TBAE met October 25-26th to discuss and act on, among other things, proposed and to-be-proposed rules regulating architects, landscape architects and interior designers. The first rule proposed that “renderings” be required to include the statement “Not for regulatory approval, permitting, or construction” if the rendering would be used by a client to make a design-related decision. The proposed rule defined a rendering (and I’m partly paraphrasing) as an “illustration” or “other artwork” created to help clients make design decisions, but not intended to be constructed. Huh?!? If this seems circular and illogical, that’s because it is. TSA and the American Society of Landscape Architects (ASLA) opposed adoption of this rule because it was poorly crafted and, from a regulatory standpoint, seemed excessive. Isn’t virtually everything an architect does for his/her client a “rendering” under that definition? Isn’t that the reason clients hire architects, to help them visualize the project? Aren’t those the skills that architects have that are marketable? While the intent of the rule was laudable…to stop folks who use renderings as construction documents from time to time, the proposed solution was impractical. We were successful in advocating the demise of something I’ll call a “good idea gone bad.”
The other one was a bad idea turned really bad. It started out as a requirement that certificates of merit be filed with the agency. Then it morphed into a self reporting rule to require architects, landscape architects and interior designers to self-report any settlements, judgments, arbitration awards of $50,000 or more within 30 days of receiving notice of such settlement, judgment or arbitration award. Why? TBAE staff said it would help catch bad architects. I can’t argue with the idea that bad architects should be sanctioned, and that it’s TBAE’s job to do that, but the faulty premise of this proposal is that civil actions against design professionals somehow equate with the unethical practice of architecture. This is where anyone who has been sued over nonsense says, “not only ‘no’ but…” well, you know. As Bill Wilson, FAIA, said (and I heartily agree), “lawsuits are about money and unmet expectations,” put in the form of contract disputes, consequential damages and/or construction defects. Rarely do these lawsuits have anything to do with public safety, which is the reason TSA can’t support a rule that would give TBAE staff a steady stream of “busy work” that would cost the state significant time and effort that could otherwise be used protecting health safety and welfare. Some at this recent meeting implied that we were opposing the rule out of self-preservation. Maybe there’s a little of that. Personally, I don’t want to see architects having to report nonsense cases or deal with an administrative action, retain counsel, experience additional stress and everything else that could go along with the process when the underlying allegations have nothing to do with HSW. The other part of me, the one coming from a defense litigation background, knows that construction law and the lawsuits that are filed are extremely complex, with multiple parties thrown into the mix and lots of gray areas in the law. Courts labor over these issues day in and day out so I can’t fathom why and how TBAE could possibly be equipped to second-guess this process administratively.
I presume that TBAE staff, who I truly respect for their knowledge of agency statutes, rules and administrative law, and a genuine desire to do their jobs well, would do ”due diligence” on every case that was self-reported. Due diligence to determine whether the agency should become involved would involve reviewing boxes of court documents, pleadings, responses to interrogatories, deposition transcripts, etc, etc. Who’s going to pay for the cost of copying these documents? Since I have experience reviewing these or similar documents when I write amicus briefs, let me assure you that it takes a tremendous amount of time to do that carefully, or “right.” So, where will these documents be stored? What kind of enforcement will be sacrificed if staff spends the necessary time pouring over volumes of litigation documents they’ll receive? It just doesn’t make sense from a resource standpoint, particularly in light of the well-known fact that lawsuits often mean nothing.
Oh, there’s also that pesky constitutional issue of requiring anyone to report on him or herself without counsel and without notice of charges. The rule, as proposed, did not specify what is required to be self-reported. Case number? Allegations? Complaint? Answer? While I have a tremendous respect for architects (I tried it but eventually gave up and went to law school instead), architects are not attorneys and will not necessarily know what to say (or not say) during the self-reporting process, particularly if the rule doesn’t specify. Bottom line, the proposal doesn’t make sense, so TSA, along with ASLA again, opposed it and won—at least this time. The questions now are: will this rule come back, and in what form? I will bet you anything that the answer is “yes,” I just can’t say when or in what form…so stay tuned because we will need your help when it does. Of note, after our testimony, a majority of the Board agreed that the current proposed rule didn’t work but a majority also thought that the rule merited further consideration.
Advocacy works; what you’ve just read demonstrates that. And TSA had two great advocates at the TBAE hearing – Bill Wilson (FAIA) and Paul Bielamowicz. TSA now issues a plea to all architects to practice your advocacy skills during the next legislative session by joining us in the first ever Lobby Day for the Texas Society of Architects in 2011. Click here to find out more and to register.
If you’ve already registered, you deserve a big thank you for standing up as one of, what we hope will be, the hundreds of architects at the Texas Capitol on January 25, 2011. Planning is well underway and early RSVPs are greatly appreciated.