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PRACTICING GEOLOGY IN HAZARDOUS LANDS: COASTAL CALIFORNIA (Part Three—Conclusions And Recommendations)

July 22, 2015

This review of the California Board for Professional Engineers, Land Surveyors, and Geologists (BPELSG) enforcement policies and implementation procedures reveals substantial imbalances in the Board’s process and confusion about its role of overseeing geologic practices as an agency of the California Department of Consumer Affairs with the objective of protecting the public. This confusion appears largely due to a lack of geology and geophysics fields represented on the Board, and complete absence of staff geologic expertise.

Having inherited BGG complaint investigations, the BPELSG immediately demonstrated a willingness to excuse flawed reports of licensed geologists that had been thoroughly investigated by qualified BGG reviewers, and judged to be harmful to the public’s interests.

The BPELSG then failed to follow a competent investigative process for evaluating charges discussed in Parts 1 and 2, brought against a single individual, with a previously-unblemished record of geotechnical work during 40+ years of professional practice, and instead issued three indefensible Citations. That the list of complaints against this Accused licensee, cited in Parts 1 and 2, mostly lacked any of the specifics or evidence required by law, and that some were so poorly worded as to be incoherent, reveal the greater depth of this problem. It is not surprising that three of those citations have had to be vacated, and the fourth also was dismissed by the decision of a State administrative court.

This pattern of conduct suggests that the Board has participated in harassment of the Accused for having critically reviewed inadequate geotechnical project reports by licensed geologists. Testimony from a BPELSG expert consultant to a State Administrative court contradicted the Board’s own standard for licensing hydrogeologists suggests that the accusations represent an attempt to restrict the practice of Professional Geologists.

Enforcement actions involving this licensed geologist (hereafter the Accused), undertaken entirely under the BPELSG’s authority, show that the Board:

(a) improperly assigned unlicensed staff with no training in geology to implement much of the enforcement process;

(b) failed to thoroughly investigate obviously erroneous and inadmissible allegations, and also failed to identify false allegations based on BPELSG licensing criteria. At the very least, staff failed to demand specifics for each charge or supportive documentation, or both, or to rigorously examine documentation provided in support of complaints.

(c) routinely failed to follow regulatory guidelines that require a description with particularity for each citation, providing the basis of the citation in addition to citation of the specific code violated1;

(d) violated its own regulations regarding the signing of geotechnical reports and ignored its own legal/regulatory requirements for Certification of Hydrogeologists2;

(e) improperly reworded complaint allegations to assert them as fact-based accusations during investigation;

(f) improperly issued Citations that introduced new charges, without providing the Accused any opportunity to respond to them;

(g) improperly ignored the Accused’s requests for an opportunity to examine and verify documents named or alluded to in Citations;

(h) improperly issued Citations that manipulated the wording of complaint allegations to alter their literal meaning, giving the Accused no opportunity for additional response;

(i) employed Expert Consultants who made decisions and gave testimony in conflict with regulations governing the practice of geology in California and showed ignorance of the prevalence of Sonoma County geologic hazard zones, without adequate supervision or review; and

(j) failed to obtain rigorous reviews of Expert Consultants’ reports that recommended issuing Citations against the Accused.

The result of these failures was a series of enforcement actions that discredit the BPELSG, and open it to charges of favoritism, illegal actions, negligent violation of its own regulations and procedures, and of failing to protect the public’s interests.

Inadequate Complaints and Reviews. Focusing on two complaints that the BPELSG processed and issued citations on, it is clear that Geology and Geophysics Program staff did not understand the purposes of peer reviews, such as the Accused performed for his clients.

The purpose of peer review is to evaluate the accuracy and completeness of a report. Both the authors and users of geotechnical reports (e.g. City/County Planning Departments) benefit from such reviews. Support for exacting reviews of independent geotechnical reports by licensed geologic experts ought to be a critical element of the Board’s mission to protect the public from geotechnical malpractice or from lack of adherence to State and County standards.

Instead of seriously examining issues of malpractice in reports supporting proposed projects that the Accused reviewed, or issues of missing technical reports, the Citations focused on complainant allegations of the reviewer’s supposed misdeeds. There is not one instance in which the BPELSG found any of the Accused’s substantive geological criticisms to be invalid.

Thus the BPELSG’s actions appear aimed at shooting a messenger whose peer reviews reveal substandard work. This does not constitute protection of the public.

At minimum, the BPELSG’s failures are due to a lack of geological expertise, both on the Board and among the staff, and failure to obtain competent and independent Expert Consultants. These Board membership and staffing deficiencies likely are due to incorporating BGG duties and authority into the BPELS without adding enough geological expertise to the Board and staff. Rectifying these failures will require:

(a) a fully transparent BPELSG process for evaluating and investigating complaints against licensed geologists who have performed peer reviews of technical reports produced by other licensed geologists,

(b) a proper, and already authorized, program of the Board to continuously improve, clarify, and publicize the standards of geologic practice to which such geotechnical reports should be held;

(c) much more active scrutiny, involving State (CGS) and academic geologists, of the geologic practice of individual and licensed geologists in consulting firms, who prepare geotechnical reports for project proponents,

(d) periodic reminders in writing to county and local permitting authorities that they should establish and enforce standards for geologic reports; prevent unlicensed planning department staff from making geology-based assessments; and discard input from licensed geologists with previous records of conflicts of interest.

Performance Standards. The performance of any scientific endeavor must be judged against standards of care. Sadly, the BPELSG appears resistant to the idea that it has a responsibility to set or even endorse standards of performance, beyond those stated in the Geologists and Geophysicists Act, for licensed geologists who contract with private parties.

A group of informed citizens and geologic professionals, concerned about lax standards in the practice of geology, sought to address the BPELSG on this issue. After being rebuffed twice, they filed a complaint with the Department of Consumer Affairs, the BPELSG‘s supervising agency. The BPELSG Executive Officer then offered to read the group’s letter to the Board, which elicited the following response from the Board’s sole geologist and Legal Counsel:

…this Board does not set standards of care nor did the original Geologists and Geophysicists Board. They were a licensing board. The Board does not have control over geologists as the letter implies in terms of standards of care. The implication that old notes issued by the Mining and Geology Board are somehow the standard of today is antiquated. The Board’s Legal Counsel reiterated what the Board’s geologist discussed by indicating that the standards are set by the profession and they evolve. 3

This statement ignores the fact that “the Profession” does indeed recommend standards published by the California Geological Survey (formerly the California Division of Mines and Geology, CDMG) and the Mining and Geology Board. On July 17, 1978, after extensive statewide meetings with interested parties, the BGG formally adopted eight CDMG guidelines for various practices of geology and geophysics.4 Note 52, adopted by the CGS in January 2013, provides Guidelines for Preparing Geological Reports for Regional-Scale Environmental Resource and Planning. The first four References to the current version of this document are: Geologic Guidelines for Earthquake and/or Fault Hazard Reports; Guidelines for Engineering Geologic Reports; Guidelines for Geophysical Reports for Engineering Geology; and Guidelines for Groundwater Investigation Reports — all dated July 1998 — cite the BPELSG (created in 2010) as those report’s preparers, even though the reports were all Notes prepared by the CGS, and adopted by the BGG well before it was abolished. None of these references is out of date with regard to approved scientific practices, contrary to the BPELSG’s ridicule of them as antiquated (see reference 3).

The BPELSG’s statement suggests that it sees itself as powerless to enforce the standards. It clearly has made no attempt even to endorse guidelines (standards) provided by the profession, and ignores them in its own enforcement practices. That is the truly antiquated view. Interestingly, another standard of practice publication referenced in Note 525 is California Geological Survey Note 41 – General Guidelines for Reviewing Geologic Reports, 1998, of particular importance for assessing the four complaints against the licensee that we have examined. Since Note 52 acknowledges the input of the BPELSG, the Board appears to be wearing more than one hat.

The Public Interest. The public interest, and public and private financial stability, are threatened by allowing construction in hazard zones without proper technical evaluation, or requiring mitigations when necessary. Under the Department of Consumer Affairs, the BPELSG is charged to protect consumers. If it is to protect consumers the Board cannot declare itself “powerless” to set standards. Unfortunately, use of the guidelines as envisioned by the BGG in 1979 “…to facilitate a screening of the geologic reports for violations of Section 7860(c)” did not carry the force of law. To be enforceable, the guidelines have to be adopted as regulations in accordance with the Administrative Procedures Act.

The case histories recounted in Parts 1 and 2 show that a system that allows practitioners of geology to voluntarily take or ignore the advice of the profession does not work. Instead, the Board must take actions for turning the profession’s long-established standards of practice into regulations, hold practitioners accountable for their work, and hold local permitting authorities accountable for protecting the public and the environment.

This requires the BPELSG to join forces with the State agencies and academic and governmental organizations that create such guidelines and advisory notes, and to support the notes through the regulatory process, then keep them updated as the profession learns from experience.6

Disciplinary Function. If, as seems to be the case now, the Board’s disciplinary function for geologists is effectively run by complaints from sources with varying agendas, or possibly a focused agenda, the BPELSG is in violation of this important second sentence of its guiding principle: Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount (Business and Professions Code §7810.1) (emphasis added).

The disciplinary function of the Board is important to ensure compliance with the rules, but even more important is to focus on raising the standards of performance — not through penalties, but through establishing standards befitting the professions covered by the Board, improving them by serious periodic review, and promoting their application.

CONCLUSIONS

The State badly needs an authority that holds licensed geoscience practitioners accountable. If there were no need for such an authority, there would be no need for licensing geologic practitioners. It is the licensing authority that determines whether applicants have the credentials for licensing, and the same authority must hold practitioners accountable for incompetent or dishonest practices, as the Board for Geologists and Geophysicists eventually attempted to do. That authority is the main reason for housing the licensing of geotechnical professionals within the State Department of Consumer Affairs. An impartial Board with a competent staff, well grounded in geology, should be able to assess the relevance of complaints filed against licensed geologists for the basic goal of protecting the public against malpractice.

The interests of the public and of professional geologists have been poorly served by incorporation of the BGG into the Board for Professional Engineers and Land Surveyors. The BPELSG’s enforcement performance since adopting the BGG shows that it is neither impartial nor competent. Possible solutions to this problem should begin with:

(1) equalize geology and geophysics representation on the Board to that of engineering;

(2) add licensed geologists/geophysicists to the Enforcement Unit staff to review all complaints that are substantiated by geologic documents and/or references, and provide the public a complete list of Enforcement Analysts and their technical qualifications to perform their function. If the Board is unable to hire such personnel, complaints against licensed geologists must be reviewed by independent experts in the California Geological Survey and/or US Geological Survey.

(3) reform the enforcement process to have much more transparent disclosure policies. Under the U.S. and California constitutions, there is no defensible reason for an accused licensee to be denied access to the unedited complete complaint filed against him/her (except necessary redactions to protect the identity of the complainant or reviewer). Accused parties also should have access to any and all additions to the complaint during the investigation.

There is similarly no reason to restrict the public’s access to unedited complete Expert Consultants’ reviews of individual cases, or the full and complete reasons for the Board’s decision on a Citation at all stages of the enforcement process;

(4) require completely independent peer review of Expert Consultants’ reports of each case, and a third review if the Case expert and reviewer do not agree, prior to issuance of a Citation;

(5) guarantee unconditionally that the accused licensee may respond to all charges of the complaint at all stages prior to release of a Citation; and,

(6) require the Expert Consultant’s report to include specific responses to all the Accused person’s responses to allegations used in the Citation decision.

 

REFERENCES AND NOTES

1California Code of Regulations Title 16 §3063(c) “Each citation for violation shall be in writing and shall describe with particularity the basis of the citation, including specific reference to the provision of law determined to have been violated

22014 Handbook of Laws and Regulations, California Board of Professional Engineers, Land Surveyors, and Geologists, Article 4. Specialties, p. 131

3Minutes of the Meeting of the Board for Professional Engineers, Land Surveyors, and Geologists, 18 November 2011

4BGG adopted standards for the practice of geology in California promulgated in CDMG Notes 37, 43, 44, and 46-49 following three statewide meetings of regulatory geologists, CDMG personnel, representatives of associations, and individual consultants “to discuss possible violations of the Act and practices which may not be violations of the Act but substantially affect the public.”, stating that “The board adopts these guidelines as its policy statement on the adequacy of professional geologic work under Section 7860(c) of the Business and Professions Code for the geologic profession in California. The guidelines will be used to facilitate a screening of the geologic reports for violations of Section 7860(c)”

5California Department of Conservation, California Geological Survey, Guidelines for Preparing Reports for Regional-Scale Environmental and Resource Management Planning, Note 52, January 2013. Adopted by the CGS in January 2013, Note 52 provided Guidelines for Preparing Geological Reports for Regional-Scale Environmental Resource and Planning.

6An excellent example is California Geological Survey, Special Publication 117A, Guidelines For Evaluating and Mitigating Seismic Hazards In California, first published in 1997, and most recently revised in 2008. Introductory pages list more than 90 individuals who contributed to the publication, titled Guidelines for Evaluating and Mitigating Seismic Hazards in California. Among the contributors and reviewers were personnel of federal and state agencies, California universities, northern and southern California city and county governments and agencies, consulting companies, the State Department of Insurance, and Association of Bay Area Governments.

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One Comment leave one →
  1. Stephen Fuller-Rowell permalink
    July 26, 2015 7:49 pm

    The Kafkaesque aspects of these processes may discourage other well-qualified experts from acting in the public interest and running the risk of similar SLAPP suits.

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