Applied Ethics Roundtable
2017
New Mexico Board of Licensure for Professional
Engineers and Professional Surveyors
Presented by:
Karl E. Tonander, P.G., P.E.
[email protected]
Who are We?
• Number of active PEs: 8,697
• In State: 2,096
• Out of State: 6,090
• Number of active PSs: 493
• In State: 257
• Out of State: 236
• Number of active PEPSs: 18
• In State: 16
• Out of State: 2
Where NM is Headed
• Adding 50-60 PEs per month (but losing almost an equal amount
through retirement and/or non-renewal)
• Most through comity
• NM somewhat unique in that we have no alternate path for people with
an Engineering or Engineering Technology degree
• Adding 0-2 PSs per month (also almost stable)
• Most through comity
• NM somewhat unique in that we require a four-year degree
• Surveying degree
• “Related science” with core survey curriculum
Why Ethics Training Matters
• “Bad people do bad things, hence there is no point to ethics
training”
Why Ethics Training Matters
• Engineering undergraduates consistently report higher levels of cheating (a
measure of unethical behavior) when Compared with undergraduates in
less professionally-oriented majors (Harding, Mayhew, Finelli & Carpenter,
2007; McCabe & Trevino, 1997).
• Over 96% of engineering undergraduates admitted to performing at least
one academic act that the students themselves defined as either cheating or
unethical (Carpenter, Harding, Finelli, Montgomery & Passow, 2006).
• There is some evidence to suggest that this percentage would be even
higher if institutional definitions of academic dishonesty were applied to
the students’ behavior.
From Where Do We Draw The Line? A Workshop On Ethical Decision-‐making Skills by Deborah H. Long, PhD,
NCEES Annual Meeting August 2016
Why Ethics Training Matters
• Help good people do the right thing
• Good people do bad things
• Difficult circumstances (financial, corporate pressures)
• Forget/Loss of awareness
North Carolina State Board of
Dental Examiners v. FTC
• United States Supreme Court case on the scope of
immunity from US antitrust law
• A state occupational licensing board that was primarily
composed of persons active in the market it regulates has
immunity from antitrust law only when it is actively supervised
by the state
NM Process
• Uniform Licensing Act (61-1 NMSA)
• Engineering and Surveying Practice Act (61-23
NMSA)
• Professional Engineering and Professional Surveying
Rules (16.39 NMAC)
NM Practice Act
Chapter 61, Article 23 NMSA 1978
• Passed through sunset review and updates during
2017 legislative (regular) session
• Several changes proposed by the Board
• Most changes were successfully passed
NM Practice Act
CURRENT Chapter 61, Article 23 NMSA 1978
• 61-23-3 Definitions
• D. "engineer" means a person who is qualified to
practice engineering by reason of the person’s
intensive preparation and knowledge in the use of
mathematics, chemistry, physics and engineering
sciences, including the principles and methods of
engineering analysis and design acquired by
professional education and engineering experience.
NM Practice Act
CURRENT Chapter 61, Article 23 NMSA 1978
• 61-23-3 Definitions
• L. "professional engineer", "consulting engineer",
"licensed engineer" or "registered engineer" means a
person who is licensed by the board to practice the
profession of engineering;
NM Practice Act
NEW Chapter 61, Article 23 NMSA 1978
• 61-23-3 Definitions
• F. "engineer ", "professional engineer", "consulting
engineer", "licensed engineer" or "registered engineer"
means a person who is qualified to practice engineering by
reason of the person’s intensive preparation and
knowledge in the use of mathematics, chemistry, physics
and engineering sciences, including the principles and
methods of engineering analysis and design acquired by
professional education and engineering experience and
who is licensed by the board to practice the profession of
engineering;
NM Practice Act
CURRENT Chapter 61, Article 23 NMSA 1978
• 61-23-3 Definitions
• P. "surveyor" or "professional surveyor" means a
person who is qualified to practice surveying by
reason of the person’s intensive preparation and
knowledge in the use of mathematics, physical and
applied sciences and surveying, including the
principles and methods of surveying acquired by
education and experience, and who is licensed by the
board to practice surveying;
NM Practice Act
NEW Chapter 61, Article 23 NMSA 1978
• 61-23-3 Definitions
• R. "surveyor" or, "professional surveyor“, “licensed
surveyor” or “registered surveyor” means a person
who is qualified to practice surveying by reason of
the person’s intensive preparation and knowledge in
the use of mathematics, physical and applied sciences
and surveying, including the principles and methods
of surveying acquired by education and experience,
and who is licensed by the board to practice
surveying;
NM Practice Act
NEW Chapter 61, Article 23 NMSA 1978
• 61-23-3 Definitions
• B. "authorized company officer" means an employee
of a business entity duly authorized by the business
entity to contractually obligate the business entity;
NM Practice Act
NEW Chapter 61, Article 23 NMSA 1978
• 61-23-3 Definitions
• D. "business entity" means a corporation,
professional corporation, limited liability corporation,
professional limited liability corporation, general
partnership, limited partnership, limited liability
partnership, professional limited liability partnership,
a joint stock association or any other form of
business, whether or not for profit;
NM Practice Act
NEW Chapter 61, Article 23 NMSA 1978
• 61-23-3 Definitions
• P. "surveying", "practice of surveying "…
• (6) the depiction and transmittal by paper and digital means of
any digital geospatial data for use in geographic information
systems or land information systems that purports to be the
authoritative location of points or features of a survey
regulated by the Engineering and Surveying Practice Act, but
excludes data used solely for a cadastre, such as assessment and
tax mapping purposes, or general representations of surveyed
or historic data used for mapping purposes, such as land parcels
and built infrastructure;
NM Practice Act
CURRENT Chapter 61, Article 23 NMSA 1978
• 61-23-14.1 Licensure as a Professional Engineer
• B. An applicant may be licensed through examination if
the applicant can demonstrate the following:
• (1) the applicant is certified as an engineer intern and has
at least one of the following:
• (a) received a bachelor’s degree in an engineering
discipline recognized by the board from a board-approved
engineering curriculum and has four years of engineering
experience subsequent to receiving the degree;
NM Practice Act
NEW Chapter 61, Article 23 NMSA 1978
• 61-23-14.1 Licensure as a Professional Engineer
• B.(1)(a) received a bachelor’s degree in an engineering
discipline recognized by the board from a program
accredited by the engineering accreditation commission or
a program that fulfills the required content of the
engineering education standard as defined by the national
council of examiners for engineering and surveying
board-approved engineering curriculum and has four
years of engineering experience subsequent to receiving
the degree;
NM Practice Act
NEW Chapter 61, Article 23 NMSA 1978
• 61-23-14.1 Licensure as a Professional Engineer
• Similar edits to subsequent sections as it relates to MS and
PhD degrees
NM Practice Act
NEW Chapter 61, Article 23 NMSA 1978
• 61-23-21 Practice of Engineering
• D. In the case of practice through a business entity
offering or providing services or work involving the
practice of engineering, an authorized company officer
and the professional engineer who is employed by the
business entity and in responsible charge shall place on
file with the board a signed affidavit, as prescribed by
board rule. The affidavit shall be kept current, and, if
there is any change in the professional engineer or
authorized company officer, the affidavit shall be
promptly revised and resubmitted to the board."
NM Practice Act
NEW Chapter 61, Article 23 NMSA 1978
• 61-23-22 Engineering Exemptions
• B. An engineer employed by a business entity who
performs only the engineering services involved in the
operation of the business entity's business shall be exempt
from the provisions of the Engineering and Surveying
Practice Act; provided that neither the employee nor the
business entity offers engineering services to the public.
Performance of engineering on public works projects
pursuant to Section 61-23-26 NMSA 1978 constitutes
engineering services to the public and is not exempt."
NM Practice Act
NEW Chapter 61, Article 23 NMSA 1978
• 61-23-26 Engineering Public Work
• It is unlawful for the state or any of its political subdivisions to engage in the
construction of any public work involving engineering unless the plans and
specifications involving engineering have been prepared by and are under the
responsible charge of a licensed professional engineer. and the public work involving
professional surveying has been executed under the responsible charge of a licensed
professional surveyor. Nothing in this section shall be held to apply to any public
work wherein the contemplated expenditure for the complete project does not exceed
one hundred thousand dollars ($100,000), except for public work involving structural
design, structural modifications or surveying.
• B. The Engineering and Surveying Practice Act shall not apply to construction
surveys of engineering and architectural public works projects, the anticipated
construction cost of which is less than one hundred thousand dollars ($100,000)."
NM Practice Act
NEW Chapter 61, Article 23 NMSA 1978
• 61-23-28.2 Record of Survey
• (4) not exceed a size of eighteen inches by twenty-four
inches and be at least eight and one-half inches by eleven
inches or as required by the local governing authority.
NM Practice Act
Chapter 61, Article 23 NMSA 1978 (No Changes)
• 61-23-27 Engineering-Public Officers-Licensure
Required
• No person except a licensed professional engineer
shall be eligible to hold any responsible office or
position for the state or any political subdivision of
the state that includes the performance or
responsible charge of engineering work.
NM Practice Act
Chapter 61, Article 23 NMSA 1978 (No Changes)
• 61-23-27.14 Surveying-Public Officers-Licensure
Required
• No person except a licensed professional surveyor
shall be eligible to hold any responsible office or
position for the state or any political subdivision of
the state that requires the performance or responsible
charge of surveying work.
Next Changes Up:
Rules (Administrative Code)
• Changes drafted
• Intended to maintain compliance with Act,
update/modernize as necessary
• Document sent for legal review
• Hearing(s) likely late summer early fall
Proposed Rules Changes Highlights
16.39.2.7 NMAC - Continuing Professional Development
• F.
Ethics/business-related course or activity any qualifying course or activity with content areas
related to:
• (1) the awareness of ethical concerns and conflicts;
• (2) an enhanced familiarity with the codes of conduct;
• (3) an understanding of standards of practice or care; or
• (4) project management and risk-assessment
management.
Proposed Rules Changes Highlights
16.39.2.8.D NMAC - Continuing Professional Development
•
•
•
•
•
•
•
•
(1) successful completion of college courses relevant to engineering and surveying;
(2) successful completion of short courses, tutorials, webinar or distance-education
courses offered for self-study, independent study or group study through
synchronous or asynchronous delivery method such as live, correspondence,
archival or the internet;
(3) presenting or attending qualifying seminars, in-house courses, workshops, or
professional or technical presentations made at meetings, conventions, conferences
or educational institutions;
(4) teaching or instructing in Paragraphs (1) through (3) of Subsection D of 16.39.2.8
NMAC;
(5) authoring published papers, articles, books or accepted licensing examination items;
(6) active participation in professional or technical societies;
(7) patents;
(8) active participation in educational outreach activities pertaining to professional
licensure or the surveying/engineering professions as a speaker, instructor,
presenter or panelist;
Proposed Rules Changes Highlights
16.39.3.11 NMAC – Practice of Engineering
• E.
In the case of practice through a business entity
offering or providing services or work involving the
practice of engineering, an authorized company
officer and the professional engineer who is
employed by the business entity and in responsible
charge shall place on file with the board within 30
days a signed affidavit, as prescribed by board rule.
The affidavit shall be kept current, and, if there is
any change in the professional engineer or authorized
company officer, the affidavit shall be revised within
30 days and resubmitted to the board
PE Advisory: Use of Seal on
Certain Federal Plans/Certifications
• Several federal programs and regulations (e.g. 40 CFR 112, 40 CFR
60.5360, 40 CFR 60.5360a) require the seal of a registered professional
engineer for certain plans and/or certifications. In some cases, these
regulations specify that the engineer needs to be registered in the state
where the subject facility is located, while other regulations are less clear, or
even state that the federal government does not have a position. Regardless
of the federal regulation, if the practice of engineering is completed on a
facility located within the geographic jurisdictional limits of the New
Mexico Board of Licensure for Professional Engineers and Professional
Surveyors, this document shall be sealed by a professional engineer duly
licensed in the State of New Mexico. In addition, if a seal is not required
on such a document, but the choice is made by the preparer to either seal
the document or represent themselves as an engineer, that preparer must
be a professional engineer duly licensed in the State of New Mexico,
notwithstanding the allowances provided by NMSA 61-23-22.B.
Questions from prior Ethics
Roundtables
• What can NMBLPEPS do regarding
registration/enforcement on sovereign Native
American lands within New Mexico?
• NMBLPEPS has met with a surveying representative of the
Navajo Nation. There is some interest by the Nation in
NMBLPEPS involvement, but such an agreement would
involve an intergovernmental cooperation agreement.
Questions from prior Ethics
Roundtables
• Does the Act regulate engineering being completed by
unlicensed individuals on government labs when they
connect to external publics works systems (e.g.
wastewater). Similarly, where does the Act stand on
public/private partnerships (where the labs essentially act
as consultants)?
• Enforcement is not perfected where internal and external resources
meet. Further consultation with the facilities will be required to
determine where responsibilities can be managed. However, if a
PPP is working in an area outside the lab boundary, the PPP is
subject to the Act.
Questions from prior Ethics
Roundtables
• State employees have provided testimony at rules
hearings as engineers although they were unlicensed.
• The Rule Hearing is a public meeting for anyone to attend and
provide testimony, but presenting themselves as engineers
without being licensed is a violation of the Act.
NMAC 16.39.8
Code of Professional Conduct
• 16.39.8.2-Scope
• Provisions for Part 8 apply to persons certified as
engineer interns or surveyor interns, licensed as
professional engineers or professional surveyors or
anyone applying for certification as an engineer
intern or surveyor intern or licensed as a professional
engineer or professional surveyor.
NMAC 16.39.8
Code of Professional Conduct
• 16.39.8.8-Preamble
• A. In order to safeguard life, health and property,
to promote the public welfare, and to establish
and maintain a high standard of integrity and
practice, the following Rules of Professional
Conduct shall apply to every person holding a
certificate of licensure to perform engineering or
surveying services in the State of New Mexico.
NMAC 16.39.8
Code of Professional Conduct
• 16.39.8.9-Rules of Professional Conduct
• A. The protection of the public safety, health, welfare and
property in the performance of professional duties.
• (1) In order to protect public safety, health, welfare and
property in the performance of their professional duties,
licensees shall at all times:
• (a) Perform those duties in conformance with accepted
engineering and surveying practices.
• (b) Notify their employer or client and such other authority as
may be appropriate of any instance in which their professional
judgment is overruled under circumstances endangering the
public safety, health, welfare or property.
NMAC 16.39.8
Code of Professional Conduct
• 16.39.8.9-Rules of Professional Conduct
• (c) Approve and seal only those engineering and surveying
documents which conform to applicable engineering and
surveying standards.
• (d) Shall not reveal privileged or confidential facts, data or
information without prior consent of the client or employer
except as authorized or required by law or this code.
• (e) Refuse to associate in a business venture with any person or
firm whom they may have reason to believe is engaging in
fraudulent or dishonest business or professional practices as an
engineer or surveyor and refuse to use or permit the use of their
name or firm in connection with any such business venture.
NMAC 16.39.8
Code of Professional Conduct
• 16.39.8.9-Rules of Professional Conduct
• (f) Inform the board of any violation of this code.
Cooperate with the board in furnishing information or
assistance as may be requested by the board in matters
concerning violations.
• (g) Shall not assist or participate in the unlawful practice of
engineering and surveying by a person or firm.
NMAC 16.39.8
Code of Professional Conduct
• 16.39.8.9-Rules of Professional Conduct
• B. Specialization and the performance of services only in specific areas of
competence.
•
(1) Licensees shall undertake assignments only when qualified by education,
experience or examination in the specific technical fields of engineering or surveying
involved.
•
(2) Licensees shall not affix their signatures or seals to any plans or documents
dealing with subject matter in which they lack competency, nor to any such plan or
documents not prepared under their responsible charge.
•
(3) Licensees may accept an assignment when the total work involves technical fields
beyond those in which they are qualified, providing their services are limited to those
phases in which they are qualified and that the phases in which they are not qualified
are performed by licensees who are properly qualified. In this instance, each qualified
licensee will sign and seal the documents for their phase of the assignment.
NMAC 16.39.8
Code of Professional Conduct
• 16.39.8.9-Rules of Professional Conduct
• C. The issuance of public statements.
•
(1) Licensees shall be objective and truthful in professional reports, statements or
testimony. A professional report or professional opinion issued by or under the
responsible charge of a licensee shall not contain any intentionally false, misleading
or deceitful statements or testimony. Any report, statement or testimony by a
licensee shall contain all relevant and pertinent information as required by accepted
engineering or surveying principles.
•
(2) If a licensee issues statements on technical matters in his or her capacity as a
professional engineer or professional surveyor on behalf of an interested party, the
licensee must expressly preface his or her remarks by identifying said interested party
and by revealing the existence and nature of any interest the licensee may have in the
matter.
•
(3) A licensee who is competent in the subject matter may express publicly technical
opinions that are found upon knowledge of the facts.
NMAC 16.39.8
Code of Professional Conduct
• 16.39.8.9-Rules of Professional Conduct
• D. Professional relationships with employer or client.
• (1) Licensees shall act in professional matters for each employer or
client as fiduciaries and shall avoid conflicts of interest. Licensees
shall disclose all known or potential conflicts of interest to their
employers or clients by promptly informing them of any business
association, interest or other circumstances which could reasonably be
expected to influence their judgment or the quality of their services.
• (2) Licensees shall not accept compensation, financial or otherwise,
from more than one party for services on the same project, unless the
circumstances are fully disclosed to, and agreed to, by all interested
parties.
NMAC 16.39.8
Code of Professional Conduct
• 16.39.8.9-Rules of Professional Conduct
• (3) Licensees shall not solicit or accept any gratuity, material
favor, or any valuable consideration, directly or indirectly, from
contractors, their agents, servants or employees or from any
other party dealing with his client or employer in connection
with any project for which he is performing or has contracted
to perform engineering or surveying services. (The phrase
"valuable consideration" is defined to mean any act, article,
money or other material possession which is of such value or
proportion that its acceptance creates a clandestine obligation
on the part of the receiver or otherwise compromises his
ability to exercise his own judgment.)
NMAC 16.39.8
Code of Professional Conduct
• 16.39.8.9-Rules of Professional Conduct
• (4) Licensees in public service as a member or employee of a
governmental body, agency or department shall not
participate, directly or indirectly in deliberations or actions
which would constitute a conflict of interest with respect to
services offered or provided by him, his associates, or the
licensee's organization to such governmental body, agency or
department.
• (5) Licensees shall not solicit or accept a professional contract
from a governmental body on which a principal or officer of
their organization serves as a member, except upon public
disclosure of all pertinent facts and circumstances and consent
of appropriate public authority.
NMAC 16.39.8
Code of Professional Conduct
• 16.39.8.9-Rules of Professional Conduct
• (6) Licensees shall not reveal privileged or confidential facts,
data or information obtained in a professional capacity
without prior consent of the client or employer except:
• (a) As provided in Subparagraph (b) and (f) of Paragraph (1) of
Subsection A of 16.39.8.9 NMAC.
• (b) As authorized or required by law.
• (c) Any document that is a matter of public record by virtue of
it being on file with a public agency.
• (d) Any fact, data or information which is clearly the property of
the engineer or surveyor.
NMAC 16.39.8
Code of Professional Conduct
• 16.39.8.9-Rules of Professional Conduct
• E. Solicitation of professional employment.
• (1) Licensees shall not falsify or permit misrepresentation of
their, or their associates' academic or professional
qualifications. They shall not misrepresent or exaggerate their
degree of responsibility in or for the subject matter of prior
assignments. Brochures or other representations incident to
the solicitation of employment shall not misrepresent
pertinent facts concerning employers, employees, associates,
joint ventures or past accomplishments with the intent and
purpose of enhancing their qualifications and their work.
NMAC 16.39.8
Code of Professional Conduct
• 16.39.8.9-Rules of Professional Conduct
• E. Solicitation of professional employment.
• (2) Licensees shall not offer, give, solicit or receive, either
directly or indirectly, any commission, gift, or other
valuable consideration in order to secure or influence the
award of work and shall not make any political
contribution in an amount intended to influence the award
of a contract by public authority, and which may be
reasonably construed by the public as having the effect or
intent to influence the award of a contract.
NMAC 16.39.8
Code of Professional Conduct
• 16.39.8.9-Rules of Professional Conduct
• F. Avoiding conduct or practice that deceives the
public.
• (1) Licensees shall avoid the use of a statement containing
a material misrepresentation of a fact or omitting a
material fact.
• (2) Consistent with the foregoing, licensees may prepare
articles for the lay or technical press, but such articles shall
not imply credit to the author for work performed by
others.
NMAC 16.39.8
Code of Professional Conduct
• 16.39.8.9-Rules of Professional Conduct
• G. Interaction with other licenses.
• (1) Licensees shall not attempt to injure, maliciously or falsely, directly
or indirectly, the professional reputation, prospects, practice or
employment of other licensees.
• (2) Licensees in private practice shall not review the work of another
licensee for the same client, except with the knowledge of such
licensees, or unless the connection of such licensee with the work has
been terminated.
• (3) Licensees in governmental, industrial, or educational employment
are entitled to review and evaluate the work of other licensees when
so required by their employment duties.
Case Studies
Is it ethical for a licensee to accept 8 PDH credits for
an 8 hour on‐line course that takes 3 hours to
complete?
From Ethical Responsibilities: Don’t Forget Your Peers By Bill Beardslee, P.L.S., P.E., P.P., NCEES Annual Meeting August 2015
Is it ethical for a licensee to accept PDH credits for an
annual “refresher” course (e.g. HAZWOPER)?
NCEES Topics on Ethics
“The Rules of Professional Conduct include many ethical
responsibilities, but the ones that are most often violated
involve licensees affixing their signature and seal to surveying
or engineering documents dealing with subject matter in
which they lack competence or to documents not prepared
under their direct control or personal supervision.”
From Which Direction Does Your Moral Compass Point? By Bruce Pitts, P.L.S., NCEES Licensure Exchange
Newsletter April 2015
NCEES Topics on Ethics
• “For Low to Medium Risk Decisions
• How will my conduct affect the way my children think
of me?
• What would I advise my child to do?
• What would I hope my child would do?
• What would the kind of person I want my child to
date or marry do?”
From The Struggle for Character: If We Can't Be Good, Can We Be Better? by Deborah H. Long, PhD, NCEES Annual Meeting August 2016
NCEES Topics on Ethics
• “For Medium to High Risk Decisions
• The Legal Test: Is your choice against the law?
• The Gut-Feeling Test: What does your intuition advise?
• The Front Page Test: How would you feel if your decision were
headlined?
• The Role Model Test: Think of a person you respect. If this person had to
make the same decision you have to make, what would he or she do?
• The Professional Standards Test: Is your choice consistent with your
profession's standards of conduct? How would your colleagues react?”
From The Struggle for Character: If We Can't Be Good, Can We Be Better? by Deborah H. Long, PhD, NCEES Annual Meeting August 2016
NCEES Topics on Ethics
"The great liability of the engineer compared to men of other professions
is that his works are out in the open where all can see them.
His acts, step by step, are in hard substance. He cannot bury his mistakes
in the grave like the doctors.
He cannot argue them into thin air or blame the judge like the lawyers.
He cannot, like the architects, cover his failures with trees and vines.
He cannot, like the politicians, screen his shortcomings by blaming his
opponents and hope that the people will forget.
The engineer simply cannot deny that he did it."
Herbert Hoover as quoted in Henry Petroski's To Engineer is Human
Understanding NM Procedures for
Investigation & Disciplinary Actions
• Preferred charges: Fraud, deceit, gross negligence, incompetence or
misconduct. [61-23-24 E]
• Grounds for Disciplinary Action
• The board may suspend, refuse to renew or revoke the certificate of
licensure, impose a fine not to exceed five thousand dollars ($7,500), place
on probation for a specific period of time with specific conditions or
reprimand any professional engineer who is found by the board to have…
[61-23-24 A]
• Practiced or offered to practice engineering (surveying) in NM in violation
of Act [61-23-24 A. (1)]
• Attempted to use the certificate of another [61-23-24 A (2)]
• Given false or forged evidence to board [61-23-24 A (3)]
Understanding NM Procedures for
Investigation & Disciplinary Actions
• Falsely impersonated any other licensee [61-23-24 A. (4)]
• Attempted to use an expired, suspended or revoked certificate
[61-23-24 A. (5)]
• Falsely misrepresented as a PE/PS by claim, sign, etc. [61-2324 A. (6)]
• Violated the rules of professional responsibility [61-23-24 A.
(7)]
• Been disciplined in another state [61-23-24 A. (8)]
• Been convicted of a felony [61-23-24 A. (9) & 16.39.7.9 D.]
• Procured, aided or abetted any violation of the Act [61-23-24
A. (10)]
Procedure for
Investigation & Hearing
• Practice Act & NM Uniform Licensing Act [61-23-1 through 6123-32 and 61-1-1 through 61-1-33]
• Filing of complaints begins investigation under the Practice Act
• Charges must be in writing & sworn to by complainant [61-23-24 E]
• Complaint form
• Sources of complaints: consumer, government agency, prof.
organization, board member, or another licensee [61-23-24 E & G]
• Immunity from civil or criminal suits for persons filing charges in good
faith [61-23-24 F]
• Conduct or basis of complaint must be within ten year statute of
limitation [61-23-24 E; 61-1-3]
• Two-year discovery by the board [61-1-3.1; 61-23-24 E]
Procedure for
Investigation & Hearing
• Notification to respondent
• Letter to respondent requiring response to complaint
within 20 days
• Complaint exhibits
• Response exhibits
Procedure for
Investigation & Hearing
• Investigation
• Completed by board investigator and/or complaint
manager (contracted and licensed PE/PS)
• Other law enforcement agencies
• Subpoena
• Investigative report must be factual and free from bias or
interest
• Facts – no opinions
• Names redacted
• Point out alleged violations
Procedure for
Investigation & Hearing
• Board Review
• Charges unless dismissed as unfounded, trivial, resolved by
reprimand, or settled informally must be heard under the
Uniform Licensing Act [61-23-24 E]
• Complaint presented in closed meeting
• Disposition
• Decision made in open meeting
Receipt of
Complaint
Purview
OPEN
No Purview
Complaint Process
Preliminary
Investigation
CO
N
F
I
D
E
N
T
I
A
L
Determination
of Purview
Committee Decision
Voluntary
Compliance
Agreement
Pursue Informal
Agreement
NO
Pursue formal
Prosecution
LICENSEE
Stipulated Agreement
Board Approval of
NCA
Board Approval
NON-LICENSEE
NO
Notice of
Contemplated Action
Request of Hearing
NO
YES
NO
Board Action
YES
Criminal
Prosecution
Disciplinary Hearing
Close
Process under
Uniform Licensing Act
• The ULA provides due process to licensee or
applicant [61-1-1 through 61-1-33 NMSA 1978]
• Board files a notice of contemplated action (NCA)
on licensee or applicant (respondent)
• NCA advises respondent of the charges,
contemplated action(s), right to a hearing before the
board, right to be represented by an attorney or a
member of the profession, and deadline to request
hearing
Process under
Uniform Licensing Act
• Under the ULA Respondent is entitled to:
•
•
•
•
Discovery [61-1-8]
Venue [61-1-6]
Fair and Impartial Hearing [61-1-8]
Appeal the Board’s Decision in District Court [61-1-17]
Process under
Uniform Licensing Act
• Post-hearing
• Board must render a decision within sixty days of the
preparation of the record or submission of the hearing
officer’s report, but no later than ninety days after the
hearing.
• Respondent has thirty days from the date of receipt
of the decision to file an appeal
Types of Disciplinary Actions
• Reprimands
• Probations with specific conditions
• Specific education, review of PDH claims
• Suspensions
• Fines
• Up to $7,500 per violation
• Costs of administrative proceedings
• Revocations
ETHICS WITH RESPECT TO BD
Texas A&M: Accepting Gifts And
Amenities
The “range” of theft or bribery; examples:
• An engineer who helped to develop a new chemical process at
Company A and then moved to Company B, where she used
some of the same ideas, but applied them in a very different
way to a different process
• An engineer who developed a computer program on company
time for his company, and then patented a considerably
improved version under his own name
• Borrowing a book from a friend, forgetting about it and then
deciding not to return it because the friend has left town
Texas A&M: Accepting Gifts And
Amenities
Moral rule: "People should not steal (or commit theft)."
1. Breaking into a store and taking $3000 in merchandise.
2. "Borrowing" a friend's car and failing to return it.
3. Taking a bicycle that someone had forgotten to lock.
4. Developing a computer program on company time for your company, and then patenting a
considerably improved version of the program under your own name.
5. Borrowing a book from a friend, keeping it by mistake for a long time and then failing to return it.
(You discover the book after your friend has moved away, and you decide to keep it.)
6. Using some ideas you developed at Company A for a very different chemical process at Company B.
7. Using some management techniques at Company B that were developed at Company A.
8. Picking up a quarter that you saw someone drop on the street.
9. Failing to return a sheet of paper (or paper clip) you borrowed
10. Picking up a quarter that someone (you don't know who) has dropped on the street.
Texas A&M: Accepting Gifts And
Amenities
No single criterion that can be used to decide what is
theft
• Monetary value of the property(?)
Similar consideration can be applied to bribery…
Texas A&M: Accepting Gifts And
Amenities
Accepting bribes is a violation of professional ethics
• Not all examples of accepting gifts and amenities qualify as
accepting bribes
• Determining when a rule against taking bribes is being
violated requires common sense, discrimination, and
powers of moral deliberation
Gift Giving
Most professional societies and states (and NCEES) make at
least some mention of the perceived conflict when providing a
gift to a new or existing client. But what is a gift?
BestBuy
Gift Giving
1. Gifts from vendors to Best Buy employees are not allowed.
2. Vendor-paid entertainment (e.g., concert or sporting event attendance) is not allowed absent a
legitimate business purpose and pre-approval by a Senior Vice President (SVP) or above.
3. Vendor-paid travel is not allowed absent a legitimate business purpose and pre-approval by a
Senior Vice President (SVP) or above.
4. Vendor-paid meals may be accepted in limited circumstances in accordance with the provisions set
forth herein, including prompt disclosure of the meal to your manager.
5. Token exchanges of items in an international setting in accordance with cultural norms are
acceptable in limited circumstances if the procedures set forth herein and all laws are followed.
6. Product samples and promotional copies may be accepted only in limited circumstances in
accordance with the provisions set forth herein.
Published policy as of November 1, 2014
Gift Giving
El Paso Electric
GIFTS - Except for items of nominal value (i.e., no more than
$50.00), employees and members of their immediate family may not
directly or indirectly request or receive cash, bonuses, fees,
commissions, gifts, gratuities, private or personal discounts from
Contractors, or entertainment of any other form of similar
consideration from any person, corporation, partnership or other
entity with which EPE does business or is likely to do business.
Published policy as of October 18, 2013
El Paso Electric
Gift Giving
Conflicts of Interest - All employees, officers and directors must avoid any activity,
investment, interest, or association that compromises (or even appears to compromise)
the independent exercise of judgment and the performance of work in the best interest
of EPE, its subsidiaries, affiliates, shareholders, customers and the public.
A conflict of interest exists whenever a person's private interest intersects in any way, or
even appears to intersect, with EPE's interest, including its subsidiaries and affiliates. A
conflict of interest can arise when an employee, officer or director takes an action or has
an interest that may make it difficult for him or her to perform his or her work
objectively and effectively. Conflicts of interest may also arise when an employee, officer
or director (or his or her family members) receives improper personal benefits as a result
of the employee's, officer's or director's position with EPE. Conflicts include any
activity, interest or association that might compromise, or even appear to compromise,
the independent exercise of a person's judgment in the best interest of EPE, its
subsidiaries, affiliates, shareholders, customers and the public.
Published policy as of October 18, 2013
Gift Giving
County of El Paso
Gifts shall not be accepted from contractors, vendors, or other
persons who are employed by or who deal with the County.
County Employee Manual as of September 2015
Texas A&M: Accepting Gifts And
Amenities
C-X. Tom was named the department manager of a large new
chemical process unit which was to be designed and then constructed.
Tom's responsibilities included forming the process unit staff, looking
over the designers‘ shoulders to assure the plant was designed to be
safe, operable and maintainable, and then starting the plant up after
construction.
During his previous experience Tom had noted that a new type of
valve and valve operator could often be used in place of more
common gate valves and their operators. In every case the new valve
was less expensive and often gave a tighter shutoff than the gate valve.
Tom convinced the project designer to add even more of these valves
and operators to the design. This improved safety, because more flows
could be shutoff more quickly in an emergency.
Texas A&M: Accepting Gifts And
Amenities
After a large number of valves had been specified and
purchased, the salesman of the valves visited Tom and
invited him on a very nice fishing trip to South
America. Tom had not known the salesman, Jim, prior
to the visit. He also had no direct purchasing
responsibilities; he had just wanted the valves for
increased safety in the new process unit. Should he
accept the fishing trip? (Is this bribery?)
Texas A&M: Accepting Gifts And
Amenities
The first thing to notice about this case is that it is not a
paradigm case of bribery. In fact, it is not a case of bribery
at all. We might define bribery as remuneration for the
performance of an act that is inconsistent with the work
contract or the nature of the work one has been hired to
perform.
Tom did not act contrary to his obligations to his employer,
and in fact he acted in accordance with his obligations.
Furthermore, the gift, was given after Tom's
recommendations concerning the valves and assumedly
without any prior knowledge and expectation of the gift.
Texas A&M: Accepting Gifts And
Amenities
C-1. Tom was in charge of designing a large new chemical
process unit. He was directed to design the plant to be safe,
operable and maintainable, and of course to be as
economical as possible within these requirements.
During this period a salesman approached Tom and offered
him a number of amenities if he would specify the valve
sold by the salesman's company. The valve was more costly
and not as safe, but Tom recommended it anyhow. After the
valves were purchased, the salesman invited Tom on a very
nice fishing trip to South America.
Texas A&M: Accepting Gifts And
Amenities
C-10. Tom was named the department manager of a large new chemical
process unit which was to be designed and then constructed. Tom's
responsibilities included forming the process unit staff, looking over the
designers‘ shoulders to assure the plant was designed to be safe, operable and
maintainable, and then starting the plant up after construction.
During his previous experience Tom had noted that a new type of valve and
valve operator could often be used in place of more common gate valves and
their operators. In every case the new valve was less expensive and often gave a
tighter shutoff than the gate valve. Tom convinced the project designer to add
even more of these valves and operators to the design. This improved safety,
because more flows could be shutoff more quickly in an emergency.
After a large number of valves had been specified and purchased, the salesman
came by and introduced himself, giving Tom a plastic pen worth about five
dollars.
Texas A&M: Accepting Gifts And
Amenities
The first thing to notice about this case is that it is not a
paradigm case of bribery. In fact, it is not a case of bribery
at all. We might define bribery as remuneration for the
performance of an act that is inconsistent with the work
contract or the nature of the work one has been hired to
perform. Tom did not act contrary to his obligations to his
employer, and in fact he acted in accordance with his
obligations. Furthermore, the gift, was given after Tom's
recommendations concerning the valves and (we shall
assume) without any prior knowledge and expectation of the
gift.
Case Studies
A private industrial client issues an RFB. Upon review you
note several significant deficiencies in the scope that will not
allow you to complete the project properly (to the known
goal of the client). You bring these to the attention to the
client, who accepts and agrees with your opinion but does
not issue an addendum to bidders. Do you:
1) Submit your bid on the base scope (knowing that you
will require a change order)?
2) Submit your bid on the full scope?
3) Not submit a bid?
Case Studies
A local municipality requests a proposal for a topographic survey. You bid the
scope that is provided, requesting a 5 foot contour interval, and are selected.
After completing the work the recipient at the municipality does not accept the
work as complete because they actually wanted to be able to interpolate at a
lesser contour interval (e.g. 1 foot) and the density of collected points isn’t
complete. They are demanding the work be completed the way they want or a
that a discount be provided. Do you:
1)
2)
3)
4)
Do the additional work without charging?
Offer to do the work, but only with a change order?
Offer a discount on the work completed?
Persist in demanding payment on your full scope?
Case Studies
You observe a survey which clearly does not comply with state
statutes. The preparer of the survey is licensed but is also the
review engineer for numerous local municipalities.
Does the licensee report to the State Board this violation of
statute while concerned about reprisals in all the towns which are
clients of the preparer?
From Ethical Responsibilities: Don’t Forget Your Peers By Bill Beardslee, P.L.S., P.E., P.P., NCEES Annual Meeting August
2015
Case Studies
You meet with a client to discuss a new project. You obtain all the
necessary information to provide a complete proposal, but fail to
mention that you have most of the work to complete the project
in your files from a previous client. Is that ethical?
Should you provide a discount if the prior information would
reduce the total cost of your work? Is this an ethical issue?
After Ethical Responsibilities: Don’t Forget Your Peers By Bill Beardslee, P.L.S., P.E., P.P., NCEES Annual Meeting August
2015
Case Studies
From the NCEES Model Rules of Professional Conduct:
Licensees shall not attempt to injure, maliciously or falsely, directly or indirectly, the
professional reputation, prospects, practice, or employment of other licensees, nor
indiscriminately criticize other licensees’ work.
A licensee routinely charges 60% of the normal fee for services in
their geographical area. While that practice is legal, is it ethical?
From Ethical Responsibilities: Don’t Forget Your Peers By Bill Beardslee, P.L.S., P.E., P.P., NCEES Annual Meeting August 2015
Case Studies
If the goal is to protect the health, safety and welfare
(including financial) of the public, is it ethical to
provide services to the public without carrying
Professional Liability Insurance to protect the clients?
From Ethical Responsibilities: Don’t Forget Your Peers By Bill Beardslee, P.L.S., P.E., P.P., NCEES
Annual Meeting August 2015