Subject: RE: Recent Ruling by California Board of Reg
From: Charles Greenlaw <cgreenlaw(--nospam--at)speedlink.com>
Date: Sat, 17 Jun 2000 14:56:35 -0700
A few follow-up comments and anecdotes added in to Mike Valley's and Ron
Hamburger's posts on the Calif PE Board:
> of 13 seats on the
>Board, 7 are "public", one is a land surveyor, and there is one
>engineer in each of the following areas: structural, geotechnical,
>electrical, mechanical, and civil. The seats for "Civil Engineer" and
>"Land Surveyor" are vacant, so even if all of the regulated
>professionals vote the same way, the "public" can overrule them; this
>would still be true if the vacant seats were filled.
The CE and LS members' seats became vacant at the end of Jun 1,
however their regular terms expired exactly a year previously. Since the
governor had appointed no successors during that year, the incumbents stayed
in office clear to the end of a statutory "holdover" year. The June Board
meeting was advanced to May 31 and Jun 1, before the CE and LS Boardmembers
lost their positions.
Outgoing Gov Wilson filled all the vacant Board positions, mostly
Public Member seats, just before Gov Davis took office early in 1999. There
has in my view not been much polarization or antagonism between professional
and public members in recent times. Public members have not noticeably stood
in the way of some very ambitious turf grab attempts orchestrated by
professional members on behalf of consulting PE firm interests. One
explanation might be that the public members have been appointed by a
governor who has heeded the desires of the PE Lobby. Instead, the
Legislature, the Dept of Consumer Affairs, and the Office of Administrative
Law have been the primary checks and obstacles the Board has been fettered
by, especially when the interests of other powerful lobbies were threatened.
>For your information, the board members are as follows:
>Vincent Di Tomaso, P.E., Electrical Engineer (vice-president)
>Gregg Brandow, S.E., Structural Engineer
>James W. Foley, Jr., P.E., Geotechnical Engineer
Mr Foley is also a Structural Engineer, and is employed by the City
of San Jose. He has chaired the Board's Enforcement Committee the past year;
I don't know if he continues in that spot in the new Board regime that began
June 1. As far as I know, Mr Foley is the only PE/LS Boardmember in recent
years who is not affiliated with the CELSOC (consulting firms) organization.
The just-departed CE and LS Boardmembers are each very prominent CELSOC
>Quang D. Vu, P.E., Mechanical Engineer
>Vacant, Civil Engineer
The 8-year incumbent was Ted Fairfield. He was the driving force
behind the abortive multi-year PE Act Rewrite, essentially writing it
himself while holding promotional hearings and us-too Board review sessions.
I called the result the Uniwriter's Manifesto. Public members all went along
with it. The legislature however stripped it of virtually everything, after
which Boardmember Vu wryly called its remnant the Peewee Rewrite.
>Vacant, Land Surveyor
>Kathryn Hoffman, Public Member (president)
>David Chen, L. Ac., O.M.D., Public Member
An acupuncturist, whose own license board had been publicly exposed
as corrupt. No reflection on Dr Chen however, who seems independent minded
and if inclined to, should know how to keep the PE Board on pins and needles.
>Andrew J. Hopwood, Public Member
>Stephen H. Lazarian, Jr., Public Member
Mr Lazarian is an attorney with a construction and development firm
in Pasadena, and chaired the Enforcement Committee for many years.
Lawyer-like, he defends the Board with skill and cleverness against all
outside criticism and embarassing revelations, and maneuvers regulations to
maximize staff's and Board's advantage over individual licensees in the
event of gray areas or disputes.
>Marilyn Lyon, Public Member
>Myrna B. Powell, Public Member
Ms Powell lives a few doors down the street from, and is acquainted
with, long-ago CE Boardmember Jim Jurkovich, who was a state-employed bridge
engineer embroiled in the decades-old feud, state engineers vs consultant
firm engineers led at that time by Ted Fairfield . Ms Powell instigated the
Consumers Guide to PE and LS Services. She let staff draft it, and staff
emulated the Contractors Board's version, including urging consumers to get
several competitive bids before selecting which professional to retain. To
her credit Ms Powell heeded revisions hastily submitted by Central Section
of SEAOC, and the Guide was released in fairly good order.
>Millicent Safran, Public Member
She is the state Senate's appointee; I think Mr Hopwood is
the Assembly's appointee. She too has been Enforcement Committee chair.
Ron Hamburger writes that the case may only have been dealt with by staff so
far. It figures; there is no PE or LS among the enforcement staff. In the
two cases for which I have participated for the defense, staff was replied
to in depth with exculpatory explanations of both the case and of
engineering practice, by the accused and his lawyer, but to no avail
whatever. In one of them the engineer's lawyer had known the Board's chief
enforcement staffer, Joanne Arnold, since she was in high school. Ms Arnold
reportedly would not discuss the case with him, and it went to trial. The
ALJ's subsequent 35-page decision pointedly criticised everyone involved on
the Board's side, including the homeowner and every witness, and recommended
dismissal of all charges against the engineer.
Boardmembers ordinarily are kept ignorant of all enforcement cases until the
very end, on grounds prior exposure will prejudice their review and final
decision. This unfortunate abdication allows screwball interpretations of
law and PE practice, sometimes abetted by outright staff animus against the
engineer, to be used as the basis for prosecution.
In one memorable circa 1991 incident, two PE Exam item writers were singled
out by high-placed staff, including the Exec Officer, for malicious
prosecution that in a trumped-up way charged exam subversion. One
Boardmember who knew the realities immediately intervened, and cleared up
the matter, to the dismay of several others. There were warring factions
among boardmembers in those days, and this issue was one of the side show
battles. The intervening Boardmember in justification pointed to the PE Act
provision in sec 6718 that allows any Boardmember to investigate anything
under the Board's purview.
In a complaint I filed in 1990 with the Board, two of their number were
installed as a committee to investigate and report to the full board, thus
only two would have to recuse themselves from final review. The same can be
done now with this non-signing preliminaries complaint. Two could learn
everything, but all could discuss in abstract the interpretation of Sec 6735
that the case turns on.
Charles O. Greenlaw SE Sacramento CA