November/December 2019

Legal Beat
Right to Speak, Private Email, Liability Exposure, PE License Copy

BY ARTHUR SCHWARTZ, DEPUTY EXECUTIVE DIRECTOR AND GENERAL COUNSEL

Question: Following a recent well-publicized corruption conviction, a licensed professional engineer in my state was disciplined by the state engineering licensing board. While I was not in any way personally involved in the matter, as a professional engineer, I was disturbed by the convicted PE’s actions and, therefore, wanted to speak at the PE’s hearing before the board to express my view that the actions leading to the conviction were a clear violation of basic ethical principles in addition to being illegal. I was not granted the right to speak at the hearing. Is this unique to my state? (Michigan)

Answer: In most jurisdictions, it would be highly unusual for an engineering licensing board to seek public comments on the actions taken by the board in connection with the adjudication of a case involving individual licensees. Under most administrative procedures, notice and comment requirements are limited to rulemaking and are not generally applicable to adjudications of specific cases such as disciplinary matters involving individual licensees.

Question: As a professional engineer, I am providing services to a local township. The township supervisor wants me to conduct township business via her private email address. Have you come across this before? (Pennsylvania)

Answer: I think it would be a mistake for you to agree to conduct township business via the township supervisor’s personal email. I assume the township or state laws/rules require public employees to conduct public business using public communications channels for security, public disclosure, and other public policy reasons. Knowingly agreeing to participate in the conduct of township business using the township supervisor’s personal email could expose you to public embarrassment, suspicion, and possibly even to liability and future debarment from working for the township.

Question: I’m a licensed professional engineer, and the company I work for wants to provide professional engineering services in New York. The company, however, does not meet the requirements for any of New York’s approved business entities to provide professional services. The company has asked me if I would be interested in providing the professional services as an individual and the professional liability would be covered by the company. I assume they would provide and pay for my professional liability insurance. I have reservations about this arrangement. It seems to me I’d still have more legal exposure then by providing the professional services under a New York-approved business entity. (New York)

Answer: The first question to examine is whether this arrangement would be consistent with New York law. In this connection, you and your company should consult with a New York attorney with expertise in this area. Certainly, professional liability is also an issue and having a robust professional liability policy to protect you would be essential. In addition, you will want the company to contractually agree to defend, indemnify, and hold you harmless for any actions you perform within the scope of the agreement and for any services you provide—professional, business, or otherwise.

One potential risk in this relationship could occur if the company goes out of business or your relationship with the company terminates. Your signature and engineering seal will be on the reports, drawings, plans, and specifications. Under those circumstances, you may be personally liable for any claims that subsequently arise as a result of those reports, drawing, plans, and specifications.

Question: I am a professional engineer licensed in Illinois and have been asked to provide a physical copy of my actual PE license to be included in a client proposal. I submitted a photocopy of my license to the proposing entity, but the entity wants me to provide my actual license download from the regulatory agency’s website. I am very uncomfortable having my actual license provided every time a proposal goes out. What do you recommend? (Illinois)

Answer: I do not recommend providing a physical copy of your license. The Illinois PE board website has a public “license look up” feature where the proposing entity could easily verify your license status. I recommend advising the proposing entity handling the proposal of this fact. Your “license look up” verification page could be printed out by the proposing entity for inclusion in the proposal.