GENERAL
GOVERNMENT CABINET
Kentucky
State Board of Licensure for Professional Engineers and Land Surveyors
(As
Amended at ARRS, October 13, 2015)
201 KAR 18:142. Code of professional
practice and conduct.
RELATES
TO: KRS 322.060, 322.180(3), 322.290(11)
STATUTORY
AUTHORITY: KRS 322.290(11)
NECESSITY,
FUNCTION, AND CONFORMITY: KRS 322.290(11) requires the board to promulgate a
code of professional practice and conduct, which shall be binding upon persons
licensed under KRS Chapter 322. This administrative regulation establishes a
code of professional practice and conduct.
Section
1. Definitions. (1) "Conflict of interest" means any circumstance in
which a licensee has a private or[licensee’s] personal[or
financial] interest sufficient to appear to influence[,]
or possibly influence[,] the objective
exercise of the licensee's professional duty to[is contrary to the
interests of] the public, his or her employer, or current[or past]
client.[; for the purposes of this definition,]
The private or personal interests of the licensee [shall]include
the personal or business interests of the members of the licensee's family, his
or her close relatives, or business associates.
(2)
"Direct supervisory control" in the practice of engineering means
that an engineer licensee directly supervises and takes responsibility for
consultation, investigation, evaluation, planning, design,
and certification of an engineering project and includes only that work
performed by an employee as defined in subsection (4) of this section.
(3)
"Direct supervisory control" in the practice of land surveying means
that a surveyor licensee who certifies a work product directly supervises and
takes responsibility for the survey and includes only that work performed by an
employee as defined in subsection (4) of this section.
(4)
"Employee":
(a)
Means a person who works for a licensee or his or her employer for wages or a
salary and includes professional and technical support personnel contracted on
a temporary or occasional basis, if the compensation is paid directly by the
licensee or his or her employer; and
(b)
Does not mean[. It does not include] a person who provides
services to the licensee as an outside consultant or specialist.
(5)
"Licensee" means any natural person licensed by the board to practice
professional engineering or professional land surveying, or any business entity
permitted under KRS 322.060.
(6)
"Work product" means any engineering or land surveying plan, plat,
document, or other deliverable requiring certification that
is intended to represent activities conducted in the practice of engineering or
land surveying.
Section
2. The engineer or land surveyor shall conduct his or her practice in order to
protect the public health, safety, and welfare. [(1) The practice of
professional engineering and land surveying is a privilege, and not a right.
(2)]
If a licensee’s judgment is overruled and a licensee has reason to
believe the public health, safety, or welfare may be endangered,
the licensee shall inform his or her employer or client of the possible
consequences and, if not resolved, notify appropriate authorities.
Section
3. A licensee shall issue all professional communications and work products in
an objective and truthful manner. (1) A licensee shall be objective and
truthful in all professional reports, statements, or
testimony and shall include all material facts.
(2)(a)
If serving as an expert or technical witness before any tribunal, a licensee
shall:
1.
Express an opinion only if it is founded on adequate knowledge of the facts in
issue, on the basis of technical competence in the subject matter, and upon
honest conviction of the accuracy and propriety of that testimony; and
2.[,
and shall] Act with objectivity and impartiality.
(b)
A licensee shall not ignore or suppress a material fact.
(3)
A licensee shall not issue a statement or opinion on professional matters
connected with public policy unless the licensee has:
(a)
Identified himself or herself;
(b)[,
has] Disclosed the identity of the party on whose behalf the
licensee is speaking; and
(c)[,
and has] Disclosed any pecuniary interest the licensee may have in
the matter.
(4)
A licensee shall not maliciously injure the professional reputation, prospect,
practice, or employment of another licensee.
(5)
A licensee shall not accept a contingency fee for serving as an expert witness
before any tribunal.
(6)
A licensee shall maintain for a period of not less than five (5) years,
calculations and documents necessary to support work products.
(7)
A professional land surveyor shall maintain records for boundary surveys under
201 KAR 18:150, Section 10(2) and (3).
(8)
The requirements of subsections (6) and (7) of this section shall be satisfied
for the individual licensee employed by a business entity permitted by the
board in conformance with KRS 322.060 by that permitted entity's compliance
with subsections (6) and (7) of this section.
(9)
A licensee shall not solicit or submit proposals for professional services
containing a false, fraudulent, misleading, deceptive, or unfair statement
regarding the cost, quality, or extent of services to be performed.
(10)
A licensee shall not misrepresent his or her professional qualifications or
experience, or those of the licensee's associates.
Section
4. A licensee shall avoid conflicts of interest. A[The public,
as well as a professional's employer and clients, have the expectation that the]
professional engineer or land surveyor shall act objectively and independently.[Conflicts
of interest involve the abuse, actual or potential, of the trust people have in
professional engineers and land surveyors.] (1) If a situation
occurs in which a reasonable person would think that a licensee's
professional judgment is likely to be compromised[possibility of a
conflict of interest exists], a licensee shall promptly disclose the
possibility of the conflict of interest to[notify] his or her
employer, or client, and shall, if reasonably possible, withdraw from
participation in the situation that[which]
gave rise to the conflict of interest[or past client].
(2)
A licensee shall not accept a valuable consideration from more than one (1)
party for services pertaining to the same[identical] project, unless the
circumstances are fully disclosed to all other principal parties directly
involved in the project.
(3)
A licensee shall not solicit or accept a valuable consideration from any
vendor, contractor, or client, or their agents for acceptance, rejection,
approval, or disapproval of any work performed by others, or[either]
for specifying materials or equipment[, or from contractors, their agents or
other parties dealing with a client or employer] in connection with work
for which the licensee is responsible.
(4)
A licensee serving as a member, advisor, or employee of a governmental body
shall not, while[when] utilizing
either his or her status as a licensed professional
engineer or land surveyor, or his or her skill, experience,
or knowledge as a licensed professional engineer or land surveyor, participate
in decisions in which he or she has a private or personal interest, and shall
not review or approve work that was performed by the licensee, or by others, on
behalf of a business entity in which the licensee has any control, or private
or personal interest[shall not solicit or submit proposals for
professional services containing a false, fraudulent, misleading, deceptive or
unfair statement regarding the cost, quality or extent of services to be
performed.
(5)
A licensee shall not misrepresent his or her professional qualifications or
experience, or those of the licensee's associates.
(6)
A licensee serving as a member, advisor, or employee of a governmental body
shall not participate in decisions with respect to professional services
offered or provided by him or her or by a business entity in which the licensee
is a principal, officer or employee, to that governmental body].
Section
5. A licensee shall solicit or accept engineering or land surveying work only
on the basis of his or her, or the licensee's firm’s or associates’ qualifications
for the work offered. (1) A licensee shall not offer or accept any valuable
consideration in order to secure specific work, exclusive of commissions paid
by individual licensees for securing salaried positions through employment agencies.
A licensee may participate in design-build projects.
(2)
A licensee may advertise professional services if the advertising is not false
or misleading.
Section
6. A licensee shall not knowingly associate with any person engaging in
fraudulent, illegal, or dishonest activities. (1) A
licensee shall not permit the use of his or her, or the licensee's business
entity’s name by any person or business entity that he or she knows or has
reason to believe is engaging in fraudulent, dishonest, or
illegal activities.
(2)
A licensee shall not aid or abet the illegal practice of engineering or land
surveying.
Section
7. A licensee shall perform his or her services only in the areas of his or her
competence. (1) A licensee shall undertake to perform professional assignments
only if qualified by education or experience in the specific technical field
involved.
(2)
A licensee may accept an assignment requiring education or experience outside
his or her own field of competence, but only to the extent that his or her services
are restricted to those parts of the project in which the licensee is
competent. All other parts of the project shall be certified by licensed
associates, consultants, or employees.
(3)
If a question of the competence of a licensee to perform a professional
assignment in a specific technical field is an issue and cannot be otherwise
resolved[to the satisfaction of the board], the board,
upon a majority vote or upon request by the licensee, may require the licensee
to satisfactorily complete a relevant[an]
examination[the board deems appropriate and relevant].
Section
8. Except as provided by this section, a licensee shall not certify any work
product dealing with subject matter in which he or she lacks competence by
virtue of education or experience, or any work product not prepared by him or
her under his or her direct supervisory control. (1) A professional engineer
may review and certify the work product of another professional engineer if:
(a)
The review and certification are made at the request of the other professional
engineer;
(b)
He or she does not remove or obliterate the identity of the other professional
engineer;
(c)
He or she performs and retains in his or her possession for not less than five
(5) years all calculations and documents necessary to perform an adequate
review; and
(d)
He or she confirms that the other professional engineer was licensed when the
work was created.
(2)
If a professional engineer undertakes to review only a portion of the work
product of another professional engineer, his or her certification shall
clearly identify the portion reviewed.
(3)
A professional engineer may modify the work product of another professional
engineer, whether or not the project has been built, if he or she retains in
his or her possession for not less than five (5) years a record of his or her
modifications.
(4)
If a professional engineer modifies the work product of another professional
engineer, his or her certification shall clearly identify, by words or
graphics, that portion that was modified.
(5)
A professional engineer may incorporate in his or her work product the designs
of manufactured or standard components developed by manufacturers, suppliers or
professional or technical societies, and associations.
(6)
If, in the professional land surveyor’s reasonable judgment, his or her
personal participation is not required in performing a particular aspect of a
project, he or she may delegate those tasks to an employee, if all work is
actually reviewed by the licensee.
(7)
The need for a professional land surveyor to make a site visit shall be
dictated by the nature, size and complexity of a project. [However,]The
failure to make a site visit in a substantial percentage of surveys shall[may]
be construed as a failure to exercise direct supervisory control.
(8)
While an employee may investigate the circumstances of a potential project,
only a licensee may establish the scope of work to be performed.
Section
9. The professional engineer or professional land surveyor shall avoid conduct
likely to discredit or reflect unfavorably upon the dignity or honor of his or
her profession.
Section
10.(1) If a licensee has knowledge or reason to believe
that any person or other licensee is in violation of KRS Chapter 322 or 201
KAR Chapter 18[any administrative regulation adopted by this board],
the licensee shall submit[present that information]
to the board in writing the relevant[and shall cooperate with
the board in furnishing] information within his or her knowledge.
(2)
A licensee, upon request by the board, shall cooperate with the board in an
investigation, by providing any relevant information within his or her
knowledge.
Section
11. (1) A licensee shall not, directly or indirectly, contact a board member
concerning any ongoing disciplinary action, or any existing investigation being
conducted by the board staff.
(2)
Any communication by a licensee concerning an ongoing disciplinary action or an
existing investigation shall be directed to a board staff member.
Section
12. A licensee who is in doubt about the ethical propriety of any professional
act or omission contemplated by that licensee may request an informal opinion
from the executive director of the board. (1) The
request shall be in writing[,] or by
email with the subject line of “Request for Advisory Opinion Pursuant to 201
KAR 18:142."[;] The request
shall include the name and address of the licensee making the request, a phone
number and email address at which the licensee can be contacted, and all
relevant information.
(2)
Based on the information provided in the request, the executive director shall
respond in writing as to the ethical propriety of the act or course of conduct
in question.
(3)
A licensee shall not be disciplined for any professional act performed by that
licensee in compliance with the written advisory opinion furnished by the
executive director pursuant to the licensee's written request, if the
licensee's written request clearly, fairly, accurately, and completely states the
licensee's contemplated professional act and all relevant information.
B.
DAVID COX, Executive director
APPROVED
BY AGENCY: August 10, 2015
FILED
WITH LRC: August 12, 2015 at 3 p.m.
CONTACT
PERSON: Jonathan Buckley, General Counsel, Kentucky State Board of Licensure
for Professional Engineers and Land Surveyors, 160 Democrat Drive, Frankfort,
Kentucky 40601, phone (502) 573-2680, fax (502) 573-6687.
