Subject: Re: Recent Ruling by California Board of Reg
From: Charles Greenlaw <cgreenlaw(--nospam--at)speedlink.com>
Date: Fri, 16 Jun 2000 17:41:20 -0700
Another fall down the BOPELS rabbit hole into the realm of the Queen of
Hearts, where it's "signing the drawings red" and "off with their heads"
There are three civil engineers (of whom two are also SE's) on the 13-person
California Board. The Board began in 1929 as a civil engineer-only board,
but civil included structural, and in 1931, the SE was added as a follow-on
title that qualifying CE's could use. Other PE branches weren't added until
1948. The PE Act provisions on signing drawings date from when CE and SE
practices were uppermost in the Board's mind, all of whom then were PE's.
Sec 6735 of the PE Act surely is section allegedly violated. Look it up at
http://www.dca.ca.gov/pels (Paul Feather just summarized this section)
The part of 6735 about stamping "final" plans with an expiration-dated stamp
was enacted in 1984 at the behest of a major consulting engineers group now
known as CELSOC, in part to answer whinings by certain Board public members,
Larry Dolson in particular. The part about just plain signing never had any
time frame or progress status conditions tied to it, and is a very old
provision that predates public members. It is easy to presume that engineers
originated that early language on signing plans, and that they expected good
sense would prevail in its practical application.
The stupid outcome of the case in question is yet another example of what
happens when engineers aren't very careful in their regulatory wordsmithing
and presume a charitable meaning will always attach to what they write.
We weren't told whether the outcome is what an administrative law judge
recommended following a formal hearing, or is what Board staff interpreted
and the accused engineer stipulated (plea bargained) to, or is actually a
final decision of the Board members themselves.
Ordinarily no Board member is exposed to a disciplinary case until after the
accused engineer gives up and stipulates, or after an ALJ-recommended
outcome has been received. The Board can reject stipulations and ALJ
decisions, and for the latter, can find any other outcome it pleases. The
Board could have merely found, for example, that preliminary drawings aren't
something for which "responsibility" is yet meaningful, and that
"preparation" of "drawings" has not yet happened, for enforcement purposes.
Alternatively, the Board can impose a harsher outcome than the judge did. In
the Petrovsky case given in the Board's latest Bulletin, that's what happened:
On May 3,1993, the Administrative Law Judge who presided at the
hearing found that the engineer in a 1985 residential design incident was
guilty of both negligence and incompetence in his practice and recommended
that Petitioner's license be suspended for 20 days; that he pay 2,500
dollars in restitution to his clients; that he be placed on probation for
three years during which time he was to complete six units of continuing
education and comply with any reporting requirements reasonably imposed by
the Board; and that he notify all current clients and employers of findings
of the hearing and the discipline imposed.
On June 4,1993, the Board set aside the proposed decision of the ALJ
and exercised its authority to decide the matter itself.
On Dec. 21,1993, The Board set aside the ALJ's proposed penalty and
instead revoked the engineer's license and required restitution as a
condition for reinstatement.
Petrovsky, doing much of the legal work himself, appealed in Superior Court,
under the available Code Civ Proc Sec 1094.5. The Judge ruled in 1997:
"The Board Abused its Discretion in Revoking Petitioner's License.
"This penalty is a patent abuse of discretion. The court can only substitute
its judgment on the penalty for that of the administrative agency if there
has been a manifest abuse of discretion on the part of the agency.
"Respondent [Board] clearly adopted the findings but not the penalty of the
[ALJ] hearing officer. And, in the light of all the findings this court
determines that the penalty, when considered with the 12 years of delay in
the rendering of this decision, an abuse of discretion. Petitioner has
engaged in a single instance of negligent behavior which resulted from his
failure to properly supervise his employees. He has never had another
licensing problem. To suggest that his license be terminated for this act is
without precedent and inherently unreasonable.
"The penalty is set aside and the decision of the hearing officer reinstated"
The Board immediately invoked the ordered original probationary conditions,
notwithstanding that Petrovsky filed an appeal of a certain part of the
court's decision, which postponed its taking effect. Ignoring this,the Board
then acted to revoke the license anew on grounds Petrovsky hadn't begun to
notify his clients, etc. Yet another appeal to superior court ensued, which
Petrovsky must have won, because the Board in Spring 2000 only touts
imposing the same suspension and probationary conditions the ALJ imposed in
1993, without mentioning any appeals proceedings. We aren't supposed to know
about the Board's own vindictiveness, abuses, and negligence. Petrovsky
however told his story to the State Legislature at the Board's Sunset
hearing last November.
Now the rest of you know the story.
Charles O. Greenlaw SE Sacramento CA