Unlicensed Practice of Engineering
A few years ago, an NCEES survey of state professional engineering licensing boards requested information from each board on the categories of violations indicated for cases opened during a two-year period. Responses were received regarding data on several thousand disciplinary cases. The frequency of categories of violations reported in that survey was as follows, beginning with the most frequent:
- unlicensed practice/offer;
- ethics/professional conduct/misconduct;
- fraud, deceit, misrepresentation; and
- sealing of work not prepared under the direct supervision and control of the licensee.
It is clear from the results of that survey that the unlicensed practice, or offer to practice, of engineering is one of the most frequent violations of state engineering rules and statutes.
State licensing boards open investigations of the unlicensed practice, or offer to practice, of engineering only upon knowledge of such potential unlicensed practice based on complaints filed and/or personal knowledge by board members. It is likely that state licensing boards may be aware of only a small percentage of the incidents of unlicensed practice, or offers to practice. Some jurisdictions that have full-time investigators are able to be more vigilant in their enforcement roles and actively seek out instances of unlicensed practice. Typically, these jurisdictions have more such instances of unlicensed practice uncovered, supporting the theory that many of these instances are not coming to the attention of the licensing boards.
The practice of engineering by unlicensed practitioners potentially places the public health, safety, and welfare at risk. Efforts to prevent unlicensed practice are intended solely to protect the public health, safety, and welfare, and are not intended to improperly restrict lawful activities or practices. This isn’t about competition or turf.
In many jurisdictions, a professional engineer has an ethical and legal obligation to report unlicensed practice to the state licensing board.
The statutory ability to regulate unlicensed practice varies considerably from jurisdiction to jurisdiction. In some jurisdictions, the state licensing board can directly regulate unlicensed practitioners, and some have the ability to fine unlicensed practitioners. In other jurisdictions, the state licensing board must act through the attorney general’s office, competing with other state legal demands, or through the local court system. In all cases, the correct action for a professional engineer who becomes aware of unlicensed practice is to report that practice, with all readily available evidence, to the state licensing board.
Types and Evidence of Unlicensed Practice or Offers to Practice Engineering
There are many different examples of unlicensed individuals who may inappropriately practice, or offer to practice, engineering, including:
- Professional engineers who are not licensed in the jurisdiction or whose license has lapsed;
- Members of other professions (i.e., architects, landscape architects, surveyors, geologists, and many others. Note that the established boundaries between practices vary considerably by jurisdiction, if such boundaries have been established);
- Unlicensed engineers; and
Unlicensed practice, or offers to practice, engineering may be evidenced in a variety of different ways, such as:
- Correspondence, reports, or plans comprising the practice of engineering;
- Public presentations by individuals who are unlicensed in the jurisdiction;
- Engineering proposals;
- Court appearances as expert witnesses by individuals who are unlicensed in the jurisdiction (although courts in some jurisdictions have the ability to allow unlicensed engineers to present expert testimony);
- Verbal or written offers to provide engineering services;
- Use of the PE designation by unlicensed individuals; and
- Use of someone else’s PE stamp (in some actual instances, use of a PE stamp of an engineer who has passed away).
Many professional engineers are unaware of specific licensure requirements. Some engineers believe that a PE license is required only to stamp documents, and are under the misconception that correspondence and public presentations on engineering matters do not require a license in that jurisdiction. Many others regularly present proposals signed by engineers proposed to be in responsible charge of a project, but who are not yet licensed in that jurisdiction. These are common examples of unlicensed practice. Making matters more complex is the fact that engineers are sometimes allowed to testify in court proceedings as an expert witness, even if they are not licensed in that particular jurisdiction, regardless of state licensing board requirements.
In some cases, the question of unlicensed practice is very clear. In other cases, the issue may be murky. For that reason, it is important that any allegations of unlicensed practice contained in a complaint be completely factual and not based on speculation or assumptions. In addition, individuals filing a complaint have an obligation to familiarize themselves with the state engineering licensure laws and regulations before filing the complaint, in order to understand the complaint procedures and to understand what is required and what may be permitted under the state’s laws and regulations. In general, complaints filed in good faith based on factual information and a reasonable interpretation of the law and not motivated by an ill motive are likely to withstand challenge.
Many state licensing board rules provide an imperative for reporting known incidents of unlicensed practice, and added support in doing so, by including an ethical obligation for professional engineers to report violations of the engineering licensure law to the state licensing board.
A complaint must never be motivated by personal animosity or an attempt to gain some type of competitive advantage over another party. Such ill-motivated complaints could expose the individual complainant to defamation and antitrust liability claims, which can result in damage awards, fines, and even criminal penalties, not to mention legal fees and court costs.
Filing a Complaint
Many state licensing boards require that a complaint be filed in writing, and some require complaints to be filed on specific forms. Some state licensing boards allow verbal filing of complaints as long as the complaint is not anonymous. Some jurisdictions do accept anonymous complaints and some complainants may be protected under various whistleblower acts. Prior to filing a complaint, it is recommended that a call be placed to the state licensing board office to discuss appropriate procedures in that jurisdiction.
The above article was summarized from an NSPE position statement adopted in 2003.
Review and input for this article was provided by L. Robert Smith, P.E., F.NSPE and Bernard R. Berson, P.E., P.L.S., F.NSPE.
Published October 3, 2013 by Craig Musselman, P.E., F.NSPE