NYSSPE – FALL 2018 Select Legislative and Regulatory Update
Parking Garage Inspections
NYSSPE commends the NYS Department of State and NYS Code Council for final adoption of regulations which are aimed at assuring public safety by requiring periodic inspections of public garages to be conducted by qualified professional engineers. The new rule (Parts 1202, 1203, and 1204 of Title 19 of the New York Codes, Rules and Regulations) found at: https://www.dos.ny.gov/dcea/noticadopt.html has an effective date of August 29, 2018. Inspections are required to be undertaken at least once every three years by properly credential professional engineers. The Society had initially sought passage of legislation to address the absence of mandatory garage inspections in 2016 and thereafter worked with the Department of State and the Code Council to secure this important public safety measure.
Legislation addressing the issue of design professional contractual indemnification on public sector projects (state and local) was a top priority for the Society in 2018. Unfortunately, after securing near unanimous passage the legislation (A8293-A Morelle / S6622-A Senator Ranzenhofer – 2018) in both houses of the legislature, Governor Cuomo veto the measure due to strong opposition from state agencies and local governments. The legislation addresses public sector contracts wherein municipalities, state agencies and other governmental entities have inordinate leverage over the terms of indemnification. Presently, governmental entities can and do unfairly shift the burden to design consulting firms for the cost of future contingent events such as property damage, personal injury and attorneys’ fees with liability arising solely from the terms of the contract and not wrongdoing on the part of the designer. In many instances design professionals are unable to secure insurance to cover the scope of claims these provisions can generate. The bill addressed indemnification inequity by voiding contractual provisions requiring defense and indemnification involving a public work to the extent that a design professional is required to defend and indemnify a municipality, state agency, and other governmental entity or other parties for damages that are not the result of the negligence, recklessness, or willful misconduct of the design professional. Responsibility for loses related to the actions or failures of other parties that are unrelated to the design professional services rightfully rest with the at-fault party or parties. Design professions simply should not be compelled to provide indemnification for such conduct.
Notwithstanding the design community’s efforts Governor Cuomo vetoed the bill on the ground that the statute would have unnecessarily restricted state and local government’s bargaining power and lead to potential higher costs to governmental units. Both the New York State Conference of Mayors and the New York State Association of Counties along with the general contractors opposed the legislation. NYSSPE remains committed to adoption of remedial legislation in this area over the long term. Similar laws are in place in more than 20 sister states.
In the interim the Governor directed that state agencies review current indemnification requirement with a view toward ameliorating the terms of indemnification where gaps in insurance coverages are found. The Society will be working to insure that our voice is heard on the agency level.
Bachelors’ Degree – Professional Engineering
Both houses of the NYS legislature have passed legislation in previous sessions which would for the first time in New York required an applicant for a PE license to have post secondary education consisting of a bachelor’s degree or higher in engineering. Unfortunately, the Society has not succeeded in passing the bill in both houses in the same year. We are optimistic that 2019 may provide an opportunity to secure passage in the same year. The proposed legislation would remove 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.) A transition period would be provided to a person currently seeking licensure pursuant to the current 12 year experience ladder.
NYSSPE continues to work with a broad-based coalition, including other design professional organizations and the construction community, in support of A4241A Englebright / S4135A Savino – 2018 which combines enhanced Good Samaritan protection with a proposal offering liability protection for emergency responders hired in the wake of a natural or man-made disaster. (The coalition includes the New York Building Congress, Associated General Contractors of New York, ACEC New York and a litany of other organizations representing the construction and design communities.) .
In essence, this bill is designed to ensure that the liability for services rendered under emergency conditions (whether voluntary or based on contract) rests with the governmental bodies which are principally charged with restoring normalcy following a disaster. Under the proposal, service providers are held harmless in the absence of gross negligence or intentional wrongdoing for services rendered in the wake of a disaster. The governmental entity securing services will stand in the shoes of the design professional or contractor in instances of ordinary negligence thereby affording the injured party a source of recovery.
The New York State Association of Professional Land Surveyors (NYSAPLS) supports legislation to amend the definition of land surveying. (See S8242 Senator LaValle – 2018.) This legislation, as currently worded, could readily be construed to limit discrete aspects of professional engineering practice currently within the scope of the practice of professional engineering. NYSSPE continues to oppose this legislation which is clearly inconsistent with NCEES model laws pertaining to the definition of the practice of land surveying and current NYS law. The Society continues a dialogue with NYSAPLS to craft legislation which is acceptable to both parties.
(Update by Mark C. Kriss, Esq. Legislative and Legal Counsel NYSSPE)
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