NEWS BULLETIN

Twenty-eighth Edition

January 1999

INTRODUCTION This News Bulletin is being distributed by the Idaho State Board of Registration of Professional Engineers and Professional Land Surveyors to inform the public and the State's Professional Engineers and Professional Land Surveyors of those events which significantly affect the professions. Future News Bulletins will be printed and distributed as the Board deems advisable.

MORGAN W. "WOODY" RICHARDS, BOARD ATTORNEY, MOVES ON Morgan W. "Woody" Richards, Board Attorney for the last 16 years, advised the Board at its September meeting that his workload and other responsibilities required that he ask the Board to select another person from his firm to represent the Board. Richards is with the Boise law firm of Moffatt Thomas Barrett Rock & Fields and has been a trusted advisor to the current Board and at least 11 former Board Members and two Executive Secretaries. He helped guide legislation on various land surveying and engineering issues through the legislature. His good humor and knowledge of the laws governing the practices of the professions will be missed.

STEVE R. DRAKE CHOSEN AS NEW BOARD ATTORNEY Steve R. Drake of the Boise law firm of Moffatt Thomas Barrett Rock and Fields has been chosen as the new Board attorney. Drake is a graduate of Albertson College of Idaho in Caldwell and his law degree is from Willamette University College of Law. He is married and has one child. We look forward to a long and productive relationship with Drake. Idaho Code allows the Board to select counsel from the private sector.

BOARD ADOPTS POSITION PAPER ON "SEALS ON PLATS" At a special meeting on October 9, 1998 the Board adopted the following Position Paper relating to seals on plats.

In the Spring of 1996 the Idaho Board of Registration of Professional Engineers and Professional Land Surveyors ( the "Board") undertook the task of updating the surveying and platting laws. This task included revisions to Title 50, Chapter 13, Plats and Vacations; Title 55, Chapter 16, Corner Perpetuation and Filing; and Title 55, Chapter 19, Recording of Surveys. The revisions were adopted by the Idaho Legislature and became effective on July 1, l997.

At about the same time the Board recognized the need to further educate registrants as to the contents of the existing laws and the revisions. In an effort to accomplish this goal, the Board budgeted funds to conduct workshops on this subject statewide in the Spring of 1998. The revisions to the laws and the workshops caused all of us, registrants and the Board alike, to look at these laws in some depth. It caused us to become more familiar with the contents of the laws and the meaning of each. It also generated several new questions concerning interpretations of the law.

One question that has come to the Board deals with the application of seals on plats. The specific question is "Should city engineers and county surveyors, in the process of reviewing plats prepared by another registrant, apply their seal to these plats?"

In order to answer this question one must look at several different areas of the law.

Section 50-1308(1), Approvals, states, in pertinent part

"No plat of a subdivision requiring city approval shall be accepted for record by the county recorder unless said plat shall have first been submitted to the city and has been accepted and approved and shall have written thereon the acceptance and approval of the said city council and bear the signature of the city engineer and city clerk."

The Board interprets this section to mean the approval of a city comes from the city council and the plat shall bear only the signatures of the city engineer and city clerk. No where in the law does it state or imply that the city engineer shall apply his or her seal to the plat.

Section 50-1305, Verification, states, in pertinent part

"The county shall choose and require an Idaho professional land surveyor to check the plat and computations thereon to determine that the requirements herein are met, and said professional land surveyor shall certify such compliance on the plat."

This section is not as clear in that one must interpret what is meant by "certify such compliance." The Board relies on the following sections to clarify when and where a registrant shall apply his or her seal.

Section 54-1215(3)(b), Certificates--Seals, states

"The seal, signature and date shall be placed on all final specifications, land surveys, reports, plats, drawings, plans, design information and calculations, whenever presented to a client or any public or governmental agency."

Section 54-1215(3)(d), Certificates--Seals, states

The seal and signature shall be used by registrants only when the work being stamped was under the registrant's responsible charge."

The definition of responsible charge is found under Section 54-1202(h). It states, in pertinent part

"The term "responsible charge" means . . . the control and direction of record research, field retracement, office calculations, boundary determination and mapping of land surveying work, requiring initiative, professional skill and independent judgment."

From this definition the Board draws the conclusion that the surveyor chosen by the county to review plats for compliance with Title 50, Chapter 13 is not in "responsible charge" of the plat and should not place his or her seal on said plat. A statement on the plat that certifies the plat has met the requirements of Title 50, Chapter 13 with the county surveyor's signature is adequate and appropriate to satisfy Idaho Code.

BOARD PONDERS THE ISSUANCE OF CORPORATE CERTIFICATES OF AUTHORIZATION The following is a draft position paper on the issuance of corporate Certificates of Authorization. While the Board's mission is to protect the public, it does not want to create or perpetuate bureaucratic requirements in an attempt to accomplish that mission. Please send your comments on this draft position paper to the Board at 600 S. Orchard, Suite A, Boise, Idaho 83705-1242.

The Board recently conducted an Administrative Hearing regarding a complaint by a number of license holders alleging that a corporation had offered and/or practiced engineering prior to having received a corporate Certificate of Authorization from the Board. The matter was time consuming and expensive for the complainants, the respondents and the Board. During that hearing, the evidence showed that in at least twenty-one (21) previous instances since 1987 where corporations were found to have offered and/or practiced engineering and/or land surveying prior to having been issued a corporate Certificate of Authorization, the Board considered the complaint, issued the Certificate of Authorization, and dismissed the matter. The outcome of the recent Administrative Hearing was that the Board found the accused corporation had, in fact, offered and/or practiced engineering prior to having received a Certificate of Authorization, but the Board chose not to impose any discipline against the corporation.

The Administrative Hearing has caused the Board to ask whether the issuance of corporate Certificates of Authorization serves to protect the public, which is the only real function of the Board, or whether their issuance is just a bureaucratic measure that should be considered for elimination. One factor influencing the Board is that only corporations are required to qualify for and be issued a Certificate of Authorization. Other forms of business such as sole proprietorships, partnerships, limited partnerships, limited liability companies and professional limited liability companies do not have such a requirement.

In 1963 the Idaho Legislature passed a law known as the "Professional Service Corporation Act" which required that virtually anyone who was licensed to practice a profession in the State of Idaho, including professional engineers and professional land surveyors, to incorporate as a "professional corporation" if they chose to do business as a corporation. Under a professional corporation, only those persons licensed to practice the profession are allowed to be stockholders. This law created a problem for some existing corporations, which had historically offered engineering and/or land surveying services through the corporation. The stock in those corporations was traded publicly, and it was not practical to restrict ownership to those persons licensed to practice in one of the professions. As a result, the Legislature passed a "trailer bill" which "trailed" the Professional Service Corporation Act in the 1963 legislative session and created Idaho Code Section 54-1235 in the Engineers and Land Surveyors licensing law. That is the section entitled "Practice by Corporations". In addition, the "trailer bill" added an exemption from the requirement that engineers and land surveyors incorporate as Professional Service Corporations and allowed individuals to offer their professional engineering or land surveying services through a general business corporation rather than exclusively through a Professional Service Corporation.

The result of the two bills passed in 1963 was that existing and newly created corporations, whose ownership extended beyond those persons licensed as professional engineers and/or professional land surveyors, could practice or offer to practice engineering and/or land surveying as a general business corporation rather than as a professional service corporation. It also required all corporations which were practicing or offering to practice engineering and/or land surveying to apply for and be issued a corporate Certificate of Authorization from the Board, as well as be registered with the Secretary of State and be issued a corporate Certificate of Authority by that office.

The Board is considering possible changes to the Idaho Code which would eliminate the requirement that corporations be issued a Certificate of Authorization in order to practice or offer to practice engineering and/or land surveying. The Board would substitute the requirement that all "business entities" employ properly licensed professional engineers and professional land surveyors to be in responsible charge of the work. The Board could seek criminal sanctions and impose administrative penalties against those who violate the requirement. Amendments to Idaho Code Title 30, Chapter 13 and Title 54, Chapter 12 would have to be approved by the Legislature. These Chapters have to do with Professional Service Corporations and Engineer and Surveyor Licensing, respectively.

The changes that are being considered on a preliminary basis are shown below in "legislative format". Words suggested for deletion are struck through and those suggested to be added are underlined. No amendments will be suggested to the session of the Legislature that will convene in January of 1999.

Idaho Code §54-1202 would be amended to add the definition of a "business entity" which would be:

(m) Business entity. The term "business entity" means a corporation, professional corporation, partnership, limited partnership, limited liability partnership, limited liability company, professional limited liability company, sole proprietorship or any other form of business recognized by law.

Idaho Code §54-1222 would be amended as follows:

54-1222.  Violations and penalties -- Prosecution of offenses. Any person who shall practice, or offer to practice, professional engineering or professional land surveying in this state without being registered in accordance with the provisions of this act, or any person presenting or attempting to use as his own the certificate of registration or the seal of another, or any person who shall give any false or forged evidence of any kind to the board or to any member thereof in obtaining a certificate of registration, or any person who shall falsely impersonate any other registrant of like or different name, or any person who shall attempt to use an expired or revoked certificate of registration or practice at any time during a period the board has suspended or revoked his certificate of registration, or the proprietor or officers or shareholders or partners or members of any business entity which shall practice or offer to practice professional engineering or professional land surveying without having a professional engineer or professional land surveyor in responsible charge of the work, or any person who shall violate any of the provisions of this act, shall be guilty of a misdemeanor and, in addition, shall be subject to an administrative penalty, not to exceed two thousand dollars ($2,000) for deposit in the general account of the state of Idaho, following a hearing before the board as provided in this chapter.

Legal counsel selected by the board, or the attorney general of this state or anyone designated by him may act as legal advisor of the board. It shall be the duty of the attorney general of this state to enforce the provisions of this act and to prosecute any person violating the same. The attorney general shall be reimbursed by the board for any fees and expenses incurred by the attorney general in representing the board.

Idaho Code §54-1235 would be amended as follows:

54-1235.  Practice by corporations business entities. (1) The practice of or offer to practice professional engineering or professional land surveying, as defined in this chapter, by professional engineers or professional land surveyors, through a corporation business entity, or by a corporation business entity through professional engineers or professional land surveyors, as employees, or officers, or shareholders or partners, or members or as a proprietor is permitted subject to the provisions of this chapter, provided that all personnel of such corporation business entity, who act in its behalf as professional engineers or professional land surveyors in this state are registered as provided by this chapter, or are persons lawfully practicing under the exemptions enumerated in this chapter, and further provided that said corporation, except utilities regulated by the Idaho public utilities commission, has been issued a certificate of authorization by the board as provided by this chapter. No corporation business entity shall be relieved of responsibility for the conduct or acts of its employees or officers or shareholders or partners or members or proprietor by reason of its compliance with the provisions of this chapter, nor shall any individual practicing professional engineering or professional land surveying as defined in this chapter, be relieved of responsibility for engineering or land surveying services performed by reason of his employment or relationship with such corporation business entity. All final drawings, specifications, plats, reports, or other engineering or land surveying papers or documents involving the practice of professional engineering or professional land surveying as defined in this chapter, which shall have been prepared or approved for the use of or for delivery to any person or for public record within this state shall be dated and bear the signature and seal of the professional engineer or professional land surveyor who prepared or approved them.

(2)  A corporation organized pursuant to business entity offering professional engineering or professional land surveying in accordance with this section may provide or offer to provide allied professional services as defined in section 30-1303, Idaho Code, in connection with the providing of engineering or land surveying services, by persons licensed in allied professions acting as employees or officers or shareholders or partners or members or proprietor, provided such persons are duly licensed or otherwise legally authorized to render such allied professional services within this state.

(3) A corporation desiring a certificate of authorization for engineering, for land surveying, or for both, shall file with the board a description of the engineering or land surveying service to be offered or practiced in the state, an application upon a form to be prescribed by the board and the designation required by the following paragraph, accompanied by the application fee.

(4)  Such corporation shall file with the board a designation of an individual or individuals duly registered and certified to practice professional engineering or professional land surveying in this state who shall be in responsible charge of the practice of professional engineering or land surveying, as applicable, by said corporation in this state. In the event there shall be a change in the individual or individuals in responsible charge, such changes shall be designated in writing and filed with the board within thirty (30) days after the effective date of such change.

If all requirements of this chapter are met, the board shall issue to such corporation a certificate of authorization for professional engineering, for land surveying, or for both; provided, however, the board may refuse to issue a certificate if any facts exist which would entitle the board to suspend or revoke an existing certificate Only those business entities which have a professional engineer employee or shareholder or officer or partner or member or proprietor in responsible charge of a project may offer professional engineering services to the public and only those business entities which have a professional land surveyor employee or shareholder or officer or partner or member or proprietor in responsible charge of a project may offer professional land surveying services to the public.

A professional engineer or professional land surveyor who renders occasional, part-time or consulting engineering or land surveying services to or for a firm business entity may shall not be designated qualify as the person in responsible charge for the professional activities professional engineer or professional land surveyor employee, officer, shareholder, partner, member or proprietor of the firm business entity. A professional engineer possessing a temporary permit issued in accordance with the provisions of this chapter shall qualify as the professional engineer employee, officer, shareholder, partner, or member of the business entity, so long as he is in responsible charge of the project, and provided he is not rendering such service in an occasional, part-time or consulting capacity.

(5)  The secretary of state shall not issue a certificate of incorporation as a domestic corporation or a certificate of authority as a foreign corporation authorized to do business in this state to a firm which includes, among objects for which it is established, any of the words "engineer," "engineering," "land surveyor," "land surveying," or any modification or derivation thereof, unless the board shall have issued for said applicant a certificate of authorization or a letter indicating the eligibility of said applicant to receive such certificate. The firm applying shall supply such certificate or letter from the board with its application for incorporation or registration with the secretary of state.

Other sections of Title 54 Chapter 12 would be amended to eliminate all references to issuance or renewal of certificates of authorization or other activities associated with corporate certificates of authorization.

If the Idaho Code were amended as suggested above, the net revenue decrease to the Board would be approximately $32,000, or approximately ten percent of the Board's revenue. The ultimate result of eliminating this revenue stream would likely be an increase in individual license and certificate fees sooner than would occur if the changes are not made. The Board has not yet made a decision to pursue these possible amendments and would appreciate any comments you may have regarding them.

DISCIPLINARY ACTIONS The following actions on complaints have been taken by the Board since publication of News Bulletin No. 27 in July of 1998. In addition to those listed below, the Board received numerous complaints against individuals or companies who were inappropriately advertising under headings or names that could be interpreted to indicate that they were professional engineers or professional land surveyors, when in fact, they were not. The companies or individuals agreed to discontinue or revise the advertising or title.

DOCKET NO. 98.19 SCOTT CHRISTIANSEN, P.E. Following an investigation, Mr. Christiansen, of Santa Monica, California, signed a STIPULATION AND CONSENT ORDER in which he admitted to a violation of Idaho Code §54-1215(3)(d) by signing and applying his seal to plans for which he was not in responsible charge, which is also a violation of IDAPA Rule 10.01.02006.03 of the Rules of Professional Responsibility. Specifically, Christiansen admitted to signing and applying his seal to plans prepared by Michael Verzwyvelt of Twin Falls, Idaho. Christiansen was admonished by the Board and paid an administrative penalty of $500 to the General Fund of the State of Idaho.

DOCKET NO. 98.31 E.A. "TED" HOIT, P.E. Following an investigation, Mr. Hoit, of Coeur d'Alene, Idaho, agreed to a STIPULATION AND CONSENT ORDER in which, without admission of wrongdoing or liability, he agreed not to contest the allegations that he violated IDAPA Rule 10.01.02010.02 of the Rules of Professional Responsibility by revealing confidential information obtained in a professional capacity without the prior written consent of the client and that he violated IDAPA Rule 10.01.02008.01 of the Rules of Professional Responsibility by putting himself in a conflict of interest position. Hoit was admonished by the Board and paid $500 restitution to the complainant in the matter.

DOCKET NO. 98.44 THOMAS E. GAYNOR, P.E./L.S. Following an Administrative Hearing, Mr. Gaynor signed a CONSENT AGREEMENT in which he entered the professional land surveyor portion of his license into permanent retired status as a result of his land surveying work relating to this matter.

ANNUAL REPORT TO THE GOVERNOR OF THE STATE OF IDAHO The following is an excerpt from the annual report to Philip E. Batt, Governor of the State of Idaho.

During the 1998 fiscal year the Board met for 7 regular meetings to conduct Board business, administer examinations, review applications, grant licenses and consider complaints.

The term of DeWitt T. Neill, P.E., who had served on the Board for ten years, expired May 24, 1998. Scott McClure, PE, was appointed by Governor Philip E. Batt for a five-year period beginning May 25, 1998.

Members of the Board and staff are serving on various committees of the Western Zone as well as committees of the National Council of Examiners for Engineering and Surveying.

As of the end of the fiscal year there were 4,565 Professional Engineers, 590 Professional Land Surveyors, 370 combined Professional Engineer/Professional Land Surveyors, 1,166 Engineers-in-Training, 56 Land Surveyors-in-Training, 400 engineering and/or land surveying corporations and 127 persons who have elected to take retired status.

Licenses were issued to 266 engineers by comity with other states and to 80 who successfully completed the examination process; 15 land surveyors by comity with other states and to 11 who successfully completed the examination process. There were 192 successful examinees in the Fundamentals of Engineering examination and certificates as Land Surveyor-in-Training were issued to 8 successful examinees in the Fundamentals of Land Surveying examination. In addition, Certificates of Authorization were issued to 59 corporations to perform professional engineering or professional land surveying in the State of Idaho.

The Board received a total of 46 complaints against engineers, land surveyors, corporations and unlicensed persons in fiscal year 1998 and14 were carried over from previous years. Of these, 43 were dismissed or terminated without formal hearings, 15 were pending resolution at the end of the year. Two complaints were dealt with through formal hearings which were held in accordance with Board Administrative Rules. The Board reprimanded

five license holders and fined three license holders a total of $1,250, which was deposited in the General Fund of the State of Idaho.

The Board held six workshops throughout the state for professional land surveyors. Appropriations for the workshops came through a program enhancement approved by the Legislature. The workshops were well attended and well received. In addition to the workshops, the Board held five hearings throughout the state to receive input in the negotiated rule-making process to consider mandatory continuing professional development as a condition for license renewal. The Board is proceeding with rule promulgation to require continuing professional development for professional land surveyors.

In a letter to Board Chairman Clyde Porter dated October 6, 1998, Governor Batt wrote:

"Thank you for submitting your 1997-98 annual report to me. I wish other agencies could do as precise a job of summarizing a year's activities as you did. I appreciate the update."

UNIVERSITY OF IDAHO OFFERS PE EXAMINATION REVIEW CLASSES The University of Idaho is again offering Professional Engineer examination review classes in the disciplines of civil, electrical and mechanical engineering at its Boise Center. If you are interested, please contact them at (208) 334-2999.

IDAHO STATE UNIVERSITY OFFERS Idaho State University is offering a 3 semester credit course in Surveying Law by interactive television at Pocatello, Twin Falls, and Idaho Falls. The course is billed as a good preparatory course for the Professional Land Surveyor exam or refresher for practicing surveyors. For additional information, contact Lee Robinson, P.E./L.S. at (208) 236-3273.