{"id":228240296,"date":"2012-03-26T16:04:56","date_gmt":"2012-03-26T16:04:56","guid":{"rendered":"https:\/\/wp.baltimorespokes.org\/?p=228240296"},"modified":"2012-03-26T16:04:56","modified_gmt":"2012-03-26T16:04:56","slug":"practicing-engineering-without-a-licence","status":"publish","type":"post","link":"https:\/\/wp.baltimorespokes.org\/?p=228240296","title":{"rendered":"Practicing engineering without a licence"},"content":{"rendered":"

[B’ Spokes: I feel this has some relevance to Baltimore as we have had non-engineers in a position of power demand that bike lanes be removed or not installed purely on the basses of faulty engineering methodology. So maybe I am practicing engineering by making that statement? That’s not the point of the following article, anyone has a right to make comments but the decisions should\/must be left to the engineers. The fact that we have had no official engineering feed back at all just responses along the lines of “So and so doesn’t want a bike lane so no bike lane.” That to me is practicing engineering without a licence and illegal in Maryland. (\u00a7 14-301) ]<\/em><\/p>\n

\n

THE LATEST ATTACK ON CYCLING ADVOCACY <\/a><\/h2>\n

By: Steve Magas, March 12, 2012<\/span><\/p>\n

\n

Jerry Walling and Roger Brislawn do what many, many cyclists around the country do \u2013 they sit on the Bicycle Advisory Committee of their community.  They never dreamed that accepting this role, and reviewing bike crashes, would lead them to the brink of \u201clarge fines and imprisonment.<\/strong><\/em>..\u201d<\/p>\n

<\/span><\/p>\n

These \u201cBAC\u2019s\u201d are numerous in Ohio \u2013 and around the country.  They are generally defined in some way by City Council in the city charter or other official documents.  Folks who sit on these Advisory Committees are generally knowledgeable but not experts \u2013 certainly not engineers \u2013 and may be appointed because of their cycling experience and knowledge.  These Committees typically look at problem areas, roads and intersections and make recommendations to the City to help make cycling safer in the community.<\/p>\n

Jerry and Roger are both experienced Committee members.  In Beavercreek, the \u201cBikeway Advisory Committee\u201d  was established by City Council in 2000 through the passage of a City Ordinance which described the purpose of the Committee: \u201cTo facilitate non-motorized travel within the City by advocating <\/strong>the proper planning and implementation of non-motorized improvements.\u201d  The Committee has a long history of working with City Council and is featured prominently on the City\u2019s website<\/a>.<\/p>\n

\"\"<\/a><\/p>\n

From 2000-2011 the Bikeway Advisory Committee seemed to work well in Beavercreek \u2013 or so Jerry & Roger thought.  That changed in August 2011 when Jerry & Roger received a little present in the mail \u2013 a certified mail letter from The Ohio State Board of Registration for Professional Engineers and Surveyors.<\/p>\n

I\u2019m certain they found this rather odd \u2013 signing for a registered letter from such a group. Neither of the men is an engineer or surveyor.  Upon reading the letter, however, the shock\u2026 and fear.. set in.<\/p>\n

The letter cited the men to Ohio Revised Code Section 4733.01 \u2013 the code section which defines the \u201cpractice of engineering.\u201d  The Board stated that it had received a \u201ccomplaint\u201d alleging that work the men had done for the Bikeway Advisory Committee \u201cmay fall into the realm of traffic engineering and could effect public welfare, safeguarding of life, health or property\u2026\u201d<\/p>\n

The words that REALLY got Jerry & Roger\u2019s attention, though, were these:  \u201dSince you are not registered with the Board as a professional engineer, this could be a violation of Ohio Revised Code Sections 4733.02 and 4733.22.  A violation of these codes could result in large fines and imprisonment.\u201d<\/strong><\/em><\/p>\n<\/div>\n

<\/p>\n

\n

Jerry & Roger contacted me about their predicament. After reviewing the letter, and thinking about the dramatic implications a bad result would have for bike advocates nationwide, I agreed to work on the case pro bono<\/strong><\/em>.<\/p>\n

The first thing, for me, was to get the lay of the land. Where had this complaint come from? What actions of Roger & Jerry had led to someone filing the complaint?  Fortunately, the letter from the Board included some background.<\/p>\n

The Complaint had been filed by David E. Beach, an engineer with the City of Beavercreek.  Beach had, at one time, been the City Engineer and had worked with Jerry & Roger on bicycle issues during his tenure as City Engineer.  He knew what Roger & Jerry did and understood that any actual \u201cwork\u201d had to be designed, approved and paid for by the City officials.  Nonetheless, Beach submitted a complaint to the Board, claiming that a Powerpoint presentation which Jerry & Roger had prepared and submitted to the City Engineer, City Council and others amounted to \u201cengineering\u201d by non-engineers and asked the board to \u201c\u2026stop the practice of traffic engineering by unqualified members of this Committee\u2026\u201d<\/p>\n

Mr. Beach described Jerry & Roger\u2019s Powerpoint as \u201cAccident Analysis and Traffic Engineering Recommendations.\u201d  In fact, the report was called \u201cBBAC Report on City of Beavercreek Pedestrian\/Cyclist Accidents 2007-2011.\u201d  You can read their entire work product below.<\/p>\n

2007-2011 BIke\/Ped Accident Report<\/a><\/p>\n

As you can see, the Committee reviewed crashes, and crash locations, described them and made recommendations<\/strong><\/em> to improve safety.  How many readers of this blog do this very thing every single day?  Many, I\u2019m sure.  There is nothing even remotely resembling \u201cengineering\u201d in here \u2013 no drawings, sketches, plans, specifications.<\/p>\n

We decided to take a very aggressive approach to responding to these allegations.  My fear was that this tactic, if successful, could be duplicated in cities around the country to stifle input from cyclists.  I wanted to draft a detailed response that would provide the best defense possible and also act as a form for folks in other jurisdictions to use if this \u201cpracticing engineering without a license\u201d thing caught on.<\/p>\n

There are very few published cases on this \u201cpractice of engineering\u201d issue, but one similar case which was very helpful  is Schroeder v. State Board of Registration<\/a><\/strong><\/em>, a court of appeals decision from 2004.<\/p>\n

In the Schroeder<\/strong><\/em> case, Mr. Schroeder, a retired biology professor with a Ph.D. in biology, prepared a three-page \u201cessay\u201d addressing the environmental impact of a road project in Trumbull County.  His report was submitted to the County Engineer on behalf of a non-profit, the \u201cMahoning River Consortium.\u201d  A Deputy Engineer turned this report over to the Ohio State Board of Registration for Professional Engineers and Surveyors [\u201cthe Board\u201d] claiming this essay constituted \u201cthe practice of engineering.\u201d  After a hearing, Mr. Schroeder lost as the Board determined he had practiced engineering. He appealed, without a lawyer, but lost again before the common pleas court.  He then retained counsel and appealed the court ruling against him.  The Tenth Appellate District reversed the trial court and held that Mr. Schroeder\u2019s report was NOT \u201cengineering.\u201d<\/p>\n

The appeals court stated that \u201cThe primary goal of R.C. 4733.01, like that of R.C. 4733.02, is to prevent persons lacking proper qualifications from performing tasks that might expose the public to safety, health, or property risks, if performed incompetently or unprofessionally\u2026<\/em><\/strong>\u201d  This concept of \u201cperforming tasks\u201d proved critical in our analysis as I argued vigorously that the \u201ctasks\u201d which Roger & Jerry performed had absolutely nothing to do with the \u201cpractice of engineering.<\/p>\n

So what is \u201cthe practice of engineering?\u201d Well, according to Ohio Revised Code  4733.01:<\/p>\n

(D) \u201cThe practice of engineering\u201d includes any professional service, such as consultation, investigation, evaluation, planning, design, or inspection of construction or operation for the purpose of assuring compliance with drawings or specifications <\/strong>in connection with any public or privately owned public utilities, structures, buildings, machines, equipment, processes, works, or projects in the proper rendering of which the qualifications of section <\/strong>4733.11<\/strong><\/a> of the Revised Code are required to protect the public welfare or to safeguard life, health, or property.<\/strong><\/p>\n

In this case, I went through Jerry & Roger\u2019s work product, page by page, to show the Board that NOTHING they did met the definition of \u201cengineering.\u201d  They gave \u201crecommendations\u201d and \u201cadvice\u201d to the Engineer \u2013 they didn\u2019t DO any engineering!  They simply saw some problems and proposed some solutions.  They had no power to make anything happen.<\/p>\n

In fact, the email that Mr. Beach received with their recommendations was actually submitted to the very people who DO have the power, and legal responsibility, to do the actual \u201cengineering\u201d of anything relating to the City \u2013 the City Engineer and City Council.  This was the part that was particularly maddening to me.  Mr. Beach was very well aware of what the Bicycle Advisory Committee did- he had worked with the group over the years \u2013 he KNEW they didn\u2019t have the power to \u201cengineer\u201d anything, that they only gave recommendations.  Despite all this, he still felt the need to file a complaint with the Engineering Board\u2026 when you strip away everything, you seem to be left with a fellow who was chewing on some sour grapes\u2026<\/p>\n

My response to the complaint ended up being 10 single-spaced pages.  To me, it was important to fire a shotgun blast back at the Board at this early stage.  If the Board believed there was any possibility of merit to the complaint it could set a hearing, take testimony and publish its findings.  I felt that if we could beat this early we could avoid the time and expense of preparing for a hearing \u2013 let alone the stress and anxiety which would naturally accompany such a hearing.<\/p>\n

In addition to submitting my response to the Engineering Board I copied the Mayor and City Council members. I wanted everyone in the City\u2019s chain of command to be fully aware of what Mr. Beach, a City employee, had done, and what steps I was taking to protect Jerry & Roger from being prosecuted.<\/p>\n

The Schroeder<\/strong><\/em> case provided the framework of my response.  One key here were overriding First Amendment concerns. The complaint by Mr. Beach implied that citizens who simply expressed their opinions to government could be prosecuted for having opinions.  The Schroeder<\/strong><\/em> case said this about the First Amendment rights of folks like Jerry & Roger\u2026 [and YOU<\/strong>]:<\/p>\n

\u201cThe ability of the private citizen to contribute to public debate on issues such as public works projects is well-established in both tradition and law, and, in fact, is a cornerstone of our democratic system of government. <\/em><\/strong>In this context, appellant was not providing a professional service, but simply expressing his opinion.\u201d<\/p>\n

Other factors we pointed out to the Board included:<\/p>\n

–       Mr. Walling and Mr. Brislawn were not paid.<\/p>\n

–       They performed no calculations or tasks which required an engineer\u2019s qualifications.<\/p>\n

–       They were not in a position of public trust and were not \u201cretained\u201d to provide engineering opinions.  Rather, they serve as volunteers on a committee set up by the City to give advice to the City.<\/p>\n

–       They gave their opinions to the City as concerned citizens seeking to improve bicycle and pedestrian safety.<\/p>\n

–       The City is free to question the validity of the recommendations and, ultimately, to accept or reject all or any part of the recommendations provided by Mr. Walling and Mr. Brislawn.<\/p>\n

–       Mr. Walling and Mr. Brislawn have absolutely no responsibility for determining what traffic controls are in place or how they will be used.<\/p>\n

Each of these factors aligned with factors cited by the Schroeder<\/strong><\/em> court in support of the court\u2019s conclusion that Mr. Schroeder did not engage in \u201cengineering.\u201d<\/p>\n

We submitted our response in early September, 2011.  The Board didn\u2019t move on this until the end of January, 2012. Thankfully, the Board found in favor of Roger and Jerry.  In a very short letter of January 25, 2012, the Board stated that based on the information we submitted \u201c\u2026the Board did not find a violation of Ohio Revised Code Section 4733.  The complaint has been closed.\u201d<\/p>\n

Earlier in 2011 a Mr. David Cox had run into similar issues.  Mr. Cox, from North Raleigh, North Carolina,teamed up with other homeowners association members to petition city and state officials to add some traffic lights in their North Carolina neighborhood. An engineering consultant hired by the city said the lights weren\u2019t needed. Mr. Cox and other residents felt they were needed.  Mr. Cox prepared a very detailed response and presented it to the powers that be.  In response he felt the State\u2019s wrath \u2013 this time an engineer from the State of North Carolina claimed Mr. Cox was practicing engineering without a license.  Eventually, the complaint was quietly dropped and no \u201ccourt case\u201d was needed.<\/p>\n

The North Carolina situation generated shock waves in some unusual places, however.  The State suffered embarrassment from a series of  unflattering news stories<\/a>.  The real kicker came when none other than Rush Limbaugh took up the cause for Mr. Cox. Rush recognized the misuse and abuse of power and stated<\/a>:  \u201dAmerican citizens, petitioning their government, are threatened for intelligently making their case. A government official(an unelected bureaucrat, in this case)apparently sees nothing wrong with using governmental power to stomp on a citizen who dares disagree with the all-knowing, all-powerful state.\u201d<\/p>\n

I didn\u2019t play the \u201cRush\u201d card in our presentation to the Ohio Board \u2013 we were saving that for later if the Board had decided to move ahead with a hearing\u2026<\/p>\n

Obviously, I don\u2019t usually work for free \u2013 I still have to pay the rent, the mortgage, the light bill and my tab at the bike shop\u2026 Had I charged Jerry & Roger for my time, their legal bill would have been significant \u2013 thousands of dollars \u2013 as I spent hours researching this and preparing the 10-page response. A hearing would have led to many more hours. I handled this pro bono<\/em> because I felt it was an extremely important, and possibly overlooked, issue \u2013 an issue which could have national implications if it came out the wrong way \u2013 an issue the resolution of which should not be dependent on how deep the pockets were of those charged the crime of \u201cpracticing engineering without a license.\u201d  Fortunately, the Ohio Board determined that there was no violation of the law by Jerry & Roger.<\/p>\n

 <\/p>\n

https:\/\/www.ohiobikelawyer.com\/uncategorized\/2012\/03\/the-latest-attack-on-cycling-advocacy\/<\/a><\/p>\n

oldId.20120326160456667<\/p>\n","protected":false},"excerpt":{"rendered":"

[B’ Spokes: I feel this has some relevance to Baltimore as we have had non-engineers in a position of power demand that bike lanes be removed or not installed purely on the basses of faulty engineering methodology. So maybe I am practicing engineering by making that statement? That’s not the point of the following article, … <\/p>\n

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