 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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