Tom Székely, P.E., LEED AP

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October 28, 2008

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Special Inspectors, Directive 14, and Atlas Shrugged


The last two words in the heading above comprise the title of Ayn Rand's 1957 opus which has the industrialists in the U.S. simply drop out in protest against the overbearing nanny state, mostly fictional then, becoming more and more true today. The New York City Department of Buildings, in going down the path which has been set for it, may find itself more and more in the position the country found itself in as described in Ms. Rand’s novel.


That is, back in 1975, in response to a number of factors, the DOB issuance of Directive 14 of that year had permits for certain types of construction being issued after “limited examination” when the application was filed by a licensed design professional.  It further stipulated that a building owner could employ a licensed design professional to make inspections during construction, and where projects did not go down such a road, the Department would make construction inspections on a random basis, “. . . as staffing permits.”


Around 1994, then commissioner Miele instituted the self-certification program (now called Pro-Cert) which allowed design professionals to certify their plans and specifications were in compliance with codes and regulations, as a means of further streamlining the construction process.


A month or two back, I was at a dinner meeting of the local chapter of my professional society, where I listened in silent amazement as an Assistant Commissioner told the audience that the Department believed it could do the job it’s been unable to do since 1975 if only it didn’t have to devote so much staff to the checking of self-certified applications, and proceeded to make a presentation of prerequisites for participation in the new Pro-Cert program, among which is the need to carry professional liability insurance, which is probably a good idea.  I had been worried that the additional requirement to have an insurance certificate made out to DOB would be a problem because I thought such might be uninsurable, but my insurance agent tells me they want a certificate for “trip and fall,” not errors and omissions coverage, which shouldn’t be a problem. The meeting notice however, also indicated the  Assistant Commissioner was also going to speak about the Department’s adoption of Rule 101-06 , Special inspectors and special inspection agencies which was apparently news to her, as she stated she was only prepared to speak about changes in the Pro-Cert program.


Now I’m all for making sure that those who inspect completed construction are, in fact,

qualified to do so, but, as I expounded upon at some length in the previous issue of this publication, the Rule as promulgated has had the effect of rewriting State Education Law to require licensing by engineering specialty.


Would that this were all there was where the City’s headlong rush into mistaking process for substance were concerned, but, to add insult to injury, the City Council did in fact pass the intro I discussed at the beginning of the second piece in the last issue, and the NYC Commissioner of Buildings no longer needs to be a licensed design professional.


A few nights ago I attended, in my capacity as regional VP of NYSSPE, a discouraging meeting of the Architect’s Council here in NYC, where the discussion centered on how to respond to this so as to “get what we want.”  That is, the meeting reminded me so much of the one meeting I attended of the mayor’s Building Industry Advisory Council the last time I was regional VP, that I recalled why I never attended another meeting of that group.  At that BIAC meeting there were about 50 of us around a large square table, with each interest group trying to convince the mayor’s representative why it was important for the City to acquiesce to their group’s particular point of view.


What ever happened to the fiduciary duty to the public which is supposed to be the reason for professional licensing?  We in the design professions, in no small part, got what we deserved for having accepted that we’re part of a construction industry rather than having insisted upon recognition on the level which is given to other learned professions.  That is, we’ve allowed ourselves to become a commodity by entertaining a prospective client’s request that we lower our proposed fee for no reason other than the fact that the prospective client doesn’t think our services are worth what we’re asking.


This is so galling because the only thing we sell is expertise.  When you see the guys on This Old House talking about systems and equipment they recommend, they’re not only selling their experience, but they’re also making a profit on the equipment they install, as they should, but this hardly constitutes an unbiased recommendation.


But I digress.


In mid August of 2007, then Governor Spitzer signed into law what had been Bill S4603/A7746 to allow the City of New York to refuse to accept or to limit filings by design professionals who, “. . . knowingly or negligently submitted applications, plans or other documents to the New York city department of buildings [sic] that contained false information or were not in compliance with all applicable provisions of law . . .” (emphasis added).


So, not only are we just hawking a commodity, but now we’re also required to be perfect.  And just how does the City determine that one may have been negligent?


Why, at an administrative hearing. And who at that hearing is qualified to make such a judgment?


Beats me.


They’ve invented a whole new standard of care, and it appears to me that the unqualified will be making judgments about that standard. 


Does this mean administrative judges are qualified to be expert witnesses in cases requiring the application of engineering principles?


Ok, that may be a stretch.


Perhaps what it really means is that the codes which regulate construction have nothing (or so little) to do with engineering principles that an administrative judge is qualified to make judgments about such codes.


Is it just me, or does this begin to appear a bit absurd on its face?


When the New York Post ran a related story just before Intro 755-A became the Charter change which removed the requirement that the Buildings Commissioner be a licensed design professional, one of the comments on the blog about the story raised the issue that self-certification was like the fox guarding the henhouse.


Huh? You mean a bunch of clerks are qualified to tell us where our designs are deficient, but we’re too self-serving to certify our plans?  Why then does self regulation of the profession work in all of Canada, and in Delaware , among other places?


Yep, there we are again as a commodity.


In early May 2007 Assemblyman James Brennan (just before the passage of S4603/A7746 coincidentally), referred to a 2003 NYC comptroller's audit which found errors in 67% of sampled self-certified plans, and a subsequent 2005 DOB audit of 20% of all self-certified plans found that 16% of those contained errors serious enough to cause their permits to be revoked. Has anyone other than City employees ever seen the substance of these errors?


I haven’t.  I’d sure like to.


As I’ve been saying for a couple of decades now, responsible members of the design professions are actually part of the solution, and regarding us as part of the problem, may only hurry us to the Atlas Shrugged momentwhere we become only too happy to let the Department of Buildings try and fix things all by themselves. 


You may not like the result.


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