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.

Additional Legislation
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) [Read more…]

Joe Pasaturo, P.E., President of NYSSPE, and the Society’s Board of Directors wants to thank all our members who have reached out to their NYS legislators in support of legislation to require a Bachelor’s Degree in Engineering (or its equivalent) as a prerequisite to licensure as a professional engineer in New York State. The legislation will add New York to the significant majority of states requiring at least a Bachelor’s Degree in Engineering (or its equivalent) to sit for the Engineering Exam.

The bill, S3541/A6809, has been approved by the Higher Education Committee in each house of the NYS Legislature and we anticipate that this measure will reach the floor in each house shortly for a vote.  We urge every member to contact both their NYS Senator and Assemblyperson and request favorable consideration.  If you do not know who to contact, please use the following link to identify your state legislators by simply providing your residential address.

https://www.aqeny.org/find-your-new-york-state-legislators/

A copy of the Society’s Memorandum in Support is set forth below.  If you have any questions, please contact Mark Kriss, NYSSPE Legislative Counsel at (518) 449-2037 ext. 207.

NYSSPE’s Memorandum

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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.

By: Mark C. Kriss, Esq.
NYSSPE Legislative Counsel

Professional Engineering – Licensure Requirements in NYS
The vast majority of states currently require, at minimum, a bachelor’s of science degree in engineering, or its equivalent, as a prerequisite to sit for the professional engineering examination.  Unfortunately, presently New York is one of the minority of states which does not require a bachelor’s degree.  NYSSPE has secured strong sponsorship of a bill introduced in both houses of the legislature to move New York into the main stream of sister states with regard to engineering licensure requirements all in furtherance of public health, safety and welfare.

The New York State Legislature, having just completed action on the 2021/22 Budget, has now turned its attention to priority legislative matters. We anticipate that NYSSPE’s legislation to require a bachelor’s degree in engineering, or its equivalent, as a prerequisite to sit for the professional engineering exam will soon be given full consideration by the legislature. Accordingly we urge all members to contact their State Senator and Assemblyman or Assemblywoman urging favorable consideration of the bill.  See S3541 and A6809 which can easily be found via Google search at “NYS Assembly Bill Search”.  A copy of the Society’s Memorandum in Support of the Bill follows below.

Bachelors Degree NYSSPE Support Memo: Click Here 

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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.

 

By: Mark C. Kriss, Esq.
NYSSPE Legislative Counsel

 Assembly Bill 10021A (Assemblyman Englebright) same as Senate Bill 7986A (Senator Stavisky)

This bill establishes a continuing education requirement for professional geologists in NYS. At the same time the bill modernizes the continuing education requirement for professional engineers and other design professionals. The bill has passed both houses of the NYS Legislature and is expected to be approved by Governor Cuomo.

Under current law professional engineers must demonstrate that they have completed 36 professional development hours during each triennium registration period. 18 of the 36 professional development hours secured during each such triennium  must be obtained via live lecture, in person classes, or live webinar. This legislation eliminates this requirement for PEs and other design professionals. In short, online courses of all types will qualify for all 36 development hours. Of course, live venues will also continue to be an option. All courses must continue to be specifically approved for New York State.

It is important to note that currently due to the pandemic the Education Department has on an emergency basis waived the live lecture, in person or live webinar requirement for licensees whose registrations renew before January 1, 2021 (see posting from NYS Education Department Office of Professions below.) The effective date of the legislation is January 1, 2022 so the status of renewals on or after January 1, 2021 must await further clarification from the Education Department.  It is likely that the broad use of on line courses will be extended due to the pandemic.

The legislation also permits a professional engineer to take courses in other design fields such as architecture or land surveying. Credits earned in related fields will count towards the triennium 36PDH requirement. (However, under no circumstances will the attendance at such courses be a ground for practicing in an allied design field without appropriate licensure.) The new law will permit up to 6 PDHs to be carried over to a new registration period from a prior period.  Present law does not permit such carry-overs.

Finally, NYSSPE has and will continue to advocate for broad recognition of courses across the country due to the significant number of our members who practice in more than one jurisdiction.  While continuing education is an important measure, we believe states should have uniform requirements to the greatest extent possible.

NYS Education Department Office of the Professions
 Some (laws and) regulations restrict licensees to a certain percentage of self-study for continuing education requirements. In response to the evolving situation with the Novel Coronavirus (COVID-19), and for those licensees whose registrations are due to renew March 1, 2020 – January 1, 2021, the Department will grant an adjustment to all licensees to complete up to 100% of the continuing education as self-study, so long as it is taken from a Department-approved provider and is in an acceptable subject area for the specific profession. SED is working closely with other New York State agencies and the Governor’s Office to tackle issues relating to COVID-19. Please continue to monitor the Department’s website for updated guidance.

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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

 

 

By: Mark C. Kriss, Esq.
NYSSPE Legislative Counsel

The State of New York and the State of Vermont share the distinction of being the only states in the United States which require Professional Engineers (and Registered Architects) to be perpetually responsible for projects they design, potentially for decades after they retire. All other states have statutes of repose which would, when applicable, require dismissal of a design liability case due to the passage of time after completion of a project.

For example, a state with a 7-year statute of repose would require dismissal of a design liability case against an engineer if the plaintiff’s injury or death occurred more than 7 years after completion of a project. (A statute of repose should not be confused with a statute of limitations which is a distinct timeframe running from the date of plaintiff’s injury or death itself. New York does have a three-year statute of limitations, but again, the statute of limitation’s clock does not start to run until a party is injured or killed. Obviously, this could happen decades after a project is completed.)

The forty-eight states which have adopted a statute of repose recognize that after completion of a project the design professional has no control over (i) the use of the property, or (ii) the re-use of the property, or (iii) the maintenance of the property, and that after a building or other improvement has performed satisfactory for a given number of years an injured party must look to others in control of the property for recovery respecting his or her loss. (Further, it is an extremely rare case where a latent design defect is the primary cause for a failure and the universe of defense costs associated with these claims are staggering compared to the universe of recoveries from these types of claims.) [Read more…]

By: Mark C. Kriss, Esq.   
NYSSPE Legislative Counsel

In New York State the general contracting community has broadly used design build  as an alternative to the traditional design-bid-build methodology for the development of private sector projects. Many general contractors offer project owners “one-stop-shopping” for both large and small-scale projects, by “hiring“ design professionals, PE or RA, rather than a project owner hiring a design professional. (Using a traditional design-bid-build methodology there would be separate contracts between, (i) an owner and a general contractor and,  (ii) an owner and a design professional.) See Charlebois v. Weller Assocs, 72 N.Y.2d 587 (1988) and the cases decided in its wake.

Since Charlebois has been liberally interpreted, by the courts, to permit general contractors to offer design services, there has been virtually no enforcement of illegal practice laws against general contractors, by the NYS Attorney General, for the illegal practice of the design professions.  Additionally, over the last decade the use of design build has grown substantially in the public sector and its acceptance in the public sphere has spilled over to the private sector.  (The increased use of design build in the public sector has been the direct result of legislative changes.) General contractors feel confident that they are not going to face charges for illegal practice and they do not face professional misconduct charges since they are not licensed by the state. Further, NYS Education Department regulations concerning the practice of the design professions, and the impact of these regulations upon professional engineers and registered architects, is of little concern to contractors since they are not subject to these regulations.

Notwithstanding the view of the general contractor community, licensed professional engineers and registered architects have to exercise caution in entering into design build contracts.  Care is required since the New York State Education Department (SED), which licenses and disciplines design professionals, has a different interpretation of the law and regulations wherein a design professional cannot, without qualification, “work for the general contractor” on design build projects. The only exception to this would be design services relating solely to the means and methods of construction (i.e. Temporary Shoring Design, etc.) or in cases where the general contractor also owns the project.

According to SED private sector design build contracts are permitted utilizing a three-way contract (Owner, Contractor and PE or RA) which specifically sets forth the scope of design services and the amount of consideration to be paid to the design professional.  The general contractor cannot retain a portion of the fees allocated to design services.  All three signatures can be set forth in a single contract document. [Read more…]

From NYSSPE ‘s Legislative Counsel, Mark Kriss, Esq.

FY 2021 NEW YORK STATE BUDGET SUMMARY • Hours after the April 1, 2020 deadline, Governor Andrew Cuomo and the state legislature agreed upon the FY 2021 New York State budget, tentatively totaling over $177 billion. The budget authorizes a reduction in spending by $10 billion to account for the economic impact of the COVID-19 pandemic.  Further budget adjustments are authorized to be implemented at periodic intervals by the Budget Director to insure that revenues match expenditures, subject to legislative and gubernatorial oversight.  The state will look to Washington for substantial federal aid to address the unprecedented economic dislocation caused by the pandemic, as well as issue bonds to address the shortfall.  Borrowing may well exceed ten billion dollars. During the Great Recession, just over a decade ago, public sector employers resorted to deferred raises, furloughs, early retirement incentives, layoffs and other cost cutting measures to address budget shortfalls.  Two percent scheduled raises for state employees have already been deferred for at least 90 days saving 50 million dollars. The degree to which the state will be able to avoid further use of these tools in the near future is entirely dependent upon the response from Washington.

DESIGN BUILD • Infrastructure Investment Act – Extended for two years, expands design-build authorization to other alternative project delivery methods, and expands the current list of authorized entities that may utilize design-build contracts to include the Dormitory Authority of the State of New York, the New York State Urban Development Corporation, the New York State Office of General Services, the State University Construction Fund, the Battery Park City Authority and the New York State Olympic Regional Development Authority.

ENERGY & ENVIRONMENT • Restore Mother Nature Bond Act – Establishes the $3 billion bond to be submitted to voters in November 2020. If approved by the voters, the bond will fund key projects in local infrastructure and ecosystem restoration that will help communities across New York prepare for flooding, rising seas and dangerous extreme heat. • Accelerates Renewable Energy Projects – Reforms the way we site renewable energy generation and transmission projects.

INFRASTRUCTURE  • Water and Environment – Supports $7 billion for the Department of Environmental Conservation capital plan in FY 2021. • Roads and Bridges – Supports $6 billion for the Department of Transportation capital plan in FY 2021. • High-Speed Rail Study – Aimed at the development of a plan to build faster, greener, more reliable high-speed rail in New York

LABOR & CONSTRUCTION • Prevailing Wage Changes – Requires payment of prevailing wage on “covered projects,” defined as valued at $5 million or more and receiving state and/or local benefits of at least 30 percent of project costs. Exempts brownfields, historic preservation, downtown revitalization, affordable housing and certain other projects in New York City. MWBE participation requirements apply, but other “public works” mandates (e.g., Wicks) do not. Creates a “subsidy board,” that can make recommendations on, but cannot change, applicability thresholds; it is given authority to delay implementation on a regional or statewide project based on potential for significant economic impacts. • New York Buy American Act –Makes permanent the New York Buy American Act governing use of U.S. steel and iron in projects. • Establishes Paid Sick Leave for Working New Yorkers – Businesses with five to 99 employees will provide their employees with at least five days of job-protected paid sick leave per year, and businesses with 100 employees or more will provide at least seven days of paid sick leave per year.

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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