NOTE: This post turned out to be a lot more complex than I’d originally planned, so here’s a TL;DR:
- New BIDs are required to submit a report written by a state-certified engineer explaining why their boundaries and assessments make sense.
- Ed Henning, the engineer for the Venice Beach BID, submitted this totally nonsensical report.
- One of the same Venice residents who is suing the BID filed a complaint against Henning with the California Board for Professional Engineers alleging that Henning made up a bunch of stuff and otherwise acted incompetently in the report’s preparation.
- The Board rejected this complaint with this letter, claiming that they do not consider the preparation of BID reports to be within their jurisdiction. There’s a transcription of this PDF at the very end of this post.
- This is yet another example of how no one in the government, state or local, is willing to regulate BIDs at all or hold them accountable for anything.
My recent post on the East Hollywood BID in relation to one of the purposes of the Management District Plan for BID operations, focusing in part on some of the esoteric technicalities of the Property and Business Improvement District Act as it did, reminded me of another topic touching on PBID technicalities I’ve been meaning to write on for a few months now but have not yet, until today, gotten around to dealing with.
One of the required elements of the process of forming a property based BID, imposed by the PBID Law at §36622(n), is:
… a detailed engineer’s report prepared by a registered professional engineer certified by the State of California supporting all assessments contemplated by the management district plan.
This subsection actually incorporates a requirement imposed on all special assessment districts1 by the California Constitution at Article XIIID(4)(b), which imposes the same requirement in slightly more general language, having as it does to apply to any kind of special assessment:
All assessments shall be supported by a detailed engineer’s report prepared by a registered professional engineer certified by the State of California.
Now, these engineers’ reports which go along with BID formation are particularly interesting documents. First they’re interesting because they’re so mind-numbingly boring. My feeling is that if people write stuff this tedious and impossible to read they’re almost certainly hiding something, which is already of intrinsic interest. Second, they’re interesting because of the sheer unexpected variety of the nonsensical bullshit straight-facedly included in them, about which I’ll have more to say at a later date.
And because I’m an amateur and not in any way an actual lawyer, I’m curious about what the legislature and the people of California might have had in mind when they put this requirement into the Constitution of California.2 Probably, I want to say, they required this report so that people setting up special assessment districts couldn’t just randomly include or exclude various properties.
Like it’s probably indefensible to use the coercive power of the state to require extra property taxes on parcels owned by people whose last names start with M, N, or Q. It’s probably indefensible to choose parcels whose addresses spell out “Happy Birthday Mom!” using a simple substitution cipher. And so on.
Engineers, of course, at least when they’re acting in a professional capacity, might be expected not to have much sympathy for this kind of tomfoolery. Thus, perhaps, cognizant of the weirdly unpredictable uses to which power, once created, can be bent, the framers of this law sought to impose some kind of rationality on the process by requiring justifications to be written by licensed engineers, engineers being famously and stereotypically rational as the very devil.
Perhaps when this law was being written, someone thought that engineers, at least, wouldn’t come up with a bunch of crackheaded craziness or even sneaky ways to steal people’s money to use it for private pet projects.3 Thus, perhaps, when they required the engineer’s report to “[support] all assessments contemplated by the management district plan” they didn’t feel like it was necessary to add that the support should make some sense, should conform to some kind of professional standards.
After all, why else would they require an engineer? They must have had some reason for not, e.g., requiring a world’s record gum bubble blower or something like that, right? You require an engineer when you want the engineer to do engineer stuff. There’s no other sensible reason.
But wait, I can hear you crying. Stereotypes about the pervasive rationality of engineers are all fine, well, dandy, and good, but that’s no foundation of rock upon which the decidedly non-foolish people of California ought to construct the legislative mansion which shelters us all from anarchy and doom. We can’t just expect engineers to act sane because, after all, they’re also human. We have to also actually and explicitly require them to act sane.
And, as a matter of fact, that’s just what we do here in the great state of California.4 Not only are engineers famous for their rationality and, for that matter, for their high professional standards, but they’re also legally required to adhere to the standards of their profession.5 And not only are they required by law to adhere to the standards of their profession, but also, unlike say psychics or life coaches,6 they are required to hold licenses and are additionally highly regulated by the State.
Professional regulation in California is handled under the Business and Professions Code. The particular part that deals with engineering is the Professional Engineers Act. This act creates the Board for Professional Engineers, which, under §6785, is granted “…the power, duty, and authority to investigate violations of the provisions of this chapter.”
And, just as common sense dictates must be the case, professional competence is required of licensed engineers. This is established by §6775(c), which states:
By a majority vote, the board may publicly reprove, suspend for a period not to exceed two years, or revoke the certificate of any professional engineer licensed under this chapter [for] … [a]ny negligence or incompetence in his or her practice.
And of course, note the presence of a limiting clause.7 It wouldn’t do to accidentally prohibit licensed engineers from being negligent and/or incompetent in every aspect of their lives. Who can live like that? Thus they’re only prohibited from being negligent or incompetent in their practice as engineers, and this makes it essential that the Professional Engineers Act contain some kind of statutory definition of what constitutes the practice of engineering. In this case that means civil engineering, by the way, since that seems to be what people think the preparation of these reports might involve.
And the act does contain such a definition. One place it’s to be found is in §6731, which lists any number of practices which constitute the practice of civil engineering. It’s interesting reading, and chock full of a number of things, but I think the most relevant is the statement in §6731(d) that:
“Civil engineering embraces the following studies or activities in connection with … municipal improvements … : The preparation or submission of designs, plans and specifications and engineering reports.
After all, the whole point of a BID is to improve stuff, and it’s municipal stuff, having to do with trees, street furniture, security, and so on, and the engineers write engineering reports about it, so it seems that the writing of such reports constitutes civil engineering in the meaning of the statute.
The law contains another, broader definition of civil engineering as well, to be found at §6734: “Any person practices civil engineering when he professes to be a civil engineer or is in responsible charge of civil engineering work.” This also seems to encompass the writing of these engineering reports for BIDs. That is, the BID law requires a licensed engineer. In practice this means a licensed civil engineer, so when someone takes on the job of writing the report, they’re professing to be a civil engineer, are they not?
Now, here’s where we’re at:
- The PBID Law requires a licensed engineer to write a report justifying certain aspects of BIDs in formation.
- The Professional Engineers Act requires licensed engineers to be competent in their practice of engineering.
- Writing BID reports seems to be the practice of engineering.
- The same law establishes the Board for Professional Engineers to enforce competent practice.
Does it not seem to follow from these premises that the Board for Professional Engineers ought to investigate engineers who write up bullshit reports that make no sense whatsoever? Well, it certainly does seem so to me.
Whatever the Board ought to do, though, it turns out in practice8 not to be the case that they’re actually going to investigate bad BID engineering reports. There are at least two reasons for this. One is potentially surmountable through politics. The other is much more intractable, although conceivably also surmountable.
First, the bad news. The statute section giving the Board the power to investigate failures of professionalism, that is §6775, makes it voluntary:
The board may, upon its own initiative or upon the receipt of a complaint, investigate the actions of any professional engineer licensed under this chapter and make findings thereon.
In other words, because of that pesky “may” the board is not required to investigate any complaints at all. Investigations are purely discretionary. No court will ever order the Board to investigate anything it doesn’t want to. Now, it’s possible that the Board can be shamed into investigating this case or that case, but it also seems unlikely given the technical nature of the issues involved. BIDs themselves are too technical to arouse much interest in laypeople. By the time we get to engineering reports for BIDs we have technicalities on top of technicalities to the nth degree.
Now let’s move on to the other reason why the Board isn’t likely to investigate, and, in some sense, to the actual story I’m trying to tell in this post. If you’ve made it to here, well, congratulations! This reason is completely grounded in practice. First, though, a little background. But just a teensy little bit.
It seems that early in 2017, some of the parties to the monumental lawsuit against the Venice Beach BID filed a complaint against BID engineer Ed Henning, alleging incompetence and negligence in his preparation of the required report. Unfortunately I do not yet have a copy of this complaint, so I can’t go into detail about their allegations, but you can read the damn report for yourself and, if you’re not intimidated by the tedium and the arithmetic, you can get a pretty good idea of what kind of nonsense we’re dealing with here.9
However, I do have a copy of the response to the complaint from a Board investigator, Jackie Lowe.10 In this response, she not only states that the Board isn’t going to investigate this complaint against Ed Henning, but that the Board NEVER investigates complaints against engineers for their work on these assessment reports. The reason given is that they, the Board, have decided that preparing the reports is not the practice of civil engineering as defined in §6731. As Jackie Lowe puts it:
The Board Enforcement Unit can only investigate Mr. Henning’s civil engineering work, as defined in Business and Professions Code section 6731.
Historically, our Board has deemed these “tax assessment” reports not civil engineering work as defined by Business and Professions Code section 6731, but rather reports that contain simple math computations. … As a result, we have closed this case.
This is really shocking. The legislature requires these reports justifying the boundaries of BIDs to be drawn up by licensed engineers, presumably so that they’ll make some sense, but the regulatory body charged with enforcing professional standards on engineers doesn’t consider the drawing up of the reports to constitute the practice of engineering. Thus there’s really no incentive for the reports to make sense, which goes a long way towards explaining why they don’t make any sense.11
And not only that, but the Board’s position, which is at least colorable as far as it goes, seems wrong to me. The position is based on Business and Professions Code §6731, which is the one that gives a long and detailed exposition of what constitutes civil engineering. But that’s not the only relevant clause in the law. Don’t forget about §6734, which is much broader in application: “Any person practices civil engineering when he professes to be a civil engineer or is in responsible charge of civil engineering work.”
And does Ed Henning profess to practice civil engineering when he writes these reports? Well, take a look at the signature page of the VBBID report, part of which is reproduced as an image somewhere near this sentence. Not only does he sign the report and supply his license number, but he reproduces a mighty official-looking seal identifying him as a licensed CIVIL engineer.
How, I really wonder, is this not professing to be a civil engineer? And if he’s professing, he’s practicing, at least according to §6734. And if he’s practicing, he’s within the jurisdiction of the Board to investigate him for negligence or incompetence, no matter whether §6731 applies or not.
What can be done about this problem? I really don’t know. As we’ve seen, the Board isn’t actually required by law to investigate anyone, so it’s unlikely that a court will order them to investigate this or that particular negligent engineer. On the other hand, I have this feeling that they’re required to base their decisions on something sensible. That seems to be part of the process that’s due to a decision not to protect California residents from the shoddy practice of engineering.12
Meanwhile, this turns out to be yet another example of how no one in power wants to regulate BIDs, to hold them to the same legal standards to which BIDs hold homeless residents of their districts, just to see that they follow the law in deciding how to collect and spend their tax money. It’s shameful, but it’s not an easy problem to solve.
Transcription of the response to the complaint against Ed Henning:
May 31, 2017
RE: Board Enforcement Case No. 2017-01-030/Henning
The Board of Professional Engineers, Land Surveyors, and Geologists has reviewed the complaint you filed against Edward Henning, C 26549 alleging Mr. Henning made numerous false and contradictory statements, omissions, mistakes, and may have committed fraud in his preparation of the Venice Beach Business Improvement District Assessment Engineer’s report.
The Board for Professional Engineers, Land Surveyors, and Geologists Enforcement Unit is charged with the authority to enforce the Professional Engineers Act, Professional Land Surveyors Act, and the Geologist and Geophysicist Act. As such, we investigate complaints against professional engineers, land surveyors, geologist/geophysicists related to their practice of professional engineering services and also investigate unlicensed individuals for the practicing without legal authorization in these referenced disciplines, pursuant to California statute.
Mr. Henning is a licensed civil engineer and thus is licensed to practice civil engineering in California pursuant to the Professional Engineers Act. The “Act” defines the practice of civil engineering to include the definitions found in the Professional Engineers Act, Business and Professions Code section 6731.
In regards to your complaint. Article XIII D of the California Constitution (Proposition 218) does require that a detailed engineering report be prepared by a “Professional Engineer” licensed by this Board to support the special property related fees and assessments, but just because Proposition 218 requires the assessment report be prepared by a licensed professional engineer, it does not mean that the assessment is the practice of civil engineering, as defined in Business and Professions Code section 6731. The Board Enforcement Unit can only investigate Mr. Henning’s civil engineering work, as defined in Business and Professions Code section 6731.
Historically, our Board has deemed these “tax assessment” reports not civil engineering work as defined by Business and Professions Code section 6731, but rather reports that contain simple math computations.
Article XIII D contains provisions outlining the process that property owners are to use if they wish to appeal the assessments, including the information contained in the engineering report. These provisions do not give any authority to this Board to determine whether or not the reports are valid or should be used to determine the assessments. Therefore, it is not within the Board’s authority to investigate the validity of the engineering reports or how they are used in making the assessments.
Absent the practice of civil engineering, as defined in Business and Professions Code section 6731, this Board has no authority over the work prepared by Mr. Henning as shown in the Venice Business Improvement District Assessment report.
As a result, we have closed this case.
If you have further questions, you may contact me at 916.263-2253 or at Jackie.Lowe@dca.ca.gov.
Image of Ric Moore is ©2018 MichaelKohlhaas.Org and is based on this public record right here, and I apologize for a link to the damned Facebook but … priorities dictate the necessity.
- BIDs are far from the only place that local governments use this twisty subterfuge to extract money from people coercively without, somehow, it being a tax under state law. It seems really wrong, but it’s far too large a problem for me to solve here.
- Professionals don’t wonder about this kind of thing. Or at least they don’t wonder about it professionally. It’s a truth universally acknowledged by professional lawyers, or at least it’s my impression, gained from reading the Wiki article on Legislative Intent, that it’s universally acknowledged, that if a statute is clear in its meaning then the intent with which is was written is irrelevant. It’s hard to imagine a statement in the law more clear in its meaning than the statement that “All assessments shall be supported by a detailed engineer’s report prepared by a registered professional engineer certified by the State of California.”
- Which, admittedly, is essentially what we have now with BIDs.
- And probably in all the other states, too, but when it really comes down to it, I find it hard to even care about what happens East of San Bernardino, North of Pacoima, South of Long Beach. At this point I’m no longer convinced that all those other states really truly exist, so how’m I gonna worry about how and if they regulate their professions?
- Which, presumably, include being more-or-less sane.
- California being what it is, I actually felt like I had to fact-check the status of life coaches under our great state’s professions-regulation regime. As of this writing, I can confirm, at least according to the Google, life coaching is not a regulated profession in the Golden State. I’ll lay good odds that it will be soon, though.
- I don’t know if there’s a technical term for this kind of thing. The law being what it is there probably is one. It might even be this.
- Engineers, of all people, have a saying to the effect that in theory there’s no difference between theory and practice, but in practice there is. That’s true in law as well, it seems. (From my purely amateur perspective, anyway.)
- Tangentially, it seems that Ed Henning, who writes an awful lot of these engineering reports for local BIDs, is not only prone to confabulation and working back from the desired answer, but he’s also a self-plagiarist. The differences between his reports for, e.g., Venice Beach and the South Park BID aren’t nearly as great as one might expect given the stark, undeniable contrasts between the two districts. Also, his main reason for asserting anything seems to be his thirty years experience as an engineer. You’ll see, if you dive into the murk, that his thirty years experience as an engineer seems to lead him to conclusions that are contradicted by pretty much anyone’s thirty minutes experience actually walking around the neighborhoods he’s talking about, but then, we’re not certified engineers, so who cares what we think, eh? I hope to write in detail on this phenomenon at some point, and Henning isn’t the only engineer who does this. If you’re interested, the City Clerk’s phenomenally useful map of L.A.’s BIDs has a link to the engineer’s report and other useful documents for each BID in the City.
- For the convenience of the PDF-averse, there’s a transcription at the bottom of this post.
- This is going to have to be the subject of one or more posts in the future. I’d meant to include an analysis of a few of Ed Henning’s reports in this post, but I’ve already been working on it for four days and it’s getting to be too long and involved already.
- This is far out of my depth, though, but I’ll keep looking into it and let you know.