LEGISLATIVE UPDATE June 2021
By: Mark C. Kriss Legislative and Legal Counsel
Both houses of the New York State Legislature have recessed for the 2021 calendar year and stand ready to return to Albany should circumstances warrant. For example, the ongoing Assembly impeachment inquiry respecting Governor Cuomo may require action by the full Assembly should the Judiciary Committee conclude that one or more impeachable offenses have been committed. If the Assembly votes to impeach, in the absence of a resignation, a trial before the Senate joined by all of the judges sitting on the state’s Court of Appeals would ensue.
There are in excess of 15,000 bills pending before the NYS Legislature. Below we have identified legislation of interest to NYSSPE and our members. In order to review any of these proposals (excepting bills awaiting introduction) please simply Google NYS Assembly Bill Search or NYS Senate Bill Search. The full text of each bill and related information will be easily located for review.
The following three bills have passed both houses of the Legislature:
Bachelor’s Degree in Engineering
S 3541 / A 6809 Senator Stavisky / Assembly Member Glick
For more than a decade NYSSPE has supported and advocated for legislation to require a Bachelor’s Degree in Engineering as a prerequisite for licensure. We are pleased to report that the above reference bill has passed both houses of the legislature and will be forwarded to the Governor before the end of the legislative year. Thanks to all of our members who have reached out to their legislators regarding this important measure. The bill does permit licensure of applicants who have a degree found to be equivalent to a Bachelor’s Degree in Engineering by the Commissioner of Education. For example, an applicant with a degree in physics or mathematics who secures a Master’s Degree in Engineering could qualify. Also a Bachelor’s Degree in Engineering Technology has historically been viewed as equivalent in New York provided two years of additional design experience is satisfied.
Low Embodied Carbon Concrete
S 542A / A 2591A Senator Kaminsky /Assembly Member Carroll
This bill requires the Office of General Services to establish guidelines concerning the procurement of low embodied carbon concrete. Contractors doing this type of work with then need to follow these guidelines and certify that they work and the concrete they are procuring meets these guidelines. The bill outlines what OGS will need to examine when crafting the guidelines including incentives for the procurement and use of low embodied carbon concrete by contractors. The bill requires the guidance and any associated legislative recommendations to be issued to the Governor and the Legislature. The bill proponents argue that the production of concrete’s core ingredient, cement, accounts for up to 8% of total global CO2 emissions and that the legislation is needed to meet greenhouse gas reduction targets.
Continuing Education Architecture
S 6783 / A 7604 Senator Cooney / Assembly Member Glick
This bill liberalizes the continuing education requirements for architects in a manner largely parallel those applicable to engineers. The bill allows for credits to be secured by attendance in courses in related professional design fields. The bill also provides for six credits to be carried forward per registration period.
Statute of Repose
S 4127 / A 1706 Senator Griffo / Assembly Member Pretlow (introduced in both houses)
In 48 states design professionals can rely on a Statute of Repose which after a specified period of time following completion of a project provides a complete defense to all design liability claims. New York does not have a true Statute of Repose and the Society has long sought adoption of the above bill which establishes a ten-year Statute of Repose. Due to the absence of legislation retiring engineers may want to consider alternatives which include design liability insurance tail coverage, as well as the use of a trust to protect assets. Please feel free to contact the Society’s legal counsel (Mark Kriss) at 518-449-2037 extension 207 with any questions.[In an upcoming article we will discuss how New York’s Statute of Limitations, provides some protection for design liability claims and in particular how the Statute of Limitations is helpful with regard to first party claims (essentially property damage claims asserted by a project owner) notwithstanding the absence of a Statute of Repose in New York.]
Gas Transmission Lines S 544 / A 1939 Senator Kaminsky/ Assembly Member Cusick (passed Senate)
Requires the public service commission to adopt regulations aimed at ensuring that professional engineers supervise all work and services that could pose a material risk to Public Safety respecting gas transmission lines.
Emergency Responder S 6377 / A 5769 Senator Savino / Assembly Member Englebright (introduced in both houses)
In the wake of a natural or man-made disaster this legislation would require that design professionals be afforded liability protection by the municipality or other governmental entity retaining them to provide emergency design services immediately following the disaster. In the absence of gross negligence the municipality, or other government entity, would stand in the shoes of the design professional in the event of personal injuries or property damage.
Indemnification Reform (pending introduction)
This legislation which, was vetoed by Governor Cuomo, would bar state agencies and municipalities from imposing onerous indemnification provisions in design service contracts. The Society is working with AIA and ACEC to re-introduce a revised bill.
Land Surveying (pending introduction)
The New York State Association of Professional Land Surveyors has proposed legislation to “modernize” the definition of the practice of land surveying in NYS. NYSSPE has expressed general support for the proposal provided that (i) the definition of practice continues to parallel national model legislation, (ii) reference to the fact that land surveying is a branch of engineering is retained in the text of the proposed law and that (iii) professional engineers are afforded the ability to practice all aspects of surveying with the exception of the determination of land boundaries.
QBS S 5713 Senator Comrie (introduced in Senate)
Currently state agencies employ a qualifications-based selection system for selecting professional design firms to provide professional design services. This bill expands the use of QBS by requiring its use for both public authorities and public benefit corporations.
The Practice of Geology by Grandfather PE Firms S 3542 / A 7884 Senator Stavisky / Assembly Member Englebright (passed Senate)
This legislation will permit a Grandfather PE firm to offer and provide “geological services” and secure a Certificate of Authorization for Geology. The bill is intended to level the playing field for all grandfathered firms offering professional engineering services by permitting professional engineers and professional geologists to offer professional services via the grandfathered firm as a single practice entity. Under present law Professional Corporation, Design Professional Corporations, Registered Limited Liability Partnership and Professional Service Corporations practicing engineering can offer geological services via a single entity. This bill will extend the same flexibility to grandfather PE firms.
Eliminating ESOP Ownership Restrictions S 5261 / A 1891A Senator Kennedy / Assembly Member Lupardo (passed Senate)
Currently law governing Design Professional Service Corporations permits an ESOP (Employee Stock Ownership Plan) together with non-licensed employees to directly own 24.99% of the corporation. This bill will eliminate the cap provided that not less than 75% of the ESOP Trustees and its Management Committee are controlled by licensees. The proponents of the bill argue that if the restrictions are retained the founders of smaller regional firms will be inclined to sell upon retirement to grandfather firms and that by allowing a firm to be entirely owned by its employees both the firms employees, including employed professional engineers, other employees and the local community will be benefitted. They further argue that all decisions which concern public health, safety and welfare remain subject to the judgment of licensees and that the only issues decided directly by the stockholders relate to matters such as corporate dissolution and mergers.
Expansion of Professional Self-Certification beyond NYC
S 1004 / A 6242 Senator Gaughran / Assembly Member Otis
S 1003A / A 7947 Senator Gaughran / Assembly Member Stern (introduced in both houses)
These proposals will authorize municipalities to permit self-certification by PEs and RAs respecting both building permits and certificates of occupancy. The C of O legislation contains a mandatory professional liability insurance component.
Fire Suppression System Contractors / Inspectors
S 4008A / A 3272A Senator Breslin / Assembly Member Fahy (introduced in both houses)
The bill provides for licensure of fire suppression system contractors and among other provisions permits layouts by licensees “in accordance with the provisions of water-based fire protection design standards and design criteria as provided by the engineer of record”. (See also S 6761 Senator Savino.)
All of the legislation listed above will be reintroduced at the outset of the 2022 legislative session with the exception of bill transmitted to the Governor. Please let us know if you have any particular concerns regarding any of these proposals. All comments will be shared with the Society’s Legislative Committee and given careful consideration. (Address all recommendations to: firstname.lastname@example.org.)
© June 2021
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.