California Surveyors Forums

I know of at least two borpels actions where the private surveyor and local county surveyor both agreed that a corner record was the appropriate document regarding section 8762, not a ROS. In a dispute between neighboring owners, a complaint had been filed with borpels at the suggestion of the complainants' lawyer and surveyor. (how many manuals have an ethics chapter at the end of the text stating surveyors are supposed to be neutral fact presenters, while owner's lawyer acts as the advocate ? I won't bother to list them all here.)

Borpels did not bother to interview the county surveyor to determine his/her reasoning in supporting the corner record. Maybe that is their policy. If it is, it is a bad policy. Neither did they cite him/her. They cited the private practitioner. The system in place has plenty of flaws despite good intentions.

"under these provisions do not involve any basic policy decisions, and therefore the immunity of Government Code section 820.2 does not attach."

I do not know if immunity under the Government code section 820.2 extends to actions of the board. i doubt it.

The immunity is based upon the capacity in which the individual employee performs his or her duties. It is neither applied nor not applied wholesale to any particular agency or bureau.

At the Board, certain staff members act in policy-making capacities and others do not. Some may act in a polcy-making capacity in one aspect of their position, but act in a capacity of carrying out policy or law in other aspects.

That's part of what they were looking at in Wheeler. In the capacity of checking an RS, the County Surveyor was not acting in a policy-making role. In some counties, the CS may act in a policy-making role in other aspects of his or her duties if the CS is also the head of a department or holds a dual position like Deputy Director of Public Works.


You said that Wheeler speaks for itself. I agree. But I don't know that when it speaks that it is saying the same thing to you as it is to me. Please explain to me your take on Wheeler.

It seems to say that a County Surveyor acting with respect to their role as defined by the PLSA does not have immunity attach to those actions under government code 820.2

Note: I typed this up in Word and then cut-n-pasteed to here. That created some formatting issues that I will correct later. Sorry if they make it difficult to read some of the text.

DWoolley wrote:both Wheeler and Nizam-Aldine are relevant.

[font=Verdana","sans-serif]Again, The Wheeler court only explored the PLSA to the extent it needed to identify that there was a duty owed to the public, and whether or not that duty was protected by Government Code §820.2. Since you assert that Wheeler interpreted the standard of care required in performing that duty, how about pointing us to the relevant portions of that ruling on those points?[/font]

DWoolley wrote:Nizam-Aldine states that:...

[font=Verdana","sans-serif][font=Verdana","sans-serif]As a public sector employee, I'm embarrassed by the Nizam-Aldine ruling, and the statute law behind it. The gist of the law is that in my official capacity, I can make public comments that your map is garbage, the survey is fraudulent, that you are incompetent and negligent. Because the survey is a matter of public interest, I don’t have to exercise any care, much less the care that would reasonably be expected of a private sector licensed surveyor in good standing to ensure that the negative statements I make are true. In short, it’s the seriousness of the charge and not the truth or falsity of it that is important.[/font][/font]

[font=Verdana","sans-serif][font=Verdana","sans-serif]Fortunately, I hold myself to a higher standard, as do the vast majority of professionals in the public sector that I know of.[/font][/font]

[font=Verdana","sans-serif][font=Verdana","sans-serif]The Nizam-Aldine court did not bother to investigate whether or not the allegations made by the public employees were true or if there was a reasonable factual basis for their irresponsible statements. It merely ruled, in an accurate reflection of statute law, that such statements, apparently including the vulgarities and expletives, are protected under the First Amendment of the US Constitution. [/font][/font]
[font=Verdana","sans-serif]
[font=Verdana","sans-serif]The court’s observations, reasoning, and statements were made in the context of demonstrating that the statements made by the City employees were protected. And if the official believes that the practice being viewed is both substandard and a matter of public concern, whether there is any truth or not to the perception of substandard practice, the official has an obligation to inform the public.[/font]

[font=Verdana","sans-serif]The facts stated by the court about the surveys, and its recounting of the assertions made by the various surveyors raises several concerns about the practice, the competence, and the honesty of all the surveyors involved. No way to sort that out without a more complete set of evidence that would tend to either supportor contradict represented facts and assertions made by the City surveyor and bythe various private surveyors.[/font]

[font=Verdana","sans-serif]So applying Nizam-Aldine to the County Surveyor when reviewing records of survey, if the County Surveyor identifies substandard practice, he has an obligation to inform the public of it. If he merely believes that he has identified poor practice, but has made that judgment without making a reasonable attempt to verify that perception by analyzing all of the available evidence, and decides to notify the public of perceived poor practice at that point, he is protected from civil liability for any falsity in his statements resulting in defamation. But he is not protected from action against his license for such statements if they are false and would tend to injure the reputation or business of the person about whom the statements are made. He could receive sanction for violations of the Board Rules under §476(c):[/font]

[font=Verdana","sans-serif] (7) A licensee shall only express professional opinions that have a basis in fact or experience or accepted land surveying principles.[/font]

[font=Verdana","sans-serif] (10) A licensee shall not falsely or maliciously injure or attempt to injure the reputation or business of others.[/font]

[font=Verdana","sans-serif]And (11) A licensee shall not misrepresent data and/or its relative significance in any professional land surveying report.[/font]

[font=Verdana","sans-serif]If the statements are merely false and the CS did not know them to be false (but also did not know them to be true), he would escape civil liability but still have his license subject to discipline due to negligence(not bothering to adhere to fact, experience, or accepted land surveying principle as a basis for the statements made) or incompetence (not having the experience, not recognizing the facts, or not understanding the accepted and applicable land survey principles upon which any statements should have been made), and due to misrepresentation. Note that §476(c)(10) uses two adjectives to describe prohibited injurious representations: “falsely or maliciously”. Because they are separated by “or”, knowledge of the falsity is not required, nor is maliciousness necessarily required. And because the verbs “injure or attempt to injure” are included, no actual injury need occur if there is an intent to injure,and no intent need be present if there is actual injury. It’s really a very broad section of code. Also note that §476(c)(11) requires neither knowledge of the falsity nor intent to misrepresent. One could misrepresent out of ignorance and be in violation.[/font]

[font=Verdana","sans-serif]The Nizam-Aldine court did not rule that an official needs to inform the public if he only suspects poor practice, and since the truth of any allegations made by public officials is immaterial, the court did not delve too deeply into the facts to determine what the truth was. They only delved in deeply enough to satisfy themselves that the City officials were not maliciously making defamatory statements that they knew to be false (not protected), and that the facts of the case were confused enough that the private surveyors failed to prove that the City officials knew that their statements were false.[/font]

[font=Verdana","sans-serif]The court did not delve into any standards by which government officials were to identify poor practice, because truth being immaterial, any standards for ascertaining facts upon which to make the defamatory statements was not germane to the issue before the court.[/font]

[font=Verdana","sans-serif]So, getting back to the County Surveyor... The County Surveyor needs to balance the obligation to identify and disclose matters of public interest with his professional responsibility to form his professional opinions on fact, experience, and acceptable land survey principles. The Nizam-Aldine case does not define to what level of investigation a public official must go to determine whether practice constitutes a public concern.[/font]


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That rant is ridiculous, get a life!

RM

That rant is ridiculous, get a life!

Can you identify the target ranter of this remark? Some of us are having trouble keeping track.

Thanks!

.

Boy howdy!

If you want to know who has immunity, maybe this will shed some light:

I am aware of at least one, possibly two or three fairly recent instances where a local surveyor and his/her county surveyor both agreed that a corner record was the appropriate document to file in a particular survey. They both were sure that the corner record survey did not trigger any of the subsections in sect. 8762

But when neighbors fight, disputes can lead to one of them filing a complaint with borpelsg. Borpelsg does not have the time to analyze each survey in depth; they have to hire their "experts". An "expert" opined there was a violation of 8762 and a citation was sent out.

Did the County surveyor who signed the Corner Record survey get cited for the so-called violation ? Of course not. The borpelsg people did not bother to interview him as to his reasoning for believing the corner record was the correct document. The local practitioner was cited.

The system is full of flaws and good intentions.