WSR 02-15-139

PROPOSED RULES

DEPARTMENT OF LICENSING


[ Filed July 22, 2002, 1:12 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 00-15-013.

Title of Rule: Chapter 196-27A WAC, Rules of professional conduct and practice. These rules guide the conduct of engineers and land surveyors in their professional practice.

Purpose: To repeal the original chapter, chapter 196-27 WAC, in its entirety and replace it with a completely new rewritten chapter, chapter 196-27A WAC. The reason for rewriting the chapter was to modernize the language, improve clarity, put the language into a more positive format, establish a set of expectations for engineers and land surveyors to strive for in their professional practice, include issues that are pertinent to current and future practice and include a section that lists "Explicit acts of misconduct."

Other Identifying Information: These rules are being evaluated in accordance with the requirements of the Governor's Executive Order 97-02.

Statutory Authority for Adoption: RCW 18.43.035.

Summary: Chapter 196-27 WAC is being repealed and replaced with a newly written chapter 196-27A WAC. The new chapter incorporates most of the language and intent of the original chapter, but also includes new language to cover a broader range of issues, is written in a more positive tone, establishes a set of expectations for engineers and land surveyors to strive for in their professional practice, and clarifies inappropriate professional and ethical practice by including a section titled "Explicit acts of misconduct."

Reasons Supporting Proposal: It is very critical that engineers and land surveyors have guidance regarding issues related to professional conduct and ethics in their practice. This new chapter 196-27A WAC provides that guidance.

Name of Agency Personnel Responsible for Drafting: Rick Notestine, 405 Black Lake Boulevard, Olympia, WA, (360) 664-1578; Implementation and Enforcement: George Twiss, 405 Black Lake Boulevard, Olympia, WA, (360) 664-1565.

Name of Proponent: Board of Registration for Professional Engineers and Land Surveyors, governmental.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: See Summary and Reasons Supporting Proposal above.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: Chapter 196-27 WAC will be repealed in its entirety and replaced with a newly written chapter 196-27A WAC, Rules of professional conduct and practice. This new chapter establishes fundamental canons and guidelines for professional conduct and practice, describes a registrant's obligation to employer and clients, their obligation to other registrants and to the board of registration and describes explicit acts of misconduct.

The purpose of the chapter is to help guide the ethical conduct of engineers and land surveyors in their professional practice.

The chapter was rewritten to make it more applicable to current and future practice, to put the language into a more positive tone, to establish a set of expectations for engineers and land surveyors and to improve the clarity and readability of the language. It is anticipated that registrants will find the rules in this chapter easier to read and understand than before and be more applicable to daily practice. This should result in better guidance to, and use by, the engineers and land surveyors in issues related to ethical conduct and practice. It also puts the engineering and land surveying professions on notice as to what the board's expectations are for professional conduct and practice and that the board can take disciplinary action against registrants for failing to adhere to the rules in this chapter.

Proposal Changes the Following Existing Rules: All of the rules in chapter 196-27 WAC, Rules of professional conduct are being repealed. The chapter is being replaced by a newly written chapter 196-27A WAC, Rules of professional conduct and practice. Much of the language in the rules being repealed has been incorporated into the new rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. These rules do not create either direct or indirect costs for businesses of any size. The rules are to guide and help engineers and land surveyors make "right" and ethical choices and decisions in their professional conduct and practice.

RCW 34.05.328 does not apply to this rule adoption. Neither the Department of Licensing nor the Board of Registration for Professional Engineers and Land Surveyors are one of the named agencies in this statute.

Hearing Location: Department of Licensing, Business and Professions Division, 405 Black Lake Boulevard, Conference Room No. 102, First Floor, Olympia, WA, on August 28, 2002, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Kim Chipman by August 26, 2002, TDD (360) 586-2788 or (360) 664-1564.

Submit Written Comments to: Rick Notestine, Project Director, Board of Registration for Professional Engineers and Land Surveyors, P.O. Box 9649, Olympia, WA 98507-9649, fax (360) 664-2551, by August 28, 2002.

Date of Intended Adoption: September 19, 2002.

July 22, 2002

George A. Twiss

Executive Director

OTS-5854.2

Chapter 196-27A WAC

RULES OF PROFESSIONAL CONDUCT AND PRACTICE


NEW SECTION
WAC 196-27A-010   Purpose and applicability.   (1) RCW 18.43.110 provides the board of registration for professional engineers and land surveyors (board) with the exclusive power to fine and reprimand registrants and suspend or revoke the certificate of registration of any registrant for violation of any provisions of chapter 18.43 or . . . . . . . RCW (chapter 86, Laws of 2002). This includes, as stated in RCW 18.43.105(11), "Committing any other act, or failing to act, which act or failure are customarily regarded as being contrary to the accepted professional conduct or standard generally expected of those practicing engineering or land surveying." The purpose of chapter 196-27A WAC is to provide further guidance to registrants with respect to the accepted professional conduct and practice generally expected of those practicing engineering or land surveying.

(2) These rules of professional conduct and practice are applicable to all registrants and engineering/land surveying firms. A registrant is any person holding a certificate or license issued in accordance with chapter 18.43 RCW and an engineering/land surveying firm is one that has been issued a certificate of authorization to practice by the board.

(3) All persons, corporations, joint stock associations and limited liability companies registered under the provisions of chapter 18.43 RCW are charged with having knowledge of, and practicing in accordance with, the provisions of this chapter.

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NEW SECTION
WAC 196-27A-020   Fundamental canons and guidelines for professional conduct and practice.   Registrants are to safeguard life, health, and property and promote the welfare of the public. To that end, registrants have obligations to the public, their employers and clients, other registrants and the board.

(1) Registrant's obligation to the public.

(a) Registrants are obligated to be honest, fair and timely in their dealings with the public, their clients and other licensed professionals.

(b) Registrants must be able to demonstrate that their final products and work plans conform to accepted standards.

(c) Registrants must inform their clients or employers of the harm that may come to the life, health, property and welfare of the public at such time as their professional judgment is overruled or disregarded. If the harm rises to the level of an imminent threat, the registrant is also obligated to inform the appropriate regulatory agency.

(d) Registrants shall maintain their competency by continuing their professional development throughout their careers and shall provide opportunities for the professional development of those individuals under their supervision.

(e) Registrants shall be objective and truthful in professional documents, reports, public and private statements and testimony; all material facts, and sufficient information to support conclusions or opinions expressed, must be included in said documents, reports, statements and testimony. Registrants shall not knowingly falsify, misrepresent or conceal a material fact in offering or providing services to a client or employer.

(f) Registrants shall offer their services in a truthful, objective, professional manner that effects integrity and fosters public trust in the engineering and land surveying professions.

(g) Registrants should endeavor to extend the public knowledge of engineering and land surveying.

(h) Registrants shall accurately represent their academic credentials, professional qualifications and experience.

(i) Registrants may advertise professional services only in ways that are representative of their qualifications, experience and capabilities.

(j) Registrants shall forbid the use of their name or firm name by any person or firm that is engaging in fraudulent or dishonest business or professional practices.

(2) Registrant's obligation to employer and clients.

(a) Registrants are expected to strive with the skill, diligence and judgment exercised by the prudent practitioner, to achieve the goals and objectives agreed upon with their client or employer. They are also expected to promptly inform the client or employer of progress and changes in conditions that may affect the appropriateness or achievability of some or all of the goals and objectives of the client or employer.

(b) Registrants and their clients should have a clear and documented understanding and acceptance of the work to be performed by the registrant for the client. The registrant should maintain good records throughout the duration of the project to document progress, problems, changes in expectations, design modifications, agreements reached, dates and subject of conversations, dates of transmittals and other pertinent records consistent with prudent professional practice.

(c) Registrants shall seal only documents prepared by them or under their direct supervision as required by RCW 18.43.070.

(d) Registrants shall be competent in the technology and knowledgeable of the codes and regulations applicable to the services they perform.

(e) Registrants must be qualified by education or experience in the technical field of engineering or land surveying applicable to services performed.

(f) Registrants may accept primary contractual responsibility requiring education or experience outside of their own fields of competence, provided, their services are restricted to those parts and aspects of the project in which they are qualified. Other qualified registrants shall perform and stamp the work for other parts and aspects of the project.

(g) Registrants shall act as faithful agents or trustees in professional matters for each employer or client.

(h) Registrants shall advise their employers or clients in a timely manner when, as a result of their studies and their professional judgment, they believe a project will not be successful.

(i) Registrants shall avoid conflicts of interest, or the appearance of a conflict of interest, with their employers or clients. Registrants must promptly inform their employers or clients of any business association, interest, or circumstances that could influence their judgment or the quality of their services or would give the appearance that an existing business association, interest, or circumstances could result in influencing their judgment or the quality of their services.

(j) Registrants shall accept compensation from only one party for services rendered on a specific project, unless the circumstances are fully disclosed and agreed to by the parties of interest.

(3) Registrant's obligation to other registrants.

(a) If registrants issue statements, critiques, evaluations or arguments on engineering or land surveying matters, they shall clearly indicate on whose behalf the statements are made.

(b) Registrants shall negotiate contracts for professional services fairly and on the basis of demonstrated competence and qualifications for the type of services required.

(c) Registrants shall respond to inquiries from other registrants regarding their work in a timely, fair and honest manner as would be expected from a prudent practitioner.

(4) Registrant's obligation to the board.

(a) Registrants shall cooperate with the board by providing, in a timely manner, all records and information requested in writing by the board, or their designee.

(b) Registrants shall respond to, or appear before the board at the time, date and location so stated in a legally served board order.

(c) Registrants shall notify the board of suspected violations of chapter 18.43 or . . . . . . . RCW (chapter 86, Laws of 2002) or of these rules by providing factual information in writing to convey the knowledge or reason(s) to believe another person or firm may be in violation.

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NEW SECTION
WAC 196-27A-030   Explicit acts of misconduct.   In addition to any failure to conform with the requirements of chapter 18.43 RCW, RCW . . . . . (chapter 86, Laws of 2002) or this chapter, the following acts and any act or condition listed in RCW . . . . . (section 114, chapter 86, Laws of 2002), are explicitly defined as misconduct in the practice of engineering and/or land surveying.

(1) Aiding or abetting the unsupervised practice of engineering or land surveying in the state by a person or firm that is not registered in accordance with chapter 18.43 RCW, or, aiding or abetting an unlicensed person to practice or operate a business or profession when a license is required.

(2) The practice of engineering or land surveying by a registrant when the registrant's license is retired (see WAC 196-25-100(6)), expired, suspended or revoked.

(3) Failing to comply with the terms and conditions of an order issued by the board.

(4) Failing to provide relevant information on plans and surveys in a clear manner consistent with prudent practice.

(5) Failing to comply with the provisions of the Survey Recording Act, chapter 58.09 RCW and the survey standards, chapter 332-130 WAC.

(6) Failing to respond to inquiries from clients, or other professionals regarding conflicts with the registrant's work products, opinions or procedures, in a manner that would be expected from a prudent practitioner.

(7) Failing to correct engineering or land surveying documents or drawings known to contain substantive errors.

(8) Failing to notify a client or employer that a project could not, or would not, be completed once that assessment is made.

(9) Modifying another licensee's work without notifying that licensee, and clearly delineating the modifications and sealing and signing the modifications made; EXCEPT where the plans, maps, or documents are modified by the owner to reflect changes over time for their own purposes and are not used for submittals or bid documents.

(10) Offering or accepting money, goods or other favors as inducement to receive favorable consideration for a professional assignment, or as an inducement to approve, authorize or influence the granting of a professional assignment.

(11) Soliciting or accepting gratuities, directly or indirectly, from contractors, their agents, or other parties dealing with clients or employers in connection with work for which the registrant is responsible.

(12) Using privileged information coming to registrants in the course of their assignments as a means of making personal profit beyond their professional compensation.

(13) Requesting, proposing, or accepting professional commissions on a contingent basis under circumstances in which the registrant's integrity may be compromised.

(14) Willfully attempting to interfere with a board investigation by falsifying records, making false statements and intimidating or influencing witnesses.

(15) Willfully attempting to suborn another person to violate the law or administrative code, public policy or their code of professional ethics.

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OTS-5853.1


REPEALER
     The following chapter of the Washington Administrative Code is repealed:
WAC 196-27-010 Purpose and definitions.
WAC 196-27-020 Fundamental canons and guidelines for professional practice.

Washington State Code Reviser's Office