Old BPELSG Policy Resolutions

[Ric7308]

We've noticed lately that the old, former Board Policy Resolutions from the 1990's are continuing to be referenced in discussions or used to substantiate practice.

(From Board Bulletin 26)

...The Board did not intend for the policy resolutions to be treated as “new
lawsâ€￾ or to be viewed as binding opinions. They were simply to be
restatements of existing laws or the only legally tenable statement of law.
Unfortunately, members of the professions, consumers, and governmental
agencies did not accept them as such and began to treat the policy resolutions as binding laws which would be enforced by the Board...

...These policy resolutions were withdrawn because the topics addressed are no longer at issue, have already been addressed in regulation or statute, or need to be adopted as a regulation.

It needs to be understood that the Board withdrew all those resolutions on the advice of the Attorney General's office and those resolutions are not to be used, distributed, or relied upon.

[E_Page]

These old policy resolutions should be able to be looked to as a reasonably reliable indicator of how BPELSG would enforce the practice matters addressed under similar circumstances and given similar facts.

I can't recall any instances wherein surveyors pointed to a Board Policy Resolution, or a Board staff opinion letter and raised either to the same consideration one gives the law, but instead viewed and/or presented them as the Board's interpretation of the law at the time the Resolution or opinion was made - which in fact they are.

I'm sure thare are a few out there who would wave such a resolution or opinion letter around and proclaim it as if it were written in stone and brought down from a mountaintop, but in my experience, those individuals are a very small minority.

Ric, you have referred to such resolutions or opinions in the past to indicate generally how a practice matter might best be viewed or approached.

While certainly not dispositive, those who do refer to them, public and licensees alike, should be able to count on a certain amount of consistency from the Board, its staff, and its expert consultants. If the Board, staff, or expert consultant is to offer new opinions which appear to deviate from or contradict previously issued Resolutions (rescinded or not), they should do so on some demonstrable grounds (i.e. - basic facts of a case fundamentally different; changing technology or changed laws render the resolution or opinion obsolete; original resolution or opinion was incorrect and based on faulty reasoning, etc.).

It's one thing to rescind the resolutions as a matter of policy, but if it is the intent of BPELSG to pretend that these opinions never happened, then that's a problem. Systems or programs that BPELSG administers or oversees, such as examination preparation and grading, and enforcement must have some manner of consistency with regard to the interpretation of the laws and practices by which we work. The past resolutions and opinion letters, while not law and certainly not dispositive on any individual exam problem, enforcement case, or survey performed, should be a part of providing guidance to BPELSG staff and consultants as they approach exams and enforcement, and to licensees as they practice their profession.

These bells cannot be unrung. Attempting to do so has the appearance of justifying inconsistent interpretation of law and other practice matters between different exam problems and/or different enforcement matters. I'm not talking about inconsistency due to differing facts of different surveys, but inconsistency in the interpretation of what constitutes proper practice between expert consultants and between staff members.

The existence of the resolutions is not the problem. They exist and cannot unexist simply by denying it. The problem is how they are referenced, the context in which they are referenced, or the stature that they are given by a relatively few individuals. That's an educational problem, not a freedom of information problem.

[land butcher]

That's like destroying ALL previous court cases in this country.

It needs to be understood that the Board withdrew all those resolutions on the advice of the Attorney General's office and those resolutions are not to be used, distributed, or relied upon.
Reply With Quote

Sounds like something that would dribble out of her mouth.
That's govt. Destroy all evidence and records to cover your a$$.
But heaven help the private individual that doesn't keep his records.

[mpallamary]

Hi Ric,

Can you please post the AG opinion and any and all related communications, correspondence, emails and other communications related to this topic? How did the AG opinion develop? Did someone ask a pertinent question or did this opinion simply materialize? These old documents are in fact relied upon in various tribunals and courts and they are akin to a filed survey. Once a matter of record they are out there. If you can also clarify which regulations or statutes have been modified, that would be helpful. Absent some better clarification, one does not know how to determine the date(s) of the applicable abandoned positions. One of the problems is the Board itself references some of these and relies on them from time to time. Can you also post where all the "new" resolutions are archived so one is able to distinguish the difference? many of the decision a lot of practitioners have made is based upon these older documents and that presents some problems. Can you clarify how this position comports with section 11425.60 of the Government Code, to wit:

11425.60. (a) A decision may not be expressly relied on as
precedent unless it is designated as a precedent decision by the
agency.
(b) An agency may designate as a precedent decision a decision or
part of a decision that contains a significant legal or policy
determination of general application that is likely to recur.
Designation of a decision or part of a decision as a precedent
decision is not rulemaking and need not be done under Chapter 3.5
(commencing with Section 11340). An agency's designation of a
decision or part of a decision, or failure to designate a decision or
part of a decision, as a precedent decision is not subject to
judicial review.
(c) An agency shall maintain an index of significant legal and
policy determinations made in precedent decisions. The index shall be
updated not less frequently than annually, unless no precedent
decision has been designated since the last preceding update. The
index shall be made available to the public by subscription, and its
availability shall be publicized annually in the California
Regulatory Notice Register.
(d) This section applies to decisions issued on or after July 1,
1997. Nothing in this section precludes an agency from designating
and indexing as a precedent decision a decision issued before July 1,
1997.
************************
Thanks

[Ric7308]

Evan,

Content of the withdrawn resolutions aside, I am simply reiterating what was conveyed almost 15 years ago by the Board. See the attached Board Bulletins from 1999 and 2000 for the articles pertaining to this subject.

From time to time in discussions the content included within a withdrawn resolution will be brought up by a licensee which, in my opinion, is not a bad thing since the primary intent of the withdrawn resolution in the first place was to discuss, not to amend or expand upon existing law at that time.

However, it also comes to our attention from time to time when a withdrawn resolution is used to force some action based on the interpretation of the content discussed within a withdrawn resolution.

A recent example of this might be when a local agency interprets the law governing its authority to review submitted survey maps and uses/provides a withdrawn resolution as the basis for that request. The local agency should be using the actual laws, as those exist today, to govern its reviewing authority as it is not appropriate to refer to the withdrawn resolution.

Mike,

There is no AG opinion that I am aware of related to the action taken by the Board in regards to the withdrawn resolutions. See the same attached Board Bulletins that I attached for the information that I am aware of.

One of the problems is the Board itself references some of these and relies on them from time to time.

I am not aware of any time that the Board has referenced or relied upon the actual withdrawn policy resolutions in its correspondence. There may had been some correspondence during the brief time between when the Board adopted the resolution and when the Board withdrew the resolution...if that is the case, then the correspondence would be as dated as the withdrawn resolution is. There may had been correspondence when the Board had issued a response letter to an inquiry or discussed laws that were also discussed in a specific withdrawn resolution, but that in itself is more a reference to the actual laws rather than a withdrawn resolution. I know that over the years when speaking during a presentation, someone mentions a withdrawn resolution and I (or we) discuss that in context with the actual laws, not the withdrawn resolution. If you have anything specific that you are referring to, please share it as maybe I've forgotten or have never seen it.

Can you also post where all the "new" resolutions are archived so one is able to distinguish the difference? many of the decision a lot of practitioners have made is based upon these older documents and that presents some problems. Can you clarify how this position comports with section 11425.60 of the Government Code, to wit:

The only precedential decision related to this section of Government Code that I am aware of arising out of Board action is posted on the Board's website at: http://www.bpelsg.ca.gov/pubs/precedent_decisions_list.shtml

If at any time the Board ever issues a precedential decision, this is where it will be posted and probably also in the Board's Bulletin. There are no "new" resolutions as the Board stopped that practice at the time it withdrew the previous resolutions. Responses to inquiries, articles, presentations will most likely not be posted in this area simply because those are not precedential in nature.

[mpallamary]

Thanks Ric,

As to the index discussed in the Government Code, can you consider this a formal request? I note that GC 11425.60 includes the following language:

(c) An agency shall maintain an index of significant legal and
policy determinations made in precedent decisions. The index shall be
updated not less frequently than annually, unless no precedent
decision has been designated since the last preceding update. The
index shall be made available to the public by subscription, and its
availability shall be publicized annually in the California
Regulatory Notice Register.
(d) This section applies to decisions issued on or after July 1,
1997. Nothing in this section precludes an agency from designating
and indexing as a precedent decision a decision issued before July 1,
1997.

This would indicate the list has to be maintained under the "shall" provision. The code makes reference to 1997 so I would like to review all of that material. As to the decision being posted on the Board's website, that does not appear to satisfy the statutory requirement. Please note also the code does not refer to "resolutions" bit instead uses the term "policy determination." Can you clarify this matter for me? Also, has anything that has come out of the Board been sent or published in The California
Regulatory Notice Register? I would also like to subscribe to the publications as set forth in the code. How does that occur?

Thanks

[mpallamary]

Ric, please also note that this discussion invokes a date of 1997. it would seem that relevant to any decisions that Board may have made regarding these matters would have had to have been published as set forth in the Code. Has that been done? This obligation appears to be an ongoing duty. Again, if you can clarify, I would appreciate it. I have seen a lot of policy opinions issued and it seems as if these were all supposed to have been published. If they were not, it would seem they are not precedent setting which would seem to mean the Board can not use or rely on these in any manner for any type of precedent unless they were published as required by the code.

[mpallamary]

Ric, I did some more research into the California Regulatory Notice Register and came across the following relating to the Board's authority to involve itself in fee disputes between surveyors/engineers and their clients. I was wondering if you wouldn't mind commenting on it. There are other matters out there. can you let us know how those are maintained and indexed? Thanks.

http://www.oal.ca.gov/res/docs/pdf/dete ... No._15.pdf

[mpallamary]

Thanks again Ric for bringing this topic up. I am learning more about the Board's obligations under the GC and it seems there is considerable support for disseminating this type of information. One legal treatise notes the following:

"In moving adjudicatory lawmaking out of the shadows, the legislature
resolved uncertainty about the incidents of administrative power and focused
attention on the legitimacy of agency action. Government Code
Section 11425.60 recognizes administrative precedent as a vital instrument
to articulate and structure administrative discretion and to evolve
agency interpretive law rationally and openly. Precedent decision authority
enhances the complement of entrusted statutory powers that permit
agencies to adjust regulated interests and channel social change equitably,
efficiently, and purposefully. Toward those goals, administrators
have a responsibility to exercise the powers granted by Section 11425.60
judiciously, incorporating into the decision making process thoughtful consideration of the precedential value of agency adjudicative
decisions. A system of publicly accessible precedent decisions
will advance the goals of equity and consistency in adjudicatory
decisionmaking, promote agency accountability, and facilitate public
and agency compliance with regulatory policies."

I look forward to your thoughts and responses to my inquiries.

[Ric7308]

Mike,

Please put these questions in a direct email or letter to the Board and I'll be happy to seek a suitable response for you that you can share as you wish. I'll be interested in some of the responses as well as you.

Ric

[mpallamary]

Sounds good! Thanks.

[dmi]

Unpublished court decisions do not create precedent. Unpublished court decisions may not be cited in other cases as precedent. There appears to be a similarity between the status of an unpublished court decision and the Board's unpublished policy resolutions.

It is the Board's hands that are tied with respect to the retracted policy opinions. The public is free to use these retracted policy for whatever value that they may still retain, except that the board would be barred from enforcing those policy opinions.

I would suggest that if you are seeking action from the board in an area related to one of the retracted opinions/policy decisions, that you be sure TO NOT NOT NOT NOT USE OR REFERENCE, the decision in your pleadings. As Ric indicates look to the current state of the law as your guide to practice and the basis for your complaints. if you present the board with a retraced policy as the basis of a complaint, then they may likely have to decline to take action on that basis alone.

[mpallamary]

Point well taken. Here is the crux of the problem as I see it. Does anyone know what is going on here and does anyone know what is supposed to be catalogued and indexed? I went to the California Regulatory Notice Register and there are all kind of things I have never seen before and there is a lot more information than Ric mentioned shows up in the Board Bulletins. The bulletins are interesting but in light of the Government Code provisions, may be entirely irrelevant. Is anyone else aware of the Board's duties under these provisions of the Government Code? Here is an excerpt with emphasis added:

********************************
(c) An agency SHALL maintain an index of significant legal and
policy determinations made in precedent decisions. The index SHALL be
updated not less frequently than annually, unless no precedent
decision has been designated since the last preceding update. The
index SHALL be made available to the public by subscription, and its
availability SHALL be publicized annually in the California
Regulatory Notice Register.
*******************************

SHALL is mandatory and not discretionary. SHALL is a mandate. I learned the law was adopted in 1995 and that is probably why the 1997 date was invoked.

[dmi]

Mike, thanks for your input on this. There is a lot of fodder within the confines of this discussion

Perhaps this is overly simple, but it seems that the Board's role is to implement and regulate, according to the law. Practically speaking, it is imperative for the licensee to know the law and the Board's view on the law.

[E_Page]

It's true that unpublished court decisions cannot be cited as precedent, but beginning just a few years ago, the courts have begun allowing them to be cited as informational, as in "this is what the _____ court ruled in a case with similar facts and circumstances."

The courts do not bar anyone from studying unpublished cases, nor do they state that the opinions are contrary to how they would interpret the law in a present or future case.

The most common reason for a case not being published is that it adds nothing new to corpus juris of the state. No interpretation which applies the law to previously unaddressed circumstances, no application of law that isn't already clearly demonstrated in previously published cases.

Less often, a case may be unpublished because it had a set of facts and circumstances that were really odd and unlikely to be seen again, but caused the court to apply law in a way that may seem counter to previous cases unless one looks really closely at the odd circumstances and facts. They don't publish the case because of the possibility of confucion within lower courts which may lead to decisions that are contrary to how the higher court would typically apply the law in cases that are somewhat similar, but lacking the odd facts.

Similarly, Board resolutions and opinion letters should be used as informational, read intelligently and applied intelligently. Just because the Board issued an opinion, does not make it a precedent. If they issued a Policy Resolution, even while in effect, they are not equivalent to statute, or even administrative code. They are equivalent to regulations, which can be challenged at the administrative level for their consistency with statute.

Rescinded Policy Resolutions are informational, and while not constituting precedent and not even as policy, they should be able to be used as an indication of how the Board views the practice matters addressed by them, and as a basis for forming questions regarding apparent inconsistencies in Board or staff actions.


When a few rascals among a group of children mishandle a toy, the adult supervising them may take the toy away from all of them although most of the kids were not misusing it. That is an effective way of managing children in many instances.

When information that is of valid use to many is available to those who seek it, yet a few either misunderstand the value or proper use of the information, and perhaps a few others try to misuse it by representing it as something it is not, it is not an effective method of management to attempt to take that information from those adults who have it. It is far more effective to educate those ignorant of what it represents and to deflect or ignore the misusers.

So this brings up the question for me: Does the Board and it's staff see its licensees as adults and professionals to be listened to at times and educated at times, or does it see us as largely as a group of unruly children to be managed?

[dmi]

I do not think I want to be on the side trying to advance an argument based upon rescinded policy resolutions. I do concur that they are extremely valuable. Since the board does do enjoy the same discretion as the court, accepting a rescinded policy resolution for "informational purposes", may place your case in peril of being torpedoed. I suggest that there are several reasons to not use the rescinded policy resolutions. Reason one the executive for the board said don't do it. Reason two, the board has already been informed that those policy resolutions are lawmaking and only the legislature is allowed to make law and that they should "stop it". Now that they have been warned to "stop it" would it be imprudent for them to attempt to enforce the law that they created in the absence of proper authority?

You are right Daddy took away the toy, but he gave the "kids" a better toy, the current state of the law.

[7702]

Does the Board and it's staff see its licensees as adults and professionals to be listened to at times and educated at times, or does it see us as largely as a group of unruly children to be managed?

I wouldn't be surprised if it was the latter, based upon some of the questionable content on this forum lately in which our posts are anything but professional.

[dmi]

The content police have already intervened on this site, because "They" think "They know what is "best". What I think is "best" is free wheeling open discussion and debate without the fear that someone will be banded for their comments or accusations of being unprofessional. I have not seen anything in this thread that is unprofessional. I think this thread has been a very good discussion.

When we call others unprofessional, that tends to muzzle the discussion and in the end that tends to be bad for everyone.

[squid]

Wandering in to say...

Hi Dane, be careful. "7702" didn't say "this thread" but rather "this forum" in his comments about unprofessionalism.

I'm afraid if you were to read every comment by every poster on this forum, you might agree with him. I do.

Wandering out again...

[dmi]

good point ....perhaps I should just lurk.

[7702]

What I think is "best" is free wheeling open discussion and debate without the fear that someone will be banded for their comments or accusations of being unprofessional.

Dane,

I concur. It's the personal attacks and childish responses that I can't stomach. Makes us look anything but professional.

[dmi]

We can all do without the personal attacks and childish tit for tat. it really is hard to advance an intelligent debate on the merits when the discussion breaks down.

[E_Page]

I do not think I want to be on the side trying to advance an argument based upon rescinded policy resolutions. I do concur that they are extremely valuable. Since the board does do enjoy the same discretion as the court, accepting a rescinded policy resolution for "informational purposes", may place your case in peril of being torpedoed. I suggest that there are several reasons to not use the rescinded policy resolutions. Reason one the executive for the board said don't do it. Reason two, the board has already been informed that those policy resolutions are lawmaking and only the legislature is allowed to make law and that they should "stop it". Now that they have been warned to "stop it" would it be imprudent for them to attempt to enforce the law that they created in the absence of proper authority?

If the Board would torpedo a case for the reason that the subject licensee or his counsel referred to a rescinded policy resolution, the adverse decision based on that would be considered arbitrary and capricious and could not stand up. But if someone referred to the policy resolution and presented it as being binding upon BPELSG, first, they would be wrong in that assertion, and second, it may not reflect the current state of the law and BPELSG could base their decision on that fact.

But if it does still reflect the current state of the law, there should be no harm in presenting it as informational in additiona to something that is authoritative on the current state of the law. You present the authoritative reference to show your understanding of the current state of the law. You present the rescinded policy that is consistent with the current state of the law for informational purposes for the benefit of the expert consultant reviewing the matter. "Here's the law" (code section), "here's an authoritative interpretation of the law" (case cite), "here's how BPELSG has treated similar matters in the past" (ref to policy statement or opinion letter).

Presentation like that should encourage consistency in BPELSG decisionmaking in such matters. Everyone involved, the public, the licensees, and BPELSG benefits when actions on practice matters have consistency. Everyone ulimately loses when consistency in these matters breaks down.

If you have been reading my comments that the Board should be enforcing extra-legal policy, something added to or inconsistent with the law, you've read something into my comments that are not there.

Of course they are absolutely worthless if the policies or opinions contained in them are not consistent with law. But when they are, there should be no harm in making reference to them and BPELSG should actually be appreciative - if they are presented properly - for the information and possibly the education of their expert consultant reviewing a particular matter. BPELSG does not provide training as to the law or the proper interpretation of law for it's expert consultants. Nor does it require that their expert consultants obtain such training on their own. They do not provide any guidance, or more acurately they provide minimal guidance on how to interpret practice matters with regard to the law for the purposes of identifying violations. They do have a guide booklet as to how to prepare a report, and advise that the standard of review is that of what would a licensee in good standing do in similar circumstances rather than what would you do in similar circumstances. But there is nothing as to how to check one's "expert" opinion against actual authority.

So the Board rescinded their policies because they've been advised that those policy statements are making law without authority to do so. Without having seen the actual advice, I suspect that they were advised that if the policies didn't go through the proper OAL procedure cor creating regulations, that they were invalid regulations. Or it could be that some of the policy resolutions actually did attempt to add to the state of the law rather than just interpret and apply it as it existed. But I suspect that fewer fell into the second category where most, if not all fell into the first.

So now the E.O. says don't use them, don't refer to them, don't share them, and we are supposed to treat that admonishment as if it were law? That seems rather inconsistent.

No offense to Ric. He's pretty knowledgeable, cares about the profession, and is generally an all-around good guy. But he doesn't have the authority to order all existing copies of old policy resolutions and opinion letters out of existence.

And agian, my understanding is that the policy resolutions were written with the intent of interpreting law, not coming up with something that is not in the law and enforcing it as if it were law. I haven't suggested they be enforced as law, cited as law, or seen in any way as even a rough equivalent of law. Quite the opposite, in fact.

[dmi]

Evan, I never read anything into your comments. I read your comments and the comments of others as well. Reading these various comments, lead me to ponder certain concepts in a very broad and general way. It is not my purpose to prove anybody wrong here.

It is pretty simple. It appears that the board has been advised not to rely upon the rescinded policy resolutions. Following their advisors is not an activity that would rise to the level of capricious or arbitrary in my mind.

I suggest that if they ignored their advisors and rely upon the rescinded policy resolutions when they have been told not to do so that would be a prime example of capricious and arbitrary abuse of discretion on the part of the board.

I agree with your perfect world script. But let's imagine an imperfect world for a moment and discuss a scenario where there is daylight between the current state of the law and the rescinded decision. What happens then?

[E_Page]

Dane,

It seems to me that you are reading into my comments. I didn't say that anyone should rely on these as authoritative. Nor do I believe that whoever advised BPELSG from the AG's Office would have instructed them to automatically issue an adverse decision to a licensee in an enforcement matter simply because they reference a past policy resolution or opinion letter. And even if that was the advice they got, if made on the fact that the reference was made alone, such a decision would still be considered arbitrary and capricious in that it would have not been made with consideration given to all evidence and all statements in the case.

The point that you make that if they decided a case in reliance solely or significantly on one of the rescinded resolutions that it would be an abuse of discretion is correct. But where did I say that they should?

As to your last question, "where there is daylight between the current state of the law and the rescinded [resolution]", I already answered that. But again, if the resolution or opinion letter is inconsistent with the current state of the law, it's useless. There would be no point, or it would be mistake to make any reference to it, and if it were referenced, any argument made based upon it is easily countered or dismissed. Even as an informational reference, it would have little or no value.

We don't need to agree on this Dane. You are free to destroy any copies of any such past policy resolutions and/or opinion letters you may have. I'll keep mine because some of them may still be useful for informational purposes.