A Rising Threat Level

January/February 2018

A Rising Threat Level

Many lawmakers and regulators want to deregulate occupations. Now PEs are facing a growing risk of damage to their license.

BY DANIELLE BOYKIN

View a map of threats to professional licensure.

There was a moment when you decided that you didn’t want to be just an engineer, you wanted to be a professional engineer. Under the guidance of PE role models, you gained the necessary experience and passed the ultimate test. Finally, you could place the PE designation after your name to signal that you are a qualified professional dedicated to protecting the public.

Now your critical role in securing the health and safety of the public is under increasing scrutiny. Over the last few years, there has been a growing movement by some governors and legislators to target the regulation of occupations and professions under the guise of cutting government interference and boosting state economies.

NSPE, which was founded on the importance of licensing to protect the public from unqualified practitioners, sees a very real threat. In partnership with state societies, NSPE is actively monitoring the situation and responding to those threats whenever and wherever they arise.

The first serious warning sign appeared in Indiana in 2015, with the creation of the Indiana Job Creation Commission. The commission was derived from model legislation pushed by the American Legislative Exchange Council, an association of state lawmakers that supports private-sector interests, and led to a recommendation that would have eliminated the PE license in Indiana. On August 20, 2015, as the result of opposition from the Indiana Society of Professional Engineers and NSPE, the commission rescinded the recommendation to eliminate PE licensure.

Since then, other states have found a taste for reshaping the regulation of work. So far, NSPE has mapped out 25 states where similar legislation, regulations, or executive orders have been introduced, signed, and/or passed. Although much of the legislation does not specifically target professional engineers, by opposing occupational licensure in general, the broad attacks sow confusion about the importance of engineering licensure and its role in protecting the public.

NSPE has also addressed this issue on the federal level. In September, NSPE participated in a hearing on occupational licensure convened by the House Judiciary Committee on Regulatory Reform, Commercial and Antitrust Law. The Society signed a letter with licensing boards and professional associations opposing federal legislation that would undermine states’ regulation of occupational licensure. The letter explains that the public is best served when state regulatory boards, created under state law, are free to make decisions on issues of public health, safety, and welfare. The organizations emphasized their concerns that placing procedural mandates in areas of traditional state law and regulations will limit the ability of state and local officials to act in the best interests of their citizens, thereby further eroding the constitutional balance of state and federal powers.

Who’s the Target?

In national and state government, there’s a great mystery going on, says Patty Mamola, P.E. As the vice-chair of NSPE’s Committee on Policy and Advocacy and the executive director of the Nevada State Board of Professional Engineers and Land Surveyors, she is concerned about who is truly the target of these bills and regulatory proposals. “If they’re not distinguishing between occupations and learned professions when they introduce legislation, then it leads us to believe that it’s applicable to all the professions and trades,” she says.

Nevada experienced what it’s like to face down an attempt to deregulate engineering licensure. In March, Nevada Assembly members introduced a bill (A.B. 353) to loosen regulations and promote competition for occupations such as barbers and cosmetologists. The bill was introduced, however, without a clear understanding of how the public could be put at risk if licensing laws for PEs and other highly trained professionals were weakened.

After learning on April 11 about a hearing to review the bill the next day, NSPE and the Nevada Society of Professional Engineers mobilized. Working together, NSPE and the Nevada Society crafted a joint response in three hours. Due to the opposition, the bill was dropped from the agenda of the Nevada Assembly Committee on Commerce and Labor.

In a letter to the committee, NSPE and the Nevada Society emphasized the importance of occupational licensure for professional engineers. “The professional engineer’s foremost responsibility is to practice in a manner that protects the public health, safety, and welfare. Nevada’s professional engineers design and administer the construction of bridges, tunnels, buildings, wastewater treatment facilities, plants, factories, processing centers, and many other public and private development projects. The professional engineer license demonstrates an engineer’s commitment to the highest standards of engineering practice and ethical conduct and shows that the individual has the proper education, experience, and qualifications to provide these engineering services to the public.”

Mamola attributes the success of the effort to the relationships PEs have built with decision makers and simply paying attention. “If we’re not paying enough attention to this issue, we can’t react. We can’t take action.”

On the Lookout

To stay abreast of potential licensure threats, licensing board directors and members rely on relationships, both locally and nationally. For example, through a network of the National Council of Examiners for Engineering and Surveying, licensing board directors were notified about the National Conference of State Legislatures’ creation of a task force that raised concerns. The purpose of the task force is to study best practices for occupational licensure, with the objective of removing barriers and creating a process to develop licensure compacts. Although engineering and land surveying aren’t listed in the targeted occupations, licensing boards are troubled that recommended actions could spill over into the design professionals’ territory.

Melissa Cornelius, executive director of the Arizona State Board of Technical Registration, participated on an NCEES annual meeting panel to tell fellow board administrators that they may need to prove their relevance to legislators.

In 2016, Arizona Governor Doug Ducey signed an executive order requiring state licensing boards and commissions to review requirements and issue feasibility reports explaining training requirements, continuing education, fees, and administrative processes. Ducey issued the order to eliminate “unnecessary barriers to entering the job market and to expand opportunities for Arizonians who want work.” Based on the review and reports, some occupational licenses faced elimination.

Although the governor’s executive order and the legislation to eliminate some licenses didn’t specifically target professional engineers, other design professionals didn’t fare as well initially. The Arizona State Board of Technical Registration licenses and regulates engineers, architects, surveyors, landscape architects, and geologists in addition to the home inspection and burglar alarm industry. In the first session of the legislature when Ducey became governor, he proposed the deregulation of the geologists and landscape architects, Cornelius says, along with other groups like yoga instructors and citrus fruit pickers.

Seeing this as a danger to the design professions, PEs and architects immediately contacted legislators and stakeholders to explain why it was important to maintain these two learned professions. Landscape architects were removed from the bill because they are licensed in all 50 states and Canada, says Cornelius. However, geologists—first licensed in the state due to the state’s groundwater shortage—had a tougher time because they’re licensed in only 32 states.

It’s been a challenge, Cornelius adds, to find legislators who understand what licensed professional engineers and other design professionals do and why licensing is integral to these professions. “We don’t want to prohibit anyone from getting work, but there’s this unnecessary rush to deregulate professions in which the individuals involved have spent a lot of time and money to get a license which focuses on public protection,” she says.

Will Common Sense Prevail?

In Ohio, a bill introduced to get rid of “unfriendly business regulations” (H.B. 289) could threaten licensing of engineers in the state. If passed as written, occupational licensing boards will be sunset at the end of 2023 or five years after a board is established. A board can be renewed by law upon review and demonstration of “public need” by a standing committee, called the Common Sense Initiative Office.

Joseph V. Warino, P.E., F.NSPE, the Ohio Society of Professional Engineers’ vice president of legislative and government affairs, is concerned that the bill will lead to overreach that will harm the engineering profession. “Proponents of the bill have also mentioned the construction and development industry as an area of focus, and I can’t turn a blind eye to the fact that PEs may be impacted in some manner by this bill,” he says.

The Ohio Society will focus on opposing the legislation and educating lawmakers about the PE’s role and the importance of licensure. Warino also recognizes that having NSPE member Louis W. Blessing, III, P.E., as a representative in the state legislature has been helpful when issues affecting engineering licensure arise. More PEs, Warino believes, should get involved in the political system and run for office to serve as a voice of reason on these issues. “If you’re going to bring in a licensed engineer versus a graduate engineer, there’s a huge difference there,” he says. “The whole premise of our license is to protect the health and safety of the public.”

Pennsylvania PEs are facing a similar threat. In October, Governor Tom Wolf issued an executive order directing the Commissioner of the Bureau of Professional and Occupational Affairs to review processes, fees, and continuing education requirements of all occupational and professional licenses. As soon as details became public, the Pennsylvania Society of Professional Engineers began to hear from concerned members.

Wolf isn’t using the playbook of the American Legislative Exchange Council, says John Wanner, PSPE’s legislative consultant, but the society will still pay very close attention to this review process because it covers the State Board for Professional Engineers and other design professional boards. “This review doesn’t specifically target engineers and involves ensuring that there are less barriers to enter some professions for people who may have had disadvantages or difficulties in their past,” he says.

Wanner is hopeful that this order and the threats to licensure across the nation will spur more interest in the work of NSPE and its state societies to tackle these issues. “The task of making sure that there isn’t an erosion of the PE license is ongoing. This is just a current example of how we keep an eye on things and make sure they go in the right direction.”

Performance Reviews

Can positive results come from the trend of requiring licensing boards to evaluate how they operate? Mamola thinks so. As an NCEES past president, she championed increased mobility for licensees during her tenure and believes that boards should increase efficiencies to improve the licensing and administrative processes for design professionals; licensees should be treated as customers who need better service.

In her own case, Mamola realized that the Nevada board had some unnecessary administrative steps that slowed down the licensure process. She gives the example of two conflicting state laws. One allows PEs licensed in other jurisdictions with substantially equivalent credentials to be licensed in Nevada. The other law sets additional requirements for PEs who want to obtain comity licensure in the state. “Why should we do this to someone who is legally practicing in another state and they have no disciplinary actions against him or her?” Mamola asks.

She adds, “It slows the process for bringing in qualified professionals that can come to work in your state and it could potentially slow your economy. And that’s why some governors and legislators aren’t happy with some of the processes.”

The Arizona board, says Cornelius, completely embraces the idea of leaner, more efficient government. In the board’s recent review process, it had to outline applicant and registrant fees as well as administrative costs, and justify the need to regulate the profession and occupations. The board used the review as an opportunity to educate as well as explain and justify its operations. The review revealed that the board’s licensing fees were reasonable when compared to regional neighbors such as California and Oregon. “We’re also doing well in terms of being efficient when getting people registered more quickly, but at the same time making sure that they are qualified and capable to practice safely. The public health, safety, and welfare issues are paramount.”

Qualifications, safe practice, ethical conduct, and public protection are all essential parts of the licensing of professional engineers, which has more than a century of successes under its belt. Though lawmakers and regulators come and go, and political winds can quickly change, the licensing of PEs is critical. No other measure can ensure the qualifications of the men and women responsible for designing the innumerable systems that can affect the public health and safety. 

View a map of threats to professional licensure.

View this map in PDF.