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Texas Board of Professional Geoscientists

Texas Board of Professional Geoscientists. Presentation for the Texas Commission on Environmental Quality Environmental Trade Fair May 7, 2104 Austin, Texas. Texas Board of Professional Geoscientists Agency Information and Professional Ethics Presented by:. Wesley McCoy, P.G., C.P.G.

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Texas Board of Professional Geoscientists

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  1. Texas Board of Professional Geoscientists Presentation for the Texas Commission on Environmental Quality Environmental Trade Fair May 7, 2104 Austin, Texas

  2. Texas Board of Professional GeoscientistsAgency Information and Professional EthicsPresented by: Wesley McCoy, P.G., C.P.G. TBPG Enforcement Coordinator

  3. TBPG MISSION: The mission of the Texas Board of Professional Geoscientists is to protect public health, safety, welfare and the state's natural resources by ensuring that only qualified persons carry out the public practice of geosciences and enforcing the Professional Code of Conduct the Board has established for its licensees.

  4. TBPG – Brief History • The Texas Geoscience Practice Act was enacted by the 77th State Legislature as Senate Bill (SB) 405 in 2001, and is found under Title 6, Subtitle A, Chapter 1002 of the Texas Occupations Code • From September 1, 2001, until August 31, 2003, Board Members were appointed, the agency was set up, and a grandfathering period for licensees was initiated • On September 1, 2003, the Act became fully effective and grandfathering of licensees ended.

  5. License Required for Public Practice of Geoscience (TGPA Sec. 1002.251) License Disciplines: - Soils Science - Geophysics - Geology

  6. Discipline Examinations • Soils Science = Council of Soil Science Examiners Examination (CSSE) • Geophysics = Texas Geophysics Examination • Geology = National Association of State Boards of Geology Examination (ASBOG)

  7. Geoscientist-in-Training Program • Geoscience Practice Act §1002.352   (eff. September 1, 2009) • Geoscientist-in-Training Qualifications: • Educational requirement (30 semester hours) • Pass any of the following exams: • ASBOG ® Fundamentals Examination -geology; • CSSE Fundamentals Examination - soil science, or; • Texas Geophysics Examination- geophysics

  8. GIT Advantage • Applicant for licensure has already passed the appropriate examination • Applicant for licensure only needs to acquire the 5 years work experience before being licensed • Employers can be assured of the GIT’s qualifications when hiring

  9. Firm RegistrationTBPG Rule §851.30 • A Firm or Corporation engaging in the public practice of geoscience must be registered • Geoscientific work must be performed by, or be under, the supervision of a Professional Geoscientist • Does not apply to engineering firms that perform service or work that is both engineering and geoscience (See TBPG/TBPE MOU)

  10. TBPG AdvisoryOpinions Example: • AOR10-003:What Constitutes “Responsible Charge"? • Requestor: Board-issued • Requested Date: June 3, 2010 • Summary: Posted 1/21/11 • Posted at http://tbpg.state.tx.us/Advisory-Opinions.htm

  11. Continuing Education ProgramTBPG Rule §851.32 • License Holders required to maintain 15 Professional Development Hours (PDH) during Renewal Year • Minimum of 1 hour of PDH must be in the area of professional ethics, roles and responsibilities of Professional Geoscientists, or review on-line of the Texas Geoscience Practice Act and Board Rules • Licensees living outside the United States and engaging in the practice of geoscience more than 300 days in a year are exempt, except for 5 hours self-directed course work

  12. Continuing Education Program • Texas Administrative Code (TAC) §851.32(j) – license holders are responsible for maintaining a record of their Professional Development Hours on the log form provided by the TBPG. • TAC §851.32(k) – license holders must submit a completed copy of their PDH log form with documentation to TBPG when audited.

  13. Continuing Education Program • Failure to respond to Continuing Education Program (CEP) audit request, failure to obtain the required PDH, failure to maintain CEP records for three (3) years may result in a complaint being opened by the Board against that license holder. • If a license holder certifies when renewing the license that the CEP requirements have been met when they haven’t, then the complaint will include the violation of making a false statement to the Board.

  14. Professional Code of Conduct Texas Administrative Code Chapter 851 • §851.101 – General • §851.102 – Competence/Negligence • §851.103 – Recklessness • §851.104 – Dishonest Practice • §851.105 – Conflicts of Interest • §851.106 – Responsibility to the Regulation of the Geoscience Profession and Public Protection • §851.107 – Prevention of Unauthorized Practice • §851.108 – Criminal Convictions • §851.109 – Substance Abuse

  15. Code of Professional Conduct(cont.) • §851.110 – Effect of Enforcement Proceedings on Application • §851.111 – Professional Geoscientists Shall Maintain Confidentiality of Clients • §851.112 – Required Reports to the Board • §851.113 – Assumed Names • §851.114 – Display of License Certificate

  16. Current Licenses and Registrations PG Licensees • 31 US States & Puerto Rico License Geologists/Geoscientists • 4701 Licensed Texas PGs (as of March 2014) • 43 Geologists-In-Training (as of March 2014) Registered Firms • 366 Texas Registered Firms as of March 2014 (includes Sole Proprietorships)

  17. WHEN IS A LICENSE REQUIRED? • When practicing or offering to practice geoscience for the public/providing services: • For a governmental entity in this state • To comply with a rule established by this state or a political subdivision of this state • For the public or a firm in this State if the practitioner assumes the ultimate liability for the work product

  18. LICENSE EXEMPTIONS: • A licensed PE if workoccurs in the pursuit of the engineering profession*; • Employees exclusively exploring for and developing oil, gas, or other energy resources, if the work is done in and for the benefit of private industry; • Employees or subordinates under responsible charge of the licensed PG in charge of the geoscience work; • An officer or employee of the U.S. Government; • Teaching geoscience or related physical or natural science; * See MOU between TBPG and TBPE for details.

  19. LICENSE EXEMPTIONS (cont.) : • Geoscientific research/academic work; • Work performed for archaeological purposes; • Testifying or preparing and presenting an exhibit or document for an judicial tribunal, if it does not imply the person is a licensed PG; and • Determination of the suitability of a site for a sewage disposal system

  20. Current MOAs with State Agencies • Texas Board of Professional Engineers (MOU) • Texas Commission on Environmental Quality • Texas Railroad Commission • Texas Water Development Board • Texas Board of Professional Land Surveying • - All available at http://tbpg.state.tx.us/moa.htm

  21. Frequently Asked Questions Q. Can a P.E. seal geoscience work? “…if the work is incidental and specific to their work as an engineer, provided that the P.E. has demonstrated competence in that area of work and they sign and seal their work as a P.E.” TBPG/TBPE Memorandum of Understanding, 2008

  22. Current Reciprocity Agreements • Alabama • Arkansas • Mississippi • - All available at http://tbpg.state.tx.us/moa.htm

  23. Code of Conduct Provisions for P.G.s, G.I.T.s and Firms: • Required to know the laws and rules - §851.101(b) • Prohibited from making false statements in advertising or other communications - §851.104(d) • Required to cooperate with Board investigations - §851.101(c) • Shall maintain professional records for a minimum of 5 years following the completion or final delivery of a service - §851.106(f) • ‘Strive to address environmental impact of work’ - §851.106(g)

  24. Public Protection Responsibility(TAC §851.106): • P.G.s, G.I.T.s and Firms shall not participate in violation of the Act or Rules (e.g., aid or abet unauthorized practice) - §851.106(b)(2) • P.G.s, G.I.T.s and Firms shall report known or suspected violations of the Act or Rules to the TBPG - §851.101(c), §851.104(e), §851.106(e)

  25. COMPLAINTS • §851.157 – May be filed with the Board by: 1) a member of the public, including licensees, or 2) a member of the Board or agency staff. • §851.157(d)(1) - Complaints by the public must be made in writing, sworn to by the person making the compliant, and filed with the Secretary/Treasurer of the Board at the office of the Board in Austin. • §851.157(d)(2) – Complaints initiated by a member of the Board or agency staff must be made in writing and signed by the person who became aware of the information that may indicate a violation.

  26. Complaintforms available at: http://tbpg.state.tx.us/forms.html

  27. Confidentiality - §851.157(e) The Board shall maintain the confidentiality of a complaint from the time of receipt through the conclusion of the investigation of the complaint. Complaint information is not confidential after the date formal charges are filed.

  28. ComplaintTime Limit§851.157(b) • A complaint must be filed within two (2) years of the event giving rise to the complaint. The event giving rise to the complaint is an event from which concern with geoscience work completed becomes apparent. Complaints filed after the above stated period will not be accepted by the Board unless the Complainant can show good cause to the Board for the late filing

  29. The Complaint Process • A complaint is filed with the TBPG by either the general public or a license holder, or can be initiated by the Board. • The Respondent (person or firm against whom the complaint is made) and the Complainant (as applicable) are notified that the complaint has been assigned a case number. The Respondent and Complainant may provide any helpful information to the TBPG investigator. • After all the pertinent information is obtained, the TBPG investigator will schedule the Complaint for presentation at a Complaint Review Team (CRT) meeting.

  30. Complaint Process (cont) • The Complaint goes before a Complaint Review Team (CRT) for review for decision or recommendation. The CRT consists of two licensed Board Members and TBPG Enforcement Coordinator. An attorney from the State Attorney General’s Office sits in to provide any generic legal opinion, but is not directly involved with the Complaint Case. After reviewing the evidence, the CRT will either close the case as No Violation or Violation of an Administrative Nature, or recommend a finding that a Violation of the Act or Rules has occurred.

  31. Complaint Process (cont) • If a finding of No Violation, or Violation of Administrative Nature, occurs, then the Complaint is considered to be dismissed and closed as of that date. • If it is determined that a Violation of the Act or Rules has occurred, then the Respondent will be sent an Agreed Board Order. • If the Respondent agrees with the Board Order, then the Respondent signs the Order, which is then presented to the full Board at its next Board Meeting. • If the Respondent disagrees with the Order, then the Respondent may request a formal hearing before the State Office of Administrative Hearings (SOAH)

  32. Senate Bill (SB) - 138 • Went into effect on September 1, 2013 • Amends Subchapter E, Chapter 1002, Texas Occupations Code

  33. SB – 138 Changes Affecting TBPG • Section 1002.206 is amended to mandate that the board (TBPG) work with each state agency that uses the services of a person licensed under the Texas Geoscience Practice Act, including agencies that have a Memorandum of Agreement with TBPG. TBPG shall coordinate activities and complaints and provide education for agency employees regarding the procedures by which complaints are filed and resolved by the board.

  34. SB -138 Changes Affecting State Agencies • Section 1002.207 is amended to require state agencies, when they become aware of potential violations of the Texas Geoscience Practice Act, to forward that information to the board (TBPG). Such information forwarded to the board that is privileged or confidential remains privileged or confidential.

  35. SB – 138 Current Activity • The Texas Board of Professional Geoscientists is currently revising its rules, Chapter 851, Texas Administrative Code, to implement SB – 138. TBPG is also contacting the appropriate state agencies and setting up training for their employees.

  36. What are ‘Ethics’? • Ethics* - also called  moral philosophy- the discipline concerned with what is morally good and bad, right and wrong. The term is also applied to any system or theory of moral values or principles. *from the on-line Encyclopaedia Britannica

  37. TBPG Ethics Video Scenario • TBPG Online Ethics video presents the following scenario: A wallet with cash and credit cards is left on the dash of an unlocked vehicle, which also has the windows down. Four individuals pass by, three who do no pick up the wallet because: 1) stealing is against the law, 2) stealing is immoral, and 3) it is the right thing to do. The fourth picks up the wallet to try to find the owner, and also calls 311 to notify the police (because he is his brother’s keeper). None of these individuals has broken the law.

  38. TBPG Ethics Video Scenario • This scenario did not go far enough. Consider three individuals who happen upon the unlocked car with the accessible wallet. Each takes the wallet because: 1) unemployed and family hungry (need), 2) avarice, 3) considers anyone who would leave a wallet out in the open like that an idiot and takes it to teach the person a lesson, planning to donate the money to charity. Regardless of motive, all have broken the law.

  39. Ethics vs. The law Regardless of motive, the law is either broken, or it is not. ‘The Human Mind is an Idol Factory’ -John Calvin, 1509 – 1564 In each case in the TBPG Ethics Video Scenario, whether the person took the wallet or not, there was a conscientious justification of the person’s action. An Ethical Code can determine motive, but breaking the law is breaking the law, even if the circumstances might justify it.

  40. Today’s Ethics John Doe sees that his neighbor, Jane Roe, has been pulled over for speeding in a school zone by a police officer . “Hooray! Justice for another lawbreaker! ”, shouts John as he passes by in the same school zone while doing 55 mph. Meanwhile, Jane is screaming curses at the officer for pulling her over and thereby letting John get by with breaking the law!

  41. Too often “Ethics” only apply to others and not to ourselves.

  42. Ethics can be subjective • What is truth? • Pontius Pilate • (John 18:38b)

  43. Ethics and the Code of Professional Conduct While geoscience work product may be unethical, e.g., poor quality, it may be difficult to prove that it violates the Code of Professional Conduct in the TBPG rules.

  44. Ethics and the Professional Code of Conduct Examples – Phase II Environmental Investigations and Fault Studies

  45. Ethics and the Code of Professional Conduct While there are guidance documents for the conducting of Phase II Environmental Investigations, many firms do not follow them. Additionally, some firms use terms such as “Limited” to avoid liability. Unless there is a violation of a statute or rule, filing a complaint with a Licensing Board may not result in the finding of a violation.

  46. Case Example A registered engineering firm advertises that it performs Phase II Environmental Investigations. Advertising includes a promise of “It’s Free If We Don’t Find Anything!” as well as disclaimers such as “Limited”. A party provides the Board with several of the firm’s reports.

  47. Case Example (cont) • In response to the TBPG investigation, the firm’s CEO and the firm’s attorney both submit letters to TBPG stating that since the firm is registered with the Texas Board of Professional Engineers, the firm is exempt under Texas Geoscience Practice Act Sec. 1002.351(a)(2(b). Under the MOU with the TBPE, TBPG enforcement staff forwards the reports, which are not sealed, to TBPE.

  48. Case Example (cont) • TBPG enforcement staff meet with TBPE enforcement staff to give them the results of the TBPG investigation into this matter and turn over all correspondence and supporting evidence. TBPG enforcement staff has determined that although the reports were signed by an engineer using the terms “P.E.” and “Engineer”, the reports were not sealed and the engineer is not licensed in the State of Texas. TBPG enforcement staff also requested that if TBPE determines that it has no jurisdiction in this matter, then the case should be returned to TBPG so that action can be taken.

  49. Ethics and the Code of Professional Conduct Fault Studies conducted for landowners or developers may not be under a statute or rule. Fault Studies conducted in order to obtain a permit or license may be governed by statute or rule.

  50. Ethics and the Code of Professional Conduct The same issues that may affect Phase II Environmental Investigations can also affect Fault Studies.

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