|
|
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.