201 KAR 18:142. Code of professional practice and conduct

Link to law: http://www.lrc.ky.gov/kar/201/018/142reg.htm
Published: 2015

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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.