As you may know, I’ve been working on getting the California Board for Professional Engineers, which regulates the profession of engineering in California, to accept complaints against the engineers who write reports supporting BID formation. At first the Board’s position was that the preparation of such reports didn’t even constitute the practice of engineering and therefore all such complaints should be rejected a priori. After a few months of discussion, the Board seemed more entrenched than ever in this disappointing position.

However, in the last week or so, the Board, in the person of Executive Director Ric Moore, seems to have softened its position somewhat. In this email,¹ Moore has made what strike me as two significant concessions:²

◈ Ric Moore stated that all complaints to the Board are read and responses reflect the actual factual allegations in the complaint.
◈ He also said that if the person filing the complaint doesn’t believe that this happened he, Ric Moore, will clarify and address the concerns.

This certainly is welcome news, and Ric Moore’s statements have had at least two immediate consequences. First, the Venice resident who filed the original complaint against BID engineer Ed Henning took Moore up on his officer to clarify and address concerns. Second, because Moore has committed his agency to reading all complaints and responding based on the factual allegations, I have determined to submit my own complaint against Ed Henning. I hope to have this done within four weeks, possibly sooner.

And I have updated this Archive.Org page with the additional emails (dated April 16 and 17, 2018). Turn the page for links to the new emails, transcriptions of all or part of the salient ones, and possibly a little more discussion of the issues.

◈ 2018-04-16-0950 Email from me to Ric Moore:

Well, thanks. Any comment on the utility of filing a complaint based on activities that your agency’s policy has decided a priori aren’t part of the practice of engineering even though it’s at least plausible that the legislature thinks they are?

◈ 2018-04-16-1013 Ric Moore to me stating of course complaints can be filed:

I don’t believe that I’ve heard or read in this correspondence that our Board has established any policy to this effect. If I’ve missed that, please point it out to me, since we are prohibited from actually establishing such a policy in that general of a nature without proceeding through the legislative or regulatory rulemaking process. I’ve read in this correspondence that a specific enforcement situation led to a decision, but that would be specific to that certain case of facts and not a policy established by the Board. I also read in this correspondence that it is suspected that we rarely, if ever, dealt with this topic in the past, but until the research can be conducted as previously explained by Ms. Criswell, we simply only know what has already been conveyed to you at this point.

◈ 2018-04-16-1023 me to Ric Moore explaining why it seems like there is a policy:

But Jackie Lowe’s response says explicitly that the Board a priori doesn’t consider the preparation of engineering reports to constitute the practice of engineering. What is that if not a statement of policy? If it weren’t a policy, but had to do with the specific enforcement situation, why didn’t she say “the preparation of *this* engineering report doesn’t constitute the practice of engineering”? It’s clear from her response that she didn’t read the report, didn’t react to facts from the report, but relied purely on principle to reject the report.

In fact, Ms. Criswell told me that it has happened before: “I was made aware, through recollection by Board Staff, that there have been complaint investigations related to the subject matter that resulted in opinions by licensed experts that the tax assessment reports in them did not constitute the practice of professional engineering as defined by Business and Professions Code section 6731.” I’m not sure where you’re getting the “rarely, if ever” part, therefore.

So it seems that your agency has an unwritten policy, in the sense of a rule that’s applied prior to factual analysis, that a certain kind of activity does not constitute engineering practice, even though the governing statute explicitly says that the preparation of engineering reports is part of the practice of engineering.

It seems as if there’s a genuine ambiguity in the law here. Wouldn’t it be better for everyone to ask the AG what the law means?

Alternatively, if I do submit a complaint, can I have your assurance that someone will at least read it and respond to the factual allegations, rather than dismissing it a priori based on a theory? I promise that it will include a section arguing that the activities described do in fact constitute the practice of engineering as described in the law.

Thanks for discussing this further.

◈ 2018-04-16-1316 Ric Moore to me explaining why I am wrong with the absolutely crucial part in blue:

With all due respect, I believe there is a misunderstanding in this correspondence related to what is a “policy” and what is a decision or findings related to an investigation. Ms. Lowe’s response is related to that specific investigation based on facts discovered related to that submitted complaint. Ms. Criswell’s statements are related to your inquiry on this and represents recollection on the part of long time staff as to whether this issue arose in the past. In either instance, if the information was part of an enforcement investigation, any reference to this topic would be based solely on the specific facts of that specific investigation and not a general policy. Likewise, if an outside, independent licensed expert was tasked with providing a report on the technical aspects related to a complaint and investigation, and which this topic was part of the investigation, that expert’s report would be based solely on the specific facts of that specific investigation and not a general policy. The expert’s opinions in these matters are precedential in nature and cannot be considered as a policy decision related to the general topic. There as only been one occurrence when the Board established a precedential decision that I am aware of and that requires action by the Board at a meeting. This can be found at http://www.bpelsg.ca.gov/pubs/precedent_decisions_list.shtml

Sometimes, the Board receives letters of inquiry where questions are asked related to whether some action is considered as the practice which would require a license. The Board will research the issue and respond accordingly to the actual questions that were asked, nothing more, nothing less with a caveat that should other facts or information relative to the inquiry subsequently become known to the Board, the response may change. These types of inquiries/responses are likely more general in nature, but still are considered as a “policy” of the Board nor precedential. I cannot recall any inquiries related to your topic in the 11 years I’ve worked at the Board.

The simple fact is that if the Board wants to rely upon some decision, belief, stance, opinion, etc. as to how interpretations of the law related to regulated practice is to be dealt with in an overriding sense, the Board is required to implement either legislation or regulation through the proper processes in order to do so. So at this point, I will differ with your position that there is an “unwritten policy” by the Board and it is yet to be determined that a “genuine ambiguity in the law” is in fact present related to this topic.

I can assure you that all complaints are read and the factual allegations are responded to accordingly. If the person on the record as submitting the complaint does not believe that is the case, that person can always ask me for additional clarification and I will see that the concerns are addressed. Regardless of who submitted the complaint on the record (licensed individual or otherwise), if an expert opinion was deemed necessary, that would be provided by an outside independent expert such that the Board could rely upon it in consideration as to what disciplinary action needs to be taken or not taken. The allegations provided by the complaining party are just that…allegations…and cannot be solely relied upon as an unbiased independent expert opinion.

◈ 2018-04-16-1355 me to Ric Moore thanking him for that blue part:

I don’t see how Ms. Lowe’s response addressed any facts in the complaint. Ms. Lowe stated that the preparation of the report did not constitute the practice of engineering simply because no Prop 218 required report constitutes the practice of engineering in the opinion of the Board. I’d be interested to know which specific facts she responded to in her response.

However, as you have assured me that my understanding must be wrong and that, contrary to appearance, all complaints are read and all responses are based on the facts present in the complaint, I feel more willing to submit a complaint, which I will do reasonably soon.

◈ 2018-04-17 original complainant to Ric Moore asking for the promised review:

Mr. Moore,
The letter from your office to me dated May 31, 2017, case # 2017-01-030/Henning. You mentioned you have no authority over tax assessments arrived at by a civil engineers Business Improvement District Report yet the Engineers report is stamped with the State Seal of Professional Engineers. The request to investigate the report I sent you dated June 24, 2016 is a product of the states mandate for a civil engineers report. I would like to know if my request for investigation was reviewed by your office and what conclusions were found. If BID’s are just math computations than this should invalidate the BID as no civil engineering was performed. Your response is most appreciated.
Sincerely,
■■■ ■■■■■■

◈ 2018-04-17 Ric Moore acknowledging that he will review:

Thank you for detailing your concerns in more detail. I’ll request the closed enforcement file you stated and review it. If the file is still in our offices, please give me through next week to review and respond. Otherwise, if the file is archived offsite, I will let you know as it will likely be a little while before it is retrieved for us.

And that’s where matters stand as of now. This seems like a significant development in that now we have the director of the Board saying that his agency will in fact take complaints seriously and evaluate them on their factual content rather than on some kind of a priori holding that they don’t have jurisdiction over them.

We’ve seen over and over and over again how the City of Los Angeles refuses to oversee its BIDs at all, refuses to enforce its contracts with their property owners’ associations, refuses to enforce the municipal code against them, and so on, so even potential oversight at the state level is a very welcome development. Like I said above, I will be filing another complaint against Ed Henning, and stay tuned for info!

Image of Ric Moore is ©2018 MichaelKohlhaas.Org and was shimmied on up out of this Ric Moore and this Golden Gate Bridge.

1. As always, there’s a transcription after the break.
2. Or maybe they’re not exactly concessions. His position is that these two statements describe extant policy rather than being anything they’re changing in response to discussion. It hardly matters at this point.