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"Practice" of Engineering
3

"Practice" of Engineering

"Practice" of Engineering

(OP)
So, the first question is, according to engineering ethics and the laws of the respective state boards, what specific actions by an individual would constitute "the practice of engineering"?

The second question is, would those same actions constituting "the practice of engineering, necessarily require state licensing to legally and ethically perform such actions?  If not, then under what circumstances?

Mike McCann
MMC Engineering

RE: "Practice" of Engineering

In California, calling yourself a structural engineer or being in responsible charge of structural engineering work is "practicing" structural engineering.

In California, there are a variety of exemptions, too many to list here.

TTFN

FAQ731-376: Eng-Tips.com Forum Policies

RE: "Practice" of Engineering

The rules for Michigan.

http://www.dleg.state.mi.us/bcsc/forms/arch/dblaw.pdf

http://www.legislature.mi.gov/(S(bomucs5510og1a55nlkbgl55))/documents/mcl/pdf/mcl-299-1980-20.pdf

Not being a PE, I have not thoroughly read through them (and don't really intend to) smile.  I never offered my services to the public and now as a Project Manager, am more removed from engineering practice.  Of course with the state of the Michigan economy sad, quite a few engineers might end up no longer practicing under industrial exemptions or otherwise.

Regards,

RE: "Practice" of Engineering

Directly from NYS Licensing Board:

"§7201. Definition of practice of engineering.
The practice of the profession of engineering is defined as performing professional service such as consultation, investigation, evaluation, planning, design or supervision of construction or operation in connection with any utilities, structures, buildings, machines, equipment, processes, works, or projects wherein the safeguarding of life, health and property is concerned, when such service or work requires the application of engineering principles and data.


--------------------------------------------------------------------------------

§7202. Practice of engineering and use of title "professional engineer".
Only a person licensed or otherwise authorized under this article shall practice engineering or use the title "professional engineer".

This is for New York State.

Regards,
Dermott

 

RE: "Practice" of Engineering

You can download the Texas Engineering Practices Act at http://www.tbpe.state.tx.us.
§ 1001.003. Practice of Engineering
(a) In this section:
(1) "Design coordination" includes the review and coordination of technical submissions prepared by others, including the work of other professionals working with or under the direction of an engineer with professional regard for the ability of each professional involved in a multidisciplinary effort.
(2) "Engineering survey" includes any survey activity required to support the sound conception, planning, design, construction, maintenance, or operation of an engineered project. The term does not include the surveying of real property or other activity regulated under Chapter 1071.
(b) In this chapter, "practice of engineering" means the performance of or an offer or attempt to perform any public or private service or creative work, the adequate performance of which requires engineering education, training, and experience in applying special knowledge or judgment of the mathematical, physical, or engineering sciences to that service or creative work.
(c) The practice of engineering includes:
(1) consultation, investigation, evaluation, analysis, planning, engineering for program management, providing an expert engineering opinion or testimony, engineering for testing or evaluating materials for construction or other engineering use, and mapping;
(2) design, conceptual design, or conceptual design coordination of engineering works or systems;
(3) development or optimization of plans and specifications for engineering works or systems;
(4) planning the use or alteration of land or water or the design or analysis of works or systems for the use or alteration of land or water;
(5) responsible charge of engineering teaching or the teaching of engineering;
(6) performing an engineering survey or study;
(7) engineering for construction, alteration, or repair of real property;
(8) engineering for preparation of an operating or maintenance manual;
(9) engineering for review of the construction or installation of engineered works to monitor compliance with drawings or specifications;
(10) a service, design, analysis, or other work performed for a public or private entity in connection with a utility, structure, building, machine, equipment, process, system, work, project, or industrial or consumer product or equipment of a mechanical, electrical, electronic, chemical, hydraulic, pneumatic, geotechnical, or thermal nature; or
(11) providing an engineering opinion or analysis related to a certificate of merit under Chapter 150, Civil Practice and Remedies Code; or
(12) any other professional service necessary for the planning, progress, or completion of an engineering service.

RE: "Practice" of Engineering

What constitutes the practice of engineering varies from state to state.  In most states the practice of engineering require state licensing, after all that is the reason states define what it means to practice engineering.

There are some common elements in most state registration laws.  In most cases if you offer engineering services you must be registered.  Some people try to skirt the law by offering design services.  In a state that exempts single family residential construction from the state registration laws you might be able to offer design service for single family homes.  If you are not registered or working under the direct supervision of a registered engineer, you can't offer to perform work that the state requires to be performed by a registered engineer, no matter what you want to call your efforts.

A second item is whether or not you charge a fee.  In some states there is a lot you can do if you are not charging
for your services.

The purpose of state registration laws is to protect the public where life safety is an issue.  In some states you might be able to sell I-pods and call your self an audio engineer.  In other states the registration laws are such that they could require you to be registered before doing that.  In some states even though your action might be illegal, the state board might not care enough to take any6 action.

I think it would be nice if there were more restrictions on the use of the term engineer.  However train operators have always been called engineers so you don't have to be registered to call your self a train engineer.  

Personally I don't like the term software engineer or MSCE where it means Microsoft Certified Engineer.  
  
 

RE: "Practice" of Engineering

Differentiate PE licenses with job titles.  A chemical engineer is often called a process engineer.  Check http://www.ncees.org/exams/professional/ to identify the NCEES P&P examinations.  A Computer exam exists within Electrical and Computer.  This exam covers hardware, systems, networks and software.  Thus, a chemical engineer by education who writes software programs may be registered within the electrical and computer engineer exam.  This however is not the same as a Microsoft certified technician being called an engineer.
 

RE: "Practice" of Engineering

I practice everyday - someday - hopefully - I will get it right...

Just had to say that.

RE: "Practice" of Engineering

(OP)
Ok...

Take the case though of the College professor, who has a Doctorate in his engineering discipline, but is unlicensed as any type of engineer.  He has published many research papers and is known nationally.  He is a recognized member of a National engineering organization.  As an individual, separate from his university, he gives expert witness reports and testimony employing the engineering principles of his engineering profession and receives compensation for it.

This sounds highly unethical and illegal to me.  Am I missing something?  Any comments?

Mike McCann
MMC Engineering

RE: "Practice" of Engineering

In a large aviation company some years ago, when the top dog recommended the PE, hundreds responded among the graduate engineering staff. The PhD's avoided the exam or efforts to gain recognition thru grandfathering. The PE appeared to be beneath their dignity.

I earned the PE, but I know an MME who failed. The review process included a brief interview during the course of the exam. I think he failed during the interview. He was foreign born with a marginal command of fluent english.

My estimation is that the PE is the legal approval for practice of engineering, and those otherwise qualified as experts need not qualify for the PE. In some industries [e.g. structural] it is mandatory.

RE: "Practice" of Engineering

I believe in some states what you describe would not be a violation of the engineering practice statues, as long as he doesn't represent himself as a P.E.  I think the difference is that he is not providing engineering services to the public, instead he is providing testimony for a legal procedure.

In most states the courts define who may provided expert witness testimony.  In the case you describe I would consider the person an expert in his or her field.  In court the judge might decide the person is not an expert, while at the same time taking expert testimony from an actor who played an engineer as one of his roles.

I am aware of a case similair to what you describe where the professor was doing consulting work, in that case the state board charged him with violation of the engineering practice requirements.  The person then was required to get his P.E. before doing that type of work again.

A simple example would be a college proffesor, who teaches structural design.  In Minnesota they could not design a Shopping Mall unless they were registered or work under the direct supervsion of a P.E.     

RE: "Practice" of Engineering

Texas has several very specific exemptions.  Cited details include Qualified Scientists for weather, seismology, etc.; and Employees of Institutions of Higher Education for research.

An application section applies to engineering educators who can seek licensure based upon a doctoral degree in engineering by an EAC/ABET accredited university or other field of science or math.  They still need reference statements or letters from licensed PEs knowledgable of their experience.

Curiosly, expert engineering testimony is listed among the engineering experience that can be considered for the purpose of obtaining a license (§133.43 (I)).  I wonder if it counts toward or against the individual. winky smile

 

RE: "Practice" of Engineering

(OP)
Thanks guys.  I appreciate the input.  I'll check it out with my board too.  Sounds like it's probably OK as he does not list PE after his name.

Mike McCann
MMC Engineering

RE: "Practice" of Engineering

I'm not an attorney but I've been involved in a few expert witness issues.

It depends on the court (state or federal) and the state licensing board (and how involved they may want to be).

Several years ago I questioned the qualifications of an expert witness.  The attorneys (on my side) relayed that it is somewhat arbitrary and they can be challenged.

PE's in New York State can generally be expert witnesses and the PE is the proof.  In this state it appears as though courts recognize a license as conferring a certain level of expertise that would not be given to a layman.

On the other hand, I've seen opposing attorneys at deposition dig into qualifications and resumes of PE's in a very detailed, challenging and embarassing way.

Not really knowing, I'd guess the prof will be considered an expert witness if the issue involves his(her) area of expertise.

Good luck,
Dermott

 

RE: "Practice" of Engineering

I only know two things about expert witness testimony.  

1.  If you are on the stand and they ask you if you are an expert, you better say Yes.

2.  As far as I am aware, at least in a few states, you can't be forced to give expert witness testimony unless you are being paid to do so.

RE: "Practice" of Engineering

It might help to be a lot more specific in your question.

There are some practices that seem to be fairly common that don't seem to be allowed by the rules.  And there are practices that were apparently common in the past that are no longer allowed.  The rules change, and people doing engineering, especially under various exemptions, may or may not be aware of (or care about) the changes.  Don't just assume that because someone says it's okay, or they've been doing it that way for 20 years, or they can't see why it wouldn't be allowed, etc., that it is okay.

Theoretically, any job that requires a PE to properly do, should also serve as adequate experience for getting a PE license, if that helps.

RE: "Practice" of Engineering

There seem to be two issues involved here:

Will the court allow an unlicensed individual to give expert testimony? The lawyers will state why or why not, and the judge will decide based on the arguments. The question of licensure may or may not come up.

Does providing expert engineering testimony qualify as engaging in the practice of engineering so that state licensure is required? I am not aware of any exemptions for this so I will say yes. By the way, the lawyer, defendant, claimant, or respondent who paid his fee is a member of the public. They probably also have the individual's business card, which I expect does not just state that the professor is available for lectures.


  

RE: "Practice" of Engineering

from California's PE Act

Quote:

Any person practices civil engineering when he professes to be a civil engineer or is in responsible charge of civil engineering work.

An expert witness is not necessarily doing either.

TTFN

FAQ731-376: Eng-Tips.com Forum Policies

RE: "Practice" of Engineering

At the time I wrote my response above, my latest edition of PE was still lying unopened on my desk. Upon opening it, I found a very similar question in the Legal Beat column. I must say that I found Mr. Schwartz's answer in agreement with my own. He did add a few choice tidbits, however:

Legal interpretations vary from state to state on the issue.

The unlicensed expert should expect to be reported to the state licensing board in question, courtesy of opposing counsel.

Assuming the board did not rule in his favor, the unlicensed expert may then find it difficult to collect his fee, since an illegal contract is unenforceable.




  

RE: "Practice" of Engineering

(OP)
stevenal:

Could you p[lease scan and post that article?  I would like to read it.  Thanks.

The fee collection is probably a moot point here due to the time issue.  Interesting though.

Mike McCann
MMC Engineering

RE: "Practice" of Engineering

http://www.nspe.org/PEmagazine/pe_1108_Legal_Beat.html

Question: I have been asked to provide an expert opinion regarding litigation in Indiana. I am licensed in New York and Vermont. The engagement arose through a referral from a mutual friend; I do not advertise or solicit business in Indiana. Since the matter is within my area of expertise, and since there are no conflicts of interest, I am interested in working on the case. My question concerns whether licensure in Indiana is required, and if so, at what point in the process it would be required. (New York)
 
Answer: Legal interpretations vary from state to state regarding whether serving as an expert witness constitutes the "practice of engineering" under a state's engineering licensure law.
As a general rule, the determination of whether an individual may testify is made by the state court under constitutional separation of powers principles. However, an engineering expert unlicensed in the state in which he or she is offering or providing engineering expert testimony should be prepared to be reported (quite possibly by opposing counsel) to the state board for engaging in the unlawful practice of engineering. While constitutional separation of power principles may not prevent an engineering expert unlicensed in the state in which he or she is providing services from testifying in court, those same principles may not prevent the state engineering licensure board from taking subsequent enforcement action against the expert for practicing engineering without a license. In addition, if it is determined that an individual practiced engineering without a license in violation of the licensure law, it may be difficult for the individual to obtain his or her professional fee, since the contract to provide services would constitute an illegal contract. If at all possible, you should pursue either becoming licensed in Indiana or obtaining a temporary permit to practice, if available.

 

RE: "Practice" of Engineering

It probably does vary from state to state in the US, but I doubt that an expert witness accepted by the court would ever have his fees disallowed on the above basis.  I have served as an expert witness in a state where I was not licensed, and was paid without question.  In my opinion, it is ludicrous to require licensure in a specific locale in order to provide expert testimony.  This would in many cases exclude the best advice available, if that advice is from interstate or international experts.

RE: "Practice" of Engineering

(OP)
Hokie:

That's where the temporary permit to practice comes in - it is usually for a specified time or particular job.  Washington has it.

As a sidelight ... Here is the exerpt for the PE exam requirements in Washington...

Professional engineer
Before getting a license, you must meet all of the following requirements:

Pass the EIT (Engineer In Training exam).
Pass the PE (Principles and Practices of Engineering exam).
Have 8 years of professional-level experience under the direct supervision of a licensed engineer. (Education in an ABET-accredited program may count for up to 4 years of this experience.)

With a PhD, the EIT can be waived with a certain formality of forms.  Passing the PE - they could probably do it, but getting seated for it could be the bugaboo - the problem I see for a research professor obtaining a PE would be the 8 years work experience under another licensed PE.  Probably is not going to happen as most research profs are independent of any supervision except for their grant satisfaction requirements.  I think these guys have worked themselves into a hole from which licensure is very nearly impossible.  Yet, many still give "expert opinions" using engineering principles from their discipline - practicing engineering to me.  I have to be licensed to give expert engineering testimony in the State of Washington and have done so.  Why not them?  Is this an unopened can of worms here?

I described the situation to a legal rep from my state board today, and he said that licensure was definitely required for expert testimony in an engineering capacity in the State of Washington.  Three of the critical issues are the use of a seal, purporting to be an engineer, and/or receiving compensation for the services rendered.  There are others.

I'm going to dig deeper... It's starting to smell. thumbsdown  

Mike McCann
MMC Engineering

RE: "Practice" of Engineering

Mike,

Don't forget; if you have knowledge of un-licensed practice, you have an obligation to report.

My wife obtained the supervised experience for her LCSW (licensed clinical social worker) by paying an LCSW to look over her work. Since then, she has served in that capacity herself. Any reason why your professor could not follow that path?  

RE: "Practice" of Engineering

Perhaps the individual in question is an employee of an established firm that has licensed supervisors, owners & a certificate of authorization? Didn't most of us start out our careers in this way, working for someone else?

RE: "Practice" of Engineering

(OP)
EddyC:  Nope.

stevenal:

I am aware of that ... perfectly.  Just need to make sure of the facts here, and the legalities before I proceed.  That's part of the reason for the post here - to get feedback.  Thanks.

 

Mike McCann
MMC Engineering

RE: "Practice" of Engineering

An expert is an expert if accepted by the court as such.  The court can accept expert testimony from a physicist, a builder, a concrete technologist, lots of others, all in a case involving construction.  Why not a college professor with an engineering education?  I don't get the link between licensure in a given state and being an expert.  The lawyers can try to impeach the credentials of the expert, but if he is accepted to testify about a given issue, I don't see that he violates any ethical provisions.  He is only unethical if he does not testify truthfully and accurately to the best of his knowledge, and within his field of expertise.

RE: "Practice" of Engineering

An analogy just occurred to me.  Who writes codes of design?  Say the ACI codes, for example.  I don't think all those people, especially some of the academics, are licensed.  But aren't they performing engineering work, which is essentially practicing engineering?  They are developing design standards which the actual licensed engineers follow like lemmings, yet the writers of the codes may or may not be licensed.

RE: "Practice" of Engineering

(OP)
Hokie:

True, but there is a fundamentsl difference between setting up the guidelines for an engineering profession per se with all sorts of disclaimers, and practicing engineering under those same guidelines for a client for a profit and all sorts of liability.  I am not sure how the ACI is set up legally, but it could be a form of an engineering corporation, or several corporations, with the engineering sanction for its publications coming from that corporate engineering status, the professional engineering status of each individual committee member becoming a moot point.   In essence, the committee members function under the umbrella of the ACI.  Such would be the same for the ASCE, the ICBO, the IBC, Etc., Etc., Etc.

This individual is not in that boat of setting code related guidelines for others.  He is not under the umbrella of a licensed engineering corporation either.  He is, on his own, using long established principles of engineering, and some developed by his own research, to perform calculations and justify a "professional" opinion, that of an expert witness, which he is, relating to a particular event, writing reports to summarize his findings.

Still researching... reading

Mike McCann
MMC Engineering

RE: "Practice" of Engineering

hokie,

"An expert is an expert if accepted by the court as such."

Agreed. See the Q/A I posted above, noting the part about separation of powers. The court is doing nothing illegal in accepting the testimony, and neither are the lawyers or any of the court officers. The hired gun professor, if claiming his expertise is in engineering, is. It is not the duty of this particular court to decide if unlicensed practice occurred.

By the way, the author of the answer above has his expertise in engineering law.

RE: "Practice" of Engineering

stevenal,

So we agree as to the discretion of the court to accept whatever testimony it deems appropriate.

But I still think that whether the professor is doing anything illegal or unethical would vary with the jurisdiction.  And perhaps more importantly for the individual concerned would be the varying power of the state boards to discipline someone not licensed in that state.  Some may have the power to prosecute anyone in state court, others to institute disciplinary procedures against licensed engineers only, etc.  The professor may not care, if he is not subject to prosecution and does not wish to actually practice.   

RE: "Practice" of Engineering

It would be a pretty toothless board that could not enforce registration laws against those who are not registered. Sorta like unlicensed motorists not being subject to traffic laws. Which states have those kinds of boards?

If it goes far enough, I suspect it is the attorney general that actually has the power to prosecute after the board brings the case to him/her.  

RE: "Practice" of Engineering

I would not count on the Attorney General doing a whole lot.  I reported an structural firm to the Ohio engineers board for not having an COA.  I later found their state charter was suspended by the tax department.  I attempted to report the charter violation to the Secretary of State, who required me to report the violation to the AG.  The AG stated I needed to report them to the engineering board.  I asked the question what prevents any corporation from operating in Ohio without a charter and I never did get a response.

Don Phillips
http://worthingtonengineering.com

RE: "Practice" of Engineering

I think most boards would find it too hard to hold all the hearings required to discipline someone if that person is not even under the umbrella of the board, and has not actually done something bad designwise.  Why would a board care who gives evidence in a trial?  A court case concerning construction could involve testimony from materials scientists, construction managers, suppliers, or a lot of other people, including college professors of engineering.  All trying to get to the bottom of the issue.

RE: "Practice" of Engineering

The Oregon Board certainly acted appropriately in those cases, but I don't think those examples are relevant to the professor giving expert testimony.  In my mind, acting as an expert witness is not providing a professional engineering service.  The study and report preparation necessary to prepare for the testimony may or may not entail provision of a professional service.  A retired engineer with no further need for registration could still serve as an expert if qualified.  

RE: "Practice" of Engineering

(OP)
I am seeing that this can go either way, depending on the board and circumstances.

One critical point in the report I have though, is the fact that there is a statement thayt no medical opinions arepresented, but no such statement regarding enginering.  The implication is that the writer considers himself that he is performing an engineering service by omission here.

I am going to send in the coopy of the report I have to the Washington State Practice Committee, with an introductory letter, and see what they say.  Could take a while (months), but I'll let yall know what they say.  Probably won't be the same for your circumstance or state, but I guess we already came to that conclusion.  shocked

Mike McCann
MMC Engineering

RE: "Practice" of Engineering

   People interested in expert witnesses should search Google on Satanic child abuse.  A whole bunch of innocent people have served serious prison time because the courts failed to vet expert witnesses.

   I should think that the courts should at least expect experts to be subject to peer review, which a PE would accomplish.

                    JHG

RE: "Practice" of Engineering

That's what just about any tenured professor would have, a history of peer-reviewed publications, and usually, such review is quite substantial and harsh.   

TTFN

FAQ731-376: Eng-Tips.com Forum Policies

RE: "Practice" of Engineering

Each state offers its definition of the practice of engineering.  This is necessary to define those practice for which licensing is required.  If the respective state defines the act as a practice of engineering, then licensing is generally required, unless you fall within a group of exemptions (federal employees providing services on federal projects, for instance).

In my home state, the practice of engineering includes the typical design functions as well as offering opinions or evaluation of buildings, engineered products or materials. This includes expert witness work when engineering opinions are required or given.

RE: "Practice" of Engineering

Hi, I'm new to Eng-Tips.  Read through this thread as I hoped to see some NSPE representation and there was.  Yes each state and territory, can/does have slight differences in the definition of the practice of engineering.  Each seems to also have varying degrees of enforcement of the term "engineer".  Delaware is fairly aggressive -  caused a gas station remediation firm to change their name to operate in Delaware.  Virginia is not as aggressive.  Maybe some year the Old Dominion will be more supportive of the restrictive use of the term.  

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