JUDGE BLOWS UP WHAT BOARD THINKS NEGLIGENCE IS

[desert turtoise]

This citation case, (10848 L) supposedly a violation of CCR Title 17,sec 404 & LSA section 8780(b)was heard by an office of administrative hearing judge after the informal hearing in which Borpelsg (herein after the board) did not change the original citation of negligence. The OAH judge affirmed the decision by the Board. The LS then appealed to a Superior Court for relief. Superior Court Judge Eddie Sturgess took a dim view of what the board and administrative law judge viewed as failure to meet ordinary care,ie., negligence. He ordered a preemptory writ of mandamus to respondent (the board) to set aside it's decision and citation. Furthermore to dismiss with prejudice and refund the LS his $1,000 paid fine.

This observer admits to being biased regarding how the board at times treats their land surveyors. You probably know that in our state, the board relies on one "expert" who judges what you did. But did you know that in many other states there is a panel of three land surveyors who vote on the decision that determines your fate? That seems light years more fair to me; what do you think ? Did you know that I have read cases in which the OAH judge supported what the LS did, disagreeing with the board ? The board then has acted to set aside the OAH judge's ruling and reaffirm their citation. This begs the question, what is the point of having the Office of Administrative Hearing process? I must be missing something there; hopefully someone can chime in on this point since honestly, I am confused by such an action being allowed by the administrative code.

This case,(37-2022-00000484 CU-WM-CTL) in Superior Court of California, County of San Diego,involved a LS who proposed to perform a Topographic Survey of improvements and encroachments along one side lot line and rear line. He states in the agreement that he would "re-establish the record boundary". He applied record angle and distance from an what appears to be an extensive alinement of harmonious points along the front right of way to calculate the rear corners. He did not find the rear corners.The aerial does show thick bushes and trees. A surveyor for the neighbor reported finding a rear corner marker and determined that cited LS was 0.2 ft. off at that point.The other rear point that was also calculated at record location by cited surveyor was exactly in agreement with the neighbor's surveyor.

The cited LS reiterated he did not propose a boundary survey. He represented his survey graphically at a blown up scale,showing the fencing and improvements in relation to the lot line without listing dimensions to improvements. He apparently did use the exact dimensions and bearings to the rear of the lot per the creating subdivision.(see Curt Brown's principles below,particularly with reference to his emphasis on exact dimensions from original map) Without dimensions, it appears to this observor that the map truly depicted a topo survey rather than what is seen on an ALTA or a boundary survey, since boundary surveys show dimensions to the nearest 0.01 foot. This fact was lost on the board at the informal hearing, lost on the OAH judge, the state deputy attorney general and state's survey "expert", having never come up during the various legal processes. Also, what constitutes a "record boundary" was never discussed by anyone. (See Brown, 6th ed.,below, regarding what is a record boundary.) Brown states such boundaries were above and beyond all other boundaries; ie.,"unassailable by the courts". Thus, all other established boundarys did not qualify for this special status. Unlike in sectionalized lands, Brown appears to have believed when retracing a subdivision,an original found pipe could yield to the intent of the subdivider, as represented by the precise dimension written on the official map. Come to think of it, I can recall at the end of long hot days as a chainman in the 1970's watching some of the more exhausted chainmen rough in rear sub corners along the top of a brush-choked slope. Maybe ol Curt had that in mind.

(Principle #10 pg.29 - The original boundary is sacred. There can only be one. They are without error. The original boundary is unassailable in the courts. Principle #4 pg. 33 - Once created and approved, the original boundary is without error and the exact dimensions as indicated by the creating surveyor) Seems like he is saying it's OK to place less weight on that sloppy work in the back. Hang that record angle and distance to the back from the more dependable stuff along the right-of way.

The Board "expert" said all four lot corners should have been found as part of the topographic survey. Borpels cited the LS for negligence per sect. 8780 b, for not having found all four lot corners and not basing his topo survey on such. The Superior Court judge observed that "no language in the contract specified a boundary survey to find all four lot corners. Rather, a record boundary and topographic map would be provided." The neighbor's survey stated that the procedure by the cited LS "is usually sufficient to produce a basic site plan". The owner who hired the cited LS testified she was satisfied with the work under the contract and did not have any expectations he would set points or survey into other neighboring lots.

Judge Sturgess went on to state that "whether the LS adequately performed his work was dependent on what he and his client believed they were agreeing to." Apparently the judge was not buying what the Board referred to as a lack of "ordinary standard of care." The judge said "the Board was well aware of this type of topographic survey", and he (the judge) apparently had no problem with it.
The judge disagreed with the OAH court by ruling the Board could not base their citation against the LS by attempting to use their "go-to" precedent case vs. John Combs, Case 833-A, April, 2011. In that case, the LS proposed a boundary survey and never delivered on it. In this case, the judge stated the LS never promised a boundary survey. The case was closed with prejudice. The board cannot reopen or use the case to go after the LS again.

Will this influence how the board views ordinary standard of care and negligence citations? Of course not, this case was just a blip on their radar screen. A board person once told me in a hallway; "the surveyor should view a citation as a traffic ticket". Did that person mean it was just like a warning and had no other effect? Easy to say when you live a life of total immunity.

I hope this helps some of our newer fellow land surveyors who may not be aware of the long term effects of a citation. If the above LS had not challenged the citation, and had not succeeded in having it erased from his record, he would have suffered further, continuing damage, actually career altering damage. Damage worthy of a significant amount in a tort action against the state, as any attorney would explain.

For example, a land surveyor being deposed as an expert witness for a court case can count on facing the eventual character assassination question from the opposing attorney; "Have you ever received a citation or a revocation that was stayed?" Or in an administrative law hearing when the state's deputy attorney general (who routinely do their research on the opposing expert to find a citation or anything of value to help them) asks the ALJ to dismiss your testimony due to your having received a citation many years ago. If you think you would like to do expert witness work with an old citation in the closet, think again. If your situation has any merit at all, you need to challenge a citation at all costs. That same board person also told me; "sometimes we make mistakes". Now that was an honest admission.

[David Kendall]

I still believe that showing improvements on a scale drawing related to a “record boundary” with or without dimensions, is negligent behavior.

For the reasons described above, I will not be doing that in my practice, even if the Supreme Court says it is acceptable

[Elias French]

My understanding is the same as Mr. Kendall's.

I always thought it was well understood that there was 'no such thing' as a "record boundary survey/not a boundary survey" vs. "real boundary survey" option especially if the purpose of the job was to show features relative to property line. I clearly remember at Santa Rosa Junior College survey program being taught that if the client states they do not want a 'full boundary survey' the test of that is to prepare and deliver a topographic survey showing no boundary lines whatsoever and see how that is received. Humorous but true...

More seriously, perhaps we do need to work on a written standard for surveying practice. This situation speaks again to the lack of a common understanding among practitioners as to what is the standard of care. If such a document existed it could be referred to by all, including private practice, public practice, Board, and any judges needing to opine on disagreements such as this.

Curious what others think on this, very surprising to me at first blush

[Mike Mueller]

Am I mis-reading the original post or did the offending surveyor locate monuments on the frontage and then project record courses for the single sideline and rear line that were shown on his topo? The original post does not clarify if the "record" was from a deed or from a map.

If the offending surveyor found monuments along the frontage from a parcel map, which all match close enough in their judgement that there is no material discrepancy, then the negligence was from extending a record map 2 courses from a known position? I tried to find the case, but the website I found with downloads had a paywall...anyone have access to the exhibits from the case?

Mikey Mueller, PLS 9076
Sonoma County

[PLS7393]

That's some good reading right there, and looks like a win for the little guys, "to dismiss with prejudiced".

I especially enjoyed how the judge accepted referenced principles from Brown.
Over the years, I've sent various principles to the County Surveyor when one questions a boundary resolution, and surprisingly never get replies, which have caused maps to be force filed.

Makes one to think, does any one individual truly have the power to dictate their interpretation of right and wrong?

[Elias French]

More evidence of lack of a group understanding of Survey Standards:
- disagreement between surveyor and board
- disagreement between board and judge
- disagreement between surveyors posting here on same issue
- disagreement between private surveyors and reviewing county surveyors
Solution?

Isn't the question here basically whether or not a contract scope of "topo with record boundary" is an allowable practice?
And, may a surveyor show and map boundary lines without searching for the pipes that control them?

It sounds like the surveyor in question was within 0.2' to 'right on' at the 2 rear corners relative to a presumably "full boundary survey". One wonders why the neighbor had their own survey done and how this ended up in a complaint...

If CLSA / State Leg push through mandatory monumentation of all corners this will all be moot eh

[Mike Mueller]

Isn't the question here basically whether or not a contract scope of "topo with record boundary" is an allowable practice?
And, may a surveyor show and map boundary lines without searching for the pipes that control them?

I think it really comes down to what a person considers "record boundary".

Perhaps it is another aspect of the debate on filed vs record, IE do some folks consider a record boundary to be only from from a recorded document( aka deeds) and not a filed document (aka maps)?

In a very technical sense I would say we should never show a "record" boundary on anything except a RoS or PM. If you are doing a topo with a boundary it needs to be a "filed" boundary. However I think record boundary is synonymous with "a boundary shown by another surveyor on a map" for most people, as I have not heard "filed boundary" that I can remember. I seem to remember that there has been some historical crossover on those terms as well. IE recorded parcel maps, or a variety of different verbs used for some of the GLO or CS official surveys?

As a perspective on how non surveyors see it, consider all the counties that collect a 75$ fee for a RoS under SB2. Nowhere in that law does it say "filed".

Mikey Mueller, PLS
Sonoma County

[Jim Frame]

In my opinion, either you perform a boundary survey or you don't. If you show a boundary line on a map, you're representing that it's correct according to the standard of care. If you haven't performed a competent boundary survey, you ought not show a boundary on your map.

The surveyor got lucky, in that it appears that the street-side control he used to position the "record boundary" matched pretty closely with the monuments and occupation in the back. Not perfectly, but in most cases you're not going to get sued over a couple of tenths. Had the mismatch been feet, he might not have fared so well against a claim for damages, even though the judge in this case might still have found in his favor regarding the negligence charge.

Sounds like a bad ruling to me. The judge relied on the contract terms, and ignored (or was ignorant of) important aspects of the standard of care. I wonder if BPELSG plans to appeal. It's just a lower court ruling, after all.

[desert turtoise]

Borpels agreed to refund the $1,000 fine and accept the "dismissed with prejudice". So it's a done deak as of July.
The above Brown principles of record dimensions being paramount since they represent intent of subdivider supports the surveyor hanging record to the back.Yes he was lucky. I realize that practice gets a lot of derision. I don't do it but wanted people to read that Brown was a proponent of record boundaries in subdivision work.

[kwilson]

I agree with Jim Frame. As land surveyors we retrace boundaries. Whether we find monuments at the corners, monument the lines ourselves or determine them mathematically we are stating that in our professional opinion this is where the boundary is located.

This privilege to retrace boundaries is the single most important function of land surveyors. That is why we must very carefully and precisely perform this function in every survey we do.

If we state to a client, jurisdiction, judge or the Board that the boundary we determined was done to a lesser quality than what would be the appropriate standard and we name that a “record boundary” have we not diluted the quality of care and have opened ourselves up to appropriate criticism?

We would be asked “Why did you work to a lower standard of care on this boundary?” Is such a lower standard acceptable in any situation? There is no provision in the LS act for this.

Additionally we open ourselves up to liability. Our clients depend on our boundary determination. My lesson came when in doing a topo I showed a boundary line from record data in an incorrect location. I shot a power pole on the other side of the property and outside of the general topo area. The owner built a driveway using the power pole shown on the map for boundary control (by scaling off the pole). He depended on the topo map boundary as being in the correct location. I was off by 20 feet. I paid for the regrading of the driveway.

Regarding the survey in question from this thread I don’t follow the logic regarding the citation of Brown regarding a “record boundary”. I believe Brown’s reference to the record boundary being unimpeachable means that the true boundary is only in one place - where the originator placed it. This does not mean though that a mathematical solution taken verbatim from a map or deed automatically becomes the final solution. The order of importance of conflicting elements needs to be applied. Boundary principles must be considered. Age, type, quality of previous surveys as well as terrain, history and many other factors get included in the reasoning of the “professional” making the decisions.

I hope any younger surveyors pay attention to the fact that we need to perform our surveys consistently, precisely and to a standard that any other future retracing surveyors will hopefully agree with us. When surveyors agree on boundaries and build off each other the profession is better for it.

Ken Wilson

[Jim Frame]

The above Brown principles of record dimensions being paramount since they represent intent of subdivider supports the surveyor hanging record to the back.

Only in the absence of superior evidence. If the map shows one thing, but the subdividing surveyor's monuments show another, the monuments will control unless gross error can be shown (and maybe not even then).

If you don't look for facts on the ground, you can't know whether or not superior evidence is available, and that practice doesn't meet the standard of care.

[Jim Frame]

The lower court judge was in over his head, he got snowed by the surveyor's attorney, and the DAG didn't put up a fight. But it's just a lower court ruling, it doesn't establish precedent, and I wouldn't advise any surveyors to follow its lead.

[hellsangle]

I wouldn't advise any surveyors to follow its lead.

And the masses said "Amen, Jim."

[mbstanton]

I agree with the judges ruling. Based on the 2007 letter from BORPELSG letter to Northstar Engineering, the word "establish" as it relates to Section 8762, means "to set up (a precedent, theory, reputation, etc.) permanently; cause to be accepted or recognized - to prove; demonstrate [to establish one's cause at law]. Black Law Dictionary defines the word establish in part as "To settle, make or fix firmly; place and a permanent footing; found; create; put beyond doubt or dispute; prove; convince".

Further, BORPELSG stated:
"A licensed land surveyor or registered civil engineer establishes , and is subject to the record of survey filing requirements, when he or she represents beyond a reasonable doubt or dispute the location, relocation, establishment, reestablishment or retracement of a boundary or property line to another party pursuant to the provisions of Section 8762 if the PLSA. The representation includes the act of causing the a boundary or property line to be accepted or recognized, to prove or demonstrate the location of the boundary or property line, the setting, resetting, or replacement of corner, or witness monuments or referencing the boundary or property line by showing dimensional ties to the line in relation to the physical features (buildings, fences, etc) monuments located on the ground."

So, since 2007, the understanding has been that you either need to:
1) Set a physical monument or witness corner, or
2) Show a dimensional tie from a physical object in the field to the property corner or property line on your map
to be subject to the filing requirements under Section 8762.

So, if the land surveyor has not set anything in the ground or has not shown any dimensional ties from the property line to the physical objects, then there is no obligation to file a map, based on this prior board opinion.

We have to remember that our official product is the paper copy of the map drawn to a particular scale with our seal and signature on the face of the map. Our product is not a CAD drawing where dimensions can be obtained to the nearest 0.000001 foot! If a topographic map was drawn at a scale of 1"=20' and the boundary line is depicted correctly within the tolerance that you can scale (about half a foot) at the plotted scale, then a record boundary would certainly be acceptable. Again, if your finish product was plotted at a scale of 1"=100', then a tolerance of up to 10 or 20 feet may be acceptable.

Merely drafting a boundary line on a piece of paper doesn't "establish" line on the ground.

Mike Stanton, PLS

[Mike Mueller]

I agree with Jim Frame. As land surveyors we retrace boundaries. Whether we find monuments at the corners, monument the lines ourselves or determine them mathematically we are stating that in our professional opinion this is where the boundary is located. (Bolding added)

Assuming the cited surveyor only located frontage monuments and held record from a map for the sides and back isn't this what the cited surveyor did? Locate monuments and then determine two boundary lines mathematically? That mathematical retracement was off 0.20 from the "correct" position. In some of the work I do 0.20 is acceptable error. Anyone know the length of the lines in question or the size of the lot?

This is what makes me think there needs to be some terms defined. Even if we as a profession will never agree on what is the appropriate standard of care, if we agreed on some terms and published a list we could lessen some of the mismatch between what is said by some and what is heard by others. Perhaps in the CEAC guide, or some other quasi official document? It wouldn't be a binding document, but it would help establish some statewide vocabulary.

All of the terms below come from the PLS, or everyday usage in my experience. Compliance with a standard or the law requires knowing what these terms mean, yet I bet there will be significantly different definitions for the following terms.

Record Boundary:

Resolved Boundary:

Established Boundary:

Re-established Boundary:

Retraced Boundary:

Deed Boundary:

Held Record:

Projected Record:

Determines a Boundary:

Survey:

Field Survey:

Boundary Corner:

Property Corner: (in terms of PLS 8765(d) )

Now consider the idea that most readers/posters here are likely to be more informed than the average "minimally competent" LS. Any wonder we have trouble agreeing on what is the lowest legally acceptable bar to get over? And I didn't even add "reasonable analysis" from 8762(b)(3), or "facile reestablishment" from 8771(a) or "material discrepancy" from 8762(b)(2).

Mikey Mueller, PLS 9076
Sonoma County

[TTaylor]

I'll admit that I don't have a great deal of experience on boundary related issues other that heading up a Right of Way a Engineering group at Caltrans until I could escape to my true expertise of technical and geodetic surveying issues.

So, it seems to me that a PLS either provides a topographic survey for whatever purpose the client wants or provides that along with a full blown boundary survey if they want boundary lines shown, record of otherwise.

No in between.

They pay for what they want. No exceptions at the expense of your license.

On a more basic note, IMO, negligence is knowing what should be done and not doing it, while incompetence is not knowing.

In this case negligence is clearly open to interpretation by many.

The easiest way to stay out of confused disciplinary actions is what I stated above. If the customer wants boundary lines shown than do a boundary survey.

Just my 2 cents.

[desert turtoise]

It appears the board's precedent or policy setting letter of 2007 (letter of explanation to North Star Inc.)became too uncomfortable for them in recent years. They (quietly) removed it from website. The letter of of explanation from XO of board (knew her name for years but can't recall now) allowed topo ties to a property line not shown on any official map,as long as there was no tie to the corner and nothing set. It is not particularly related to this case of a lot in a subdivision,but good to know about.Since they removed it from their website a few years ago,you have to also wonder if they burned all copies of it.:)

[Elias French]

Agreed on the bulk of the last post.

On a more basic note, IMO, negligence is knowing what should be done and not doing it, while incompetence is not knowing.

However I believe the applicable rule is "ignorantia juris non excusat" or "ignarance of the law is no excuse" meaning if you don't know what you should be doing that is not a valid excuse for not doing it.

The assertion that the boundary location wasn't part of the work in question seems disproved by the immediately following lengthy defense of the "record boundary" surveying method supposedly per Brown. Even if ties aren't shown isn't the producing of a map at a "blown up scale" showing "improvements in relation to the lot line" indicative that the boundary was indeed of interest.

Is the group understanding really that per the 2007 Northstar BORPELSG letter a lack of dimensional ties means you didn't establish a boundary?

[Scott]

Not my copy!

[Edward M Reading]

On a more basic note, IMO, negligence is knowing what should be done and not doing it, while incompetence is not knowing.

Negligence and incompetence are defined in the Board Rules:

Board Rules and Regulations Relating to the Practices of Professional Engineering and Professional Land Surveying California Code of Regulations, Title 16, Division 5 §§ 400-476

404. Definitions

For the purpose of the rules and regulations contained in this chapter, the following terms are defined. No definition contained herein authorizes the practice of engineering as defined in the Professional Engineers Act.

(u) For the sole purpose of investigating complaints and making findings thereon under Sections 6775 and 8780 of the Code, “incompetence” as used in Sections 6775 and 8780 of the Code is defined as the lack of knowledge or ability in discharging professional obligations as a professional engineer or land surveyor.

(dd) For the sole purpose of investigating complaints and making findings thereon under Sections 6775 and 8780 of the Code, “negligence” as used in Sections 6775 and 8780 of the Code is defined as the failure of a licensee, in the practice of professional engineering or land surveying, to use the care ordinarily exercised in like cases by duly licensed professional engineers and land surveyors in good standing.

[PLS7393]

Negligence and incompetence are defined in the Board Rules:

Furthermore, when I was invited by the Board to investigate complaints against a land surveyor, they clearly addressed for final reports that "Negligence" can easily be proved, but "Incompetence" is difficult to prove.

Now back to our regularly scheduled programming (Work).

[jamesh1467]

I agree both with the judge’s ruling and I agree that the board did what I want my board to do.

The board got outside its lane and advocated for a specific interpretation of the law rather than enforcing the widely agreed-upon interpretation of law that is bound on all surveyors. The court correctly shot it down. But I am not super mad at the board here. If anything, I want my board to advocate for higher standards like this and go too far like this sometimes. The problem is they advocated for their interpretation of the law that most of us in this forum probably agree with; they didn’t stay in their lane of enforcing the law all surveyors would agree with.

I have worked directly with many surveyors. Each of them has different answers to this question about when a boundary survey is a boundary survey. I don’t believe that you can show boundary lines related to fixed improvements (or, in other words, do a topo and show a boundary related to that topo) without calling it a boundary survey. But I know many who do it and feel justified in doing it, including some of my mentors. Plus, I have still done it myself in some circumstances to be competitive. There is no clear-cut answer here. And if you get 100 surveyors in a room, they are highly likely not to all agree on this subject. Proof of that is that the board had to use negligence, not some other violation, to get this guy. Negligence has really no place being used by the board but for all but the most egregious cases for people who can’t pay to sue the surveyor themselves. Negligence is a broad definition claim for the courts to use between two parties willing to put their money where their mouth is to pay the attorneys to debate each side of the issue. Our court system is set up so that it costs a lot of money, and there must be a big enough monetary cost to sue someone for negligence. It shouldn’t be used as an enforcement case and short-circuit those processes (basically for free, using the board's resources by whoever complains against you) unless it is just an absolutely clear-cut negligence issue. Not something that is a technical debate.

We are a self-regulated community for a debate on most technical decisions. If you want to sue a surveyor, you have to pay another surveyor even to be allowed to bring suit via certificate of merit. If you want to complain against a surveyor to the board, other surveyors have to agree it’s a violation. Basically, if you feel someone screwed up, you have to get the community to say they screwed up.

The problem is when the board uses an overarching catch-all for a violation like negligence, they better have it absolutely locked down that they are justified in what they are doing. They need a line of surveyors out the door saying they did the right thing. You can’t short-circuit the court's procedures that are already in place to keep things off their dockets. In my view, the primary value proposition to everyone outside of the survey community of allowing the legal monopoly associated with survey license is that surveyors keep many civil cases for boundary disputes out of the courts. When our enforcement representatives advocate for specific interpretations of the law that throw something into the courts because it isn't correctly reflected in statute law, it flies in the face of that value proposition to the public. That's my real problem or concern here with this case.

But again, ask yourself what you would do if you were in the shoes of the board and the expert who got a complaint on a wishy-washy subject as to what the correct answer should be. Do we really want them to not fall on the side of the law that advocates for higher standards in the industry? Maybe they should have been a lot easier going with a warning or something. Maybe they went too far and their procedures with 1 expert vs a panel of experts isn’t correct to correctly represent the community making a decision as a whole for each complaint. But I think they were on the right track.

That said, putting myself in Patrick’s (the guy who got the violation) shoes because we all could be there someday; I would want them to pay for all my attorney’s fees for me having to court to prove I was right. The board definitely seemed like they overstepped their role as the overseers of our self-regulated community in this case. We are the advocates in organizations like this one, not the board. Its not their job to advocate. Its their job to enforce. If we want this to hold true in the future so the board doesn’t have to use negligence to impose this type of standard of care on the community, we need to change some language in the LS act to reflect that so it is very clear cut on what the board should do in the next case like this.

Basically, I take this case as the board trying to enforce higher standards for us, taking it as far as they legally could, and not being able to do it. So its up to us to advocate and give them the tools they need if we want to see this higher standard of care enforced by them.

[DWoolley]

...
Negligence has really no place being used by the board but for all but the most egregious cases...
...

Every case necessarily has to allege negligence. Technically, it is usually negligence per se:

"In California, negligence per se is a legal doctrine that states that when a person violates a particular provision of a statute, that action is presumed to be negligent."

However, compliance with the law does not mean there is an absence of negligence.

There is a technical legal definition in the BAJI or CACI. The violation of statute is a question of fact.

I have tried and failed to swerve around this discussion.

DWoolley

[jamesh1467]

...
Negligence has really no place being used by the board but for all but the most egregious cases...
...

Every case necessarily has to allege negligence. Technically, it is usually negligence per se:

"In California, negligence per se is a legal doctrine that states that when a person violates a particular provision of a statute, that action is presumed to be negligent."

However, compliance with the law does not mean there is an absence of negligence.

There is a technical legal definition in the BAJI or CACI. The violation of statute is a question of fact.

I have tried and failed to swerve around this discussion.

DWoolley

I understand the technical definition. My understanding is that negligence per 8780 (b) 2 was the only violation used in the case, and that's the basis of what I am saying here. I cannot get past a summary of the case in the San Diego court system to see the opinion, and I cannot find the original violation on the board website because I assume they took it down. I can't see the full facts to know if there were other statute violations. If there were, let me know because my opinion could change.

But laws are only as good as they are enforced, and this reeks of an administrative body (the administrative state) doing things in a vacuum and then using a catch-all legal principle to justify its actions. If there weren't other statute violations invalidated through the court case, the only remedy for him was the court system against the negligence claim, and I don't fault him for trying. Would you not fight like this to keep your license when you know others do it, too, and it isn't a clear-cut violation? Would the board have gotten overturned in the courts with prejudice if they had correctly used the definition of negligence in the enforcement case? Also, isn't most negligence from the board usually tacked on to other statute violations that would prove the negligence facts necessary to show the standard of care was not achieved? Then, the court case has to debate the facts of those narrowly defined violations with the kicker of negligence if those facts are proven true and not just the broad interpretation of negligence used in the case that seemed to happen here.

The surveyor was negligent just because a few surveyors said he was negligent, and then they got the board to vote on it per 8780 to confirm and make it legal? That's my understanding of what happened. That doesn't seem fair. That's just a few surveyors' opinions imposed on some unlucky surveyor who pissed someone off when the client didn't even care about this enough or was damaged enough by the actions of the surveyor to sue the surveyor themselves and show there was any real harm by the surveyor's actions. (If he had been sued, the board would have been able to back their claim with the suit, and we would be discussing solid legal common law principles from a civil case, not an enforcement case). That's what proves the negligence and takes away everything the surveyor worked so hard for to get the license and make a living? It's just blind luck of whether or not someone was mad at you, knew they could get back at you by reporting you to the board, and which expert you get to review the enforcement case against you?

If you don't look at this as the board standing up for what is right and what standard the profession should be held to, even in the face of knowing the possibility of being overturned by the courts, then this is just the board selectively choosing who to punish based on which expert or experts got the case to advise the board and then the court getting them back in line with the law after overstepping. I choose to believe in the former. But I am young and still an idealist, so maybe I just haven't seen enough stuff happen yet to choose the latter.

I also don't know anyone in the case. But from the enforcement stuff I have seen, the board doesn't bring the hammer like this to every situation. This guy could have come in, treated the board like crap, and deserved to be put through the wringer for all I know. Even if it was the latter situation and the board just messed up and got called on it, sometimes people deserve to go through the wringer like that just because they don't respect people on the other side. My tax dollars still could have been well spent on all this. I don't know enough about the situation or the parties involved to judge the aggrieved party here. On the whole, without significant facts to the contrary, I would like to believe that the board has our backs more than it wants to punish us. Again, maybe I am naive, and young, though.

Also, if the courts didn't strike this down once it came up to them, it would be like the biggest setup in the world for fraud to happen in the future by people within the board. The courts had to put this check on the board's power to keep the board from getting out of hand. The court should give the board unrestricted authority like this on our licenses just by getting a few other surveyors to say so? No. (Not saying there was fraud, just that the power given to the board if the courts had affirmed this case would have led to it in the future because of the precedent it would set by giving them unrestricted authority)

I also let this one go for a week or so before hopping in here on the discussion. Hopefully, I won't regret it. Again, if my assumptions are incorrect because I don't have all the facts from the case, let me know.

[David Kendall]

The surveyor was negligent just because a few surveyors said he was negligent, and then they got the board to vote on it per 8780 to confirm and make it legal? That's my understanding of what happened. That doesn't seem fair. That's just a few surveyors' opinions imposed on some unlucky surveyor who pissed someone off when the client didn't even care about this enough or was damaged enough by the actions of the surveyor to sue the surveyor themselves and show there was any real harm by the surveyor's actions. (If he had been sued, the board would have been able to back their claim with the suit, and we would be discussing solid legal common law principles from a civil case, not an enforcement case). That's what proves the negligence and takes away everything the surveyor worked so hard for to get the license and make a living? It's just blind luck of whether or not someone was mad at you, knew they could get back at you by reporting you to the board, and which expert you get to review the enforcement case against you?

I feel a professional obligation to establish and adhere to a standard of care in my own community. If I file a DCA complaint against someone it is because I genuinely believe that they are harming the community and I have exhausted all other avenues for recourse. This is not an action that is done on a whim for the complainer or the investigating body. I give the people involved more credit than that. I don't know Patrick and I haven't read the case but based on the information provided I suspect that he may have got away with one this time and would be wise not to repeat the behavior. I doubt that luck or blind emotion are the motivating factors for board enforcement cases