NSPE White Paper September 21, 2010
NSPE Licensure and Qualifications for Practice Committee
NSPE Legislative and Governmental Affairs Committee
The purpose of this white paper is to provide guidance to NSPE state societies and others in the engineering profession on strategies to consider in legislative initiatives to amend state engineering laws in accordance with NSPE professional policies and position statements. This is very general guidance, intended to be applicable to any type of change to state engineering laws. It should be noted that every state is very different, politically.
The provisions governing the practice of engineering in each state are stipulated in the state's engineering statute, and the rules adopted in response to that statute. In any initiative to modify these provisions, it is important to differentiate between the law and the rules. The law (statute) falls within the purview of the legislature and generally sets forth broad requirements, with greater details often provided in the state's rules or administrative code. Changes to rules are initiated by PE boards in many cases, subject to administrative and legal reviews and processes. The National Council of Examiners for Engineering and Surveying (NCEES) provides a Model Law and Model Rules to offer guidance as state law and rules are modified. Maintaining overall conformity with the Model Law and Rules is important in order to maintain national mobility for the engineers in your state.
Changing engineering licensure requirements is often a slow process. It takes perseverance, patience, and sometimes decades before changes are made. For example, the first state adopted mandatory continuing education requirements for professional engineers in the late 1970s (Iowa), and today, more than 30 years later, approximately 40 jurisdictions have adopted mandatory continuing professional education requirements. That debate continues in many states. The U.S. Constitution leaves such determinations to each state, and this is the political system within which we as professional engineers function.
Some of the strategies to consider when modifying state engineering statutes are outlined below. Since all states differ politically, it is important to validate these general suggestions through discussions with engineers and others in your state who have experience with the legislative process.
One approaches changing a state engineering statute very carefully. Once the legislative process starts, it can take on a life of its own, and head in unpredictable and unplanned directions. Because of the unpredictability of the process, it may be wise to consider incorporating a number of planned or needed statutory changes at the same time in order to avoid the need for multiple legislative initiatives. State engineering statutes establish law, and rules are adopted to implement the law. It is typically desirable to keep the statute broad and simple to accomplish the legal objectives, with as much detail provided in the rules as is possible. Rules are typically easier to change than the law, if and when changes in the details of implementation are necessary.
- Build a Coalition
- State Engineering Boards—State Engineering Boards—Their support is essential. In some states, the PE board can play an active role; in other states the PE board can only react to legislation filed by others and advise the legislature. In either event, PE board support is essential, and it is important to keep them "in the loop." Without on-going PE board support, legislation is likely to be unsuccessful. Most legislative committees dealing with licensure matters have long working relationships with the PE board and its staff, and typically look to the board for guidance. Since the support of the PE board is so critical, every NSPE state society should consider having an on-going liaison with the PE board—before there is a need for new legislation. There are enormous benefits for NSPE state societies to be visible and known to their state PE board, as well as familiar with its operations, schedule, and professional views. These steps should be taken well before the PE board's support is needed on specific legislation.
- NSPE State Societies—Most state societies maintain a presence with the state legislature. NSPE state society support should be enlisted early on in the process. In comparison to a single-discipline engineering society, NSPE can testify on behalf of all engineering disciplines, even if some disciplines indicate concern or opposition. NSPE is likely to take the lead on state legislative issues pertaining to licensure, professionalism, and ethics. Some NSPE state societies have state legislative and governmental affairs committees, which can play a central role in legislative initiatives.
- ACEC Member Organizations—The American Council of Engineering Companies represents the business interests of consulting engineering firms. ACEC's state member organizations are led by firm principals. ACEC state member organizations typically have the best legislative contacts in the engineering profession, and their lobbyists often "work the halls" effectively as legislative bills are considered. It is advisable to approach the ACEC member organization before initiating a legislative campaign. It can be expected that they will be involved in the legislative process, and it is better to discuss full facts with them prior to beginning the legislative process. In legislative initiatives pertaining to engineering licensure, professionalism, or ethics, the ACEC member organization may or may not take the lead, but likely will, at a minimum, monitor the process and assure that whatever is adopted is reasonably friendly from a business perspective.
- Professional/Technical Societies—ASCE, IEEE, ASME, and other professional societies representing individual engineering disciplines can play an important role in coalitions of the organizations described above. Typically, not many professional/technical societies have established relationships in the statehouse on matters pertaining to licensure.
- Leadership of State Organizations—It should be noted that those professional engineers who are interested in matters of licensure, professionalism and ethics, and in change in the engineering profession, can get involved in leadership of any of the above state organizations. Members of PE boards are generally selected by the state's governor, with the selection made from among those who volunteer to serve. NSPE and ACEC state organizations are led by those volunteers who are interested in serving and who demonstrate leadership capability.
- Universities—All major universities have a significant presence in state politics. While universities would not be expected to play a leadership role in legislation regarding professional issues, support from the engineering college can be critical on issues related to engineering education. As appropriate to the legislation being considered, the major universities should be aware of the pending legislation and their position should be known.
For significant legislative initiatives, it will likely take years to build an effective coalition. In many states, that coalition may start with conversations among the state society of NSPE and PE board members, perhaps with professional/technical society input. If the coalition coalesces, it can branch out from there. This takes time, effort, and involvement of volunteers from that state. These initiatives need to come from within; national organizations can provide information, press releases and other articles, talking points, key messages, funds, speakers, and other assistance, but the active people managing the legislative process need to be from that state. If the initiative looks like it is coming from outside the state, it will likely fail, perhaps just for that reason alone. Once the coalition is together, and the positions of other stakeholders are known, the roles of the various members of the coalition can be determined. All supporting organizations in the state need to be on board, pulling in the same direction, and in the loop in terms of communication. Additionally, one organization and one individual typically needs to take the lead.
Advocates need to be well prepared. They need to be ready to address the rationale for the proposed change; the likely impacts on professionals, the public, and the economy; and the potential details of implementation. To effectively counter misconceptions both in formal testimony and in informal contacts, advocates should also understand the perspective of any opponents who are involved in the process. Make sure that advocates' messages are clear, simple, and consistent.
Funding may be important if lobbying efforts are required. Funding may be provided by state or national professional or technical societies, or by political action committees maintained by some state societies or member organizations.
The organization of the coalition is important. It is critical to develop issue experts who can speak clearly, articulately, and substantively about the issue without resorting to jargon and acronyms. In addition to issue experts, as a second line of support there also needs to be a team of advocates who are familiar with the necessary talking points and can converse comfortably and effectively about the issues. Some on the team will want to be issue experts/advocates and others will want to be supportive of the process (e.g., arranging meetings with legislators, regulators, and other engineering societies, and preparing supporting documents). You will need all types to succeed. It is important for everyone to understand the unique and critical role each plays in the process. Legislators are very busy and are typically not well versed in the details of the engineering profession. It is important to keep all communications simple and succinct.
Change almost always generates controversy and opposing views. It is important to anticipate where such opposition might come from, to understand it, and to have a plan to respond to and overcome opposition in the legislative process. It is important to understand the various points of view of both proponents and opponents. There may well be stakeholders beyond the engineering profession, including other related professions, owners, employers of engineers, and the public. Think about impacts on a wide variety of stakeholders and have a plan in mind to communicate relevant issues.
- Prepare the Plan
- Legislative Process—With bicameral legislatures (both a house and a senate), there is often a choice to start an initiative in the house or the senate. For typical housekeeping-type legislation, there is usually one legislative committee that deals with specific issues. Usually, a house committee that deals with licensure and certification will be responsible for amending an engineering statute. Unless there is a political imperative to do otherwise, start with the committee that knows most about the topic. Sometimes you have no choice in the matter. Understand the process from where you start. Understand the legislative calendar, such as when the session starts and adjourns, and when special sessions are scheduled. Some legislatures require that bills be prefiled before they can be considered. Don't assume that you can bring a bill to a legislator after the session has begun. You may have to wait a year or longer before the legislature reconvenes.
- Draft a Bill—This is an important step, and it requires legal input. It is best to have a bill well drafted in the first place so that the discussion can focus on the issues of substance rather than confusion over language. The language needs to fit properly with the existing statute and needs to provide the state PE board with the broad authority necessary to accomplish the bill's objectives. Details belong in rules, not in the statute. Apprising your state PE board early can be beneficial because PE boards typically have access to lawyers with the state's attorney general's office to help them comment on statutory language. NSPE, through its general counsel, can assist in reviewing proposed statutory language. Legislative committees have legal assistance as bills are reviewed. Having a bill well drafted the first time, before it is submitted, will facilitate the legislative process.
- Find Friends in the Legislature—It is best to have contacts on the initiating committee. Otherwise, it is important to have legislative champions who are not on the committee. They can testify on behalf of a bill, and they can get and provide information more readily than someone on the outside. Many state legislatures have PEs serving in office. Their support, both in testimony and in informal contact with legislators, can be very helpful. Find all the friends you can; you can never have too many. Seek out legislators who are spouses or friends of PEs, or are related to PEs or engineers generally. That can go a long way to gaining support for the position being advocated. Legislators are often more open to input from other legislators than they are to input from those who they feel may have a vested interest in the outcome.
- Secure Bill Sponsors—Sometimes bills are sponsored by one legislator. More often, there are multiple sponsors. Sometimes, the more sponsors the better, including sponsors from both the house and senate, and from both sides of the aisle. The primary sponsor or sponsors should be legislators who are knowledgeable of the bill and its background. They should also be willing to speak convincingly to other legislators and during committee and other legislative meetings.
- Retain a Lobbyist—The coalition should consider retaining an effective statehouse lobbyist who has excellent contacts within the committees and branches of the legislature where the bill will be considered. The various members of the coalition should have access to the information provided by the lobbyist. PE boards typically can't retain lobbyists. The lobbyist for this initiative might work in concert with an ACEC lobbyist, depending on the position of the ACEC member organization. Often, the professional and business interests coincide, sometimes with different emphasis.
- Talk to Legislators—Your lobbyist can help you make a plan to contact key legislators. You can meet with legislators when they are in their districts and/or when they are in the state capital. While all members of the visiting team should be prepared to speak, only one member of the team should take the lead in the discussions and the others should be there to provide support as needed. Visiting teams need to prepare what they plan to say in advance—rehearsing each visit is critical. Leave behind materials that convincingly make the intended argument. Keep the message simple and straightforward and don't cloud it with other issues that could create confusion. Make sure that the coalition is coordinated and that messages are consistent and effectively communicated. A legislator's time is very valuable—they are very busy people.
- Focus the Game Plan on Committees—Legislation affecting a profession typically lives and dies in committees. A full house or senate floor fight on a profession's continuing education requirements, for instance, is unlikely. If a committee isn't convinced of a bill's merits, it will determine the legislation "inexpedient to legislate" or recommend further study of the bill. In either case, the bill has no chance of being enacted during that legislative session. A committee recommendation for further study can lead to legislation during the next session but also can be a back-door means of killing a bill. Often, 2/3 of the battle takes place in committee.
- Implement—Once the game plan is together, and all sponsoring organizations are on board and ready to begin the legislative initiative, begin. Maintaining communication among the coalition members throughout the process is key. The supporters need to understand what is going on, and they need to continue pulling in the same direction. Strategically scheduled team meetings or conference calls are critical to keeping the momentum going and the team together.
- Be Careful—Bills can be modified, wittingly or unwittingly, by a motion by any committee member, followed by a second and a majority vote of a committee. Once that happens, changes that are not in the interest of the engineering profession and/or the public can be difficult to undo. When you initiate a bill, you never know what the final result will be.
- Compromise Appropriately—Each state has its own unique law and its own unique set of political circumstances. Many in the engineering profession would like states to adopt Model Law language verbatim; however that almost never happens and may be inconceivable when attempting to modify an existing bill with an 80-year legislative history. It is critical that the key Model Law provisions be maintained so that engineers in that state will have national mobility. Beyond that, the state legislature may want or need to maintain or modify existing or new statespecific, alternate pathways to licensure. The question to be answered: Does the final bill adequately protect the public health, safety, and welfare in your state. Sometimes compromise is better than no bill at all, and that is a political judgment in each circumstance.
If at first you don't succeed—learn lessons. Evaluate why the process failed. Strengthen the coalition. Deal with the negative input. Be ready for more of the same, and for different and new input. And try again. But don't fail repeatedly. The chance of legislative success often declines with each successive failure.
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