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THE LATEST ATTACK ON CYCLING ADVOCACY

By: Steve Magas, March 12, 2012

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.

2007-2011 BIke/Ped Accident Report

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.

 

 

Printed from: http://www.ohiobikelawyer.com/uncategorized/2012/03/the-latest-attack-on-cycling-advocacy/ .
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26 Comments   »

  • Bob Sutterfield says:

    Nice work, Steve. Public agencies need to receive citizen input unhindered.

    What about actual examples of “practicing engineering without a license” by landscape architects, urban planners, epidemiologists, lawyers, public health professors, and others who provide public agencies with very specific engineering advice. Some of them even make a pretty good living conducting seminars for bikeway advocates.

  • Bob Sutterfield says:

    John Pucher – Public Policy professor at Rutgers
    Peter Jacobsen – Public Health consultant
    Ralph Buehler – Planning & Public Policy professor at Rutgers
    Anne Lusk – Nutrition and Public Health professor at Harvard
    Andy Clarke – Barrister

  • Roger Brislawn says:

    Great job Steve. Thanks again for all the hard work. I will forward a copy to the City and Council. Roger

  • Bill Carpenter says:

    Great, Steve! Thanks for taking on this case. I’m on the BPAC in Winter Springs, FL. And while I don’t think this would happen here, one never knows. You’ve created some important precedent that I’m sure will be helpful in the future.

  • Great job, Steve!

    Roger

  • Khal Spencer says:

    Great job, as usual, Steve. I was riveted to your piece until I saw you won, and then collapsed in a heap of relief. This is why LAB needs to have a legal defense fund, too.

    I’m posting your blog entry to our County Council and Transportation Board, of which I was a member for eight years all told, and chair for about than half that time. Such actions as described here need to be squelched as they impose a chilling effect indeed.

    The critical difference between fraudulently practicing engineering vs. making public recommendations is an important hair to split. We here in Los Alamos are careful to preserve that split; we honor the separation of powers. We on boards and commissions advise, question, take public input, and make recommendations—ultimately to Council. The professional staff draws up plans and technical requirements and these are signed off by the county engineer. Even in cases when I have worked with Staff on vexing bicycle design problems, its not me but the staff that draws up the blueprints and signs them. Council passes bills after professional staff recommendations and of course pays the bills.

    The flip side of this coin is that a registered professional can be wrong and outside their own expertise. Sadly, the deck is stacked.

  • Khal Spencer says:

    To address comment Bob’s comments 1 and 2. In the final analysis, the legal responsibility for recommending and implementing a design, at least where I live, is from our county professional staff. In our case, we use designs that are accepted by the professionals in the field. I don’t see Andy’s or mine or any of those other names in Mr. Sutterfields’s comment as the official signature in an designs sitting in our Public Works Dept.

    Implementing avante garde designs that are not completely vetted by transportation engineers can be a minefield if something goes wrong. We are aware of that and use considerable prudence. Our engineer is famous for being conservative.

    Not that existing, accepted designs are always all that good. This is a very relevant topic, esp. given that NACTO is a new player moving into the design scene. Are their designs signed off by engineers? I would suspect their lawyers would make sure of that, but I don’t know.

  • Dave Holland says:

    Interesting case, nice of you to take this on.
    Has Mr. Beach said anything about his reasoning for starting this? This is something I was discussing recently, the influence planners, the public, advocacy and government officials have over engineers. I have seen and know of engineers doing things they didn’t exactly approve of, but they were asked to do by their employers. Maybe Mr. Beach was pressured into a situation like this which would be closer to engineering without a license, IMO, than the public doing research and making recommendations.
    -Dave Holland

  • Brian Ogilvie says:

    Thanks for taking on this case pro bono! Can I buy you a beer (or other beverage of your choice)–via PayPal, since I’m in France? If so, send me an email with your PayPal email address.

  • Steve Magas says:

    Brian
    Thanks for your offer – save your money and buy something nice at the bike shop!

  • Steve Magas says:

    I never heard from Mr. Beach. I only have the data provided by the Engineering Board, which included his complaint in which he claimed that Jerry & Roger were engaged in the practice of “traffic engineering.”

  • Khal Spencer says:

    Steve, have you heard anything back from the City of Beavercreek? I’d be surprised that an engineer, even the city engineer and especially a subordinate, would file a legal complaint against members of a county advisory board without vetting it with his bosses in County government, including the county’s own legal counsel. If Mr. Beach filed the complaint with the Board under color of authority, would that not leave the City open to a counter suit to recover damages, i.e., the costs of a legal defense if not more? I wonder what is between the lines here.

    Just wondering…reply offline (if at all) if this is a touchy issue.

  • Brian Davis says:

    Way to keep Jerry out of jail Now he will still be able to ride with our group. We ought to start a petition to look into an engineer who is threatened by a couple of folks helping out with traffic safety. What’s he trying to hide?

  • Bob Young says:

    Thanks for your time and effort defending Jerry and Roger in this frivolous action. I was surpised on several levels when Jerry called me about this last year–why would the Manager of the Facility Dept–Mr. Beach–file a complaint about something that HE knew was a task the BBAC was asked to perform?;
    Why did the Profesional society take such a drastric action without doing any investigatory prework?
    Anyway—much thanks for representing Jerry and Roger in this prickly situation.
    It’s kind of scary to think how a vindictive government employee can wreck the lives of people donating their time and talent to help others.
    Obviously the Ciity of Beavercreek isn’t too bike friendly. Neither is the Greene County Ohio

  • Rick says:

    Great you did this, but why did you have to? Did the city refuse to defend its committee members? Jerry and Roger were acting as members of a city committee — the city attorney should have represented them. The action was akin to a SLAP lawsuit. Wouldn’t the best way to ensure this does not continue would to be to file (or threaten back to file) an anti-SLAP lawsuit?

    Rick – long-time BAC member in CA

  • In Arizona, about the only way a non-registrant can run afoul of the relevant statute is to develop a detailed design or engineering report for a specific location. Saw a group of architecture students come really close not long ago redesigning a street as a class project, though.

    The North Carolina case disparaged by Mr. Magas was an actual case of a non-registrant preparing a traffic signal warrant study – which in nearly all states must be sealed by a registered PE. In fact, an acquaintance of mine filed the complaint. Unfortunately, it got conflated with all the other cases of “well-intentioned advice”.

    The bigger problem (as noted by others) are the proliferation of advocacy-focused “design guides” which are formatted to resemble reputable references. But it’s the PE who follows them that bears the brunt, not the authors – and that’s entirely in keeping with true professional responsibility.

  • On a related note: some people wonder why AASHTO documents and references are granted so much deference and respect by the engineering and legal community. Here’s why, using the new Bike Guide* as an example.

    In order to reach publication, the entire document must be specifically approved by:

    - A 2/3 majority of the chief roadway design engineers from each state DOT

    - A 2/3 majority of the chief traffic engineers from each state DOT

    - A 2/3 majority of the chief engineers from each state DOT

    And an AASHTO voting member is expected to withhold approval unless they personally reviewed (or had a professional under their supervision review) the draft document.

    This is also one of the reasons why AASHTO takes a while to issue new editions of documents.

    One is welcome to compare this to the development and review process of other references which aspire to the same level of credibility.

    *which should be published sometime this year (we hope)

  • Khal Spencer says:

    I finally reviewed the Powerpoint presentation. There is no engineering being practiced there, just recommendations being made. The actual changes to traffic control, if made, would presumably be approved by the competent civil authority, not by the BBAC. That is the way the system is supposed to work.

    Heck, the Los Alamos Transportation Board makes similar recommendations all the time, and there is no law that says only licensed engineers can collect and tabulate crash data. I’ve done that too. What I don’t do is design intersections or decide on whether to install No Turn On Red signs, although I can quote the MUTCD as well as most.

    I’m surprised this got as far as it did, and go back to my question from my post just above this one. Who decided to push this?

  • Steve Magas says:

    There was never an effort by the City to pick up the baton. No SLAP laws in Ohio. The City submitted a “reply” to the claim that was really…well… neutral and not supportive…

  • Steve Magas says:

    Bob, Thanks for the note. The Professional society did what it was supposed to do – it received a complaint, looked at it, and then declined to pursue it. It took a few months, but … that’s OK… they came out the right way!

    Mr. Beach apparently felt there was some “unauthorized engineering” going on – so I suppose he felt compelled to complain… I think the City of Beavercreek is trying to become more bike friendly – we’ll see how that plays!

  • Steve Magas says:

    i’m not an engineer, although I’ve cross-examined many many over the years… However, I did review the work product submitted by Mr. Cox in the North Carolina case – and, to my VERY untrained eye, it was no mean feat of criminal “engineering” -rather a review of car counts and other data. The folks who lived in the neighborhood were making arguments to support their views, and submitted their analysis of the data. The State disagreed. The opinions submitted were not claimed to be “engineering documents” – the Board in North Carolina dismissed the complaint, although the Board did find the document to be “engineering.” However, the Board did not receive any “advocacy” – Mr. Cox chose to NOT participate. So, no lawyer reviewed and researched the case on Mr. Cox’s behalf and no cross-examination of the witnesses by Mr. Cox’s lawyer occurred and no legal brief supporting his position was submitted to the Board. I have a hard time buying a finding of “engineering” made by the very folks whose views were initially challenged by Mr. Cox…

  • Khal Spencer says:

    We had a case that verged on practicing engineering here. Many citizens complained about a design for a main arterial that included roundabouts.. Several scientists from the lab, none of whom are registered engineers, obtained several roundabout calculation codes and did their own analysis and presented it to my Transportation Board and petitioned to kill the roundabouts.

    I was Board chair for much of that time. I was deeply concerned that no matter how competent these folks were (and they are quite smart and no strangers to complex computer code), that they did not have legal standing as licensed engineers to make formal recommendations to government on engineering decisions. Therefore, the board sent out the original study to a second, nationally-known traffic engineering firm. The second firm actually confirmed the concerns of the citizens, but they could do so with the right letters after their names. This study was used to set policy.

    So I think we did it right. My fear is that if we had acted on the citizen advisers, both the advisers and the County could have been dragged into court on procedural grounds. I don’t think the citizens were violating any law because frankly, anyone can play with code and make a First Amendment presentation AS A PRIVATE CITIZEN, MAKING CLEAR THEY ARE DOING SO AS A PRIVATE CITIZEN–but I’d like to hear from Steve as a lawyer on this. What they cannot do, and they verged on doing, was make recommendations under color of authority and have the county act on the recommendations of an unlicensed group. I think if we had erred, the consequences could have been unpleasant.

  • Khal Spencer says:

    p.s. I didn’t mean “case” in the legal sense. We had an “example” of citizens practicing engineering as advocates rather than licensed professionals, in my opinion. Sorry, folks.

  • Steve Magas says:

    Khal, you did exactly what I’ve been preaching. You don’t accept citizen presentations, not matter how “engineer-y” they look, at face value – you do your homework, do your due diligence, make sure you are making the right decision and go from there. The fact that citizens are not stupid, can read reports and figure stuff out does not mean they are doing engineering… they are petitioning government – and, to me, the First Amendment would protect virtually ALL speech to government without the government swatting it down on some “professional” basis -for example, how many bike advocates have testified about the impact of old laws, or the meaning/breadth of potential new laws – be they AFRAP variations, 3 foot laws, etc. Most are not lawyers, but they are doing what lawyers do – give opinions on who laws impact real life situations. The bottom line is that ANYONE can give government their opinion – it’s up to the elected folks to “do the math” and make sure what they eventually do, pass, design, build, install is the done the right way…

  • Jim T says:

    Your service is very commendable, and you helped prevent a gross miscarriage of justice. But still an injustice was done because either Mr. Beach or the City appears to have slandered or libeled your clients, with no negative consequences. I may have overlooked something but it is unclear whether Beach did this on his own or as a representative of the city. If on his own, it sounds like a possible case of slander or libel; if the city did it, I guess it would be more confusing given government immunities but at the very least the City could be made to answer for it.

    Either the engineer does not know what engineering is, or he knew his charges were false. Perhaps they would rather settle than answer that question.

  • Steve Magas says:

    There was no libel or slander here. Mr. Beach apparently felt that the work of the Bicycle committee constituted “engineering” and he may well have had a duty under the professional rules governing engineers to report suspected “engineering” by non-engineers. He reported, the Board investigated and concluded that there was no cause to pursue it further. Whether Mr. Beach had any “motivation” beyond this is unknown, but there was no “slander or libel” here – no lies were told, and lies are the basis of slander and libel. Mr. Beach honestly reported the facts – he accurately told the Board about the work that was done on the BIcycle Committee – his interpretation that this work might be engineering was not a factual assertion, but his analysis based on his understanding of what constitutes “engineering” in the legal sense under the Ohio Revised Code… fortunately, cooler heads prevailed…

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