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PRACTICING GEOLOGY IN HAZARDOUS LANDS: COASTAL CALIFORNIA (Part One–Introduction)

July 22, 2015

If you think you can build a home or business facility in rural Sonoma County and trust that the safety of the chosen site received a thorough and orderly review before the project proponent or subdivision developer received a permit to build, you need to reconsider. It is true that applicants for building permits in known hazard areas of California are required to obtain a geological report signed by a licensed geologist, to reasonably assure that projects will be safe from potential geologic hazards such as landslides and active faults when built. Each county is required to review those reports before issuing permits, to determine whether they are complete and adequate. In Sonoma County, however, these reports tend to be deficient in quality, and reviews perfunctory. No matter how close to an active fault, no matter how high the landslide potential, most projects can count on receiving building permits from Sonoma County.

Landslide-prone hills are a prominent component of coastal California’s landscape and active faults are numerous. Building safely requires high quality geotechnical studies on sites in known hazard zones.1 Earthquakes and exceptional rainfall events can and have generated landslides in previously stable terrain. Existing landslides may be reactivated by heavy rainfall, and also can be triggered by earthquake shaking.

In the early 1950s, heavy rains hit southern California’s sprawling post-World War II housing developments, revealing the pitfalls of poorly regulated development on unstable hillsides. The results of severe property damage and loss of life from landsliding spurred some county permitting authorities to independently require site approval reports and set qualifications for geologists who would do the reports. They also set requirements for the contents of the reports. The standards adopted by an array of local authorities were inconsistent with one another, however, burdening applicants and everyone in the permitting system.

Both civil authorities and geoscientists soon recognized that statewide standards were needed for licensing the geologists who inspect properties, and for the contents of their reports. This recognition led to a state statute and the 1968 creation of a State Board of Registration for Geologists to interpret and administer it.2 All previous and projected local certification boards and regulations were eliminated by 1970.

The Board of Registration for Geologists was later expanded to include Geophysicists and renamed the Board for Geologists and Geophysicists (BGG). The duties and authority of the Board are encompassed by what is currently called the Geologist and Geophysicist Act, embodied in California Business and Professions Code §§ 7800-7887, as amended January 1, 2014.

The BGG’s mission was clear at the start:

Protection of the public shall be the highest priority for the board in exercising its licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.”

Fulfillment of this mission has proved elusive, however. Real estate lobbyists, and some geologists who resisted allowing a government agency to look over their shoulders, vigorously opposed the BGG’s creation. Some engineers opposed integrating their authority with that of geologists, and lobbied against the BGG. These kinds of tangled interests likely hindered the Board’s operations at first.

Most information about the BGG’s performance in its first decades is deeply buried or unavailable, but accounts of inaction and lack of commitment to the Boards’ purpose appear in the record.3 In the 1990s, however, the BGG took on a strong public protection role for policing the unlicensed practice of geology and penalizing malpractice by licensed geologists.

By 2000 the BGG was more successfully protecting the public from deficient geotechnical reports, which drew fire from many special interests. But in 2009, during a budget-reduction campaign, it was abolished by legislative fiat and its duties under the Geologist and Geophysicist Act were transferred to the Board for Professional Engineers and Land Surveyors (BPELS). Incorporation of the BGG functions into BPELS did not include transfer of BGG professional staff. This action had no fiscal justification because the BGG was entirely financed by fees and penalties.

Since the BGG to BPELS (later the BPELSG) transition, weaknesses in the legal provisions (statutes) have deflected and compromised the new Board’s oversight of the practice of geology. The statutes are lists of prohibited practices, essentially stating commonly accepted ethical business standards.4 But geology is not solely a business or a profession; it is a science. Oversight of geologists’ practices requires scientifically-established standards of practice, which should be either mandatory or actively promoted by the Board. Also needed is a requirement for rigorous, independent, substantive peer reviews of all geotechnical reports, based on scientifically-established standards of practice, before they can be approved by county or local permitting authorities.

Abolition of the BGG was widely condemned by professional geological and geophysical organizations and individuals in California. The BPELS held two town hall meetings to assess reaction to the regulatory change, and these meetings revealed widespread concern about the BPELS’s lack of professional geological staff to oversee the practice of geology, and of geologic representation on the Board. In 2010, the BPELS was able to add a single licensed geologist, and was renamed the Board for Professional Engineers, Land Surveyors and Geologists (BPELSG).5

After filing a Complaint for Declaratory Relief, the California Association of Professional Geologists proposed a settlement agreement that would have reestablished the BGG as a separately controlled entity within the BPELSG, in full charge of administering the Geologist and Geophysicist Act.6 This proposal was temporarily fulfilled by creation of the Geologist and Geophysicist Program, with its own staff (two administrative staff transferred from the BGG) within the BPELSG. But in October 2014, reorganization of the Enforcement Unit of BPELSG compromised this agreement by allowing any Enforcement Analyst (EA) on staff to manage issues involving geologists and geophysicists, although the qualifications for the EAs’ positions bear no relation to scientific disciplines. 7

Administration of the Geologist and Geophysicist Act

Prior to the 2014 changes, BPELSG performed all principal functions required by the G&G Act with only two full time staff, neither of them educated or trained in geology, and only one licensed geologist Board member.8 In contrast, under the BGG those jobs had been performed by an 8-member Board and staff of nine. As of April 2015, the BPELSG Enforcement Unit staff still has no geologist or geophysicist, licensed or not.

Since Board decisions, including disciplinary actions, are decided by majority vote, its lack of geologic experience and expertise puts geologists and geophysicists who come under review at a distinct disadvantage, and fails the public, which they are enjoined to serve.

BPELSG’s Enforcement Function for Geologists and Geophysicists. The BPELSG may initiate disciplinary actions, but most originate as complaints against either an unlicensed person practicing geology, or a licensed geologist for malpractice. The disciplinary process (Figure 1) is loosely performed by the Board, and details of recent cases show that it is not strictly adhered to in important ways.

Information on how the process actually is implemented at any given stage, which personnel are responsible for implementation, and what their qualifications are to perform the various prescribed tasks, is difficult to find. The following is a brief summary of one BPELSG explanation of the process. It reveals a significant lack of transparency for a public agency, and exposes the hazards confronting professional geologists in a system dominated by engineers.

Figure 1. Complaint investigation protocols Figure 1. Complaint investigation protocols

BPELSG description of the process for investigating malpractice complaints. The following statements are excerpts from an informal explanation of the complaint process, presented to the Board by Executive Officer Richard Moore PLS in 2012 .9

When a complaint is received, an analyst is assigned to the case to investigate whether or not violations occurred. The analyst is then in contact with multiple individuals, such as the complainant and the subject, as needed. Analysts consult with the Board’s various senior registrars10 during the investigation, as well as sending it to an independent expert. These are some examples of who the staff will contact. The analyst will interact with these various parties as necessary. Not all parties will be involved in all cases. It is dependent on the specifics of the complaint. [O]nce the analyst has compiled, documented, and made determinations necessary for the investigation, they then work with an independent expert to prepare a draft recommendation to submit to the enforcement manager for review and make the final recommendations which usually results in one of three scenarios: close with no action, refer for citation (informal enforcement action), or refer for formal disciplinary action. Mr. Duke [Board Legal Counsel] expanded by saying the legal effect of the citation that is paid is that it is not an admission of guilt or violation. It is considered an enforcement action not a disciplinary action; however, there are consequences as it is public record.

A document titled Filing a Complaint against an Engineer, Land Surveyor, Geologist or an Unlicensed Person11 emphasizes the importance of the first step in filing and assessing a complaint:

In order to investigate your complaint, you need to provide the Board with all of the information you have about the problem …. The Board needs all the facts you can provide in order to process your complaint. The Board does not have the staff to investigate inquiries based only upon suspicion or speculation. Be sure to provide copies of all documents about your complaint, including plans, drawings, calculations, maps, reports, plan check comments, letters, contracts, and invoices.” [emphasis in original].

These statements indicate that a BPELSG Enforcement Analyst, with no basic training in geology under current staffing, may be confronted with the task of interpreting geologic reports, maps, charts, and other specialized technical data to evaluate the relevance, accuracy, and sufficiency of documentation supporting a complaint. Thereafter the analyst is charged with “compiling, documenting, and making determinations necessary for the investigation, and only then working with an independent expert to prepare a draft recommendation to be used by the enforcement manager for finalizing recommendations to the Board.”

Although the two BGG staff transferred to the Geologist and Geophysicist Program regard themselves as “experts in regards to requirements, statement details and supporting documentation that are necessary to pursue a complaint,12 these are heavy burdens to place on an analyst with no geology training, as will be evident in the examples described below and in Part Two.

Upon issuance of a formal Citation, the person charged is entitled to request an Informal Conference by a BPELSG panel, including an independent Expert Consultant (formerly called Technical Expert). For any Citation affirmed by the Informal Conference panel, the person charged is entitled to request a hearing before an Administrative Law Judge.

BPELSG Enforcement Processes and Procedures–Examples

Reversal of well-considered BGG Citation: Among the earliest BPELSG actions involving geologists was the February 2010 reversal of a Citation that had been issued by BGG in 2009, just before its incorporation into the BPELS. This Citation had resulted from a citizen’s complaint against a licensed geologist’s geotechnical report for a proposed subdivision near Healdsburg, California.13 The BGG investigation of the complaint began in 2007 (Case No. 2007-52) and ended with a review by an independent Expert Consultant who found a number of inaccuracies and misrepresentations in the report that “constitute negligence and/or incompetence” on the part of its author, specifically as it relates to presentation of basic geologic data, geologic interpretations, public safety and geologic hazards associated with slope stability…”. The formal Citation was released by BGG in March 2009, prior to the BGG’s abolishment.

The Santa Rosa Press Democrat reported this action, including the Accused’s statement that: “…the state board [BGG] misunderstood the purpose of his preliminary feasibility study, which was for planning purposes, not site-specific analyses.” This statement does not conform to the Geologist and Geophysicist Act, which does not make exceptions to the standards for inaccuracies and misrepresentations of geologic information in feasibility studies or reports intended for planning, or any other purpose. To the contrary, the Act affirms the basic duty of the Board to protect the public from geologic misinformation in all reports.

The citation apparently was appealed, but its status at the time of BGG incorporation into the BPELS (October 2009) is not known. Charges of negligence and/or incompetence are not unknown to the BPELSG, whose website lists numerous examples of revocation of engineers’ and occasionally of land surveyors’ licenses on just those charges. Nevertheless, in February 2010, the BPELS’ Expert Consultant, acting through a Board and staff that had not one member with knowledge or training in geology, overturned the findings of the BGG board and staff’s licensed geologists and its independent expert.

Cases filed with BGG, decided by BPELSG. In its final year, the BGG had received three additional complaints against professional geologists employed by consulting firms, one lodged against the same consultant cited in the above matter, but had reached no decisions before it was abolished. The BPELSG reviewed these complaints, and in each case stated “as part of our investigation, we had an independent technical expert [Expert Consultant] review all of the information we received.” All these complaints were dismissed, citing only the Expert Consultants’ conclusions, without any additional Board investigation (see Figure 1).

The BPELSG denied requests for copies of the independent Expert Consultants’ reviews in two of these cases under the Public Records Act, on the basis of a questionable claim of exemption.14

Complaints filed with BPELSG. On June 16, 2011 three separate complaints, each having the same date, were made against an independent licensed geologist for his work at three different sites over a period of 10 years. Two complaints were based on the Licensee’s (hereafter the Accused) review of project reports that had been prepared by other licensed geologists.15 The Accused had performed those reviews for groups of citizens opposed to the projects. The third complaint was based on geotechnical work done on the Accused’s own property, prior to construction of his private home. Despite the highly unusual simultaneous filing of three complaints spanning 10 years, all were reported through by an Enforcement Analyst (EA) for investigation, ostensibly following the protocols in Figure 1.

One of these complaints [CG 2010-06] was dismissed without issuance of a Citation on the conclusion by an Expert Consultant (Step 4 Figure 1 or later) that “…there is no instance where you [Accused] departed from the standard of practice, and you were not incompetent and/or negligent in regards to your letter report.” Pursuant to a second complaint [CG 2010-20], a Citation and proposed monetary penalty were issued, but were vacated by the Informal Conference panel, after exposure of the following process violations:

  • a Citation allegation held the Accused responsible for “deficiencies” in a geotechnical report that had been prepared and signed by a different licensed geologist, not the Accused;
  • new charges were alleged in the Citation without giving the Accused an opportunity to respond

During investigation of the three initial complaints, a fourth complaint was filed on November 6, 2012 against the same licensed geologist for malpractice (CG 2012-06) in still another winery issue. It advanced to a Citation and penalty, but was vacated by the Informal Conference panel, after exposure of the following process violations:

  • the BPELSG failed in its duty to investigate complaints with due diligence by erroneously charging the accused with presenting a map he created but did not sign to a state agency at a public meeting, thereby making it a public document. The map, a working document, had not been presented at a public meeting but had been provided to agency staff during a private meeting, at staff request for internal use. Those facts could easily have been verified through contacts with the agency staff.
  • a charge of conflict of interest was unsupported by any evidence, in violation of California Code of Regulations Title 16, Division 29 § 3063(c). The assumptions behind the charge could easily have been verified by contacting the parties involved
  • no opportunity was provided the Accused to respond to these charges prior to issuance of notice of Citation, contrary to the BPELSG’s stated procedures.

The third of the three initial complaints is reviewed in Part Two because it was the only complaint not dismissed by Informal Conference review and went the full route of adjudication by an Administrative Law Judge. The performance of the BPELSG and recommendations for its reform are discussed in Part Three.

The complaint allegations and Accused’s responses in all of these cases are provided at www.theamericanwestatrisk.com/Practicing-Geology-in-Hazardous-Lands.html

References and Notes

1Before a City or County can apply for federal assistance following a natural disaster, FEMA requires them to have created Hazard Mitigation Plans, including maps of geologic hazard zones, and to implement permitting requirements that reduce the level of hazard

2The Board comprised eight members: two licensed geologists, one licensed geophysicist and five public members. To obtain a license requires applicants to show specified educational achievements and experience, and also pass examinations prescribed by the Board. To make sure Subjects adhere to specified standards of practice, the Board was accorded enforcement authority for penalizing violators with formal reprimands, fines, license forfeiture, and, in extreme cases, with recommending criminal prosecution

3The BGG became more active after a 1990 newspaper investigation showed it had taken no disciplinary actions against registered geologists over its 20-year history (Guy McCarthy, State’s Top Geology Cop Focuses Inland, San Bernardino County Sun, 13 April, 2005)

4The guts of statutory performance requirements are mainly that unlicensed persons may not practice geology, licensed practitioners may not misrepresent themselves, provide negligent or incompetent advice in their reports, and may not have conflicts of interest. These are stated in California Business and Professions Code §§7800-7887, particularly §7860 and Title 16, California Code of Regulations §§3000-3067, particularly §3065. None of these regulations provides standards of acceptable performance except in the negative

5The BPELSG currently has 13 members comprising four engineers, one land surveyor, two geologists, and six public members. Positions for one engineer and two public members are unfilled. Each member has an equal voice in BPELSG decisions, including disciplinary actions (Business and Professions Code Article 5, § 7860(b)), which are decided on majority vote

6January 2010, Proposed Settlement Agreement http://www.aegsc.org/bggnews/january_Settlement.pdf

7The October 2014 reorganization of BPELSG’s Enforcement Unit eliminated a separate unit for the Geologist and Geophysicist Program, thus making any of the eleven Enforcement Analysts available to manage enforcement actions involving geologists and geophysicists. EAs, according to the Enforcement Unit Manager, all hold California civil service classifications of Associate Governmental Program Analyst, with qualifications described at http://www.calhr.ca.gov/state-hr-professionals/pages/5393.aspx.

These include: education and/or equivalent to graduation from college (whether 2-year or 4-year is not specified). Substitutions allowed include performing duties in the ”closely related areas [of] budgeting, management analysis, personnel, program evaluation, or policy analysis.” Limited substitution is permitted for graduate training in “… business administration, management, industrial relations, psychology, law, political science, or a related field.” There is nothing in these qualifications that remotely qualifies a person to judge the intricacies of scientific disciplines.

8A second professional geologist was added to the BPELSG in early 2015

9Minutes of the Board for Professional Engineers, Land Surveyors, and Geologists, August 30, 2012, p. 5-6, VIII. Enforcement, B. Presentation on the Complaint Investigation Process. This is a transcribed oral presentation with a number of forgivable grammatical transgressions, but also some entirely vague elements.

http://www.bpelsg.ca.gov/about_us/meetings/minutes/12augmin.pdf

10The BPELSG has four staff Subject positions, referred to as Registrars. According to the Enforcement Manager, the Registrars do not investigate the complaints, although they may provide assistance to the Enforcement Unit regarding issues relating to complaint investigations. The four positions are Civil Engineer, Electrical Engineer, Geologist, and Land Surveyor. The position for Geologist has never been filled

11www.bpelsg.ca.gov/consumers/complaint_Subject.shtml

12Email response from the Geologist and Geophysicist Program Lead Enforcement Analyst, March 13, 2013

13Geologic and Geotechnical Investigation, Saggio Hills, Healdsburg, California, October 29, 2004

14The California Public Records Act licensing exemption (Government Code, § 6254(f), which exempts “any investigatory or security files compiled by any…state…agency for…licensing purposes” is modified by the BPELSG to state “…records of complaints and investigative files compiled by a state agency for licensing purposes are exempt from disclosure.” Although the licensing exemption does not mention complaints, the BPELSG conveniently defines the exemption to withhold as confidential all records containing the reasons behind any of the Board’s license actions. This clearly violates the Board’s mandate that “Protection of the public shall be the highest priority for the board in exercising its licensing, regulatory, and disciplinary functions” in those cases where public safety may be involved

15The complaints were the first in a more than 40-year career as a licensed geologist, otherwise unblemished. For nearly 12 years, he reviewed geotechnical reports for Los Angeles County, on projects ranging from placement of a gazebo to residential subdivisions as large as 2,000 individual lots (the Bramlea California subdivision in Diamond Bar, L.A. County)

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