From: Charles Greenlaw <cgreenlaw(--nospam--at)speedlink.com>
Date: Fri, 16 Apr 1999 11:02:04 -0700
I am going to support the views of James Allen, without knocking Mark
Gilligan's rejoinder to Mr Allen, or replies by other commenters.
Elected officials certainly are heavily influenced by code-writing
Architects and Engineers, manufacturers, trade associations, and
[by]Building Officials who are not elected. That is true of elected
officials everywhere and in all matters of public policy formulation --they
are influenced by public and lobbying input. It is a necessity, and legitimate.
However, a policy adoption, as statute or ordinance by a public legislative
body, or by a commission or agency authorized by law to adopt policy in the
form of codes or regulations, moves that policy into a special realm.
I have learned this in court twice, as a litigating party "in pro per", not
as an expert for a party. Neither case involved buildings, but touched on
civil engineering for streets and city planning.
In the first, two neighbors and myself sued the Calif PE Board over its
failure to "properly" investigate our complaints of unlicensed civil
engineering practice in connection with design of fixed-works street
barriers that a certain local neighborhood was to be clogged with. The
Superior Court ruled it had no jurisdiction to compel the PE Board to
"investigate" in any particular manner, as long as the Board had exercised
some discretion in the area the legislature gave it authority to be in
charge of. In other words, the appointed officials' choice and decision
could not be touched by the court, short of their having committed a
procedural abuse of discretion.
In the second, other local residents sued the city and sought a court order
to have the city abate "excessive" traffic flow on their street. I was in
with a friend as an opposing "intervenor" third party. The Superior Court
ruled that it had no jurisdiction to order the city council to act in any
particular manner or act to route traffic so as to obtain relief for the
plaintiffs. This was upheld in Appellate Court, whose proceedings included
my written and oral arguments.
The city has since designed and installed, using PE -stamped designs, those
street obstructions. Is there either civil liability or professional
malpractice action available against those PE employees and consultants
because they didn't act to override with "higher standards" what the city
council's vote determined was to be installed, with all its hazards and dangers?
So how am I liable for not insisting on more than the ordained public policy
makers have determined is sufficient? I cannot override their duly
authorized determinations, not even in court, and clients, their clients,
and so on are welcome to hear my professional views (and they do get my
views) and then disregard them. I am never their boss. But the public
official always is, to the limits of the authority the law grants.
Ah, but these lawsuits. In these there is no longer reliance on the building
official anymore, with the code interpretations he is uniquely empowered by
law to make. Now there is a war of hired gun experts, who often have the
most outlandish notions of what the code means, and who insist that the
other side's engineer has a clear duty to do it the opposing expert's way,
not the way the building official rules is acceptable, codewise.
Do you see an anomaly like I do, as to whose opinion counts?
I am a professional advisor who is responsible for my advice. The public
official however is the law and beyond my reach. I heard that in court
twice. You may read the second time in the Calif Appellate reports in your
local law library at page 152, vol 20, 4th series (20 Cal App 4th 152)
released in 1993.
Charles O. Greenlaw SE Sacramento CA
Past, long time SEAOCC legislative committee chair; present member, SEAOC
professional practice committee, past SEAOC seismology committee member
(speaking my own views) and occasional expert witness.
>>Engineers do not and should not set the norm; they are employed to provide
>designs that comply with the level or risk that society dictates. Society
>via the elected officials chose the factor of risk. If more engineers
>realized this there would be less controversy on this exhange.
>James Allen, P.E.