Jerry Walling and Roger Brislawn do what many, many cyclists around the country do – they sit on the Bicycle Advisory Committee of their community. They never dreamed that accepting this role, and reviewing bike crashes, would lead them to the brink of “large fines and imprisonment...”
These “BAC’s” are numerous in Ohio – and around the country. They are generally defined in some way by City Council in the city charter or other official documents. Folks who sit on these Advisory Committees are generally knowledgeable but not experts – certainly not engineers – and may be appointed because of their cycling experience and knowledge. These Committees typically look at problem areas, roads and intersections and make recommendations to the City to help make cycling safer in the community.
Jerry and Roger are both experienced Committee members. In Beavercreek, the “Bikeway Advisory Committee” was established by City Council in 2000 through the passage of a City Ordinance which described the purpose of the Committee: “To facilitate non-motorized travel within the City by advocating the proper planning and implementation of non-motorized improvements.” The Committee has a long history of working with City Council and is featured prominently on the City’s website.
From 2000-2011 the Bikeway Advisory Committee seemed to work well in Beavercreek – or so Jerry & Roger thought. That changed in August 2011 when Jerry & Roger received a little present in the mail – a certified mail letter from The Ohio State Board of Registration for Professional Engineers and Surveyors.
I’m certain they found this rather odd – signing for a registered letter from such a group. Neither of the men is an engineer or surveyor. Upon reading the letter, however, the shock… and fear.. set in.
The letter cited the men to Ohio Revised Code Section 4733.01 – the code section which defines the “practice of engineering.” The Board stated that it had received a “complaint” alleging that work the men had done for the Bikeway Advisory Committee “may fall into the realm of traffic engineering and could effect public welfare, safeguarding of life, health or property…”
The words that REALLY got Jerry & Roger’s attention, though, were these: “Since you are not registered with the Board as a professional engineer, this could be a violation of Ohio Revised Code Sections 4733.02 and 4733.22. A violation of these codes could result in large fines and imprisonment.”
Jerry & Roger contacted me about their predicament. After reviewing the letter, and thinking about the dramatic implications a bad result would have for bike advocates nationwide, I agreed to work on the case pro bono.
The first thing, for me, was to get the lay of the land. Where had this complaint come from? What actions of Roger & Jerry had led to someone filing the complaint? Fortunately, the letter from the Board included some background.
The Complaint had been filed by David E. Beach, an engineer with the City of Beavercreek. Beach had, at one time, been the City Engineer and had worked with Jerry & Roger on bicycle issues during his tenure as City Engineer. He knew what Roger & Jerry did and understood that any actual “work” had to be designed, approved and paid for by the City officials. Nonetheless, Beach submitted a complaint to the Board, claiming that a Powerpoint presentation which Jerry & Roger had prepared and submitted to the City Engineer, City Council and others amounted to “engineering” by non-engineers and asked the board to “…stop the practice of traffic engineering by unqualified members of this Committee…”
Mr. Beach described Jerry & Roger’s Powerpoint as “Accident Analysis and Traffic Engineering Recommendations.” In fact, the report was called “BBAC Report on City of Beavercreek Pedestrian/Cyclist Accidents 2007-2011.” You can read their entire work product below.
As you can see, the Committee reviewed crashes, and crash locations, described them and made recommendations to improve safety. How many readers of this blog do this very thing every single day? Many, I’m sure. There is nothing even remotely resembling “engineering” in here – no drawings, sketches, plans, specifications.
We decided to take a very aggressive approach to responding to these allegations. My fear was that this tactic, if successful, could be duplicated in cities around the country to stifle input from cyclists. I wanted to draft a detailed response that would provide the best defense possible and also act as a form for folks in other jurisdictions to use if this “practicing engineering without a license” thing caught on.
There are very few published cases on this “practice of engineering” issue, but one similar case which was very helpful is Schroeder v. State Board of Registration, a court of appeals decision from 2004.
In the Schroeder case, Mr. Schroeder, a retired biology professor with a Ph.D. in biology, prepared a three-page “essay” addressing the environmental impact of a road project in Trumbull County. His report was submitted to the County Engineer on behalf of a non-profit, the “Mahoning River Consortium.” A Deputy Engineer turned this report over to the Ohio State Board of Registration for Professional Engineers and Surveyors [“the Board”] claiming this essay constituted “the practice of engineering.” After a hearing, Mr. Schroeder lost as the Board determined he had practiced engineering. He appealed, without a lawyer, but lost again before the common pleas court. He then retained counsel and appealed the court ruling against him. The Tenth Appellate District reversed the trial court and held that Mr. Schroeder’s report was NOT “engineering.”
The appeals court stated that “The primary goal of R.C. 4733.01, like that of R.C. 4733.02, is to prevent persons lacking proper qualifications from performing tasks that might expose the public to safety, health, or property risks, if performed incompetently or unprofessionally…” This concept of “performing tasks” proved critical in our analysis as I argued vigorously that the “tasks” which Roger & Jerry performed had absolutely nothing to do with the “practice of engineering.
So what is “the practice of engineering?” Well, according to Ohio Revised Code 4733.01:
(D) “The practice of engineering” includes any professional service, such as consultation, investigation, evaluation, planning, design, or inspection of construction or operation for the purpose of assuring compliance with drawings or specifications in connection with any public or privately owned public utilities, structures, buildings, machines, equipment, processes, works, or projects in the proper rendering of which the qualifications of section 4733.11 of the Revised Code are required to protect the public welfare or to safeguard life, health, or property.
In this case, I went through Jerry & Roger’s work product, page by page, to show the Board that NOTHING they did met the definition of “engineering.” They gave “recommendations” and “advice” to the Engineer – they didn’t DO any engineering! They simply saw some problems and proposed some solutions. They had no power to make anything happen.
In fact, the email that Mr. Beach received with their recommendations was actually submitted to the very people who DO have the power, and legal responsibility, to do the actual “engineering” of anything relating to the City – the City Engineer and City Council. This was the part that was particularly maddening to me. Mr. Beach was very well aware of what the Bicycle Advisory Committee did- he had worked with the group over the years – he KNEW they didn’t have the power to “engineer” anything, that they only gave recommendations. Despite all this, he still felt the need to file a complaint with the Engineering Board… when you strip away everything, you seem to be left with a fellow who was chewing on some sour grapes…
My response to the complaint ended up being 10 single-spaced pages. To me, it was important to fire a shotgun blast back at the Board at this early stage. If the Board believed there was any possibility of merit to the complaint it could set a hearing, take testimony and publish its findings. I felt that if we could beat this early we could avoid the time and expense of preparing for a hearing – let alone the stress and anxiety which would naturally accompany such a hearing.
In addition to submitting my response to the Engineering Board I copied the Mayor and City Council members. I wanted everyone in the City’s chain of command to be fully aware of what Mr. Beach, a City employee, had done, and what steps I was taking to protect Jerry & Roger from being prosecuted.
The Schroeder case provided the framework of my response. One key here were overriding First Amendment concerns. The complaint by Mr. Beach implied that citizens who simply expressed their opinions to government could be prosecuted for having opinions. The Schroeder case said this about the First Amendment rights of folks like Jerry & Roger… [and YOU]:
“The ability of the private citizen to contribute to public debate on issues such as public works projects is well-established in both tradition and law, and, in fact, is a cornerstone of our democratic system of government. In this context, appellant was not providing a professional service, but simply expressing his opinion.”
Other factors we pointed out to the Board included:
– Mr. Walling and Mr. Brislawn were not paid.
– They performed no calculations or tasks which required an engineer’s qualifications.
– They were not in a position of public trust and were not “retained” to provide engineering opinions. Rather, they serve as volunteers on a committee set up by the City to give advice to the City.
– They gave their opinions to the City as concerned citizens seeking to improve bicycle and pedestrian safety.
– The City is free to question the validity of the recommendations and, ultimately, to accept or reject all or any part of the recommendations provided by Mr. Walling and Mr. Brislawn.
– Mr. Walling and Mr. Brislawn have absolutely no responsibility for determining what traffic controls are in place or how they will be used.
Each of these factors aligned with factors cited by the Schroeder court in support of the court’s conclusion that Mr. Schroeder did not engage in “engineering.”
We submitted our response in early September, 2011. The Board didn’t move on this until the end of January, 2012. Thankfully, the Board found in favor of Roger and Jerry. In a very short letter of January 25, 2012, the Board stated that based on the information we submitted “…the Board did not find a violation of Ohio Revised Code Section 4733. The complaint has been closed.”
Earlier in 2011 a Mr. David Cox had run into similar issues. Mr. Cox, from North Raleigh, North Carolina,teamed up with other homeowners association members to petition city and state officials to add some traffic lights in their North Carolina neighborhood. An engineering consultant hired by the city said the lights weren’t needed. Mr. Cox and other residents felt they were needed. Mr. Cox prepared a very detailed response and presented it to the powers that be. In response he felt the State’s wrath – this time an engineer from the State of North Carolina claimed Mr. Cox was practicing engineering without a license. Eventually, the complaint was quietly dropped and no “court case” was needed.
The North Carolina situation generated shock waves in some unusual places, however. The State suffered embarrassment from a series of unflattering news stories. The real kicker came when none other than Rush Limbaugh took up the cause for Mr. Cox. Rush recognized the misuse and abuse of power and stated: “American citizens, petitioning their government, are threatened for intelligently making their case. A government official(an unelected bureaucrat, in this case)apparently sees nothing wrong with using governmental power to stomp on a citizen who dares disagree with the all-knowing, all-powerful state.”
I didn’t play the “Rush” card in our presentation to the Ohio Board – we were saving that for later if the Board had decided to move ahead with a hearing…
Obviously, I don’t usually work for free – I still have to pay the rent, the mortgage, the light bill and my tab at the bike shop… Had I charged Jerry & Roger for my time, their legal bill would have been significant – thousands of dollars – as I spent hours researching this and preparing the 10-page response. A hearing would have led to many more hours. I handled this pro bono because I felt it was an extremely important, and possibly overlooked, issue – an issue which could have national implications if it came out the wrong way – an issue the resolution of which should not be dependent on how deep the pockets were of those charged the crime of “practicing engineering without a license.” Fortunately, the Ohio Board determined that there was no violation of the law by Jerry & Roger.