California Surveyors Forums

board has sent me a letter saying 4 years ago the engineering company I'm their surveyor of record has done a topographic map without stamp and signature. I looked into it, it wasn't my work, another guy who has his own surveyor to sign for him, brought in the job. The engineer says the architect wanted to see the map ASAP, so they sent it to him and never heard anything again from him or the owner. I have replied to board saying I have nothing to do with that job and they have to contact the engineering company.
Now I got an email back from board stating that because I'm the only surveyor on the record with that company, "you are required to be in responsible charge of all land surveying work within XXX Engineers ".
And "Evidence obtained that supports violations of the Professional Engineer’s and Land Surveyors’ Act could result in the issuance of a citation which may include an administrative fine in the maximum of $5,000.00 per violation or the case may be referred to the Office of the Attorney General for formal disciplinary action to be taken against your professional land surveying license, including revocation, suspension, or probation"

I don't think it's fair to threaten a surveyor to do what it's out of his/ her hand, otherwise he/she will get citation or other penalty.
What do you guys think?

sako wrote:...another guy who has his own surveyor to sign for him, brought in the job. ... I have replied to board saying I have nothing to do with that job and they have to contact the engineering company.

Now I got an email back from board stating that because I'm the only surveyor on the record with that company, "you are required to be in responsible charge of all land surveying work within XXX Engineers ".

I think that the reply from BPELSG is total BS. If you were not the owner and did not have supervisory control of all the engineers and other project surveyors, then you did not have the ability to stop one from using survey information provided from an outside source. You may not have even been made aware that this survey info was obtained by another employee from an outside source and then passed on to a client.

You cannot be in responsible charge of work that you were not aware of. Whoever came up with that interpretation of the law is at best, at the not-quite-competent level of being able to interpret law, and therefore at the not-quite-competent level as a surveyor in the area of practice to which it might pertain. Oh, I suppose that since the requirement of responsible charge applies to any area of practice, that person is below minimum competence as a surveyor.

If the engineer obtained the topo info from an outside source, it was up to that engineer to ensure that the surveyor who was in responsible charge of collecting and producing it was properly identified, or to ensure that it was reviewed and verified by someone authorized to do so before supplying it to a client. If the person who formulated that reply thought it through with a modicum of common sense, they would quickly realize that their investigation needs to begin with that engineer, not you.

I couldn't agree more. I don't see how you can be responsible for a document you didn't create or have a supervisory role over. This is BS.

Are you listed on the organizational record with BPELSG as the officer in charge of land surveying, per 8729(a)(1)? If so, then I see the board's point in that the overall operation of the survey portion of the business is your responsibility. If a business is sending out unstamped work, the manager in charge of that portion of the business, i.e. officer in charge of surveying, does have some culpability.
This is different than the situation of a project surveyor who is only in responsible charge of those projects assigned to him/her. If the company is listing you on the organizational record, then you are responsible for how that company operates as it pertains to survey product delivered.

With all due respect for the complaint, when you leave a firm, you must let the Board know. When you join a firm, you file an organizational record and when you leave, you file a disassociation form. I have attached both. The burden falls on the practitioner.

I cannot give you any advice but if it was me I would try to retroactively file the disassociation document.

If you are working with another firm, you should file an organizational record.

Good luck.

Sounds about right for the JPPCs or the Board. I got one letter from a JPPC threatening my license and of the 2 surveyors and one govt agency involved I was the only one that did my job completely. Never got an apology and the other surveyor that did not do due diligence in research didn't get a letter either.

Sounds like you still work for the company and they should do whatever necessary to clear this up for you.
I would also tell the company that if they are going to hire outside surveyors they need to include them as SORs or take you off as SOR.
I would think there should be some board rule that should require a CE to only accept signed docs and not send out unsigned docs.

I am curious as to how this came to the attention of the board - someone must be PO'd about something to notify them.

If the company throws you under the bus I would find a lawyer, a real bottom feeding shark, and go after the company.

mpallamary wrote:With all due respect for the complaint, when you leave a firm, you must let the Board know. When you join a firm, you file an organizational record and when you leave, you file a disassociation form. I have attached both. The burden falls on the practitioner.

I cannot give you any advice but if it was me I would try to retroactively file the disassociation document.

If you are working with another firm, you should file an organizational record.

Good luck.

Mr. Pallamary,
I'm still on the organization record and I haven't left the firm, but I never had anything to do with that project.

I did not realize you were with the same company. Forgive me. I would send a detailed letter to the board, explaining everything that happened and I would identify all parties and I would send a copy of the survey. I would take the time to set the record straight.

I would also send a memo to the company president/owner and I would make sure a copy was in the project file.

I believe the company is on the hook and not you.

I do not believe you are responsible for all the work. I believe the organization record is intended to keep track of where surveyors and engineers are employed. It does not mean absolute responsibility. I do know the use and function of the organization record is frequently misunderstood.

I would reply calmly and methodically.

William Magee wrote:Are you listed on the organizational record with BPELSG as the officer in charge of land surveying, per 8729(a)(1)? If so, then I see the board's point in that the overall operation of the survey portion of the business is your responsibility. If a business is sending out unstamped work, the manager in charge of that portion of the business, i.e. officer in charge of surveying, does have some culpability.
This is different than the situation of a project surveyor who is only in responsible charge of those projects assigned to him/her. If the company is listing you on the organizational record, then you are responsible for how that company operates as it pertains to survey product delivered.

Mr. Magee, would your answer be the same if the company had 2 or 3 surveyors on the record?
My point, still is that I cannot have oversight of the work I haven't done.

land butcher wrote:Sounds like you still work for the company and they should do whatever necessary to clear this up for you.
I would also tell the company that if they are going to hire outside surveyors they need to include them as SORs or take you off as SOR.
I would think there should be some board rule that should require a CE to only accept signed docs and not send out unsigned docs.

I am curious as to how this came to the attention of the board - someone must be PO'd about something to notify them.

If the company throws you under the bus I would find a lawyer, a real bottom feeding shark, and go after the company.

Land butcher, you are right on the money, and I have asked the engineer to clear things out, He called the board and gave them a report of what has happened.

Put everything in writing and copy the related parties.

Good luck.

Sounds like you are on the right track, but I'll throw in my suggestion. You stated "the engineering company... ...has done a topographic map (delivered) without stamp and signature." and "...it wasn't my work, another guy who has his own surveyor to sign for him, brought in the job. The engineer... ...sent it..." "I have replied to board saying I have nothing to do with that job and they have to contact the engineering company."

If the "guy... brought in the work" is a Civil Engineer, either he or the one who sent out the unsigned unsealed documents, or both, could be on the hook instead of you as the work performed under B&P Code 6731.1 was performed and delivered under the direction of a CE. The violation would be under B&P Code 6735. The other surveyor may also be culpable if his work product delivered to your engineer was not signed and sealed.

Sako,

Will you email me a copy of the letter? It is ok to redact the names of the parties. I am interested in the text and context.
DWoolley at DWoolley.com

DWoolley

sako wrote:

land butcher wrote:Sounds like you still work for the company and they should do whatever necessary to clear this up for you.
I would also tell the company that if they are going to hire outside surveyors they need to include them as SORs or take you off as SOR.
I would think there should be some board rule that should require a CE to only accept signed docs and not send out unsigned docs.

I am curious as to how this came to the attention of the board - someone must be PO'd about something to notify them.

If the company throws you under the bus I would find a lawyer, a real bottom feeding shark, and go after the company.

Land butcher, you are right on the money, and I have asked the engineer to clear things out, He called the board and gave them a report of what has happened.

That should resolve the issue. If not, someone at the board is ...............

I would get the company to make some changes too. If they area going to accept outside LS work then all or none need to be SORs

Keep in mind, it has been proven time after time, with this Borpelsg, more often than not, you are guilty until proven innocent. The "public safety" trumps all other reasonable considerations that would be part of a careful investigation. They get a D grade in their citation process. They have been observed to have earned a B grade or maybe even A- in the hearing process; that is the first time they actually ask the diligent, well-thought out and relevant questions that resolve the matter.

desert,

Wouldn't a citation be the equivalent of an indictment? That is, having a much lower threshold to overcome as to the validity of an accusation. Maybe even akin to a search warrant - is there probable cause to go forward?

If citations are issued as a wakeup call to the licensee, then the appropriate response is full disclosure and preparation for the journey to the hearing.

I never thought of it as a full-on investigation at that stage. If the allegations are completely spurious, then the potential citation would be dismissed upon a showing of incontrovertible facts. Much like defending oneself against libel.

A citation is much like a civil citation in that the enforcing entity (BPELSG staff for licensing matter, health inspector for food service, police for traffic infraction) has made a determination that you violated some section of code. The difference is that the health inspector and police officer generally witness the infraction and record evidence of it at the time they witness it. BPELSG staff does not directly witness facts of a violation, but take reports from aggrieved parties in the form of complaints.

When the police show up at an accident after it occurred, they do not issue a citation just on the word of the first party to offer a statement. They question all parties involved and any other witnesses and issue a citation only after considering all of the statements.

When BPELSG receives a complaint, if the initial review determines that the complaint may have validity, they open an investigation. Upon opening the investigation, they notify the respondent licensee that a complaint has been filed against his or her license and request any information the licensee has relative to the project that the complaint is regarding. After receiving all of the evidence offered by the complainant and by the respondent, the file is usually sent to an "Expert Consultant" for full review and to provide an opinion as to whether the evidence provided indicates that violations did occur, or that it fails to show the violations stated in the complaint. Board staff is supposed to then decide to issue a citation or not based upon all of the evidence provided and the "Expert Consultant's" report.

If a citation is issued, BPELSG the preponderance of evidence in the possession of BPELSG should support the conclusion that the violation(s) did occur. As with a traffic citation, the licensee can either accept the conclusions reflected in the citation, pay the fine, promise not to mess up again, and follow through on educational or other actions required by the order accompanying the citation. If the licensee chooses to challenge the charges listed in the citation, he may do so at an informal hearing. This can be somewhat analogized to traffic court although it is a less formal setting, and you have quite a bit more time to present your case (about an hour). The main thing they have in common is that they are forums designed to provide due process. In traffic court, you show up with a statement from your mechanic that he fixed a sticky accelerator on your car or some credible evidence that you didn't commit the violation stated in the citation, the Judge is supposed to give that evidence impartial consideration, which can result in the citation being reduced to a fix-it ticket already taken care of or a dismissal of the citation.

The licensee can also choose to challenge (before exercising the right to an informal hearing or after receiving the results of the informal hearing) the citation in a hearing through the Office of Administrative Law before an Administrative Law Judge. This is more formal. Not quite as formal as a civil trial, but a hearing with formal procedures, representation for the licensee and for the State, and the presentation of evidence and witnesses, expert or otherwise. This hearing may last for a few hours or may include several days of hearings spread over the course of several months.

If the violations are deemed by BPELSG staff to be serious enough that revocation or suspension of the respondents license is sought, then the matter is turned over to the Attorney's General Office. The Deputy AG may conduct some limited additional investigation to clarify matters, may offer settlement terms to the licensee, or may just prepare for the hearing. For charges that are serious enough to be referred directly to the AG's Office, the DAG prepares an Accusation that is filed with the OAH. This step is the rough equivalent of an indictment.

Like the DA's office that is brought a criminal case in which the police are requesting an indictment, the AG can prepare and file the Accusation, or they can recommend settlement or even that BPELSG drop the case. I don't know if they have the authority to not take the case in the same way that a DA can drop a case brought to them because I've never seen it done or heard of it being done.

The bulk of the investigation, which is usually a thorough review of documentary evidence, statements, reports, maps, etc. provided by both sides is supposed to occur before a decision to issue or not issue a citation is made. An investigator does not go out and view field evidence or seek witness statements. If it's not provided by one of the parties, it's not reviewed. However, if there seems to be evidence lacking that should exist, or if statements or evidence require further explanation to properly understand, the "Expert Consultant" may provide written questions to the BPELSG enforcement analyst who then will forward them to the party from whom additional explanation is needed. I did this in one or two cases when I was reviewing cases for BPELS. I don't know how many others, if anyone have also done that.


"If the allegations are completely spurious, then the potential citation would be dismissed upon a showing of incontrovertible facts."

You would think so, but it's not always the case. There are several shortcomings in the enforcement process that I've witnessed that have denied respondent licensees and landowners the due process that the system is supposed to provide.

Evan,

Thanks for the 'behind the curtain' synopsis!

So if you appeal you have to go to Sacramento, not where the alleged infraction occurred?

San Diego is an alternative site.

That's what the Surveyors union does, cites a guy working in OC and holds his trial at a member meeting in Santa Maria on a weeknight.

Is it worth the expense to go fight it or opt for a fine.

Don't worry about the citation, after you are guilty and eventually prove your innocence over a typical 18 month span of time, the Borpelsg head guy told the registrant in the hallway; "don't worry about it, I dismissed it didn't I ? Think of it as a dismissed traffic ticket. " At least they have a good sense of humor there. That has to count for something, right?

Most of us are insulated from what a proper investigative process consists of. Maybe the process in this state falls under the general header of "budgetary constraints".

Study the other 49 states board rules and regs: no one receives a citation based on the findings of one "expert" who filled out a partial one page form and underwent an oral interview, then sends on his expert findings for a decision by Borpelsg. The other 49 states have 3 and 5 person panels who make such determinations.

DWoolley wrote:Sako,

Will you email me a copy of the letter? It is ok to redact the names of the parties. I am interested in the text and context.
DWoolley at DWoolley.com

DWoolley

Mr. Woolley,

Please check your private message.