Becklin v. BD. OF EXAMINERS FOR ENGINEERING

• Decision Date: 15 September 2004
• Citation: 97 P.3d 1216,195 Or. App. 186
• Parties: Dennis BECKLIN, Petitioner, v. BOARD OF EXAMINERS FOR ENGINEERING AND LAND SURVEYING, Respondent.
• Court: Oregon Court of Appeals

97 P.3d 1216

195 Or. App. 186

Dennis BECKLIN, Petitioner, v. BOARD OF EXAMINERS FOR ENGINEERING AND LAND SURVEYING, Respondent.

A117586.

Court of Appeals of Oregon.

Argued and Submitted January 28, 2004.

Decided September 15, 2004.

Walter L. Cauble, Grants Pass, argued the cause for petitioner. With him on the briefs was Schultz, Salisbury, Cauble & Dole.

Denise G. Fjordbeck, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and ARMSTRONG and BREWER, Judges.

LANDAU, P.J.

Petitioner seeks judicial review of a final order of the Board of Examiners for Engineering and Land Surveying (board). In that order, the board determined that petitioner had engaged in the unauthorized practice of engineering and assessed a civil penalty of $1,000. On judicial review, petitioner raises both procedural and substantive challenges to the board's order. We affirm.

I. BACKGROUND

We begin with an overview of the applicable statute and the relevant facts, which are not in dispute. Then, as necessary, we detail additional facts as we address petitioner's specific assignments of error.

A. The Statutory Scheme

It is unlawful for a person to practice or offer to practice engineering unless the person is registered and has a valid certificate to do so. ORS 672.020; ORS 672.045. The "practice of engineering" is defined by statute:

"(1)(a) `Practice of engineering' or `practice of professional engineering' means:

"(A) Any professional service or creative work requiring engineering education, training and experience; and "(B) The application of special knowledge of the mathematical, physical and engineering sciences to such professional services or creative work as consultation, investigation, testimony, evaluation, planning, design and services during construction, manufacture or fabrication for the purpose of ensuring compliance with specifications and design, in connection with any public or private utilities, structures, buildings, machines, equipment, processes, works or projects."

ORS 672.005(1)(a). In addition, as pertinent here, ORS 672.007 provides that a person is considered to be "practicing or offering to practice engineering" if that person "[p]urports to be able to perform, or who does perform, any service or work which is defined by ORS 672.005 as the practice of engineering." ORS 672.007(1)(b), (c).

There are, however, exceptions to the statutory requirement that one who practices engineering must be registered and certified. Among those exceptions are the following:

"(5) An individual, firm, partnership or corporation practicing engineering or land surveying:

"(a) On property owned or leased by the individual, firm, partnership or corporation, or on property in which the individual, firm, partnership or corporation has an interest, estate or possessory right; and

"(b) That affects exclusively the property or interests of the individual, firm, partnership or corporation, unless the safety or health of the public, including employees and visitors, is involved.

"(6) The performance of engineering work by a person, firm or corporation, or by full-time employees thereof, provided:

"(a) The work is in connection with or incidental to the operations of the persons, firms or corporations; and

"(b) The engineering work is not offered directly to the public."

ORS 672.060(5), (6).

B. The "Engineering Proposal"

Grants Pass Irrigation District (GPID) owns and operates the Savage Rapids Dam on the Rogue River in southern Oregon. The purpose of the dam is to divert water from the river into irrigation canals for irrigation of farmlands owned by GPID patrons.

Petitioner was elected to the board of directors of GPID in 1997 and began serving his term in January 1998. He served as chair and also was designated as GPID's spokesperson and liaison with engineering consulting firms and state and federal agencies. He is not a professional engineer registered in the State of Oregon.

Beginning in 1997, a controversy arose regarding the provision of irrigation water to GPID patrons in a manner complying with the Endangered Species Act (ESA), 16 USC §§ 1531-34 (2000), specifically, requirements relating to the protection of threatened southern Oregon/northern California coho salmon. In 1998, GPID installed fish screens in the south irrigation canal. GPID contracted with Harza Engineering (Harza) to perform engineering work relating to the south irrigation canal fish screens.

Also in early 1998, GPID sent letters to the National Marine Fisheries Service (NMFS) proposing certain "interim measures" to reduce juvenile salmon mortality at the dam; the letters were prepared by Harza and signed by petitioner in his capacity as chair of GPID. In its response dated April 3, 1998, NMFS criticized current conditions at the dam and questioned GPID's proposed interim measures. GPID then considered installing fish screens in the north irrigation canal that were similar to fish screens used by the Glenn-Colusa Irrigation District (Glenn-Colusa) in northern California. GPID obtained engineer-designed drawings of the screens from Glenn-Colusa and specifications for and drawings of the screens from the screen supplier. GPID also requested funding for the north irrigation canal fish screens project from the Oregon Legislative Assembly. The legislature's Emergency Board approved $400,000 in funding, conditioned on GPID obtaining preliminary approval for the project from NMFS and the Oregon Water Resources Department. A portion of the funding was to be used to pay professional engineers to design the project.

On September 21, 1998, GPID submitted to NMFS a document entitled "Engineering Proposal — Savage Rapids Dam — NMFS Compliant Vee-Wire Screens for North Hydro-Turbine and Pumping Intake Facility." Accompanying the document was a cover letter signed by petitioner, noting that the document was a "detailed 27-page Engineering Proposal" and indicating that GPID was "ready to proceed with the contracting process" for the project. Also on September 21, 1998, GPID issued a press release announcing its submission to NMFS of "a detailed 27-page engineering proposal" for installation of the north irrigation canal fish screens and listing petitioner's name, title, and telephone numbers.

NMFS responded to GPID's submission in a letter to petitioner dated October 5, 1998. Among other things, NMFS requested that petitioner "change the title of your proposal," noting that the design was not NMFS-compliant and that the title misleadingly implied that the design had already received NMFS approval. As to the substance of the September 21, 1998, proposal, NMFS stated that drawings submitted with it "lack[ed] the detail needed to perform an adequate review," including lack of consistent scale, incomplete dimensions, and lack of pertinent information regarding elevation. NMFS also set out numerous "specific design concerns" that it had relating to the proposal. NMFS recommended that GPID contract the design to an "experienced engineering firm that is familiar with NMFS juvenile fish screening criteria."

On October 8, 1998, petitioner responded to NMFS's October 5 letter. He first thanked NMFS for reviewing "GPID's Engineering Proposal." He also indicated that GPID was "utilizing a fast-track specification and solicitation process that employs `concurrent engineering'" and that was consistent with United States Department of Defense processes. As to the substance of the proposal, petitioner stated, among other things, that the drawings included therein "are completely adequate to evaluate the proposed installation" of fish screens and that the accompanying engineering descriptions "provide all of the descriptions and physical characteristics required."

On October 13, 1998, GPID held a public meeting at which the north irrigation canal fish screen project was discussed. According to the written minutes of the meeting, petitioner reported to the attendees that the "engineering proposal" for the north irrigation canal fish screen project had been submitted to NMFS, that NMFS had responded with an "initial review of the engineering proposal," and that the proposal had been sent out to approximately 90 potential bidders for bids. Also according to the written minutes, an audience member asked, "[w]ho has been doing the designing up to this point?" Petitioner responded, "[w]e have been doing the designing." Another audience member asked, "Who is the engineer in charge of this project for GPID?" According to the written minutes, petitioner responded that he was the engineer in charge and that he was receiving assistance from two other members of the GPID board who had been involved in the installation of the south irrigation canal fish screens. The minutes reflect that petitioner stated, "[W]e are competent to do this design work and if we reach the point that we need to have the engineering expertise of Harza, we will pay them for it." When asked who would be liable if the project did not perform properly, petitioner responded in part that "[t]his is not a difficult engineering project" and the board was confident that it would constitute a suitable installation. On being questioned regarding the specifications of the screens, he stated, "If you will read the engineering proposal and the solicitation package, and if you understand blue print reading, you will see that that detail is clearly called out [sic] in our drawings." Finally, when asked how GPID arrived at the figure of $450,000 for its Emergency Board funding request, petitioner stated that it was "based upon a basic engineering estimate" and that the estimate was based on a "very nearly complete" engineering package. Petitioner later reviewed and voted to approve the written minutes of the meeting.

On October 16, 1998, petitioner again responded in writing to...