THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

 

TO:

Higher Education and Professional Practice Committee

FROM:

Johanna Duncan-Poitier

 

 

 

SUBJECT:

Proposed Amendment to the Rules of the Board of Regents and the Regulations of the Commissioner of Education Relating to Unprofessional Conduct in Land Surveying and Examination and Continuing Education Requirements in Land Surveying and Engineering

DATE:

November 21, 2005

STRATEGIC GOAL:

Goal 3

AUTHORIZATION(S):

 

 

 

 

 

SUMMARY

 

Issue for Decision

 

Should the Regents amend section 29.3 of the Rules of the Board of Regents and sections 68.3, 68.6, 68.11, and 68.12 of the Regulations of the Commissioner of Education, relating to unprofessional conduct in land surveying and examination and continuing education requirements in land surveying and engineering?

 

Reason(s) for Consideration


          Review of Policy and Required by State statute.

 

Proposed Handling

 

The proposed amendment is submitted for approval at the December 2005 Regents meeting.

 

 

 

Procedural History

 

The proposed amendment was discussed at the November 2005 meeting of the Board of Regents.  A Notice of Proposed Rule Making was published in the State Register on September 28, 2005.

 

Background Information

 

The purpose of the proposed amendment is to establish a definition of unprofessional conduct in the profession of land surveying and licensing examination and continuing education requirements in land surveying and engineering.   The amendment defines unprofessional conduct in the profession of land surveying to include the revision, alteration, or update of an existing boundary survey without adequate confirmation of relevant boundary lines and monuments and requires the confirmation to include a reasonable field verification.  The amendment provides that the results of licensing examinations in engineering and land surveying would be reported on a pass/fail basis rather than by numeric grade.  It also conforms Commissioner's Regulations to a recent statutory change that extended the public sector exemption to the continuing education requirement in engineering to certain licensed professional engineers who are designated management or confidential pursuant to Article 14 of the Civil Service Law.  Finally, the amendment adds an educational activity, the structured educational tour, to the list of activities that may be engaged in by land surveyors and professional engineers to meet the mandatory continuing education requirement in these professions.  An Assessment of Public Comment relating to the proposed amendment is attached.

 

 

Recommendation

 

          I recommend that the Board of Regents take the following action:

 

          VOTED: That subdivision (a) of section 29.3 of the Rules of the Board of Regents be amended, and that paragraph (4) of subdivision (e) of section 68.3, subdivision (d) of section 68.6, clause (a) of subparagraph (i) of paragraph (2) of subdivision (c) of section 68.11, clause (b) of subparagraph (ii) of paragraph (3) of subdivision (c) of section 68.11, and clause (b) of subparagraph (ii) of paragraph (2) of subdivision (c) of section 68.12 of the Regulations of the Commissioner of Education be amended, as submitted, effective December 29, 2005.

 

Timetable for Implementation

 

The effective date of the proposed amendment is December 29, 2005.

 

 

Attachments

 

 

 

 

AMENDMENT TO THE RULES OF THE BOARD OF REGENTS AND REGULATIONS OF THE COMMISSIONER OF EDUCATION

Pursuant to sections 207, 6504, 6506, 6507, 6509, 7206, 7206-a, 7211, and 7212 of the Education LawXX. 

1.  Subdivision (a) of section 29.3 of the Rules of the Board of Regents is amended, effective December 29, 2005, as follows:

(a) Unprofessional conduct shall also include, in the professions of architecture and landscape architecture, engineering and land surveying:

(1) . . .

(2) . . .

(3) . . .

(4) . . .

(5) . . .

(6) . . .

(7) accepting any form of compensation from more than one party for services on the same project without fully disclosing the circumstances and receiving approval from all interested parties; [or]

(8) participating as a member, advisor or employee or a government body in those actions or deliberations which pertain to services provided by the practitioner or his or her organization for such government body; or

(9) in the profession of land surveying, the revision, alteration, or update of any existing boundary survey without adequate confirmation of relevant boundary lines and monuments.  To be adequate, such confirmation shall include a reasonable field verification and shall be sufficiently extensive to reasonably ensure the accuracy of the revision, alteration, or update, as appropriate to the circumstances of the revision, alteration, or update.

2.  Paragraph (4) of subdivision (e) of section 68.3 of the Regulations of the Commissioner of Education is added, effective December 29, 2005, as follows:

 (4) Scores for licensing examinations shall be reported on a pass/fail basis.

3.  Subdivision (d) of section 68.6 of the Regulations of the Commissioner of Education is amended, effective December 29, 2005, as follows:

(d) Passing grade.  The passing grade for each of the parts of the surveying examination taken prior to October 1, 1984 is 75.0; for parts taken after October 1, 1984, the passing grade shall be 70.0. Except for the Jurisdictional Examination, scores for the licensing examinations shall be reported on a pass/fail basis.    

4.  Clause (a) of subparagraph (i) of paragraph (2) of subdivision (c) of section 68.11 of the Regulations of the Commissioner of Education is amended, effective December 29, 2005, as follows:

(a) On December 31, 2003, the licensee was directly employed on a full-time basis by the State of New York; or agencies, public authorities, or public benefit corporations of the State of New York; or local government units of the State of New York in a position requiring licensure in engineering and is represented by a collective bargaining unit or designated management or confidential pursuant to Article 14 of the Civil Service Law at all times when so employed; and

5.  Clause (b) of subparagraph (ii) of paragraph (3) of subdivision (c) of section 68.11 of the Regulations of the Commissioner of Education is amended, effective December 29, 2005, as follows:

(b) Other educational activities.  Acceptable continuing education shall be the following other educational activities, provided that no more than 18 hours of continuing education in a registration period shall consist of such other educational activities:  

(1) . . .

(2) . . .

(3) . . .

(4) . . .

(5) completing a self-study program, meaning structured study, provided by a sponsor approved pursuant to subdivision (i) of this section, that is based on audio, audio-visual, written, on-line, and other media, and does not include live instruction, transmitted in person or otherwise, during which the student may communicate and interact with the instructor and other students; and 

(6) completing an educational tour, meaning a structured tour of an instructional nature provided by a sponsor approved pursuant to subdivision (i) of this section.

          6.  Clause (b) of subparagraph (ii) of paragraph (2) of subdivision (c) of section 68.12 of the Regulations of the Commissioner of Education is amended, effective December 29, 2005, as follows:

(b) Other educational activities.  Acceptable continuing education shall be the following other educational activities, provided that no more than eight hours of continuing education in a registration period shall consist of such other educational activities, including but not limited to self-study programs:  

(1) . . .

(2) . . .

(3) . .  .

          (4) obtaining a patent related to the practice of land surveying.   A licensee shall receive eight continuing education hours for each patent granted on an invention during the registration period; [and]

(5) completing a self-study program, meaning structured study, provided by a sponsor approved pursuant to subdivision (i) of this section, that is based on audio, audio-visual, written, on-line, and other media, and does not include live instruction, transmitted in person or otherwise, during which the student may communicate and interact with the instructor and other students; and 

(6) completing an educational tour, meaning a structured tour of an instructional nature  provided by a sponsor approved pursuant to subdivision (i) of this section.

 

PROPOSED AMENDMENT TO SECTION 29.3 OF THE RULES OF THE BOARD OF REGENTS AND SECTIONS 68.3, 68.6, 68.11, AND 68.12 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO SECTIONS 207, 6504, 6506, 6507, 6509, 7206, 7206-a, 7211, AND 7212 OF THE EDUCATION LAW RELATING TO UNPROFESSIONAL CONDUCT IN LAND SURVEYING AND EXAMINATION AND CONTINUING EDUCATION REQUIREMENTS IN LAND SURVEYING AND ENGINEERING

ASSESSMENT OF PUBLIC COMMENT

          The proposed rule was published in the State Register on September 28, 2005.  Below is a summary of written comments received by the State Education Department concerning the proposed rule making and the Department’s assessment of issues raised by the comments.

COMMENT:  The regulation should prohibit a licensed land surveyor from altering a land survey prepared originally by another licensed land surveyor.

RESPONSE:    Education Law section 7209(2) specifically authorizes a land surveyor to alter a land survey, provided that certain conditions are met.   It provides, "If an item bearing the seal of an engineer or land surveyor is altered, the altering engineer or land surveyor shall affix to the item his seal and the notation 'altered by' followed by his signature and the date of such alteration, and a specific description of the alteration."    In 2004, the Governor vetoed a measure that would have amended this provision of Education Law to prohibit a licensed land surveyor from altering a land survey (Veto Message No. 154).   Prohibiting this practice by regulation as suggested by the comment would conflict with the statute.  The State Education Department does not have the statutory authority to prohibit this practice through a regulatory change.

COMMENT: The word “update” should be removed from the proposed rule, as it is not defined in statute or regulation and may be interpreted differently.  The update of one surveyor's work by another is a source of great concern because it lends legitimacy and official recognition to a practice that is not in the interest of the profession.   

RESPONSE:  The regulation refers to an "update of any existing boundary survey". The term “update” has a common dictionary meaning, "to bring up to the present time," and that meaning applies in this case.   It is unnecessary to define this term further in regulation.  As stated above, Education Law section 7209(2) specifically authorizes the alteration of a land survey by another licensed land surveyor, provided that the altering land surveyor affixes to the survey his or her seal, the notation "altered by" followed by his or her signature, the date of such alteration, and a specific description of the alteration.  Therefore, the statute specifically permits a survey to be updated through an alteration by a licensed land surveyor, under prescribed conditions.

COMMENT:  The proposed language calls for  "reasonable field verifications" to ensure accuracy of an alteration of a land survey and this term allows for a great deal of leeway in interpretation.  One surveyor's due diligence may not conform to another's and therefore the standard may not afford consistency and reliability within the practice without further guidance.  Some field verifications of property by licensed land surveyors may not incorporate any surveying practices in determining if a map being altered has actually changed and should not be acceptable.

RESPONSE: The regulation provides that unprofessional conduct includes "in the profession of land surveying, the revision, alteration or update of any existing boundary survey without adequate confirmation of relevant boundary lines and monuments."  In defining "adequate confirmation," the regulation prescribes that the confirmation must include "a reasonable field verification" and states that the confirmation, which includes the field verification, must be "sufficiently extensive to reasonably ensure the accuracy of the revision, alteration, or update, as appropriate to the circumstances of the revision, alteration, or update."   Under the proposed regulation, a field verification that does not include any surveying practices to ensure the accuracy of monuments would not be considered a reasonable field verification because it does not constitute the practice of land surveying which entails measurement (See, Education Law section 7203).   The regulation sufficiently defines a standard for an adequate confirmation of relevant boundary lines and monuments, without being overly prescriptive.  The Department plans to issue practice guidelines to licensed land surveyors to further explain this requirement.

COMMENT:  The regulation should be changed to require that the altered or revised survey must include a "notation on the altered or revised survey to the effect that the use of such altered or revised survey is limited solely to the scope of the revision or alteration."

RESPONSE:   Education Law section 7209(2) specifically provides authorization for a licensed land surveyor to alter a land survey and prescribes the notation that must be included on an altered land survey: the altering land surveyor must affix to the survey his or her seal, the notation "altered by" followed by his or her signature, the date of such alteration, and a specific description of the alteration.   The comment suggests that the use of the revised or altered survey should be limited solely to the scope of the revision or alteration.   Although the suggested language is not totally clear, it appears to limit the use of the altered survey solely to the use contemplated by the alteration.  This would require an entirely new survey for any other use thereafter.  Education Law section 7209(2) does not limit the use of an altered land survey as suggested by the comment.  The suggested change would require a change in the statute. The State Education Department does not have the authority to make the change by regulation.

COMMENT: The list of acceptable subjects for mandatory continuing education for licensed professional engineers, contained in section 68.11(c)(3)(i) of Commissioner's Regulations, should include "procedures which contribute to the professional practice of engineering and the health, safety, and/or welfare of the public." 

RESPONSE: This comment does not relate to a provision amended in this rule making.  The rule making does not amend the subjects that professional engineers may take to meet the mandatory continuing education requirement, which are specified in section 68.11(c)(3)(i) of Commissioner's Regulations.  In any event, the change suggested is not needed because the list of subjects in section 68.11(c)(3)(i) includes, among other topics, "matters of law and/or ethics which contribute to the professional practice of engineering and the health and safety and/or welfare of the public . . . and in other topics which contribute to the professional practice of engineering as such practice is defined 7201 of the Education Law.   Therefore, the existing subjects cover procedures contributing to the professional practice of engineering, and no change is needed.