by Mark Kriss Esq., Legislative Counsel
2022 NYS Legislative Session

The 2022 New York State Legislative Session is moving toward its traditional June recess and legislators are focusing upon the upcoming primary elections to be held on June 28th and August 23rd (Congressional and NYS Senate), as well as the general elections on November 8th. The primary elections for U.S. Congress and NYS Senate were moved to August 23rd due to challenges to the original district maps, drawn by NYS lawmakers, which were held to be invalid by the courts and judicially redrawn to eliminate widespread gerrymandering. Notwithstanding the legislative focus on election year politics, the Society has remained vigilant in protecting both the professional engineering community and the public by preventing the erosion of professional engineering licensure and advocating for public health safety and welfare as the circumstances require. Following are key proposals requiring the Society’s attention and intervention

1. Indemnification Reform –
This legislation, which was previously vetoed by ex-Governor Cuomo, addresses the issue of design professional contractual indemnification on public sector projects (state and local) and is strongly supported by NYSSPE. 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 attendant attorneys’ fees.

Broad form defense and indemnification provisions subject design professionals to liability arising out of the circumstances that are well beyond the design professional’s scope of work and for matters over which the design professional has no control. Design professionals in many instances are unable to secure insurance to cover the scope of claims these provisions can generate. Many of the most highly qualified engineering firms simply refuse to participate in RFQs when confronted with adhesion contracts of this nature. As a result both public owners and taxpayers are deprived of the opportunity to benefit from their participation.

This bill addresses 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 losses 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.

The Society, together with others in the design community, have been examining the developments in sister states regarding indemnification reform. A number of states have adopted meaningful reforms and our internal discussions with sister design organizations have focused upon these states with the goal of refining a model bill for New York. The process has taken longer than we had hoped, but we are optimistic that model legislation to be put forward later this year will provide the best chance for passage in New York.

2. Design Professional Service Corporations –
ESOP Ownership Liberalization S5261B/A1891-B Senator Kennedy/Assemblyperson Lupardo
Approximately ten years ago NYSSPE was instrumental in securing legislation liberalizing the ownership structure of design firms (Design Professional Service Corporations) in New York State. Prior to the Society’s intervention, with the exception of grandfather corporations, ownership in design firms was completely limited to licensees (professional engineers, architects, land surveyors, etc.). This paradigm created a unequal playing field giving grandfather corporations an enormous advantage in attracting talented employees in fields such as IT and marketing. Legislation has now passed both houses which again addresses Design Professional Service Corporations and will permit all of the shares of a firm to be owned by an ESOP vesting membership interests in bona fide employees of the firm without limitation as to the percentage of stock owned by the ESOP. (Currently the ESOP is limited to a maximum ownership of 24.99 % of the firm.) However, the legislation vest control of the ESOP in a Board of Trustees or a Management Committee with a key provision requiring that 75% of the members of the Board of Trustees or Management Committee be licensees. This new structure will ensure that professionals retain control of the key decision-making respecting professional practice and allow local engineering firms to flourish and not exacerbate the acquisition of local firms by grandfather corporations as has historically taken place.

3. QBS – Support
A8504 –Comptroller’s Program Bill
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. In fact, due in substantial part to the Society’s efforts, similar legislation passed the Assembly in 2010. 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. Adoption of QBS also helps to avoid steering of service contract to politically favored firms. Since former Governor Cuomo opposed expanding QBS, his departure from office has enhanced our assessment of the prospects for this bill. In fact NYS Comptroller Thomas DiNapoli has advanced the legislation with the goal of to preventing some of the abuses identified under one or more prior administrations.

4. Statute of Repose – Support
A1706/S4127 – Assemblyman Pretlow/Senator Griffo
This legislation creates a 10-year Statute of Repose requiring that actions for personal injury and wrongful death against a design professional and construction contractors be commenced not more than 10 years after a project is completed. The bill continues to face strong opposition from the New York State Trial Lawyers Association. NYSSPE has been assisted in its fight by other organizations including associations representing general contractors and AIA. [Read more…]

The State Budget adopted late last week rejected the Governor’s proposed transfer of the health professions to DOH, and rejected several other proposals that would have had serious implications for OP’s work and for NYS licensed professionals. With the strong support of the Board of Regents and the Commissioner, OP remains intact and firmly embedded in the important work of the State Education Department. The enacted budget also increases OP’s spending authority, which will enable us to hire some much needed staff to handle our growing workload. While it will take time to rebuild OP’s staffing to a more sufficient level, we are thankful for the support and confidence demonstrated by the legislature, professional associations and other stakeholders.

The Board of Regents also appointed two new Executive Secretaries:
• Evan Seiden, LCSW, was appointed as the Executive Secretary to the State Board for Social Work and the State Board for Mental Health Practitioners. Evan has capably served OP as a social worker in the Professional Assistance Program for several years and will be transferring to the Board office to take on this new leadership role.
• Eric Greppo, PE, was appointed as the Executive Secretary to the State Board for Engineering, Land Surveying and Geology and the State Board for Interior Design. Eric brings to OP his professional experience in the private sector, as well as the New York State Department of Environmental Conservation and the New York State Department of Corrections and Community Supervision (NYSDOCCS). Since 2009, Mr. Greppo has served as a Professional Engineer for the NYSDOCCS Office of Facilities Planning and Development, handling a wide variety of management and regulatory responsibilities.
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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 Kriss, Esq.
NYSSPE Legislative and Legal Counsel

PROFESSIONAL ENGINEERING
(Threatened Regulatory Restraints on Professional Practice)

Earlier this month NYSSPE, at the direction of the Society’s Executive Committee, submitted testimony in opposition to efforts by the Department of Environmental Conservation to require that all personnel working on environmental remediation projects overseen by professional engineers, including, for example, those conducting field observations and data collection, work for a single engineering company.  This one shop proposal if adopted would adversely impact a sizable segment of the professional engineering community consisting of numerous solo and small to intermediate size engineering firms who traditionally have worked collaboratively with environmental consulting firms with regard to projects of this nature.  Notwithstanding that the New York State Education Law clearly envisions that professional engineers may utilize the services of both employees and other qualified third-party consultants in the delivery of professional engineering services, the new DC regulation would eliminate this practice. A copy of the Society’s testimony is set forth below.

In the event that this type of restrictive regulation moves forward other areas of professional engineering currently practice by solo and small or intermediate sized engineering firms, could face similar constraints.

See letter wrote to DEC from NYSSPE 

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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.

2022 NYS Legislative Session
by Mark Kriss Esq., Legislative Counsel

Preliminarily, the Society’s leadership wants to again thank all of our members who helped advocate for legislation to require that an applicant seeking licensure as a professional engineer in New York State have a Bachelor’s Degree in Engineering (BDE).  After a prolonged effort, over multiple legislative sessions, the bill has been signed into law, and the state has joined the majority of other states with similar licensure requirements.  (The law does have a transition provision allowing those currently seeking licensure via the 12-year experience ladder to continue on their career path, provided a timely application is pursued with the State Education Department.  In addition, the Commissioner of Education is authorized to permit exceptions to the BDE requirement including, for example, an applicant holding a bachelor’s degree in physics or mathematics and a master’s degree in engineering.)

1. Indemnification –   To be introduced early 2022

This legislation, which was previously vetoed by ex-Governor Cuomo, addresses the issue of design professional contractual indemnification on public sector projects (state and local), and is strongly supported by NYSSPE.  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 attendant attorneys’ fees.

Broad form defense and indemnification provisions subject design professionals to liability arising out of the circumstances that are well beyond the design professional’s scope of work, and for matters over which the design professional has no control.  Design professionals in many instances are unable to secure insurance to cover the scope of claims these provisions can generate.  Many of the most highly qualified engineering firms simply refuse to participate in RFQs when confronted with adhesion contracts of this nature.  As a result both public owners and taxpayers are deprived of the opportunity to benefit from their participation.

This bill addresses 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, or 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 losses 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.

2. Emergency Responder – Support

(A5769/Englebright and S6377/Savino)     Combines Emergency Responder  / Good Samaritan

As previously reported NYSSPE has joined a broad-based coalition, including other design professional organizations and the construction community, in support of this measure 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, AIA New York, and a number 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 measure does not apply to businesses whose primary business is responding to disasters fully cognizant of the risks such as a company routinely advertising its emergency response services.

3. QBS – Support

(A8504 –Comptroller’s Program Bill)

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. In fact, due in substantial part to the Society’s efforts, similar legislation passed the Assembly in 2010. 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.  Adoption of QBS also helps to avoid steering of service contract to politically favored firms.  Since former Governor Cuomo opposed expanding QBS, his departure from office has enhanced our assessment of the prospects for this bill. In fact, NYS Comptroller Thomas DiNapoli has advanced the legislation with the goal of to preventing some of the abuses identified under one or more prior administrations.

 

4. Statute of Repose – Support

(A1706/S4127 – Assemblyman Pretlow/Senator Griffo)

This legislation creates a 10-year Statute of Repose requiring that actions for personal injury and wrongful death against a design professional and construction contractors be commenced not more than 10 years after a project is completed.  The bill continues to face strong opposition from the New York State Trial Lawyers Association.  NYSSPE has been assisted in its fight by other organizations including associations representing general contractors and AIA. [Read more…]

See below for the recent letter from NYSSPE President, Joe Pasaturo, PE to the Mayor-Elect of NYC.  This was recently sent out to continue the communication around the threat and danger of illegal practices throughout the city.

Dear Mayor Adams,
Congratulations on your election as the next Mayor of New York City. It was a pleasure meeting you at Casa Belvedere earlier this year with my cousin Roy Ranieri. I am particularly happy that someone with your experience, qualifications, integrity and clear sense of purpose is in a position to provide the steady and inspiring leadership New York City needs and deserves.

I was born and raised in the South Bronx and well as the Pomonok houses in Queens. I am a lifelong New Yorker. I am the President of the New York State Society of Professional Engineers (NYSSPE). The society is a professional association representing the interest of its members, and more generally, the interest of all professional engineers totaling more than 25,000 licensees in New York State, practicing in all disciplines (civil, structural, mechanical, electrical, chemical, geological environmental, etc.) and practicing in all practice settings (private sector consulting, industry, government and education).

Professional Engineers, individually and communally, are keenly concerned with the promotion of public health, safety and welfare. Our members do not take lightly their responsibility to the greater community. It is our hope that in the years ahead we can work constructively with you to help move New York City to a brighter and safer future. [Read more…]

UPDATE CONTINUING EDUCATION
By Mark Kriss, Esq., NYSSPE Legislative Counsel

Chapter 260 Laws 2020
Assembly Bill 10021A Senate Bill 7986A 2020
Earlier this week we distributed information  (click here) regarding liberalized continuing education requirements for Professional Engineers due to COVID-19, as well as prospective statutory changes allowing all continuing education courses to be secured via self-study eliminating the requirement that 18 credits per registration period required live study. The notice from earlier this week failed to include more recent developments. Following is a short summary of where matters stand.

In response to the evolving situation with the Novel Coronavirus (COVID-19), and for those licensees whose registrations renew March 1, 2020 – July 1, 2022, the NYS Education Department will grant (via emergency action) an adjustment to all licensees to complete up to 100% of the continuing education as self-study, provided that it is taken from a Department-approved provider and is in an acceptable subject area for professional engineering. Additionally, the Department will grant an adjustment to all licensees, regardless of registration renewal date, to utilize self-study for any coursework taken during the period from March 1, 2020 – July 1, 2022, provided that it is taken from a Department-approved provider and is in an acceptable subject area.

Prior to January 1, 2022, in the absence of the emergency action, professional engineers were required to demonstrate that 18 of the 36 professional development hours secured during each triennium registration period be obtained via live lecture, in person classes, or live webinar. Chapter 260 of the Laws of 2020 eliminates this requirement for PEs effective January 1, 2022. In short, online courses of all types will qualify prospectively 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. [Read more…]

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. [Read more…]

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.