Before a business improvement district can be formed, the Property and Business Improvement District law at §36622(b) requires that a licensed engineer prepare a report supporting the assessment methodology. At least in Los Angeles these reports are pro forma copy/paste monstrosities that are completely unrelated to any actual facts. Now, engineering in California is regulated by the Board for Professional Engineers, and one of their duties is to investigate complaints about unprofessional conduct.

So last year, after the utterly despicably disheartening process of approving the Venice Beach BID came to its tragic end, a resident, fed up with the nonsense promulgated by civil engineer Ed Henning in his report,¹ filed a complaint against him with the Board. Amazingly, his complaint was closed unread because, as he was told in a letter by Jackie Lowe, the enforcement analyst who wrote to him, the Board does not consider the preparation of engineer’s reports for business improvement districts to constitute the practice of engineering.

They claim that it’s not within their jurisdiction and, in her letter announcing the close of the investigation, Jackie Lowe told the complainant that “Historically, our Board has deemed these “tax assessment” reports not civil engineering work.” This struck me as being reflective of a Board policy, which was so unexpected that after learning of it I sent a CPRA request to the Board asking for records related to this policy decision.² After all, if there’s a policy, it ought to be written down so that it can be analyzed and, if appropriate, disputed.

After they ignored me for a long time, their enforcement manager Tiffany Criswell answered and propounded the usual line of nonsense about why they weren’t going to fulfill my request.³ Furthermore, she informed me that there was no written policy stating that the preparation of these engineering reports didn’t constitute the practice of engineering.

Basically she claimed that the Professional Engineers Act, which is the establishing law for the Board, forbade them from investigating anything which wasn’t explicitly defined in the law as the practice of engineering. She seemed to claim that creating a policy was forbidden. That they had to work only from the language of the law.⁴ I argued that it was pretty clear from the language of the Act that preparing engineer’s reports for BIDs constituted the practice of engineering as described in the Act. Strangely, she seemed to actually listen to my argument. She told me that she would look into it and get back to me.

And listen, when disputing anything at all with a government agency at any level, this counts as a win. So I waited. Heard nothing. Asked what’s up. She said later. Waited. Asked what’s up. She ignored me. Waited. Asked what’s up and CC-ed her boss, the inimitable Mr. Ric Moore. He flipped out and wrote me a weirdly sarcastic email full of malcriado scare quotes and other instances of bitterly bureaucratic sarcasm.

This email convinced me that, even though every aspect of the process remains unresolved, it’s time to publicize matters. Hence this post. The discussion is unavoidably technical, which is why the details are after the break, along with links to and transcriptions of most of the emails involved. As I said in the footnotes already, though, all the emails are available here on Archive.Org.

And because I’m not writing about the CPRA aspects of the discussion here, we have to kind of dive in right in the middle.

◈ February 15, 2018 — Me to Criswell about unwritten policy:

I am concerned though that the Bureau is making important decisions about complaints based on a nonexistent policy that’s only passed down through the investigative ranks by word of mouth. Can you tell me who I might get in touch with to try to get the Board to create a written policy? This is an important issue that affects the lives of a lot of people in relation to the creation of business improvement districts.

◈ February 16, 2018 — Criswell to me about why there will be no policy:

Determinations made during the review of complaint investigations as to whether or not the preparation of documents, plans, reports, etc. constitutes the regulated practices of civil, electrical, or mechanical engineering are not based on nonexistent policy. Business and Professions Code sections 6731, 6731.5,⁵ and 6731.6, respectively … define the practices, and any determination during our investigations by one or more licensed professional engineers of what constitutes these practices is based on these statutes.

There will be no policy written to further identify a practice or preparation of certain kinds of documents as professional engineering as these statutes provide for such purpose. Further, the publication of such a policy would likely be engaging in creating underground regulation, which is prohibited. However, Board Staff, independent of complaint investigations, can assist and make available the review of specific documents by a licensed engineer to determine if the preparation of them constitutes civil, electrical, or mechanical engineering.

What she’s doing here is quite interesting in the usual sinister bureaucratic way. She’s denying that there’s any policy determining that the preparation of engineering reports either does or does not constitute the practice of engineering. She suggests that whether or not the preparation of a given report constitutes engineering practice is determined by the enforcement staff investigating the complaint, even though her subordinate, Jackie Lord, explicitly stated that this was not true in the case of the one complaint we know about. Lord said that she was closing it without investigation because “[h]istorically, our Board has deemed these “tax assessment” reports not civil engineering work.”

◈ February 16, 2018 — Me to Criswell explaining why preparation of engineering reports, at least for BIDs, must constitute the practice of engineering. This is too long to quote in full, and the argument is essentially what I outlined in this previous post. Here’s a summary:

• The PBID law at §36601(c) states that BIDs provide improvements. Since BIDs are formed by municipalities these are municipal improvements.
• The PBID law at §36622(n) requires an engineer’s report supporting the assessments.
• The BPC at §6731(e) states that the practice of engineering includes “[t]he preparation or submission of … engineering reports” in connection with municipal improvements.
• Additionally, the BPC at §6734 states that “[a]ny person practices civil engineering when he professes to be a civil engineer or is in responsible charge of civil engineering work.”
• And finally, the engineers who prepare engineering reports for BID formation do profess to be civil engineers because they solicit work as civil engineers, set their rates based on their licensure as civil engineers, stamp the reports with their official civil engineer seals, and sign the reports as civil engineers.

◈ February 23, 2018 — Me to Criswell asking if she’s going to respond.

◈ March 1, 2018 — Criswell to me saying yes, if we ever have time:

We do intend on responding. As the Streets and Highways Code and other laws related to business improvement districts are unfamiliar to me, I will need to review this carefully and, likely, enlist assistance in preparing a response to you. We hope to respond to you as soon as workload allows.

Which is nice. I mean, often “as soon as workload allows” is bureaucratese for never, but I’m willing to wait and see.

◈ March 1, 2018 — Me to Criswell saying thanks!

◈ March 14, 2018 — Me to Criswell suggesting to ask the Attorney General for an opinion:

Good morning, Tiffany.

I know you said you all would respond to this “as soon as workload allows,” but so often that ends up meaning “never.” I was hoping maybe you could let me know if you all are making progress on understanding the issue and if you have any idea when you might be able to respond?

Alternatively, the Board could request an opinion on it from the AG. As an individual I’m notable to do this, but you all can. That would settle it authoritatively. The procedure and other information are available here:

https://oag.ca.gov/opinions/faqs

I wonder if you’d consider bringing up the possibility of requesting an AG’s opinion with the Board?

These Attorney General’s opinions are interesting. The AG will interpret California statutes and issue a published opinion. They’re not binding on courts, but they are very weighty, and also are very good indications of positions that the AG will be willing to defend in court. Unfortunately not just anyone can ask for one. Only legislators and state agencies, basically.⁶ Anyway, Tiffany Criswell never answered that one either.

◈ April 13, 2018 — Me to Criswell, Ric Moore, and Betsy Mathieson who is the VP of the Board, since ultimately it’s the Board that has control over whether the enforcement staff continues to dismiss complaints about engineer’s reports out of hand:

Good afternoon, Mr. Moore, Ms. Mathieson.

I’m writing to ask the Board to consider taking on a serious issue, which has to do with whether civil engineers who prepare reports required for the formation of business improvement districts (“BIDs”) by both the Property and Business Improvement District Act (Streets and Highways 36601 et seq.) and Proposition 218 are engaged in the practice of engineering under the BPC at sections 6731(e) and 6734.

Hitherto, it seems, your agency has not considered that they were so engaged, but I think there’s a substantial argument that they actually are. Note that I’ve discussed this at some length with Ms. Criswell, CC-ed here, but the conversation seems to have lapsed. The whole discussion is appended below for your convenience.

The issue is that BPC 6731(e) states in pertinent part that: “Civil engineering embraces the following studies… in connection with… municipal improvements …: The preparation of… engineering reports.”

The Streets and Highways Code at 36601(c) states that one purpose of BIDs is to provide improvements. Clearly these are municipal improvements because they’re arranged for by municipalities. And section 36622(n) requires the preparation of an engineering report.

This matter is important because the engineer’s report is supposed to ensure that the boundaries and assessment methodologies of BIDs are rational. So often, though, even though the reports are prepared by licensed engineers, they contain e.g. serious mathematical errors such as using the wrong method for calculating standard deviation, and internal inconsistencies.

Anyway, it seems that this matter’s not destined to be resolved on the staff issue, so I’m hoping you all can find a way to put it on the Board’s agenda for a decision or, possibly, send it to the State Attorney General for an opinion on what the law says. This is a crucial issue for many people who live in or near BIDs whose very existence is based on what seems like the incompetent practice of civil engineering.

◈ April 13, 2018 — Ric Moore to me. Mocking? Clueless? Aggressive? Some combination? Hard to tell:

Ms. Criswell has kept me in the loop on this request and it is being researched. However, until we can gather sufficient information on the laws and processes inherent to how engineering is or is not involved in these matters, we cannot provide a time frame for response. Until we can, all we can state at this time is that if the practice of engineering is required in the process for what you have described, then a license is most likely required, which does not mean that a licensed engineer is required to be in responsible charge of the entire process.

I have noted that you seem to be aware of “engineering reports” that contain “serious mathematical errors” and “use the wrong method”. If that is the case, then no amount of waiting on us to provide a response will benefit you more so than you simply filing a complaint on that engineering practice with our Board and providing the details of what you know. While your inquiry is important to us, addressing submitted complaints is operationally considered a higher priority for our Board.

Thank you for contacting us,

Ric Moore
Executive Officer

Sent from my iPhone

Ugh. So I write to them, asking why they dismiss complaints about the preparation of engineering reports out of hand because they have deemed that activity not to constitute engineering. Ultimately they respond by saying they don’t have time for theory so I should submit a complaint.

Submit a complaint, that is, of the very type they have already stated that they will not consider. To twist the knife even more, they tell me that responding to complaints is more important to them than discussing what kinds of complaints they will respond to. This, friends, probably counts as bureaucratic checkmate.

Not only that, but see how insinuatingly he uses the scare quotes around, e.g., “engineering reports.” They’re called engineering reports in both his law, the Professional Engineers Act, and my law, the Property and Business Improvement District Act. So why the scare quotes? Also, I don’t know of serious mathematical errors, they’re actually “serious mathematical errors,” and so on.

Of course, says the engineer, you couldn’t possibly spot a mathematical error. After all, you’re not an engineer!⁷ I’ve known an awful lot of engineers who think this and never stop to consider that, e.g., they almost certainly studied calculus under professors who were not themselves engineers. Anyway, I did send a response to Ric Moore, but I’m not proud of it. I let his sarcasm get to me and responded sarcastically. This may feel good at the moment, but it’s not effective in any kind of long term.

The next move? I’m not sure yet. I’m thinking maybe I will actually submit another complaint against Henning, but will also include a comprehensive preamble arguing in some detail that the preparation of the report did in fact constitute the practice of engineering. Another possibility is to discuss the matter with my legislator. It’ll take some thought, but I’ll let you know what happens!

Image of Ric Moore laughing at all us lesser beings who, in our naivety, expected the Board for Professional Engineers to, you know, like regulate engineers, is ©2018 MichaelKohlhaas.Org. I klopped it up out of this scary lil item right here.

1. You can download a copy of the report here, but be careful. It’s a really heavyweight PDF that seems to require about a gig of RAM not to freeze everything up. This is typical of City-provided PDFs. I think they scan them at ultra-high resolution and then overlay OCR. Whatever it is, it makes me reluctant to link straight through to them without a warning.
2. All the emails discussed in this post and pretty many that aren’t discussed are available here on Archive.Org. After the break there are also links to many of them, discussions of their content, and transcriptions of selections.
3. I’m not going to search because even if we do have records they’re exempt. OK, I’ll search, but it will cost you $10,000 for staff time and even if we do find records they’ll be exempt. And so on. This is all nonsense, it’s contrary to the statute, and the only way to overcome it is to sue. At the time, in January 2018, it didn’t seem worth expending my lawyerly resources on this matter given that it’s fairly tangential to my main goal, but now that I’ve experienced the full force of executive director Ric Moore’s pigheaded intransigence, I’m having some second thoughts. We’ll see what happens. I’m not going to write about the CPRA details here because it will make an already long post even longer, but the emails are available on Archive.Org.
4. I mean, this is plausible. Obviously agencies only have the power that the legislature grants them. On the other hand, agencies routinely write regulations that purport to implement the law. Which is also appropriate and desirable.
5. I only linked to the first because that’s the section on civil engineering, which is what’s at stake here.
6. It’s too bad, because imagine the fun we could have! But, of course, they imagined the fun we could have also, which is no doubt why they won’t let us ask them.
7. I’d bet good money that before he answered Ric Moore looked me up on the rolls to determine that I’m not an engineer.