GENERAL GOVERNMENT CABINET

Kentucky State Board of Licensure for Professional Engineers and Land Surveyors

(Amendment)

 

      201 KAR 18:142. Code of professional practice and conduct.

 

      RELATES TO: KRS 322.180(3), 322.290(11)

      STATUTORY AUTHORITY: KRS 322.290(11)

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 322.290(11) requires the board to promulgate a code of professional practice and conduct, which shall be binding upon persons licensed under KRS Chapter 322. This administrative regulation establishes a code of professional practice and conduct.

 

      Section 1. Definitions. (1) "Conflict of interest" means any circumstance in which a licensee has a private or[licensee’s] personal[or financial] interest sufficient to appear to influence, or possibly influence, the objective exercise of the licensee's professional duty to[is contrary to the interests of] the public, his or her employer, or current[or past] client; for the purposes of this definition, the private or personal interests of the licensee shall include the personal or business interests of the members of the licensee's family, his or her close relatives, or business associates.

      (2) "Direct supervisory control" in the practice of engineering means that an engineer licensee directly supervises and takes responsibility for consultation, investigation, evaluation, planning, design and certification of an engineering project and includes only that work performed by an employee as defined in subsection (4) of this section.

      (3) "Direct supervisory control" in the practice of land surveying means that a surveyor licensee who certifies a work product directly supervises and takes responsibility for the survey and includes only that work performed by an employee as defined in subsection (4) of this section.

      (4) "Employee" means a person who works for a licensee or his or her employer for wages or a salary and includes professional and technical support personnel contracted on a temporary or occasional basis, if the compensation is paid directly by the licensee or his or her employer. It does not include a person who provides services to the licensee as an outside consultant or specialist.

      (5) "Licensee" means any natural person licensed by the board to practice professional engineering or professional land surveying, or any business entity permitted under KRS 322.060.

      (6) "Work product" means any engineering or land surveying plan, plat, document or other deliverable requiring certification that is intended to represent activities conducted in the practice of engineering or land surveying.

 

      Section 2. The engineer or land surveyor shall conduct his or her practice in order to protect the public health, safety, and welfare. (1) The practice of professional engineering and land surveying is a privilege, and not a right.

      (2) If a licensee’s judgment is overruled and a licensee has reason to believe the public health, safety or welfare may be endangered, the licensee shall inform his or her employer or client of the possible consequences and, if not resolved, notify appropriate authorities.

 

      Section 3. A licensee shall issue all professional communications and work products in an objective and truthful manner. (1) A licensee shall be objective and truthful in all professional reports, statements or testimony and shall include all material facts.

      (2) If serving as an expert or technical witness before any tribunal, a licensee shall express an opinion only if it is founded on adequate knowledge of the facts in issue, on the basis of technical competence in the subject matter, and upon honest conviction of the accuracy and propriety of that testimony, and shall act with objectivity and impartiality. A licensee shall not ignore or suppress a material fact.

      (3) A licensee shall not issue a statement or opinion on professional matters connected with public policy unless the licensee has identified himself or herself, has disclosed the identity of the party on whose behalf the licensee is speaking, and has disclosed any pecuniary interest the licensee may have in the matter.

      (4) A licensee shall not maliciously injure the professional reputation, prospect, practice or employment of another licensee.

      (5) A licensee shall not accept a contingency fee for serving as an expert witness before any tribunal.

      (6) A licensee shall maintain for a period of not less than five (5) years, calculations and documents necessary to support work products.

      (7) A professional land surveyor shall maintain records for boundary surveys under 201 KAR 18:150, Section 10(2) and (3).

      (8) The requirements of subsections (6) and (7) of this section shall be satisfied for the individual licensee employed by a business entity permitted by the board in conformance with KRS 322.060 by that permitted entity's compliance with subsections (6) and (7) of this section.

      (9) A licensee shall not solicit or submit proposals for professional services containing a false, fraudulent, misleading, deceptive, or unfair statement regarding the cost, quality, or extent of services to be performed.

      (10) A licensee shall not misrepresent his or her professional qualifications or experience, or those of the licensee's associates.

 

      Section 4. A licensee shall avoid conflicts of interest. The public, as well as a professional's employer and clients, have the expectation that the professional engineer or land surveyor shall act objectively and independently. Conflicts of interest involve the abuse, actual or potential, of the trust people have in professional engineers and land surveyors. (1) If a situation occurs in which a reasonable person would think that a licensee's professional judgment is likely to be compromised[possibility of a conflict of interest exists], a licensee shall promptly disclose the possibility of the conflict of interest to[notify] his or her employer, or client, and shall, if reasonably possible, withdraw from participation in the situation which gave rise to the conflict of interest[or past client].

      (2) A licensee shall not accept a valuable consideration from more than one (1) party for services pertaining to the same[identical] project, unless the circumstances are fully disclosed to all other principal parties directly involved in the project.

      (3) A licensee shall not solicit or accept a valuable consideration from any vendor, contractor, or client, or their agents for acceptance, rejection, approval, or disapproval of any work performed by others, or[either] for specifying materials or equipment[, or from contractors, their agents or other parties dealing with a client or employer] in connection with work for which the licensee is responsible.

      (4) A licensee serving as a member, advisor, or employee of a governmental body shall not, when utilizing either his status as a licensed professional engineer or land surveyor, or his skill, experience, or knowledge as a licensed professional engineer or land surveyor, participate in decisions in which he or she has a private or personal interest, and shall not review or approve work that was performed by the licensee, or by others, on behalf of a business entity in which the licensee has any control, or private or personal interest [shall not solicit or submit proposals for professional services containing a false, fraudulent, misleading, deceptive or unfair statement regarding the cost, quality or extent of services to be performed.

      (5) A licensee shall not misrepresent his or her professional qualifications or experience, or those of the licensee's associates.

      (6) A licensee serving as a member, advisor, or employee of a governmental body shall not participate in decisions with respect to professional services offered or provided by him or her or by a business entity in which the licensee is a principal, officer or employee, to that governmental body].

 

      Section 5. A licensee shall solicit or accept engineering or land surveying work only on the basis of his or her, or the licensee's firm’s or associates’ qualifications for the work offered. (1) A licensee shall not offer or accept any valuable consideration in order to secure specific work, exclusive of commissions paid by individual licensees for securing salaried positions through employment agencies. A licensee may participate in design-build projects.

      (2) A licensee may advertise professional services if the advertising is not false or misleading.

      Section 6. A licensee shall not knowingly associate with any person engaging in fraudulent, illegal or dishonest activities. (1) A licensee shall not permit the use of his or her, or the licensee's business entity’s name by any person or business entity that he or she knows or has reason to believe is engaging in fraudulent, dishonest or illegal activities.

      (2) A licensee shall not aid or abet the illegal practice of engineering or land surveying.

 

      Section 7. A licensee shall perform his or her services only in the areas of his or her competence. (1) A licensee shall undertake to perform professional assignments only if qualified by education or experience in the specific technical field involved.

      (2) A licensee may accept an assignment requiring education or experience outside his or her own field of competence, but only to the extent that his or her services are restricted to those parts of the project in which the licensee is competent. All other parts of the project shall be certified by licensed associates, consultants or employees.

      (3) If a question of the competence of a licensee to perform a professional assignment in a specific technical field is an issue and cannot be otherwise resolved to the satisfaction of the board, the board, upon a majority vote or upon request by the licensee, may require the licensee to satisfactorily complete an examination the board deems appropriate and relevant.

 

      Section 8. Except as provided by this section, a licensee shall not certify any work product dealing with subject matter in which he or she lacks competence by virtue of education or experience, or any work product not prepared by him or her under his or her direct supervisory control. (1) A professional engineer may review and certify the work product of another professional engineer if:

      (a) The review and certification are made at the request of the other professional engineer;

      (b) He or she does not remove or obliterate the identity of the other professional engineer;

      (c) He or she performs and retains in his or her possession for not less than five (5) years all calculations and documents necessary to perform an adequate review; and

      (d) He or she confirms that the other professional engineer was licensed when the work was created.

      (2) If a professional engineer undertakes to review only a portion of the work product of another professional engineer, his or her certification shall clearly identify the portion reviewed.

      (3) A professional engineer may modify the work product of another professional engineer, whether or not the project has been built, if he or she retains in his or her possession for not less than five (5) years a record of his or her modifications.

      (4) If a professional engineer modifies the work product of another professional engineer, his or her certification shall clearly identify, by words or graphics, that portion that was modified.

      (5) A professional engineer may incorporate in his or her work product the designs of manufactured or standard components developed by manufacturers, suppliers or professional or technical societies and associations.

      (6) If, in the professional land surveyor’s reasonable judgment, his or her personal participation is not required in performing a particular aspect of a project, he or she may delegate those tasks to an employee, if all work is actually reviewed by the licensee.

      (7) The need for a professional land surveyor to make a site visit shall be dictated by the nature, size and complexity of a project. However, the failure to make a site visit in a substantial percentage of surveys may be construed as a failure to exercise direct supervisory control.

      (8) While an employee may investigate the circumstances of a potential project, only a licensee may establish the scope of work to be performed.

 

      Section 9. The professional engineer or professional land surveyor shall avoid conduct likely to discredit or reflect unfavorably upon the dignity or honor of his or her profession.

 

      Section 10. If a licensee has knowledge or reason to believe that any person or other licensee is in violation of KRS Chapter 322 or any administrative regulation adopted by this board, the licensee shall present that information to the board in writing and shall cooperate with the board in furnishing information within his or her knowledge.

 

      Section 11. (1) A licensee shall not, directly or indirectly, contact a board member concerning any ongoing disciplinary action, or any existing investigation being conducted by the board staff.

      (2) Any communication by a licensee concerning an ongoing disciplinary action or an existing investigation shall be directed to a board staff member.

 

      Section 12. A licensee who is in doubt about the ethical propriety of any professional act or omission contemplated by that licensee may request an informal opinion from the executive director of the board. The request shall be in writing, or email with the subject line of “Request for Advisory Opinion Pursuant to 201 KAR 18:142"; the request shall include the name and address of the licensee making the request, a phone number and email address at which the licensee can be contacted, and all relevant information. Based on the information provided in the request, the executive director shall respond in writing as to the ethical propriety of the act or course of conduct in question. A licensee shall not be disciplined for any professional act performed by that licensee in compliance with the written advisory opinion furnished by the executive director pursuant to the licensee's written request, if the licensee's written request clearly, fairly, accurately, and completely states the licensee's contemplated professional act and all relevant information.

 

B. DAVID COX, Executive director

      APPROVED  BY AGENCY: August 10, 2015

      FILED WITH LRC: August 12, 2015 at 3 p.m.

      PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this administrative regulation shall be held on September 21, 2015 at 3:00 p.m., local time, at 160 Democrat Drive, Frankfort, Kentucky 40601. Individuals interested in being heard at this hearing shall notify this agency in writing of their intent to attend no later than five workdays prior to the date of the hearing. If no written notification of an individual's intent to attend the hearing is received by that date, the hearing may be canceled. This hearing is open to the public. If the public hearing is held, any person who wishes to be heard will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made, in which case the person requesting the transcript shall have the responsibility of paying for same. A recording may be made in lieu of a transcript under the same terms and conditions as a transcript. If you do not wish to be heard at the public hearing, you may submit written comments on the proposed administrative regulation. Written comments shall be accepted until September 30, 2015. Send written notification of intent to be heard at the public hearing or written comments on the proposed notification of intent to be heard at the public hearing or written comments on the proposed administrative regulation to the contact person.

      CONTACT PERSON: Jonathan Buckley, General Counsel, Kentucky State Board of Licensure for Professional Engineers and Land Surveyors, 160 Democrat Drive, Frankfort, Kentucky 40601, phone (502) 573-2680, fax (502) 573-6687.

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact person: B. David Cox

      (1) Provide a brief summary of:

      (a) What this administrative regulation does: This regulation establishes a code of professional practice and conduct for professional engineers and land surveyors.

      (b) The necessity of this administrative regulation: KRS 322.290(11) requires the board to adopt and promulgate by administrative regulation a code of professional practice and conduct, which shall be based upon generally recognized principles of professional ethical conduct and binding upon persons licensed under KRS Chapter 322.

      (c) How this administrative regulation conforms to the content of the authorizing statutes: The provisions of this regulation constitute the code required by KRS 322.290.

      (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This regulation establishes written requirements for professional practice and conduct so that licensees may understand what is required of them, and assists board staff to insure compliance with those provisions.

      (2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

      (a) How the amendment will change this existing administrative regulation: This amendment clarifies provisions relating to conflicts of interest and provides a mechanism for licensees to receive an advisory opinion from the board in the event the licensee has a question about the ethical propriety of a situation or contemplated course of conduct.

      (b) The necessity of the amendment to this administrative regulation. The concept of conflict of interest has evolved to include personal interests unrelated to personal financial gain, and this amendment reflects that change. Additionally, this amendment creates a "safe harbor" procedure for any licensee who has a question or concern about the ethical propriety of a contemplated course of action or situation.

      (c) How the amendment conforms to the content of the authorizing statutes: This amendment conforms to the mandate of KRS 322.290(11) since this provision is directed at one aspect of licensees acting ethically.

      (d) How the amendment will assist in the effective administration of the statutes: This amendment will provide more clarity to the issue of conflicts of interest, and provides an advisory mechanism to assist the licensee who may have a question about the ethical propriety of a contemplated course of action or situation.

      (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: It will affect all licensees, approximately 12,000 in number, subject to the provisions of the Code of Professional Practice and Conduct.

      (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

      (a) A detailed explanation of the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: No additional actions will be required of either the licensees or the board.

      (b) An estimate of the costs imposed on entities identified in question (3) in complying with this administrative regulation or amendment: There is no additional cost associated with this amendment.

      (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): This amendment will assist any licensee in understanding conflicts of interest, and what course of conduct is required in the event of the licensee being involved with a conflict of interest, and provides a mechanism for a licensee to receive guidance from the board for situations in which ethical issues may be present.

      (5) Provide an estimate of how much it will cost to implement this administrative regulation:

      a. Initially: $0

      b. On a continuing basis: $0

      (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: Restricted Agency Funds. The board receives no general or federal funds.

      (7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment: No increase in funding will be necessary.

      (8) State whether or not this administrative regulation establishes any fees or directly or indirectly increases any fees: No fees are established or increased as a result of this regulation.

      (9) TIERING: Is tiering applied? Tiering was not used because this regulation should not disproportionately affect any particular group of people.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

      1. What units, parts or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? The Kentucky State Board of Licensure for Professional Engineers and Land Surveyors.

      2. Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 322.290(11)

      3. Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect. There will be no additional revenue or expenditure to any agency as a result of this amendment.

      (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? None.

      (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? None.

      (c) How much will it cost to administer this program for the first year? $0

      (d) How much will it cost to administer this program for subsequent years? $0

      Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

      Revenues (+/-):

      Expenditures (+/-):

      Other Explanation: There is no additional cost or revenue generated by this amendment.