Thursday, June 3, 2010

Engineers Beware... You're Not Getting the Whole Truth

Yvonne Castillo
TSA General Counsel

If you read the recent Texas Society of Professional Engineers (TSPE) Update to their members on Friday, May 28, and their “take” on the lawsuit they filed against the Texas Board of Architectural Examiners (TBAE), you’d likely walk away from the update believing (or should I say “misbelieving”) that they’ve won! That their members don’t know the reality is a shame and probably contributes to this decade upon decade-long battle between engineers and architects. Frankly, in my opinion, TSPE is doing a disservice to their members. I can only hope that the engineers that read these updates take a little time to actually click on the Court opinions that are embedded and not take the editorial summary as gospel.

The truth is TSPE lost on all counts but one, and that one claim was so insignificant that it made no difference to the issue at hand. Let’s start with what they won. The court agreed with the engineers that TBAE shouldn’t have included a statement in one of their educational pamphlets that said “Engineers may not engage in the same activities as architects” because that statement doesn’t reference the fact that there are certain exemptions where an engineer can design buildings that fall below the certain threshold (i.e., 20,000 square feet for commercial buildings or the dollar thresholds of $100,000 on public projects). The same goes for another statement in that same pamphlet that said “Simply put, our position is this: In Texas, architectural plans and specifications require the seal of a licensed architect.” Again, it depends. If the plans and specifications fall under the thresholds required by law, then technically that statement is wrong, even though the Court acknowledged that TBAE did reference the exemptions when the document was read as a whole.

So, mea culpa, TBAE was slapped on the hand by the Court, asked to clarify that there are certain exceptions in the Architects Practice Act, but all TBAE needed to do was specifically reference those exceptions in those statements. There was a bunch of legalese used to explain that concept, but that in a nutshell is what happened. So, what did the engineers get out of that “favorable” ruling? Next to nothing. The Court’s action simply required the pamphlet to reference the exemptions that exist today. I say “So what?” That’s not a win. They gained nothing. The law is still the same and the Court affirmed it. The Court did nothing, I mean n-o-t-h-i-n-g, to expand those exemptions to allow engineers the authority to practice architecture beyond the thresholds that exist today.

Now let’s talk about what the engineers lost, and lost big time. And, please don’t take my opinion as gospel either, click here to read the Court’s findings. The Court ruled in favor of TBAE on all other substantive claims. The Court said that TBAE’s rules, including the rule which delineates when an architect is required on a project and when an architect must prepare the architectural plans, are valid and consistent with statutory law, DESPITE the engineers’ claim to the contrary. The Court also said that professional engineers are not categorically exempt from the Architects Practice Act, DESPITE the engineers claim to the contrary. Those claims were shot down…clean and simple. The whole lawsuit was filed because the engineers want the authority to practice architecture beyond the exemptions and the Court said a resounding “No.” So who won the lawsuit? I say: there’s no question that TBAE came out the winner which means the architects law was upheld which means engineers cannot, may not, should not practice architecture unless they’re doing it below the thresholds….and that’s the truth!


Marcela Abadi Rhoads said...

Wow! Thanks Yvonne. Great article.

Robert L Meckfessel FAIA LEED AP said...

Excellent explanation, Yvonne. Thank you for this and your great work in representing the interests of architects and the public in this matter.

Gordon E. Landreth, FAIA said...

Truth, patience and justice win again! Great kudoes to Scott Gibson, Counsel for TBAE, for his untiring work on the defense of this case as well as the pursuit of the recent AG's opinion on behalf of Texas architects! Outstanding job, Scott!

Anonymous said...

what is the difference between "shame and "sham"?

Anonymous said...

The judgment requires review of the legislature, the boards AND The Joint Advisory Committee (which includes all) to determine where the demarcation between the professions are. This is a tempest in a teapot. If your structure does not have Architectural, Engineering, and LAndscape certifications you are opening yourself for liability. All are equally important. The issue of whether one has the right to issue rules affecting the others is answered in the affirmative (Yes) but the JAC opinion needs to be followed to determine what rules control.

Yvonne Castillo said...

In response to the last comment, with all due respect, not sure that I completely understand your comment. To the extent you think the JAC process should control, I agree, but since the process has been in place since 2003 and the engineer members of the Committee refuse to budge from the position that engineers are exempt from the Architects Practice Act, the judicial branch has had to take over and, thankfully, they agree with the architectural profession's position. Maybe with this judicial opinion, some progress will be made with the JAC. We all wait with bated breath.