March/April 2017

Advocacy in Action

NSPE and state societies are working together to 
champion the PE cause.

BY DANIELLE BOYKIN

“What’s driving this interest in pursuing a title act for structural engineers? It’s certainly not because there’s a current problem with unqualified individuals practicing structural engineering.”
– Brian Malm, P.E.

There’s no question that protecting the integrity of the professional engineer license is a top priority for NSPE and its state societies—all in the interest of protecting the health, welfare, and safety of the public. Serving as champions of professional engineering licensure isn’t without its constant challenges. There are sobering setbacks as well as hard-earned victories. 2016 was filled with both, and 2017 will be no different as the nation experiences a changing political, legislative, and regulatory landscape.

PE takes a look at the some of the most recent advocacy actions of the state societies in partnership with NSPE.

Stronger Together

There is a persistent movement to change laws to elevate separate or discipline-specific licensure, particularly in the area of structural engineering. NSPE believes that fragmenting the professional engineering license into discipline-specific title or practice acts weakens rather than strengthens the integrity of the license. In addition, continued recognition of professional engineering licensure as the defining qualification for professional practice is crucial to the public’s understanding and trust of the profession. Georgia and Minnesota are the latest battlegrounds for this movement.

In January, NSPE spoke against an amendment proposed by the Georgia State Board of Registration for Professional Engineers and Land Surveyors that would require any applicant for engineering licensure who designates the branch of structural engineering to take the 16-hour NCEES Structural Engineering Exam.

In a public comment, NSPE President Kodi Verhalen, P.E., Esq., F.NSPE, explained concerns that while the proposed amendment isn’t directly attempting to create separate licensure of structural engineers, unintended consequences may negatively affect the practice of engineering in Georgia.

For example, the proposed amendment doesn’t explain how professional engineers who currently perform what the proposed rule defines as “structural engineering” would be affected. Verhalen points out that it isn’t clear if these individuals would be grandfathered in and allowed to continue their practice or would be required to be approved, and sit for the structural engineering exam.

In Minnesota, a similar challenge is also taking place. A task force of the Minnesota Structural Engineers Association is pursuing legislation that seeks to restrict the use of the title “professional structural engineer” to individuals who have passed the 16-hour structural engineering exam.

Brian Malm, P.E., president of the Minnesota Society of Professional Engineers, and Verhalen issued a joint letter to the task force explaining that this requirement could negatively impact the practice of engineering and interfere with the ability of qualified professional engineers to continue their practice in Minnesota. A separate designation, they wrote, implies that licensure as a professional engineer is not adequate and that those without designation as a “professional structural engineer” are unqualified to practice—neither of which is true.

What’s driving this interest in pursuing a title act for structural engineers? It’s certainly not because there’s a current problem with unqualified individuals practicing structural engineering, says Malm. “They have indicated to us a concern about being able to be competitive as a structural engineer across state lines. They feel that they are at a disadvantage because Minnesota doesn’t have a structural engineer license.”

MnSPE’s position solidly falls in line with NSPE’s position, Malm emphasizes. “The purpose of the license is to protect the health, safety, and welfare of the public. Marketing and business competitive practice issues shouldn’t come into play in license discussions,” he says.

What if this legislation gains traction? MnSPE is prepared to mobilize. “We have experience contacting legislators and testifying at legislative committees to express our opposition to issues that potentially affect engineering licensure,” says Malm. “We know the process.”

“Knowing the process” was learned through trial and error, recalls Malm. Several years ago, the Society failed to stop legislation allowing nonengineers to design subsurface discharge wastewater treatment systems. “We ultimately lost that battle because we weren’t adequately prepared,” he says. “We showed up very late to the game and that taught us that we need to be vigilant and armed with an action plan. Because, believe it or not, the legislature sometimes moves very fast.”

MnSPE quickly turned things around with an effective advocacy action plan, which led to solid victories to protect licensure and the profession. In 2013, the society successfully lobbied Governor Mark Dayton to drop a proposed tax on architectural and engineering services. And in 2015, MnSPE leadership witnessed the signing of a law specifying that professional engineers licensed to provide engineering services to state agencies are qualified to do so without additional licenses or certifications.

Chipping Away at Licensure

In Wyoming, legislators have introduced a bill to waive the Fundamental of Engineering Examination requirement for individuals who have practiced engineering for at least 20 years. In November, Wyoming Society President Kelly Hafner, P.E., submitted a joint public comment with Verhalen, telling the Wyoming Board of Professional Engineers and Professional Surveyors that the waiver would weaken professional licensure requirements.

While Wyoming currently waives the FE exam for individuals who have shown academic competence through earning a doctorate or serving as an engineering faculty member, both societies believe that waiving the exam solely because of professional experience undermines the critical requirements of licensure as a professional engineer—education, examination, and experience. “There’s a very low number of people that inquire and qualify for a FE exam waiver,” says Hafner. “It’s generally licensees from other states that are seeking comity licensure.”

Hafner reports that since he and Verhalen reached out to the licensing board, a legislative committee attempted to reduce the years of experience requirement for the waiver to 10. This action didn’t sit well with either WySPE or the licensing board, says Hafner. The board worked to get the bill amended to allow the board to consider the FE waiver for individuals with 15 years of experience.

WySPE and its members remain opposed to the FE waiver legislation and will continue to monitor the bill’s movement and reach out to the bill’s sponsors. “Engagement is the key,” says Hafner. “And as a smaller state organization, we lean heavily on NSPE for counsel because they have experience with these types of issues across the nation.”

Last year, the Louisiana Engineering Society took a stand against a similar attempt to weaken licensure and won. LES gained a legislative victory after a bill that sought to waive the FE exam for certain out-of-state licensed engineers was halted in committee. The legislation would have permitted the licensing of PEs in Louisiana by comity even if the licensee first received a license in a state that waived the FE exam. This exception, argued LES, would have undermined a licensing process that has been in place for four decades.

NSPE backed LES’s opposition to the bill by submitting a letter to the legislative committee chair asking him to withdraw the legislation.

Qualifications vs. Price

NSPE believes that qualifications-based selection is the best method to procure professional design services at the federal, state, and local levels. Since the implementation of the Federal Brooks Architect-Engineer Act in 1972, the Society has stood firm that QBS protects the public welfare, benefits the taxpayer, levels the playing field for small firms, and promotes technical innovation. Yet, hardly a year goes by when QBS regulations aren’t challenged.

One example comes from Montgomery, Alabama, where the state licensing board’s proposed regulatory change to eliminate QBS requirements is facing opposition. NSPE is backing the Alabama Society of Professional Engineers’ efforts to prevent a procurement process in which price alone is given priority over the competence and qualifications of potential service providers.

In a letter to the licensing board, ASPE President Paul McCain, P.E., and NSPE President Verhalen explained that the proposed elimination of the requirements is a direct assault on QBS. In January, the licensing board held a hearing to allow professional engineers and the public to express their views on the QBS proposal.

But why would a board that’s filled with practicing licensed engineers target QBS? Individually, the board members support QBS and the rules protecting it, says McCain. The problem lies with a concern over antitrust litigation and the lack of immunity from litigation for individual board members, he says. This concern stems from the 2015 Supreme Court ruling in a case involving a Federal Trade Commission complaint against the North Carolina Board of Dental Examiners. In the case, the FTC claimed that the board, composed mostly of dental professionals, exceeded its authority and violated antitrust law when it sent cease-and-desist letters to nonlicensed teeth-whitening providers.

The Supreme Court affirmed a lower circuit court ruling, which is exclusively about immunity from antitrust challenges and the conditions that must be met for such immunity to be automatic. Immunity from antitrust law-based challenges to specific actions or decisions by a licensing board is not automatic; it depends on the degree of supervision by the state. The court also established a new context-dependent test for determining when a state exercises sufficient supervision over a licensing board to confer automatic antitrust immunity.

Following the case decision, NSPE stated that the decision would jeopardize the role of licensure boards and their members in exercising technical and professional judgment and discretion in questions relating to the practice of professional engineering.

“Our legislature reviewed our existing QBS rules and told the board that QBS was anticompetitive and unconstitutional,” says McCain. “We understand the tough position that this puts individual members of the board in, but QBS should remain.”

Where there are challenges to QBS, there are also victories and opportunities to educate about its value. Russ Romine had been serving as the new executive director of the Kentucky Society of Professional Engineers for only a week when he got the tip from NSPE in September that qualifications-based selection regulations were under threat in the state. When Governor Matt Bevin directed state government agencies to review administrative regulations, says Romine, the Kentucky Transportation Cabinet identified three regulations (among others) that they considered outdated internal cabinet policies.

Working together, KSPE and NSPE prevented the implementation of a proposed rule that would have rescinded regulations directing the Kentucky Transportation Cabinet to carry out QBS. Transportation cabinet officials were contacted and they provided an opportunity for KSPE and NSPE to emphasize the value of QBS and the necessity of the regulations. As a result, the cabinet withdrew its proposed rule to eliminate the regulations.

Romine doesn’t believe that the transportation cabinet was specifically targeting QBS; they simply did not fully understand the sensitivity of repealing these regulations. Having just retired from a transportation cabinet position in 2015, Romine used his public-sector expertise to make them aware of the problem with repealing QBS regulations. “We were fortunate that they were receptive to our concerns that although these regulations may look ‘old,’ they lay out an essential public process for qualifications-based selection of design services,” he says.

“We were fortunate that they were receptive to our concerns that although these regulations may look ‘old,’ they lay out an essential public process for qualifications-based selection of design services.” – Russ Romine

Staying Engaged

Leadership changes and elected officials come and go. Which means that KSPE leadership and members have to remain constantly engaged in the shifting political landscape, says Romine.

In order to cultivate relationships, KSPE regularly engages with both private- and public-sector engineers. A component of KSPE’s Leadership PE program includes a formal program with legislators, and participants are encouraged to meet with their local and state representatives.

Another critical piece to staying prepared is to help NSPE members get involved. MnSPE, like other state societies, has “a day at the capital” event where legislators speak with members and address how to communicate when key licensure issues arise. “Our members learn how to navigate the process to get into contact with their representative,” he says. “It also makes legislators aware of our organization and know that our members are a resource if they are dealing with an issue that requires engineering expertise.”

When issues arise, support from NSPE is also critical, says Malm. “It changes the conversation from a state society conversation to a national conversation,” he says. “We all need to be aware because the integrity of the license crosses state lines.”