Defending the License

June 2014

Defending the License

BY DANIELLE BOYKIN

Since 1934, the National Society of Professional Engineers has focused on its mission to serve as an advocate for licensed professional engineers across the nation and to help them first and foremost uphold the duty of protecting the public. On the eve of the Society’s 80th anniversary, NSPE members, through their state societies, continue to take action to protect the public as they combat efforts to devalue engineering licensure. Some of these members and state society directors shared with PE their victories and the lessons learned while confronting efforts to eliminate or erode licensure.

A professional engineer always puts the public’s interest first, says NSPE President Robert Green, P.E., F.NSPE. “A PE is ethically obligated to protect the health, safety, and welfare of the public,” he says. “We put the public’s interest before all other interests, including our own personal interests or that of our company or organization.”

Green points to two reasons why NSPE and state societies continue to deal with efforts to erode and eliminate the role of the PE. In some cases it may be a deliberate attempt to get around the PE requirement or to qualify individuals with lesser education to do some of those jobs, he says.

NSPE members must play a critical part in helping the Society stay informed of situations where the PE license is being devalued or targeted for elimination, says Green. “They can do this through their state societies, because licenses are administered on the state level,” he says. “We do have the resources on the national level to help the states to fight these efforts and educate the public.”

Green adds, “Whenever members have the opportunity to go before a local or state board and educate them on what a PE is and what licensure means, that’s always helpful.”

Stopping the Erosion
The Pennsylvania Society of Professional Engineers is currently waging one of these battles to stop the erosion of engineering licensure. In May, PSPE presented testimony in opposition to legislation (H.B. 997) that will allow the licensing of soil scientists. The legislation’s definition of soil science restricts professional engineers from practicing “soil science” and essentially requires them to obtain a license as a soil scientist. It also prohibits geotechnical engineers from performing work that they are currently performing as licensed engineers.

PSPE Executive Director John Wanner says the organization is prepared to fight any incursions into the practice of engineering. “When you have technical advances and increasing specializations, that’s when we typically have to defend the licensing turf,” he says. “A few years ago it was sewage enforcement officers. This year it’s soil scientists. And next year it could be the licensing of some other area that wants to encroach into what has traditionally been considered engineering.”

Warding off potential encroachment on engineering licensure can often be handled with a few conversations, says Wanner, but other cases may require the full force of PSPE’s membership to handle an issue. “We do take advantage of NSPE’s grassroots outreach system,” he says. “We got a major transportation funding package passed last year and the system was tremendously helpful. It’s a great benefit of NSPE, especially when we have a very heavy political issue to handle.”

Putting Out Fires
An EF-5 level tornado that struck Joplin, Missouri, on the afternoon of May 22, 2011, resulted in nearly 160 deaths and devastated a city. As Joplin continues to rebuild, the Missouri Society of Professional Engineers challenged a recent effort to eliminate an engineering licensure requirement for the city’s public works director.

Last fall, a Joplin commission began considering several changes to the city charter, which included removal of a PE requirement for the public works director. The former city manager advocated for the change because he believed that an engineering manager was adequate to supervise the duties of the three engineers on the 120-employee staff and the day-to-day operations of the agency could be handled by the director, according to an article in the November 13, 2013, edition of The Joplin Globe online newspaper. He also implied that he was having difficulty attracting a number of qualified candidates for the position.

The city manager’s justifications for the elimination of the licensure requirement didn’t sit well with MSPE members. MSPE Executive Director Bruce Wylie and MSPE leadership embarked on both a media campaign and outreach to elected officials to explain the importance of having a professional engineer in charge to help rebuild the city. You don’t want just any manager, says Wylie, you need someone who knows what’s important when it comes to building infrastructure while protecting the public health, safety, and welfare. “There are plenty of engineers that are good managers and thrive in the public sector,” Wylie says. “If you don’t offer the right salary or cast out the right net for a licensed professional, it can affect who responds to your job ad.”

In a letter to the City of Joplin Charter Review Commission and in an editorial to The Joplin Globe newspaper, Wylie outlined the following reasons the PE requirement for the city’s public works director should remain:

• PEs have an ethical obligation to make decisions based on sound science and accepted engineering standards.

• PEs are licensed by the state and must adhere to a strict code of conduct, and face civil penalties and/or disciplinary action for failing to perform in accordance with the state’s licensure law.

• Missouri has over 15,000 licensed professional engineers. Many of these PEs work for public agencies at design and/or management levels providing Joplin a potential wealth of experience from which to hire.

• Most Missouri towns of significant population have public works directors who are licensed PEs and skilled managers as well.

• With a PE in charge of the department, the city benefits from a voice of experience to oversee both staff and outside professional engineering consultants helping deliver major projects for the city and an understanding of the options and impacts of design alternatives. The result is the delivery of an efficient and effective design solution for Joplin’s infrastructure needs.

A vote in April led to the defeat of the charter change, and the new Joplin public works director is a PE, says Wylie. “You have to be like a fire department and go in and tackle a fire when they come up,” he says. “As [an organization], we have to continue making sure that people understand that professional engineers are ethical, honest, and committed to upholding the public health, safety, and welfare.”

The Certifications Challenge
Specialty certifications allow professional engineers to upgrade their technical knowledge and skills and increase opportunities for career advancement. However, when state and local government agencies require certifications for licensed engineers to perform work that they are qualified to do as licensed professionals, the integrity of engineering licensure is chipped away.

Certifications are acceptable, says Green, but they should not be used in place of or instead of the PE license. “The PE should be the first professional requirement,” he says. “There is the argument that certifications are necessary to develop specialized knowledge. This additional knowledge is covered by the ethical obligation of a PE to maintain continuing professional development, lifelong learning, and to practice only in the areas of his or her technical competence.”

Ken Discenza, P.E., understands what it means when a state agency declares that a specialty certification trumps his PE license. The past president of the California Society of Professional Engineers is required by the State Water Resources Control Board to obtain a certification to produce a stormwater pollution prevention plan. He maintains this certification because he has to be able to support the needs of his client. “There are two problems with this requirement,” he says. “A licensed professional engineer can do that work without additional certification and they are also awarding certifications to nonengineers. This certification should be voluntary.”

In 2012, CSPE backed legislation that would have given the California Architects Board and the Board for Professional Engineers, Land Surveyors, and Geologists the sole and exclusive authority to license and regulate the practice of engineering. The bill was vetoed by the governor. Discenza believes that the legislation didn’t go far enough, but he thinks it would have helped slow the erosion of engineering licensure.

Candy Toler, executive director of the Tennessee Society of Professional Engineers, like her peers in other state societies, is aware of the significant impact of the certification requirement trend. Toler says TSPE learned a hard lesson about this encroachment when legislation enacted in 2005. Qualified licensed professional engineers must now obtain a separate license to perform home inspections in the state. “I’m always on the lookout for it, because it presents an explicit erosion of the practice,” she says. In the last six years, TSPE has worked with the sponsors of legislation establishing licensure for soil scientists and geologists to add language that exempts engineers from the requirements.

To protect licensed design professionals from being required to have additional licenses and certifications to practice in their field, TSPE backed legislation that would ensure that a PE or architect can provide services within their scope of practice and area of competence without additional certifications. The bill did not pass out of legislative committee, but TSPE is committed to reintroducing it in the next legislative session.

PSPE encourages members to upgrade their skills and pursue additional education, and certifications can be a part of that professional development. When a new certification requirement surfaces, particularly at a state agency, Wanner says PSPE works to educate the agency on the value of licensure. The private sector, however, presents a different challenge, Wanner adds, because some owners “have been sold on the idea that they just don’t need a PE, but an engineer with these specialty certifications,” he says. “The private sector can pretty much do what it wants.”

Opportunities to Increase Protections
Accidents that impact the public health, safety, and welfare often lead to calls for change. When two tragic events occurred in Pennsylvania and West Virginia, state societies and their members rallied behind legislative efforts to improve safety.

Following a building demolition accident in Philadelphia last summer that resulted in the deaths of six people and injuries to 14 more, PSPE threw its support behind a bill that would require a licensed engineer to prepare plans for urban demolition projects. PSPE member David Fleisher, P.E., testified to a committee about the PE’s role in protecting the public and workers during construction and demolition projects, particularly in urban environments, while the society challenged efforts to eliminate the PE requirement from the legislation.

“Licensure doesn’t guarantee that there is no chance for an accident to occur,” says Wanner, “but it gives the public assurance that an individual performing certain activities that may be a threat to their health and safety is being done by someone who is qualified through licensure.”

In another area, PSPE is proactively helping to expand the role of the licensed professional engineer. The society formed a task force that reviewed the commonwealth’s licensure law and placed a high priority on removing the industrial exemption from the law. The exemption allows the practice of engineering work by a manufacturing, mining, communications, common carrier, research and development, or other industrial corporation or by employees of the corporation provided that the work is in connection with the products or nonengineering-related services of the corporation and its affiliates.

Now, due to PSPE’s efforts, legislation (H.B. 1447) has been introduced that would end the industry exemption.

NSPE policy states that all engineers who are in responsible charge of the practice of engineering as defined in the National Council of Examiners for Engineering and Surveying’s Model Law and Rules in a manner that potentially impacts the public health, safety, and welfare should be required by all state laws to be licensed professional engineers. NSPE recommends the phasing out of existing industrial exemptions in state licensing laws.

Another accident that put the spotlight on the public health, safety, and welfare occurred in January, when 10,000 gallons of a chemical used to clean coal leaked from an industrial storage tank and contaminated a local water supply and water treatment plant near Charleston. As a result, more than 300,000 West Virginians lost access to safe drinking water. Legislation to protect the state’s water resources and establish a regulatory program was signed into law in March. The law includes a provision that requires a PE licensed in the state to certify the integrity of aboveground storage tanks, leak detection systems, and secondary containment.

The West Virginia Society of Professional Engineers joined the state chapter of the American Council of Engineering Companies in supporting the legislation. WVSPE President Chris Butler says it is unfortunate that such a devastating event was needed to bring attention to the vital role that PEs play in public safety. “You can’t say that because the tank wasn’t inspected by a PE that this was the only cause. There were a lot of things that lined up to create the problem,” Butler acknowledges. “But there may have been things done on the back end to limit the widespread effects of the incident.”

Butler adds, “Where appropriate, we should have requirements for certifications of tanks to determine the integrity of the tank. This definitely is the responsibility for a professional engineer who is competent in this area.”

Butler believes that these types of catastrophic events are a stark reminder of the obligation of professional engineers to speak up when they see a hole in a system. They need to be diligent and look at the whole picture when working on their day-to-day projects and ask questions. “It’s up to the engineers with that expertise, when they see something going on that might not be in the best interest of the public health, safety, and welfare,” he says. “Call NSPE or call an agency to speak out if there is a potential problem that could harm the public.”  

Are you an NSPE member with a question about engineering licensure, ethics, or law? If so, call 888-384-4295 or e-mail legal@nspe.org. Please provide your nine-digit NSPE member number.

Have you seen other recent examples of threats to the PE license? E-mail pemagazine@nspe.org.