JUDGE BLOWS UP WHAT BOARD THINKS NEGLIGENCE IS

[Jim Frame]

This guy could have come in, treated the board like crap, and deserved to be put through the wringer for all I know.

In many (most?) of the enforcement cases I've worked on, the respondent either ignored the complaint entirely, or refused to admit that they did anything wrong in the face of compelling evidence. (One or two lawyered up at the outset, but that was probably smart given the number of violations charged.) Had they cooperated with the Board at the outset, they probably could have gotten off with a slap on the wrist.

Not many enforcement cases actually result in surrender of license, even when that's listed as a contingent sanction. The Board offers a course of action that allows the respondent to retain their license in all but the most egregious cases.

[jamesh1467]

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

I am probably spouting off more than I should and word vomiting without making much sense in my last posts.

Here’s my attempt at defining the problem a little more clearly:

This guy went to court and got a higher opinion on the board's actions (and the administrative judge) on something that was previously subjectively judged by other surveyors as a sort of self-regulating process.

Therefore, this case likely became common law that supersedes the board's opinions about the standard of care that are not very explicitly codified. (I know it’s not binding appellate precedent, but it’s still a higher precedent that can and will be used) That's what I am trying to say/express here with probably way too many words. Because everyone you ever report to the board for this kind of violation in the future can point to this case as a precedent to get out of a complaint. Or worse, the board actually goes through with the violation, and it gets appealed to the courts again and confirmed again.

The board and the administrative judges are supposed to fall in line with this decision and start enforcing it. They don’t have a choice. Their hands are going to be tied. Even if they aren't, and I am wrong about that because of some administrative loophole, it's not like they will be willing to look bad by taking a violation like this to court twice.

The standard of care is no longer debatable on circumstances or determined by other surveyors in the profession. If a boundary decision is not in a contract, it's not the standard of care. Even if a licensed surveyor signs the topo with a boundary decision on it. I am pretty sure that's what just happened in this case. The standard of care for all surveyors was just defined in common law.

The question is, what do we do about this?

[Jim Frame]

Therefore, this case likely became common law that supersedes the board's opinions about the standard of care

It's a Superior Court decision. It's only binding on the litigants in that case. It does not set a binding precedent for anyone else unless it's the same litigants with the same issues in a separate case in the same jurisdiction.

[DWoolley]

Therefore, this case likely became common law that supersedes the board's opinions about the standard of care

It's a Superior Court decision. It's only binding on the litigants in that case. It does not set a binding precedent for anyone else unless it's the same litigants with the same issues in a separate case in the same jurisdiction.

Jim Frame, truth. It means less than zero in relation to any future decision by any ALJ or any other judge in any other jurisdiction.

I believe the original posts said the surveyor didn't locate an existing original monument and instead, held the record math because of some brush - with a rationalization that the math placed the monument within 0.2'. It could have been 2' and the surveyor would not have known. This is clear cut negligence, regardless of one Superior Court's findings. The surveyor probably paid about $150k at market rates to roll the dice and got lucky, so what. I double dog dare any other surveyor to follow his lead, spend the $100k+ and see how it works out.

The fact we have surveyors that see the surveyor's case as being acceptable practice is disconcerting.

I know a little about professional negligence cases. If I framed and hung every license, for which I had firsthand knowledge, that has been revoked or surrendered I would need a bigger office. Only yesterday I received a final order in which a licensee lost her license for not searching for and finding several original monuments (coupled with other false statements on her ALTA). We won't be seeing that signature and seal bebopping around Orange County again.

DWoolley

[jamesh1467]

Therefore, this case likely became common law that supersedes the board's opinions about the standard of care

It's a Superior Court decision. It's only binding on the litigants in that case. It does not set a binding precedent for anyone else unless it's the same litigants with the same issues in a separate case in the same jurisdiction.

Jim Frame, truth. It means less than zero in relation to any future decision by any ALJ or any other judge in any other jurisdiction.

DWoolley

I think you guys are missing the point I’m trying to make here. I really do. I’m not trying to show I’m the smartest person in the class. I’m trying to help and make sure we don't just watch the pitch go by with this thing. Deregulation is a game that happens one inch at a time over decades. This case was a step in the wrong direction.

Everyone in this forum has been debating facts, I’m trying to tell you the facts can be whatever you want them to be. This guy challenged the law, and the law doesn't seem like it’s on our side. If it had been, we would have won. If there were laws that supported the finding of negligence, the board would have used them. They have some great attorneys. They really lost because they sucked as attorneys and couldn’t make a case with the facts you all seem to agree show negligence? No. They lost because the law wasn’t on their side with those facts.

The courts will absolutely screw up what you think the law is unless you design the laws so they can’t. This whole thing is a warning that we need to modify the design of our LS Act laws so the courts can’t screw it up like this again. Otherwise, they absolutely will screw it up, and this will repeat again.

We need to give the board more statute tools to better define standard of care so they can get these guys next time. That’s what I am trying to say here and what I have been trying to say from the beginning. When the board loses in court, we all lose along with the board. It’s just a matter of whether you are willing to accept that or not. If you accept that, we can work to change it and make it better. If you don’t want to accept that, I really don’t know what to say other than I can’t help people that don’t want to be helped.




I can help or I can shut up. But I am through trying to convince people I am right when I know I am. Nothing you guys have said pokes a hole in the logic I have been using. You guys just don’t seem to be understanding what I am saying, not caring, or I am not expressing it well enough. Either way, at a certain point this becomes beating a dead horse. Responses to previous counter arguments below, but this is the last time I do it.


DWoolley, ALTA’s wouldn’t even apply to what we are talking about because a resolved boundary is by definition within the contract anyone makes for an ALTA. You could have gotten this guy with negligence if this was an ALTA. Even by this court’s reasoning. I never said what he did was acceptable. In fact, I said or implied the opposite multiple times. I said the means we used to get to the ends of saying this guy was negligent is not acceptable. Possibly even concerning about the arguments the board made. Not that his actions were acceptable. Yes he rolled the dice. But I am pretty sure he rolled the dice and also screwed us all. It won't be rolling the dice again for the next guy. It went from rolling the dice to high percentage chance of winning for the next guy. Don't you see that? I'm pretty sure the board's attorneys will and won't even take this to court next time.

Also, double dog dares are how people get in trouble based on their ego by responding to forums. Just look at that Airforce kid who put that classified stuff out there to prove he was right in the forums and went to jail. You’re seen as a leader in this field by a lot of people. Don’t post that stuff.


Jim Frame, I understand it’s not binding (I said that in the next sentence after you quoted) and I didn’t expand on it because these posts are already way too long. But this again comes back to I highly doubt that the board has bad attorneys that wouldn’t have used the existing precedent or made good arguments if they were there to be made. The law must not be there to support us and now we have something that could go against us in the future that gave a new opinion on the “Landmark 2011 case” that we previously relied on. Is there some kind of wealth of common law for surveyors’ negligence where this would get buried in research that it won’t be found so we could still use the 2011 case without this coming up as an alternate opinion on that 2011 case?

Its the law of large numbers. When you only have a small amount of cases to justify your arguments on a very niche subject, the cases matter a lot more and hold a lot more weight. How will the next attorney reference other cases to make their arguments in the next case? They will research and use this case because there is no real binding precedent. This likely just became the precedent, because there is really no binding precedent.

Administrative law gets admittedly too complicated for me to say I know everything about it, but my understanding is that the administrative judges without full judicial powers are inferior to superior courts with full judicial powers, otherwise the superior court wouldn’t have been able to overturn them like they did in this case. I really don’t see an inferior quasi-judicial judge overturning a legal doctrine that was created by a higher full judicial court. I am also pretty sure the landmark 2011 case where we got our negligence enforcement power is an admin case in quasi-judicial common law, not full judicial common law. So this new superior court opinion of that would probably be held in higher regard even though it’s not binding. But that’s just me and inference based on what I know. If you seriously think the admin judges can just blindly ignore this….i would find that hard to believe….but if you quote some cases or some statues showing me where they can or have ignored superior court decisions previously I will shut up and I will have learned something here by all this. (I may also find that pretty concerning tho because Admin judges are described as "quasi-judicial" not "judicial" like the superior courts. They are not supposed to have that kind of power to ignore judicial opinions)

Your are now asking the admin judges to directly defy one of the few outside judicial opinions of their actions to enforce our idea of the standard of care on surveyors. Do you want to wait for the next guy to try this like DWoolley suggests to see what happens if I could be right? Are you that sure of yourself that this case won’t influence the board’s future actions? Or do you want to be proactive and change this for the better, so we make sure this never happens again?

I can’t do this on my own. In fact, I can’t probably do this at all which is why I am posting here spouting off like this. Its guys like you and DWoolley that will get the law changed. I’m trying to get you to do it for us and protect the integrity of my license for the next few decades.

[LS_8750]

I get it. Loud and clear to me.
If the Board can't figure it out and the so-called professionals are blind, then why should there be licensed professionals?

For a land surveyor to end up in court over their own conduct, opinions, or lack thereof, is sad.

And I've seen it in my practice. I've seen ethical cannibalism first hand, the equivalent of chopping down the tree to reach the fruit, dropping dead animals down the well we all drink out of. And apparently oblivious to what they are doing. Yes. Much worse than the subject of this thread.

[marchenko]

The Superior Court judge got it right.

Land Surveyors are experts in the art and science of Land Surveying. They can exercise their judgement as to the accuracy required to fit the needs of a particular project. It is what society needs. The surveyor who had the Board ruling dismissed applied that judgement to his survey. Our laws reflect this as discussed below.

Government Code 66424.5(a) “Tentative map” refers to a map made for the purpose of showing the design and improvement of a proposed subdivision and the existing conditions in and around it and need not be based upon an accurate or detailed final survey of the property.

We are authorized to create tentative maps. They show topographic information. Local ordinances usually require property dimensions. Our law (see paragraph above) states they are not required to be accurate surveys. They sometimes expire; hence no recorded map follows it.

Government Code 66448
In all cases where a parcel map is required, the parcel map shall be based upon a field survey made in conformity with the Land Surveyors Act when required by local ordinance, or, in absence of that requirement, shall be based either upon a field survey made in conformity with the Land Surveyors Act or be compiled from recorded or filed data when sufficient recorded or filed survey monumentation presently exists to enable the retracement of the exterior boundary lines of the parcel map and the establishment of the interior parcel or lot lines of the parcel map.

If the parent property has multiple corners, when we go to monument the interior lines of a parcel map compiled from recorded data we would find a monument marking the exterior boundary that won’t fit our calc’s for a tenth or two. The final position of our map corner, and the dimensions leading to and from it, would differ from our filed parcel map.

A legislative requirement that every corner be monumented first would lead to our role in the process being replaced by others. It could be utilized as a weapon to thwart projects that would help our society. Be careful what you ask for, you might get it.

George Marchenko LS 6964

[DWoolley]

I think you guys are missing the point I’m trying to make here.
...

You are correct, I was not understanding your point.

Putting the instant case aside, I believe you are correct if your point is the profession of land surveying is in the process of closing out. I have written and offered evidence on this forum to the pressures on the profession’s inability to be sustainable. Although I do not know what the future holds, I would be surprised if there was much left of land surveying in a single decade.

I disagree with the statement:

“We need to give the board more tools to better define standard of care so they can get these guys next time.”

The BPELSG staff have plenty of existing tools available and the authority. As is their prerogative, they wash approximately 70% of the cases under “compliance achieved” or similar. Restated, 30% of the respondents face discipline and of those, less than 10% potentially face a Deputy Attorney General [which, rightfully, will usually result in a settlement]. The cases that are not pursued against the professionals are not due to a lack of jurisdiction or legal gray areas. This is not intended to be shot at BPELSG, they will do what they will do for their own reasons. Ultimately, the BPELSG is not in place to protect and/or serve the professional community.

I will add another personal observation, I find it quite curious the professional community will ask the two non-practicing BPELSG land surveyors for technical practice advice - never questioning their number of records of surveys filed, monuments preserved, records of survey or maps checked, construction stakes set, geodetic experience, the number of standards/manuals written, peer reviewed papers published etc. Then, the land surveyor inquirers will most often take the advice as though Moses himself delivered it as the third tablet. Equally, although far less frequent, the land surveyor inquirers will quickly dispel the advice as cockamamie nonsense when disagreeable. Is this due to land surveyors not having a professional network or fear of reprisal? I find the LCSO, a consortium of County Surveyors, City Surveyors and public agency folks, is a better multi-jurisdictional, broad based experience, resource for practice issues - often with published standards. BPELSG members have not assembled a LSTAC in more than a decade, why is that?

Also, equally curious, why would the professional community look to BPELSG to save their profession? Understand, I made the mistake of having a similar perspective a decade ago. Like Lennon's lost weekend, this was my lost decade.

In the alternative, it may be a generational thing, younger folks may not know about the Magic 8 Ball for those tough decisions. My personal survey acumen can be attributed to the ol’ Magic 8 Ball. Online version here: https://magic-8ball.com/

Standard of care will always be anchored in the “reasonable person doctrine”. What would a professional facing similar circumstances do in a similar situation?

As the profession diminishes, the standard of care necessarily diminishes accordingly. As an example, not to many years ago a professional would not have met the standard of care by using GPS RTK/RTN for short distance measurements [to keep us in the food chain and make this a professional opinion, accuracy statements were rejected by our community]. One could argue the practice is prevalent enough today to be the standard of care. Hypothetically, in the context of this thread pushed out over the next decade, we could state existing monuments do not need to be located when establishing corners – especially if the monuments are in brush. Following this through to the logical conclusion, most tradesmen, GIS technicians, engineering technicians have a working knowledge of CAD, coordinate geometry and GPS RTN. Ergo, these folks are not breaking the law when they can replicate the work of a licensed professional and add a caveat [legally, known as informed consent] alla the NSPS model law. This is not prospective, we see it today, every day, in construction, topography, site plans, legal description writing, etc.

The land surveying community, from my perspective, would rather die [literally] than accept any further regulation or have standards placed upon them.

Thank you for taking the time to write in detail and drive the conversation. Raise a cup to 2024.

DWoolley

[DWoolley]

...
They have some great attorneys. They really lost because they sucked as attorneys and couldn’t make a case with the facts you all seem to agree show negligence? No. They lost because the law wasn’t on their side with those facts.
...

A state Attorney I was hired at $68k annually a few short years ago. Today I believe it is $92k annually. The tier one folks bent on public service, like a Kennedy, go to criminal law or civil litigation. The Davey Crockett School of Law graduates, oftentimes unemployable in private practice, took the $68k hoping to offset their student loans and are gratefully relegated to a board or bureau. It is not uncommon for these folks to be in a band, practice black and white photography, build ships in bottles or have some other esoteric pastime. In the mix are private practice failed partners and pre-retirees marking time until eligible for retirement. The occasional talented interim attorneys take their proverbial foot in the door opportunity until eligible to become an ALJ in Work Comp, EDD, DMV or similar and exit stage left asap.

DWoolley

[jamesh1467]

DWoolley, the short answer to your questions is that I am still an idealist. I still want to see us for what we could be as a profession.

You are talking to a guy who has certificates beyond our field in data science, AI and Augmented Reality. I can go into a lot of detail about what I think the future is. (some of you know how much detail I can go into with that stuff all too well) But I don’t want to get off topic with that. I also don’t want to get into the whole bad attorney thing or get into the board methods. I just wanted to make the point that there are likely to be broader implications of this case than just this surveyor.

This was a court mandated erosion of surveyor values. We have to stand up and say: “this wasn’t what was supposed to happen” Otherwise, it is implied that we agree with what happened here.

I don’t want to get caught up on the mechanisms for acting either. I suggested statute, because it absolutely will supersede this opinion at the lower court level. But it’s not the only option and I am sure the CLSA, and the board have some smart people that can figure out some better ways to do it. The only thing I would say is that appeal could just make it worse if we lose again. Its a high risk action. But appeal is not up to me.

You can let the courts speak for you or you can speak for yourself. But you’re making history and defining the future of our profession either way. This case requires a response by the surveying community about what we think our values should be to supersede the court's opinion of what they think our values should be. Respond or don’t respond. But either way, it’s a choice.

[DWoolley]

DWoolley, the short answer to your questions is that I am still an idealist. I still want to see us for what we could be as a profession.
...

Fair enough.

I am very appreciative to Desert Tortoise for taking the time to write a detailed account of this case. I am also appreciative of the posts provided that drove the conversation. Thanks to all contributors.

All the best,

DWoolley

[desert turtoise]

Bottom line is the system in place fails to provide fairness to the licensee, since the decision is based on the opinion of ONE "expert". How could this have continued so many years, allowing the state to bring citations or worse ? Other states employ three licensed land surveyors to evaluate and vote on the outcome of a complaint. As I said in the introductory opening article, the only fairness I have seen from Borpels was unofficial; from the XO who once told me in the hallway at a seminar; "sometimes we make mistakes".

[E_Page]

We need to give the board more statute tools to better define standard of care so they can get these guys next time. That’s what I am trying to say here and what I have been trying to say from the beginning. When the board loses in court, we all lose along with the board. It’s just a matter of whether you are willing to accept that or not. If you accept that, we can work to change it and make it better. If you don’t want to accept that, I really don’t know what to say other than I can’t help people that don’t want to be helped.

Sorry, but you're misguided here. It is not the Board's job to define the "standard of care", or as Ric has claimed "enforce the standard of practice".

By statute, the Board can find a licensee in violation for violating the "standard of care". It is not given statutory authority to define the standard of care. BPELSG must look to the profession at large and attempt to recognize what a licensed professional land surveyor in good standing would typically do in the same or similar circumstances. This is an extension of the "reasonable person" test that is so established in the courts that it isn't likely to change even if the legislature granted the authority to BPELSG to define the standard of care.

To my knowledge, the standard of care is not defined in any other way in any jurisdiction of the US.

It is not BPELSG's role to determine and define the standard of care. By definition, they can only recognize that standard as set by the practitioners of the profession. It's pretty difficult to poll 4000 licensees on every matter, so they need somewhere a little more convenient to look to.

In a negligence case, it is incumbent upon the party asserting negligence to prove what the standard of care is. Without having read all the details of what the surveyor actually did or did not do, I'm not going to opine on whether I believe his actions were negligent. I will opine to some extent on the judge's ruling.

In many cases, Superior Court judges will simply punt by ruling in favor of the agency under the doctrine of giving great weight to the findings and opinions of the agency as to their interpretation of the law (wonder if the recent SCOTUS ruling will filter down to state law). IMO, the judge was correct to decide for himself whether BPELSG had adequately proven that there was a violation, particularly when the standard here is so difficult to prove.

If the surveyor actually never looked for the monument, then I would agree with the majority of surveyors I hold in high regard that this guy fell short. But there are a great many surveyors who would feel that what he did was acceptable given that the contract was for a topo and did not include a boundary survey.

What is the proper standard? We could argue that point here ad nauseum and it would mean nothing.

What would have helped to alleviate the question of the true standard of care? Well gee, maybe if the CLSA would act like a responsible body that represents a true profession and produce, endorse and publish a set of suggested standards, the BOARD would have had something tangible to recognize and to provide to the court.

[pls5528]

Well, all of this for 0.2 ft? I do agree that the markers should have been located at the back. How much more trouble would it have been to do it right? If you can't do it right, and the client doesn't want to pay for it, move on to someone willing to pay. Or, write it into the contract as a possible scenario, and client has the option of paying for time spent and/or moving forward for the additional fees to do it right. I have seen surveyors which would have called that monument good (within 0.2') , or as they say "close enough"! Yeah, right!

[jamesh1467]

Sorry, but you're misguided here. It is not the Board's job to define the "standard of care"......It is not given statutory authority to define the standard of care

So that wasn't really what I was intending to say with that section you quoted. This was early in this conversation. What I was intending to say was more along the lines of: "Our board is the protector of our right to exist. When the board loses a case like this, we all need to take notice and try to figure out why they lost." After I quoted this, I went down the "root cause" rabbit hole, and it started to get pretty dark, pretty fast.I will say, and have said in other posts, that the "root cause" here is basically everything about how we exist and how we treat each other, and it needs to change.

The idea that the board cannot define our standard of care is a missunderstanding. Its understandable why most people think that. But still, its a misunderstanding. There are differences between privileges and rights. It is our privilege that the board defines negligence as a civil case would. Its not a right we maintain against the board.

The board has specifically chosen to enact a "reasonable person" standard as a civil case would do in Board Rule 404-u and dd. The legislature specifically said they did not have to do that and could do whatever they wanted if they wanted to do it. The board does have dictatorial powers over our licenses if they choose to use them and go through the correct regulatory processes. Any legislature that didn't give an agency those kinds of powers would be dumb not to do it. When the agency needed those powers...they would really need the powers and shouldn't come back into politics again. Thats kind of the point of agencies to begin with. You only deal with politics once.

It is the board's privilege to define our standard of care for at least board violations if they so choose to do it. However, once the board does it, it would likely make it into civil suits, and it will become our de facto standard of care. That's why they defer to the civil case standard. Its a good thing they defer, so it doesn't make it more complicated. (It also would make our standard of care directly available for deregulatory challenges in the courts) But again, they do not have to do that.

I agree with you in other sections that it is practicing professionals' job to define this and that is how it should be done and that is how the board currently expects it to be done. But the board can define it if they so please at any time. Legislature has already given them the authority.

8710 (b). Second sentence. Most likely, the only way it wouldn't work is if you could prove that it was "inconsistent with state and federal law" from the first sentence. But take a look at 8710.1....try fighting an agency with decades on the books that they tried everything they could with enforcement not to use extreme powers with one profession and are taking a new approach due to "Protection of the public". Yeah...its not a good argument to fight against. Will it make it to the courts? Yes it will. Will they decide favorably to the board if the board goes through the full rulemaking processes and makes it all legit....you tell me. We are in a state that likes its agencies... A liberal state is most likely they are going to be actively trying to create a precedent to set up the possibility of getting things like Chevron back on the books if the bench changes. It just is what it is.

My guess is that it would cost the board a few hundred K every 3 to 5 years to upkeep and make fair standards (they need to study it).......isn't that about what enforcement on surveyors costs right now? (my guess is its probably around 4 to 6 per year right now spent on surveyors, I couldn't find data that broke it out to confirm) One year of enforcement funds to try a new approach to passive enforcement measures that makes it through the full rulemaking process......Sounds like "good government" to me. Taking a known problem and throwing a few hundred K at it to potentially decrease the enforcement budget by hundreds of thousands every year? Sounds like someone responsible.

"For the sole purpose of investigating complaints and making findings thereon under Sections 8780 of the Code, “incompetence” as used in Section 8780 of the Code is defined as failure of a licensee to eat soggy waffles for breakfast in the morning prior to investigating monuments in the field."

It seems silly but look at the law. Imagine how many more items can be included along with this definition. They can just list things they believe are incompetence or negligence if they want to do it. If it makes it through the rulemaking process, it will be law, and you will have a hard time fighting it. They have the power to expand this definition however they want, with very, very broad authority given to them by legislature that will be hard to fight in the courts.

Will they use this broad authority? Likely not, and I would really appreciate it if they didn't. But could they? Yes, they could. All it takes is the idea to catch hold and enough of a reason to do it.

Also, to your points about superior court judges falling in line and deferring to the board. It supports the argument here, even though I think the argument stands on its own without deference to the agency. Their authority here is really not ambiguous where they need any kind of deference powers. It seems pretty clear as day in 8710 that they have this authority. But I am well aware of how that just changed with Chevron. I also thought it wouldn't trickle down as much because it was mostly about the federal APA, and states would have to unwind their own precedent that they made over the past few decades based on Chevron. I am not saying they won't do it, just that it might take a while, and it wasn't immediately binding on the state level. (again, admin law is super complicated, I don't know for sure)

Anyways, the board most likely can do this and throw our profession under the bus. Especially if its for one profession, with proven issues. It won't be seen as that crazy. And effectively, it will be the PIP I was discussing. It will be very hard for the profession to recover from it once they do it.

This is an extension of the "reasonable person" test that is so established in the courts

Why do you think I want standards.....Why do you think Ric asked for standards.......what would say a judge think a reasonable person would do if given the choice between a reasonable person in a specific circumstance quoting textbooks from across the united states, vs a reasonable person quoting a practice guide that was made specifically for surveying in California by licensed surveyors. Who would win a debate on that do you think?

We are all equal in the eyes of the law unless you put doubt into the jury or judges mind about the expert you are debating. How do you do that? In the same way the statute does it, you get the representatives of the "people" (in this case, other surveyors) to tell the judge or the jury how they intended the case to be decided without actually being involved in the case. You create a written guide that everyone holds to and that everyone would know about. Then, you discuss or debate how it was supposed to be applied in the case. Its the same theory as statute law, just without the legal weight of statute law. But when no one knows what guide to use or what guide applies to which situation, its very hard to have a fair argument. Hence, my actions here to try and make it more fair.

I will be defining the minimum standard I feel is appropriate, and I am a licensed surveyor to compare any other surveyor's actions to my opinion of what actions a "reasonable" surveyor would do. I encourage others to join me. In fact, I highly encourage a body of surveyors to take what I have created, modify it as they please and get hundreds of surveyors to agree it is the standard.....not like I haven't been asking for that for 6 months. Not like board representatives didn't ask for it 18 months ago.

I have debated mailing the final standards to every listed PLS mailing address just to ensure it is fairly publicized, although I was going to look into trying to get the emails. This would most likely trigger a response by other surveyors to define their own standard and would trigger what I will dub "the standards wars", which could in itself probably force the board to step in to bring the peace back. But whatever way gets it done, gets it done. If that is how this has to go, that is how this has to go. Open source standard of care.

To my knowledge, the standard of care is not defined in any other way in any jurisdiction of the US.

Again we are generally on the same page here, but I disagree. Everyone defines a minimum standard that comes with the license. You pretty much have to do it. The question is just "what is the minimum" and we are much lower than every other state to the point it is hard to function. But again, some people seem to think that is not true, and some people seem to think it is true. Because literally no one knows and we will not know for sure until someone defines it, or we take it to court.

To clarify, I am well aware that our LS Act contains some items about standards of care. However, they do not really cover a lot of our work, and we all know it.

How far off is too far off before the monument is out of position? What monuments hold? What would a reasonable surveyor do in most situations when a complicated boundary comes up. What exactly would someone do at a gap or overlap? How much research is enough research? Other questions you have defined as well.

Those questions are not answered. Not even close. and worse, there is not even a generalized framework to answer these questions from common ground based on individual situations. Most of those questions have answers or at least some kind of qazi-legal test in other states to allow surveyors to safely practice with reasonable assurances they are practicing within a "reasonable person" standard. But despite some claims on this forum as to other guidelines that exist to define a "reasonable person" standard in California, I am strongly of the opinion those assurances do not exist for the everyday surveyor in California. There is no assurance that an everyday surveyor is able to practice with reasonable certainty they are practicing within this "reasonable person" standard with our current set of laws and guidelines in California......and you all licensed me to have the ability and authority to make judgment calls like that.....at least with equal weight and authority under the law to yourselves.

Even to another point in the other post (I know we are intermixing posts), I would contend that because most surveyors do not really know the evidence code's, it is not a reasonable expectation of what a surveyor would do in most situations. In many cases, citing evidence code would not meet a "reasonable person" standard for a surveyors actions. Although I have very little doubt that it has likely been justified that way in a court..... (to make sure I clarify: there is a difference between a civil case in a boundary dispute and how evidence law will hold, vs a negligence case with surveyors themselves and how evidence law will hold. Evidence law will hold in a boundary dispute case, but it is not binding in a negligence case. You have to make the argument that a "reasonable" surveyor would have used evidence law to make the boundary decision. Its not automatic)

I want a guide that says that a surveyor in California is supposed to do this for 70% to 80% of the situations they encounter every day—maybe even only 50% of the situations. I think we all want that guide. I'm guessing our subordinates who want to become licensed right now are begging us for that guide to get a better shot at becoming licensed. And we don't want to give them that because? (I understand this is in your other post, but I've been waiting for awhile to bring it up)


I am not taking up the forum essayist position. In fact, I removed a post last week on an unrelated subject because I was concerned I was getting too involved. I am just watching this profession die in front of my eyes and I think I know what to do to stop it or at least how to try. I have other goals in my life outside of surveying. Many, many other goals. That's why you don't see me at chapter meetings and I do this when I have free time. I want you all to stop killing the profession and to some extent, I am doing as much as I can to make sure I do my part in stopping it because I feel the information and ideas I can give are much more powerful than you all getting to know me. Some of you do know me to know that's actually true and not just my ego talking. (although lets be serious, I've got an ego)

Again, I didn't just make that statement about people killing the profession willy nilly. There is a verified 12% decline in licensed land surveyors in the last 10 years or so, a projection of another possible 10% decline in the next 5 years, and a 25% decline in the next 10 years. Its time for a change. What has been implemented the last 10 or 20 years or so clearly isn't working. Out of everything we are discussing, that is the one thing I am sure of here. The choice is very simple: Adapt or die.


Just as a side note, there is verified corruption with expert witnesses in the medical field. Experts or practicing professionals purposely keep standards ambiguous so they can manipulate them in individual situations to win cases or change standards as it suits them. I really hope that is not the case here, and while I have known that could be possible, I have always chosen to believe all of this was due to the crusty old surveyor stubbornness that I know. (and sort of love) But the fact that standards have not been defined in one state when almost every other state does define them could very well be nefarious and I am well aware of that. When I relate that thought to some recent policy proposals in surveying, I lose sleep at night thinking it all could be connected, hoping its just the conspiracy theorist in me overthinking why standards aren't being taken up....

We are not doctors; our job of licensure is almost exclusively to stop litigation, not encourage it. We don't save people's lives; we do not have the same value proposition that the general public will put up with as they will for Doctors, Engineers, etc. They can sit there and say, "You didn't die because a doctor was there to save you. Look at all these statistics about why we still need doctors, how many people stopped dying on roads, in floods, from building collapses, etc because engineers were here to keep you safe," and people will put up with a lot of crap because of that. But when our task and goal of licensure is specifically to keep fraud and negligence out of the court system, and if any evidence came to light that we are specifically putting things into the court system? That would not go well for us with some of the external challenges we are having.

Seems like a weird side note right? Why do I mention this?

Most disappointing were those who said they were on board but then became exceedingly difficult to connect with when it was time to begin

I really don't know who the good guys are in this situation and people can be pretty devious. Smart enough to play the game publicly and then kill things behind closed doors. Is it happening? I do not know for sure. But the incentives do line up that it could be. I would never call out specifics without rock-solid evidence. But please don't pretend I don't know this could be happening.


I've got some plans for the next few weeks. I'll check back in a month or so for comments on the draft. But hopefully I can stop working on it because you all will finally do it??? Please? Don't act like I want to start the "standard wars" but I will if you force my hand. But I'm going to get standards one way or another.

[Mike Mueller]

I want a guide that says that a surveyor in California is supposed to do this for 70% to 80% of the situations they encounter every day—maybe even only 50% of the situations. I think we all want that guide. I'm guessing our subordinates who want to become licensed right now are begging us for that guide to get a better shot at becoming licensed. And we don't want to give them that because? (I understand this is in your other post, but I've been waiting for awhile to bring it up)

This goal is what I was thinking of when I suggested a simple guide of a couple pages of examples based on the top couple most misunderstood parts of the PLS Act. Build consensus and buy in through small steps that 80% agree with. Review the list of complaints and come up with the sections that cause the most complaints. Then outline what is the minimum standard to comply with the law, NOT the goal that some aspire to. Make it explicit in the guide that a reference to why the guide does not apply will also count as being sufficient.

I have not reviewed the complaint list, but anecdottaly I would guess:

1) When to file a RoS.
Could just say something like "If there is a not a map to reference when showing a boundary after a field survey, you must file a map" or "Stakes should only be set on a boundary shown on a map from which monuments have been found". (It is meant to be basic, and easy)

2) What is sufficient monumentation on a RoS.
If no new monuments are set then 4 existing monuments must be shown and connected to the survey with notes explaining how they are likely to remain for at least 10 years.
Or something else that is simple and will work for 95% of the situations.

3) Durable Monument issues and what should be tagged.
This one is harder, maybe make a distinction that wood is temporary and metal is permanent? (Yes, I know wood can last a long time, but we need something, or we will have people demanding construction stakes need tags and a corner record.)

This guide would be explicitly avoiding thorny issues like material discrepancy, or alternate location triggers on a RoS, since those topics seem to have a wide spectrum of beliefs. Let the guide sit out there for 5 years and see how its adopted and used before trying to solve all the problems in surveying.

Even if just those three simple topics were addressed, with VERY SIMPLE guidelines established, it would be a positive step that prolly 80% of licensed folks would support and would be easy to cite when complaints are filed.

Mikey Mueller, PLS 9076
Sonoma County

[Ric7308]

This goal is what I was thinking of when I suggested a simple guide of a couple pages of examples based on the top couple most misunderstood parts of the PLS Act...

I can see why you (and others) may think this will help the land surveyor community (seriously) towards avoiding violations and complaints being filed. However, and certainly no disrespect intended, but in my position, this would not be helpful to the Board at all and I would not refer to it or use it and ignore anyone else's reference to it. Reason being is that IF anything being used for the purposes of investigating alleged violations of the PLS Act is not defined in the Act itself or authorized by the Board through an appropriate rulemaking process, then it will not stand up to the proper scrutiny. I, nor the Board, wishes to be accused of adhering to underground regulations or policies which have not gone through the appropriate lawmaking process. Sometimes the "experts" are confused as to when a document needs to be filed or not, but that is not the primary purpose of the expert being involved. Sometimes, it doesn't take a licensed land surveyor to know when a map is mandated.

What would be helpful for me, in my position at the Board and to the Board itself, is established standards of practice as it relates to the actual practice as in section 8762 where it mentions "in conformity with the practice of land surveying." IMO, this doesn't necessary mean the primary focus should be limited to technical aspects either such as "how many angles to turn or how long to occupy a point, or how many reference ties is enough or 1:10,000, etc."

Some sort of guide which simply "attempts" to explain when a document is mandated pursuant to the Act is not helpful to me. Again, I can see why it would be helpful to the land surveying community, but not me. The Act itself is that "guide".

Its not about the "map". Its about the survey being documented on the map. That is where the standards are lacking, nonexistent, or worse, simply not being followed by the professional community.

Personally, I think the this year's legislative amendments sponsored by CLSA related to ensuring that monuments used as control shall be rehabilitated and preserved is a BIG step in the right direction. It is those kinds of "standards" that really should be in established standards and adhered to by a significant cross-section of the professional community that really mean something. It is a shame that it had to be spelled out in law rather than simply agreed upon by enough of the professional community. I guess...that is why this thread is still going on...

Edit: I know that these posts have now taken the direction of the other thread on standards of practice rather than the original point of this thread, but...Mikey started it!

[Mike Mueller]

But you fell for it!!!! jk

I appreciate the distinction between what is useful for enforcement by the board, and what is useful to raise the standards of practice more broadly.

Mikey Mueller, PLS 9076
Sonoma County

[No_Target]

Personally, I think the this year's legislative amendments sponsored by CLSA related to ensuring that monuments used as control shall be rehabilitated and preserved is a BIG step in the right direction. It is those kinds of "standards" that really should be in established standards and adhered to by a significant cross-section of the professional community that really mean something. It is a shame that it had to be spelled out in law rather than simply agreed upon by enough of the professional community. I guess...that is why this thread is still going on...

I follow these forums reasonably closely but rarely contribute - but this has been something I have been concerned about for a while and haven't seen much conversation on. My apologies if I mis-formatted the quote above or am entirely out of line here. This might be a whole new thread - let me know if you all think we should start that up.

I am very much against this CLSA legislative amendment, not because of its spirit but because of what I anticipate to be the unintended consequences and burdens.

1) I prefer, like most here, to operate in compliance with the PLS Act. Many professional surveyors do not, and I am in direct competition with these surveyors. Thankfully I live in an area without too many of them, and with County RS fees that are kept low to encourage recording. The neighboring county charges 10x as much for review cost and I have yet to work there. I am plenty willing, but no client will pay for a survey that will cost 3x as much for me to do as my non-compliant competitors. A "professional" surveyor tells the prospective client that flagging a line is all they need and they can do it for the same cost that the county surveyor charges me. I try to explain to them the PLS Act and that different surveyors interpret the law differently and recovering property boundaries not shown on any recorded map carries with it the requirement of an RS...
What I see this legislation doing is adding a burden (time and material cost) to the PLS Act compliant surveyor and doing nothing to keep a non-PLS-Act-compliant surveyor from being even lower in cost than my own services.

2) I have yet to see any clarification on what constitutes a monument used as control, or what constitutes rehabilitation. I sometimes like to show monuments I measured, but didn't use at all in my boundary resolution. Why? I would want to know if I was a retracing surveyor of the neighboring parcel that the monument shouldn't be searched because it was found on its side at the end of a plowed area. It allows for another time-stamp of the monument in the record and is valuable information. Additionally, non-control monuments can then serve as witness corners to my solution should a fire or giant bulldozer destroy all other monuments.

3) I have yet to see any clarification on what constitutes a monument rehabilitation. Unbend or re-plumb an IP? Wire a tag on? Reset with brass disc with a Mon-well? Any rehabilitation takes time and material and that is additional cost for my client. When the monument is the corner marker, I do this. However I have a survey right now with 40+ monuments, all at angle points of a very unusual parcel. One monument is a controlling monument and has a stump that had grown and pushed it downhill. How do I rehabilitate that? Stump Grinding service? On another job I have a monument that is being used to support the location of a line between two other monuments. This pipe is bent. I tried to unbend it or pull it to reset it. No luck. This ground is rock hard and after 15 minutes of wailing on it I gave up. What should I have done in these situations? What will the new law require?

I am very disappointed that the CLSA chose to table the RS cost ceiling of $500 and instead are pushing this one. The two pieces of legislation to me seem very different as one makes lawful practice more competitive and the other less.

I really appreciate all of you for the discussion!

[DWoolley]

...
Its not about the "map". Its about the survey being documented on the map. That is where the standards are lacking, nonexistent, or worse, simply not being followed by the professional community.
...

+1 on the entirety of this particular posts.

More particularly, the GIS quality records of survey with no boundary establishment notes, lines and points shown that are not described i.e. southeast corner of...per [document], monuments called of position without a note as to how the corner was established, no corresponding record information for lines established, not setting or tagging monuments to memorialize the survey or reviewing adjacent deeds for metes and bounds descriptions. The crazy thing is information needs to be spoken or written to a group of licensed professionals - the most basic surveying is on the test i.e. junior senior rights, proration between monuments for simultaneous conveyances. The test answers do not include "hold any two monuments and rotate the record information" and tada, you have a map that requires licensure.

Thank you, Ric, for throwing water on the wheel of bad ideas. Give'r another spin folks.

DWoolley

[E_Page]

"Our board is the protector of our right to exist. When the board loses a case like this, we all need to take notice and try to figure out why they lost."

The Board's only purpose is to protect the public. As a by-product of that function, you could say that they protect the licensed status of land surveying. However, there are some things they have done in some enforcement matters and by where the state-specific exam has gone that I think could be used as effective ammunition by anyone who wanted to try to have surveying deregulated. Now there's a rabbit hole for another thread.

Not sure where tortoise got the stipulated judgement from (I hit a paywall and couldn't find it elsewhere), but the judge's comments he posted suggest that BPELSG did not adequately demonstrate what the standard of care actually is but instead tried to rely on their one FOD designated as precedent. The judge rightly determined that the precedent used by BPELSG was in regard to a different scope of services. That's not to say that the surveyor in this case met the proper standard of care for the scope of services he contracted for (from what I've been able to glean from this thread, it appears he did not). It means that BPELSG substituted the standard required of a boundary survey for that of a topo rather than having a qualified expert describe the appropriate standard for a topo.

Why didn't they? We could ask Ric but he wouldn't be able to tell us due to legitimate confidentiality reasons. It could be that they didn't think they needed an expert for this case. It could be that the expert wasn't very articulate or perhaps wasn't really qualified to be an expert for this aspect of survey practice. It could be that BPELSG had a qualified expert and incorporated the expert's report in the arguments but the judge either ignored it or wasn't impressed with the expert's explanation or reasoning.

The idea that the board cannot define our standard of care is a missunderstanding. Its understandable why most people think that. But still, its a misunderstanding. There are differences between privileges and rights. It is our privilege that the board defines negligence as a civil case would. Its not a right we maintain against the board.

Sorry, but the misunderstanding is still on your part. BPELSG can define how certain specific statutes must be met to various extents. For example, the Corner Record form as defined in the Board Rules. However, for a very general statute such as §8780(2) & (3), a licensing board is far more restricted than you seem to think. They do not have free rein to define or redefine the terms negligence or incompetence significantly differently than as the courts have recognized those terms for longer than this nation has existed. (be aware that our court system extends into British common law by express adoption by our courts). Any definition that varies significantly from what they are now in §404 would almost certainly get struck down in the courts the first time it's challenged, even if BPELSG follows the Brown Act to the letter when adopting such rules or definitions.

They could, over time, end up defining a standard of care for many different sets of circumstances by designating more cases as setting precedent. However, that may require a more open process in the enforcement system as well as require BPELSG to rule the same way in new cases as they did in previous cases where the facts are similar. That necessitates training for their experts. That costs money. In some instances, BPELSG would not want to be held to the consistency required when they declare precedent. Declaring precedent may also open a practice up to challenge (without an underlying case) by CLSA if it is not adequately described or seems unreasonable in that it is either overly broad or too specific.

However, the experience of BPELSG professional staff would be extremely valuable in an advisory role to a CLSA standards team.

The board has specifically chosen to enact a "reasonable person" standard as a civil case would do in Board Rule 404-u and dd. The legislature specifically said they did not have to do that and could do whatever they wanted if they wanted to do it. The board does have dictatorial powers over our licenses if they choose to use them and go through the correct regulatory processes.

BPELSG included the reasonable licensee standard because 1) it's fair and makes the most sense, 2) the alternative would be so cumbersome that it would be unfeasible for BPELSG to define it, keep up with updating it and continually defend it, and 3) it is so ingrained in the court system that any attempt by a regulatory agency to redefine the standard of care would almost certainly fail in whole or in part in the courts.

A licensing board does have a great deal of power over one's license to practice but it is not dictatorial. If you meet the requirements to take the exam, they must allow you to do so. If you pass all exams in addition to meeting all other requirements for licensure, they must issue the license. If you remain in good standing, pay your fees, etc., they must renew your license. If a complaint is filed against your license, they must follow the Administrative Procedures Act as stated in §8781. If they charge you with negligence (failing to meet the standard of care), they must prove what the standard is under the circumstances and prove that you failed to meet it, otherwise your license remains clear.

Any legislature that didn't give an agency those kinds of powers would be dumb not to do it. When the agency needed those powers...they would really need the powers and shouldn't come back into politics again. Thats kind of the point of agencies to begin with. You only deal with politics once.

A legislature does not have the power to confer dictatorial powers to an agency. This nation was conceived and built on the idea of controlling those in government who would be despots. The Federal and State Constitutions are documents which, for the most part, limit what governments may do while reserving certain privileges and recognizing certain inalienable rights in the people. The issuance of a license and defining the requirements to attain a license to engage in certain activities (which are not rights) are discretionary powers of the government. Once one attains the license, there are certain rights conferred on the individual which are rooted largely in the 4th, 5th and 14th Amendments to the US Constitution.

A reasonable person would think that there should be no politics in how an agency is run but if you think there are no politics in how agencies run, you're quite naive. Another topic deserving of its own thread.

It is the board's privilege to define our standard of care for at least board violations...

An agency has duties associated with its mission. In keeping with the basis of our laws, agencies or other government bodies do not have privileges. If granted the authority, such as §8710 for BPELSG, they may create rules that interpret statute for guidelines to put those statutes into practice. That works great for statutes that address specific acts or processes. It is impossible to create enforceable rules for broad statutes referencing concepts such as negligence or incompetence. For incompetence, they can compare one's actions to the tests and grading plans used in the licensing process. If the actions were applied to a test problem illustrating substantially similar circumstances and those actions fail to meet the grading plan criteria, and the subject licensee fails to see what they did wrong, they have exhibited incompetence. For negligence, because of the definition that the Board is pretty well stuck with, they must look to the profession in a broader sense.

I agree with you in other sections that it is practicing professionals' job to define this and that is how it should be done and that is how the board currently expects it to be done.

Ideally, they could poll every LS who practices in the aspect that is subject of a complaint, but they can't. The next best thing is a published set of standards endorsed by one or more leading societies representing licensees of that profession. Failing that, the best they can do is to hire one or more practicing professionals to review and offer opinions, much like in a civil case. The biggest problem with that system as it exists is that BPELSG does not have a reliable means of determining if a licensee is truly an expert. I've witnessed testimony of some experts and read reports of a few more that have shown me that some of the "experts" utilized by BPELSGS are actually incompetent to offer cogent opinions on the area of practice that is the subject of the case they were working on, and that many have no idea how to interpret a statute in the manner that a court is r4equired to.

Presently, they expect to continue with the way they've been doing it for many years. As Ric has stated in this and the Standards thread, they (or at least, he) wish that the CLSA would have a cranial rectotomy and put some standards together that practicing surveyors, including his licensed staff and experts could look to for adequate guidance on the standard of care. In his last post, he gave an excellent description of what is not helpful and a pretty good description of what would be helpful.

8710 (b). Second sentence... first sentence...

They are limited to their current definitions based on the "reasonable professional" test by that first sentence. Because they receive a lot of complaints against surveyors and find a lot of violations is not a reason to transform into a dictatorial agency. Again, because of the nature or basis of our legal system, attempts at such a regulatory regime would be shot down and shot down hard.

Yes, it would cost a great deal of for the Board to concoct rules to adequately redefine what the standard of care is, regularly update it and defend it. Certainly a lot more than you guess. But that would not reduce the number of complaints substantially. The majority of complaints stem from contract disagreements. Of those who fail in the general "standard of care" category, published standards, whether by the Board or by CLSA would help those who fail to meet it out of ignorance but want and intend to do a proper job. Those are the minority. Most who fail the standard of care know that they are cutting corners and just hope while they're doing it that it doesn't come back to haunt them. Some of those folks are frequent flyers on the enforcement airway. And then their are some who are cited for not following the standard of care because the "expert" used by BPELSG on that case has no reasonable idea what the proper standard is, or who can't differentiate their own typical method of practice (a different thing than the SoC) from other reasonable methods and recognize that different methods can and often do meet the standard of care.

The cost of running the enforcement program would not decrease to offset a program to develop standards, run them through the APA process to approve as rules and then keep them current.

They can just list things they believe are incompetence or negligence if they want to do it. If it makes it through the rulemaking process, it will be law, and you will have a hard time fighting it. They have the power to expand this definition however they want, with very, very broad authority given to them by legislature that will be hard to fight in the courts.

As I explained previously, not as much authority as you think. A list of actions, silly or not would be difficult to defend because specific actions may be appropriate in some circumstances but not others. Example: In Idaho, the legislature has a list of what you shall include on your map. One of those is "the point of beginning". What if your description is an aliquot part, or Lot 123 of the Plat of Happy Hills? There is no POB, yet the local planning dept and the previous county surveyor both tried to force me to label a POB on such a parcel. Doesn't make sense, but "it's in the law" they said.

So I asked the CS "Should I show fences as well since that requirement is in the same list?"

He asked "Are there fences out there?"

"No."

"Then why would you show them?"

"Exactly!"

The standard of care is about whether the licensee follows a sound process and utilizes reasonable methods. It's not about prescribing specific methods or processes. It's about the judgment exercised in deciding which methods and processes to use. Effective standards are guidance on the thought processes, not cookbook steps to make a gourmet survey.

Also, to your points about superior court judges falling in line and deferring to the board...

Again, the Board's authority is not nearly as broad or all encompassing as you seem to think. Partially, that's why they are subject to the civil court system for the appeal process after the administrative process has been exhausted.

Not sure, but I believe the deference to regulatory agencies filtered down to many states as a result of the Chevron case 30 or 40 years ago. Even so, it is still incumbent upon the Board to adequately define what the proper standard is in a given set of circumstances. If they can't, they are supposed to lose. There was a published appellate case involving the CA Dept of Forestry a few years back in which the court made that point very clear. A violation doesn't exist simply because the Board says so. They still need to provide a semi-reasonable case of what the proper standard is in addition to showing that the licensee failed to meet it.

Challenging an agency in court is exceedingly expensive. After draining one's finances in going through the OAH, and then the Superior Court level, few if any have the financial means to go to appeal. Often, Superior Court Judges have extremely busy dockets and don't want to take the time to understand the evidence and arguments involved and simply take the easy route of siding with the agency just to keep it from dragging on at their bench.

The fishermen's case (overturning Chevron) was largely about regulations promulgated by an agency that attempted to expand the limits of the authority expressly granted to them by the legislative body. That's what would raise the existing hurdle for BPELSG or any other licensing agency from promulgating rules defining the specifics of the standard of professional care.

Why do you think I want standards.....Why do you think Ric asked for standards.......what would say a judge think a reasonable person would do if given the choice between a reasonable person in a specific circumstance quoting textbooks from across the united states, vs a reasonable person quoting a practice guide that was made specifically for surveying in California by licensed surveyors. Who would win a debate on that do you think?

At the trial level, the side with the sharper attorney and or the more prepared and articulate expert is likely to win. That means the side that is familiar with both the text books and the standards endorsed by the state society. That expert can answer the conflicts and clearly explain the differences or apparent differences and the basis for why they exist.

This ties into the thread about "Who is the Audience..." If you are familiar with not only the principles at play but also their legal basis, you apply them soundly, create a clear map that explains it, making it easy for a reasonable surveyor to agree and difficult to disagree, you're likely to win the "reasonable professional" debate in court (as long as you have a competent attorney).

When I testify, I focus on what I did and why I did it. I do not set out to discredit the opposing expert. If asked to review and opine on what the opposing expert did, I will state any portions I agree with and any I disagree with, providing my reasoning. The credibility battle, for me comes down to which expert is best able to describe, in simple terms, one's reasoning and the basis for it.

In one case, the opposing expert thought he was something really special and decided to attack my credibility directly. In reports, I make heavy use of authoritative references. He decided to claim that if one did that, particularly if referring to the BLM Manual, it was because that surveyor didn't really know how to survey or specifically, forgot how to break down a section. On rebuttal, I had the opportunity to answer that, stating that the (73) Manual has 10 chapters, less than one half of one of which is about dividing a section that has not been previously divided, and that the chapters most relevant to the case at hand are those addressing retracements and resurveys and not the chapter the other guy referred to. I also made the point that surveying is a profession and related it to how attorneys do their jobs in writing briefs or deciding cases and writing judgments - that they have myriad references that they likely refer to each time they write something up, even if they are quite certain of the principle involved. I didn't disparage the other expert, simply pointed out the facts in a relatable way, which had the effect of turning the other expert's condescension toward me back at him, disparaging himself, The judge strongly favored my testimony in that case.

We are, as you state, equal under the law. Witnesses differentiate themselves in terms of credibility in how we observe and present the facts, and for experts testifying to the standard of care, how we arrive at and express our opinions. The "equal under the law" thing is typically directed more toward the rights of defendants. Again, it's true, but only for those who can afford a seat at the courtroom table. Not everyone is willing or able to afford that ticket, even if they feel or are in the right.

I will be defining the minimum standard I feel is appropriate, and I am a licensed surveyor to compare any other surveyor's actions to my opinion of what actions a "reasonable" surveyor would do. I encourage others to join me. In fact, I highly encourage a body of surveyors to take what I have created, modify it as they please and get hundreds of surveyors to agree it is the standard.....not like I haven't been asking for that for 6 months. Not like board representatives didn't ask for it 18 months ago.

I have debated mailing the final standards to every listed PLS mailing address just to ensure it is fairly publicized, although I was going to look into trying to get the emails. This would most likely trigger a response by other surveyors to define their own standard and would trigger what I will dub "the standards wars", which could in itself probably force the board to step in to bring the peace back. But whatever way gets it done, gets it done. If that is how this has to go, that is how this has to go. Open source standard of care.

Coming up with standards on your own is commendable in the effort but perhaps a bit conceited in that you've appointed yourself a "star chamber" of one and expect others to find and then come to you to help in the effort. Even if that's not your intent, you can be assured that a great many will see it that way.

Standards one person creates are utterly meaningless if you don't get a majority of the profession to agree, endorse and follow them. Standards created by one person are also very likely to be significantly inferior to ones created by a fairly diverse team. Again, I would highly encourage you to contact and join the subcommittee on standards that CLSA has already formed and introduce your ideas there.

I would not suggest mailing your personal standards on a broad mailing campaign. While some will understand that you're doing so to create a starting point for discussion, far more will resent it for a whole host of reasons. You will get not only resistance, but harsh comments and condemnation from some in CLSA leadership.

At the time I was trying to assemble a team for the purpose of creating standards, Ric was opposed, or at least silent on any such effort. There was resistance in CLSA leadership ranging from the bedwetters and handwringers fearful of stepping on BPELSG's toes to those who outright condemned the effort and any who would engage in it.

In short, regardless of your intent, I think the approach you propose will be met very harshly. The only possibility of getting published standards accomplished is to do it through CLSA with a team of individuals who have the collective courage to ignore the naysayers until the effort is substantially completed and then present the proposed standards to the Board.

Now that Ric is asking the CLSA to provide them, there may be support for it within CLSA, but not from an individual independent of a team of CLSA members. I would strongly encourage that team to invite Ric and Dallas to join in an advisory capacity. A collaborative effort of CLSA, BPELSG and maybe other organizations like ACEC and the County Surveyors' section of CEAC is more likely to garner wider acceptance.

To my knowledge, the standard of care is not defined in any other way in any jurisdiction of the US.

Again we are generally on the same page here, but I disagree. Everyone defines a minimum standard that comes with the license. You pretty much have to do it. The question is just "what is the minimum" ...

You would be correct if you mean "everyone" in the collective sense, but I get the impression that you mean it in an individual capacity as in, everyone decides for oneself what the minimum standard is. While legally, that's not true (the individual sense), in practice, to a large extent it is mostly because the standard of care is broadly gleaned from statutes, admin rules and ordinances, widely accepted texts, magazine & journal articles, and the practices of our peers. All that has to be mentally condensed and meshed together. When conflict of practices arises, since there is no document or set of documents clearly coalescing that mishmash of info together, the solution comes down to who has the better reasoning and can better explain it between two or a handful of licensees. This lack of clear guidance is a continuing failure of the land surveying profession.

How far off is too far off before the monument is out of position? What monuments hold? What would a reasonable surveyor do in most situations when a complicated boundary comes up. What exactly would someone do at a gap or overlap? How much research is enough research? Other questions you have defined as well.

If these are the types of things you think professional standards are about, you're off base. Effective standards would address instead, the research and reasoning processes to judge whether "How far" is even a relevant question, things to consider when deciding if a particular monument controls part of your survey, how to sort through and simplify complicated situations in order to form a sound opinion, how to research and reason whether a gap or overlap is real or a phantom gap/overlap that seems to be present simply due to math and measurement without analysis of title history or legal applicable principles, and how much research is not only required to meet minimum standards, but reasonable given the circumstances.

Answers to those questions change in every case depending on the circumstances of that survey. Standards must focus on applying judgment to guide a surveyor in making those decisions for each project, not to specify some finish line so you can feel good once you've crossed it or have checked all the boxes.

If you think standards should be that technical and black & white, you're thinking on a technical level rather than a professional one.

But despite some claims on this forum as to other guidelines that exist to define a "reasonable person" standard in California, I am strongly of the opinion those assurances do not exist for the everyday surveyor in California. There is no assurance that an everyday surveyor is able to practice with reasonable certainty they are practicing within this "reasonable person" standard with our current set of laws and guidelines in California......and you all licensed me to have the ability and authority to make judgment calls like that.....at least with equal weight and authority under the law to yourselves.

Unfortunately in CA, you are largely correct, as I stated above, the basis for the standard of care is scattered through many publications, laws and individual opinions. The most definitive standards are in published case law, which takes a lot of time and patience to study - time and patience most don't have.

Also as I pointed out above, you and I do have equal weight and authority by virtue of our licenses under the law. That is until you and I have a conflict between our surveys, and then one or the other of us distinguishes himself as more equal by virtue of our command of the facts, the applicable principles, and our ability to back up our opinions with authoritative source materials, showing sound reasoning in a confident and articulate manner. The one who does that better ends up with more authority.. in that case and that case alone... until the next time when the contest starts anew.

Even to another point in the other post (I know we are intermixing posts), I would contend that because most surveyors do not really know the evidence code's, it is not a reasonable expectation of what a surveyor would do in most situations. In many cases, citing evidence code would not meet a "reasonable person" standard for a surveyors actions. Although I have very little doubt that it has likely been justified that way in a court..... (to make sure I clarify: there is a difference between a civil case in a boundary dispute and how evidence law will hold, vs a negligence case with surveyors themselves and how evidence law will hold. Evidence law will hold in a boundary dispute case, but it is not binding in a negligence case. You have to make the argument that a "reasonable" surveyor would have used evidence law to make the boundary decision. Its not automatic)

You are correct, citing the evidence code by section number is well beyond the standard of care for surveyors. However, just because I don't know the traffic code section that says I need to slow down in a construction zone on the highway doesn't exempt me from that law. As a licensed driver, I'm expected to know what the law says about that situation and follow the law even if I'm not expected to know the specific section and specific wording within it.

The same is true for licensed surveyors with respect to the Evidence Code, the Civil Code, Streets & Highway Code, etc. You don't need to memorize code sections, but you do need to know what the law requires you to do when those code sections affect your interpretation of evidence and analysis for your conclusions.

Code of Civil Procedure 2077 is probably an exception to that. That's the one that codifies the hierarchy of evidence as applied to the interpretation of land descriptions. A few months back, I was participating as an expert consultant in a case where boundary location and standard of care were at issue. The expert on the other side was giving a presentation, hadn't considered seniority, hadn't considered evidence of original boundaries on the ground vs lines on an old map, hadn't considered descriptions referring to a road "as it now exists" (words from the descriptions) vs where the old map said the road was supposed to be. I asked him if he was familiar with CCP 2077. He wasn't. I asked him if he was aware of any of the other laws with regard to the interpretations of writings. He wasn't. I asked him if he was aware that the law gives preference to monuments and established boundaries over dimensions in deeds or on maps. He wasn't and stammered with his incorrect interpretation of holding map dimensions which bore little to no resemblance to actual ground conditions.

The short lesson is, be aware of what the law requires of you even if you don't know precisely what it says or where it says it. Ignorance of the law is no excuse for violating it with regard to everyday actions and the common person. That's even more true for a licensed professional with regard to laws that affect or have application to one's practice. And it's doubly true if you find yourself in a legal setting where the opposing expert is thoroughly familiar with those laws.

I want a guide that says that a surveyor in California is supposed to do this for 70% to 80% of the situations they encounter every day—maybe even only 50% of the situations. I think we all want that guide. I'm guessing our subordinates who want to become licensed right now are begging us for that guide to get a better shot at becoming licensed. And we don't want to give them that because? (I understand this is in your other post, but I've been waiting for awhile to bring it up)

At this point, I want to double down on what I said about your efforts in creating standards. Get involved with whatever team CLSA has working toward that goal and introduce your ideas as each particular aspect comes up in discussion as you feel may be useful given what you learn by first listening.

If you want a guide that tells you what to do most of the time, forget it. That's a technician's cookbook. What you should want is a guide that suggests what you should consider and provides reference to authoritative sources (published case law) that gives insight for particular circumstances but leaves you to decide, as a professional, what you should do in light of that guidance and given the circumstances before you.

I am not taking up the forum essayist position. ... (although lets be serious, I've got an ego)

Too bad. It's yours. I'm merely a guest here anymore. We all got ego, that's why we post.

Just as a side note, there is verified corruption with expert witnesses in the medical field. Experts or practicing professionals purposely keep standards ambiguous so they can manipulate them in individual situations to win cases or change standards as it suits them. I really hope that is not the case here, and while I have known that could be possible, I have always chosen to believe all of this was due to the crusty old surveyor stubbornness that I know. (and sort of love) But the fact that standards have not been defined in one state when almost every other state does define them could very well be nefarious and I am well aware of that. When I relate that thought to some recent policy proposals in surveying, I lose sleep at night thinking it all could be connected, hoping its just the conspiracy theorist in me overthinking why standards aren't being taken up....

There is corruption in all vocations, professions and institutions. First, you must decide to not participate in it. Next, you either decide to live with it and whichever way it may be trending, or you decide to work with likeminded people to try to minimize it. Moreover, when discussing the standard of care and published practice standards, realize that the efforts are as much or more about educating those who practice in partial ignorance but are open to constructive correction as it is about providing a framework to measure whether a licensee has violated the standard of care.

Of the opposition, there are those bedwetters and handwringers that are afraid of offending the Board and Board staff. Now that the Executive Director has made a public appeal for the CLSA to step up and fully represent the profession in a professional manner, that concern is gone. That leaves only those who know or suspect that their usual practices fall short of any reasonable standard, and there's likely a lot more of those than you think.

We are not doctors; our job of licensure is almost exclusively to stop litigation, not encourage it.

Hey look! Something we can completely agree on!

But when you start lumping engineers in with doctors...??? I'll let that one go for now.

Seems like a weird side note right? Why do I mention this?

Most disappointing were those who said they were on board but then became exceedingly difficult to connect with when it was time to begin

I really don't know who the good guys are in this situation and people can be pretty devious. Smart enough to play the game publicly and then kill things behind closed doors. Is it happening? I do not know for sure. But the incentives do line up that it could be. I would never call out specifics without rock-solid evidence. But please don't pretend I don't know this could be happening.

I don't ascribe any nefarious intent or ill will on those who indicated interest only to later make themselves scarce. I think it was more a combination of considering the amount of work that needed to be done and perhaps some whispered comments by others with nefarious intent and some amount of influence about the impropriety of the effort. (Maybe I'm being paranoid, but considering a couple of the characters that did make noise, it's a distinct possibility)

Please? Don't act like I want to start the "standard wars" but I will if you force my hand. But I'm going to get standards one way or another.

Not quite sure what you're getting at there. If you want to write standards and apply them only to you and those who work for you, feel free. I doubt that anyone os going to force you to do anything about standards one way or the other. I still suggest that working collaboratively with whatever team CLSA has for this would be more effective. Good luck.

[Mike Mueller]

If you want a guide that tells you what to do most of the time, forget it. That's a technician's cookbook. What you should want is a guide that suggests what you should consider and provides reference to authoritative sources (published case law) that gives insight for particular circumstances but leaves you to decide, as a professional, what you should do in light of that guidance and given the circumstances before you.

(Bolding Mine)

Moreover, when discussing the standard of care and published practice standards, realize that the efforts are as much or more about educating those who practice in partial ignorance but are open to constructive correction as it is about providing a framework to measure whether a licensee has violated the standard of care.

(Bolding Mine)

Just me, or does my couple pages of specific examples sound like a nifty cookbook to help bridge those two quotes? There are a significant percent of licensed folks who fall into this partial ignorance but wanting to learn category. I know I do. There are whole aspects of this profession that I do not consider myself an expert in. When I am ignorant but seeking, the basics are wonderful. The BLM guide on which trees are good for being a BT is great, even if it just scratches the surface (hehehe) of what goes into locating old BTs.

To those who are dismissive of such a "cookbook" I would ask how long has it been since you started this career? While teaching new LSITs I have often found that what they don't know or don't get is not at all what I would have guessed. It is very hard for me to put my mind into their shoes. While such a "cookbook" might not help the Board do their job so much (jury is still out in my mind on that), I know it would be nice to send to a few local surveyors as a polite but pointed nudge that they might need to file more RoSs.

Mikey Mueller, PLS 9076
Sonoma County

[CBarrett]

We need types of survey classifications entered into some sort of definitions ASAP.
Not everything requires a full boundary survey, we have to have a mechanism to distinguish this and make sure that the public is aware of the type of thew product and what it can be used for.

We need to stop looking at one size fits all.

Caveat to that is that I did not have a chance to read the actual case to understand why the tiopo was needed, and why the record boundary only was contracted. Problem may lay in what the topo was meant to be used for, rather than whether the boundary shown is record only or field surveyed.