Need advice on “responsible charge” and COA/Firm Permits 1

[ARS97]

I need advice relating to the Certificate of Authorization (COA) and Firm Permits that various states require.

I am licensed in PA, MD, WV and VA. All of these states, with the exception of PA, require some form of business registration with the State Board in order for the company to practice engineering in the state. The laws seem clear – the company must have a full time on-staff PE, licensed in that state, that is in “responsible charge” for engineering activities within that state.

The company I work for is primarily involved in material handling projects (coal / aggregate), so this may give you an idea of the end consumer. Our work isn’t exclusive to this industry, but practically 100% of our work stays within the “industrial” sector.

The company’s organizational layout is a bit difficult to explain. For one, there are essentially two companies in one. Company #1 is the parent construction company and is composed primarily of a project manager division and a fabrication division (with detailing department). Company #2 is the subsidiary that consists of a “design team” that includes engineers, fire suppression designers, fiber optics, etc.

*NOTE – Up until earlier this year, I was employed by Company #1, which was a design/build construction company at the time. When they re-organized and moved me to Company #2 in an effort to consolidate liability, Company #1 became just a plain construction company due to the lack of design capability. (Although their fab shop detailing department tends to dabble in it, but that’s another story!)

I am the only on-staff PE (structural-focused), but I am not in a management position. By default, I am their only option for signing the required affidavits for these COA’s and Firm Permits, and I’ve done so for several years now. However, because I’ve become more aware of my situation, and because of my lack of involvement in most of the projects, I am having ethical concerns about renewing these certificates with my name on it.

In addition to myself, this “design team” has one mechanical engineer (degree only), one electrical engineer (degree only), and a manager who is a dairy farmer that has decided to dabble with a few engineering classes. There are also several other “technicians” that specialize in various fields including fire suppression and even “electrical design”.

This design team is constantly quoting projects, procuring work, and interacting with customers. I have zero involvement with these projects, and I don’t have the slightest clue as to what the scope of work is or what the deliverables are. I am only involved with the projects that are specifically brought to me.

The company’s position, which has been formulated by the Corporate Attorney, is that I can only be held liable for projects that I know about. Therefore, they can sit me over in the corner in a non-management position and use those COA’s (that rely on my credentials) to practice “design” or “engineering” as they see fit. They believe that I’m guarded from liability on any project they choose not to show me.

They also take exception to the legal definition of “practice of engineering” (see NSPE or states laws) because they believe that definition could overlap with various trades.

I do not believe this is a correct interpretation of the laws, but I’m not an attorney.

As you can imagine, this is a battle that I have lost up to this point. Unfortunately, because of the impasse, I think I’ve reached the point of no return here and they’re going to force my hand here. I am about to begin actively looking for another job (which are quite scarce in this area), but before I do, I want to make sure that I’m correct in my thinking and that I’m not overreacting.

Alright……let’s hear some opinions!

 

[jari001]

I'm a simple person, my parents told me never sign anything you aren't comfortable signing. I'm not a PE, but I think signing off on work that you have no ability to supervise/control is not ethical. If you had the time and ability to check work on other projects or be the person assigning the work to those you know are qualified, I personally would not see that as unethical. Also, since you and your attorney already have a difference of opinion on the laws, any prosecutor could probably find a way to hold you accountable.

If you strike out and start looking for jobs, best of luck!

 

[ARS97]

No, I don’t “sign off” on anything besides what I do. I don’t seal anything besides my own work.

 

[cvg]

A.R.S. § 32-141. Firm registration
A. A firm shall not engage in the practice of any Board regulated profession or occupation unless the firm is registered with the Board and the professional services are conducted under the full authority and responsible charge of a principal of the firm, who is also a registrant.

B. A person shall file a registration application for each branch office that is located in this state and that is of a firm registered with the Board. The branch office application shall list a designated registrant having full authority and responsible charge of the professional services of that branch office. The designated registrant in a branch office need not be a principal of the firm.

just as an example, here is one states rules (just the first two paragraphs) which seem clear that your company would not comply with if it was in this state. Every state is different though, so it is unclear how many laws they are breaking. As far as you personally being liable, not clear since you are not a principal in the company. You are not an owner or manager, but you are aware of the violations. This would be unethical to continue doing this.

 

[ARS97]

Well, the states that are involved here have different company designations......professional firms, general business entity, etc. We're just a general business entity.

Just to be clear though - in instances where "professional" engineering services are required by the customer, I am involved to my knowledge. I have "responsible charge" in those cases. It's the other cases where other personnel offer "design" services without my knowledge. I'm not in a position where I can provide oversight to all "design" personnel, so I don't know what's being promised or offered. I can't tell if violations are happening or not.

 

[jari001]

I am perhaps too pessimistic, but I don't think you would escape liability if something happened on a project where you signed off on documents. Ideally, you should pursue some sort of legal consultation outside of your company; could you seek some legal assistance from the PE boards of those states?

 

[ARS97]

I've tried consulting with the state boards......they don't offer much, they just basically recite the law. On top of that, it's been explained that there's a difference between what the law says and what the boards choose to enforce. It makes it a bit difficult to determine a standard policy.

I'm not trying to escape liability on anything I've sealed. I'm trying to find out if the "other" design efforts offered by the company, that I don't have detailed knowledge of, can get me in trouble.

 

[jari001]

Yes, my comments are directed to the "other" efforts that you are being asked to sign off. The corporate lawyer may have an angle on how to keep you safe from the liability of the "other" efforts, but I would be skeptical of that position (especially since it seems he wasn't able to convince you!)

 

[TehMightyEngineer]

Being the licensed engineer for a precast concrete company, I'm curious about what you find out as well andysines.

Professional Engineer (ME, NH, MA) Structural Engineer (IL)
American Concrete Industries

https://www.facebook.com/AmericanConcrete/

 

[77JQX]

In my mind, by signing the COA, while knowing the company is offering design services that are not under the responsible control of a licensed engineer, you are willfully aiding and abetting the company in evading the licensing regulations. If something should go wrong, I would think it would be pretty easy to show how your actions directly led to public endangerment. While I'm not a lawyer, your company's lawyers also aren't engineers, and it's not their butts on the line.

 

[ARS97]

The tricky part is that I don't know for sure what other services are being offered. All I know is that management has taken the position that I don't need to know all of their dealings. That seems wrong, but I don't know for sure. Seeking third party legal advice.

 

[Ron]

In most states, as cvg noted, the engineer who qualifies the company for a COA must be a principal of the firm. In my state, that means an officer of the firm. In fact, the qualification notation states "Engineer as Officer" in my state. Most are no different.

Responsible charge is a term that means you have control over the engineering decisions and outcomes. That cannot be superceded by corporate policy nor non-engineer decisions.

 

[jari001]

Glad to hear you're seeking legal advice, that's your best course of action. My motto is "when in doubt, don't sign for anything you don't know about".

 

[WinelandV]

My $0.02,

See if they would be willing to sign a "hold harmless" clause - meaning that in the event that everything went pear-shaped and you were found liable, they would make you whole for whatever judgement was found against you. Obviously I'm not a lawyer, and this does not constitute legal advice, and I make no claim as to whether or not this would hold up in court.

However, it could force them to put their money where their mouth is, figuratively speaking.

As others have said, talk to an attorney who specializes in these things. The insurance company being used for liability coverage may also have an opinion.

 

[ARS97]

The states that I'm dealing with (MD, WV and VA) do not require that the "managing agent" be a part owner/officer of the firm. That option exists, and is reserved for businesses that meet the definition of "professional firms" (which carries additional requirements), but for a general business entity, I can simply be a regular employee of the company. In fact, VA is odd - they allow a non-licensed person to be the managing agent for the company (who's name goes on the certificate), but that managing agent is responsible for having a licensed engineer be in charge of the different engineering disciplines within the company. I don't agree with how it's set up, but that's the law.

I did locate an attorney, who also has an engineering degree, that specializes in this topic. I'll be speaking with him next week.

Keep something in mind - the company is located in MD, which has a fairly liberal carve out in the "industrial exception" for manufactured products. Aside from the structural work that I do, most of the other products that are produced by the company fall into this classification. This is why I believe the company feels so insulated from the various laws.

 

[FreddyNurk]

77JQX has a point, any documentation produced removes any possibility of plausible deniability, or the ability to claim that you had no way of knowing about the rest of the company's conduct.

In my mind, rightly or wrongly, any indication that you're aware of it now means that you should be at least flagging it with relevant company people.

EDMS Australia