BPELS-G what were they thinking?

[MFORD]

I had the opportunity to strike a blow for the profession by filing a complaint with the Board about an out of state CA LS for not filing a ROS of ALTA surveys. This person lives in Florida and signs ALTA surveys for the International Land Services Company out of Norman, OK. I was surprised and disappointed in our governing body’s lack of enforcement of the PLS Act.

My complaint was based on a 2004 ALTA survey of a property that I was retained to also provide an ALTA survey for in 2009 for the new owner. The property is described by meets and bounds and there wasn’t a map of record on file of the parcel as of 2009. I contacted the 2004 surveyor inquiring about the ROS required under section 8762 of the PLS Act. His rather curt response was the he didn’t file the ROS because he didn’t set any monuments. I politely suggested he review the Act and reconsider his decision. I subsequently completed my ALTA survey filed the requisite ROS in early 2010. As of August of 2010 Florida surveyor hadn’t filed the ROS (no surprise). Therefore I filed a complaint with BPELS-G forwarding them all the relevant material, including a copy of my ROS, and a narrative of my conversation with Florida surveyor and his contact information.

Last week I received a response from BPELS-G stating the results of their investigation and their decision regarding my complaint. Although they agreed that Florida surveyor should have filed a ROS in 2004, they decided that since his ALTA didn’t discover any material discrepancies from the legal description, and my ROS was basically the same as his ALTA map, with some differences, they were dismissing the complaint and closing the case with no punitive actions against Florida surveyor. No harm no foul. Oh, he also agreed to file maps in the future.

With the BPELS-G we have is it any wonder the surveying profession in CA is in the state it’s in these days? Why bother with the additional expense and trouble of filing a ROS when our governing board doesn’t seem to give a damn if you don’t? BPELS-G seems to think filing maps isn’t a requirement it’s an option. It’s back to the future when we kept our surveys to ourselves. After all what’s the consequence for not filing?

[VANCE]

How would the Board discipline a surveyor in Florida or Oklahoma (assuming they do not have a California PLS)?

I guess they can go after him/her for Practicing Surveying without a License.

[pls7809]

First sentence says, "...an out of state CA LS..."

[pls7809]

Plus if someone who is licensed in another state and not CA who gets hit for practicing without a license, the state boards for which they are licensed will eventually find out about the discipline in CA and they will be disciplined by their own board, at least you would hope they will be.

[DWoolley]

Mr. Ford, I understand your discouragement with the process, especially when it fails to meet expectations. As conciliation, I recommend reading Gary Kent’s article in the most recent American Surveyor or Professional Surveyor on the disciplinary process in Illinois. As the saying goes, it is better to let nine guilty men free than to convict one innocent man. If there is a bad actor in play, it is only a matter of time before those chickens come home to roost. The one caveat, the professionals must be diligent in documenting and reporting to the Board even when they experience setbacks as you have described. I hope you make time to get back on the horse.

My experiences with similar situations have been quite different. The “I didn’t set monuments” crowd is our lowliest of the low. There is no place for them in our profession; there are few things filthier or more damaging to our professional status. In the 121 years of legislative history, the filing of a record of survey was never exclusive to the setting of monuments. Never. The complete sentence is really “I didn’t set monuments; therefore nobody will ever know I was here”.

I have several disciplinary cases that match your limited fact set provided with different results. Be discouraged, but consider trying again. I know of instances in which surveyors have done incredibility unimaginable things in connection with their licenses, were reported to the Board and they continue to survey to this day. The Board is not allowed to disclose anything beyond what is written in the disciplinary order. There are sometimes facts which may have been present or absent which change the outcome which may have been anticipated. And yes, there are also instances in which the Board has failed the public.

To offer hope, I have attached a recent disciplinary order similar to the limited fact set you have provided.

DWoolley

[MFORD]

I would like to apologize to BPLES-G for my initial post on the Florida surveyor matter. I was unaware there had been previous actions taken by the Board concerning his practice in CA. Both D Wooly and E Page pointed me to a location that had information about the disciplinary action recently taken against this surveyor. In my defense the letter I received from the Board made no mention of past or pending investigations other than my own. It only stated the case was closed and there would be no further action taken in regard to my complaint.

I will take D Wooly’s suggestion and stay on the horse and with the group (not that I ever really seriously considered jumping off the horse). It would be nice though if the Board would have more of an explanation in cases like this so those of us who aren’t as familiar with their procedures don’t go off half cocked.

Thanks again Dave and Evan

[land butcher]

How does someone in FL comply with item 6 Complete CA laws and rules exam?

And I agree that when someone files a complaint against surveyor A, they should be informed of other pending disciplinary actions against surveyor A.

[E_Page]

"The lowliest of the low"? That's a bit of hyperbole, don't you think, Dave?

I've seen far worse transgressions than failing to file a RS because of a lack of setting new monuments. Sometimes not filing a RS because one did not set monuments is actually due to ignorance and not due to a survey scoundrel trying to hide the fact that he was there or to hide one's findings.

Some state's requirements are (or were) that a map only need be filed if new monuments are set.

Ignorance is not a valid excuse for not filing, but I believe it is far more common, not to mention less nefarious than the motives you infer. Way far from the lowliest of the low.

[DWoolley]

My friend Evan,

Our country was founded on states rights, so profound was our conviction we fought a civil war over it. There is no federal law governing private property rights. None. Therefore, wouldn’t it be incumbent upon the professional to read and understand the laws of the jurisdiction? It isn’t like the volumes of tax code which change yearly. In California, the PLSA is 21 pages, take out the Board functions, administration, testing, and we are left with 7-8 pages of meat and potatoes. We have decades of published information which continues to cascade on the topic of triggers to filing a record of survey; scores of disciplinary actions, Board opinions (1988, 1996, 2005), AG opinions (1969, 1971), modified legislation (1891, 1939, 1941 and 1985), CalSurveyor articles (1966-2012) with peaks at the time land surveyors were trying to distinguish the practice from civil engineering, ACSM publications (1954-1978ish), CLSA committees, reports, this forum (2003ish-2012) is littered with volumes on the topic of failure to file (to just name a few). There is more volume to most daily newspapers than the PLSA. And yet, “they” couldn’t find the time to read and understand it? Do you really believe that? I do not accept the rationalization of their poor practice was due to their “acceptable” practice in another state. I will let “them” make their own excuses.

I occasionally work in other states, even though I have been licensed in another state for over 15 years, I recheck their statutes before I work there. Interestingly, I was tested on their statutes. When I am working under another professional’s responsible charge in another state, I check the statutes. If there are any legal considerations, I usually contact a local surveyor and set up a contract. Isn’t anything less negligence? I also do this in my home state if I get to far from my own doorstep.

The weakness of my perspective is I live in a five or six county bubble and the state has 58 counties. My opinions are based on approximately 10% of the geographic jurisdictions, although the counties I work in likely contain well over 50% of the licensees. If there is a land surveying Utopia it isn’t here in Southern California.

In general society there are variations of the same crime i.e. civil fraud, criminal fraud, constructive fraud etc. I do not know which would be the greater or lesser infraction and I cannot determine the specific damage. Failure to file “because I didn’t set monuments” is only one variation in our professional society which is the equivalent of “officer, ah, ah, she looked 18” in the general society and is not acceptable to me. Decide for yourselves, O’ readers of the forum, if you want to live in a land surveying society where anything goes in the name of “earning a living” propagating under the guise that we are "basically good guys”. You can count me out if I am expected to accept these terms of practice.

Evan, how about we strike an agreement, I report the results of these scofflaws and you provide their excuses.

DWoolley

PS. I am not discussing the occasional failure to file due to poor oversight. I am specifically discussing the folks which seldom or never file unless compelled by a PPC, Board or other. None of us are perfect, it is not what we did yesterday, but what we choose to do tomorrow. Our local failure to file guys know better and yet, they continue with their business model.

[Stephen Johnson]

I am lucky in that in the approx. 3 years I practiced in CA, Both southern and around the Bay area, I didn't do a single survey that I can remember which required a ROS and of which I was the responsible surveyor. Tract maps and Parcel maps and corner records, I did more than one, though only one parcel map was recorded with my signature. I am glad I left nothing "Hanging" out there.

[E_Page]

Dave,

You said: "Evan, how about we strike an agreement, I report the results of these scofflaws and you provide their excuses."


From that, would it be safe for me to infer that you read neither my full post, which ended with: "Ignorance is not a valid excuse for not filing,...",

which I also echoed in our email exchange yesterday? Or are you simply trying to bait me?


I haven't yet read your full post from this morning, but scanned it and understand the gist of it to be that a professional has the responsibility to know the laws of the state he is practicing in, regardless of whether it is one's home state or not, or whether one recently moved there or practiced there for their entire career.


Please re-read my post and my email. I completely agree on that point. Ignorance is not a valid excuse. But neither is ignorance an act of malice.

Not filing for whatever reason is punishable, but in many cases it is also correctable given a little education to the remiss surveyor. In those cases, it is not the high crime you characterize it to be.

In other cases, and it is more prevalent in the outfits, out of state or in-state, that crank out cheap ALTAs as if off an assembly line using cheap parts, there are undoubtedly more of the shadowy, unethical and amoral characters that you presume all who fail to file are.



BTW - Don't patronize me with that crap about providing excuses for the violators. You know damn well that's not true.

[Surveyor826]

Regarding:

There is no federal law governing private property rights. None.

Amendment 5 to the U.S. Constitution says a thing or two about them.

[Woodcutter]

Originally Posted by DWoolley

Evan, how about we strike an agreement, I report the results of these scofflaws and you provide their excuses.
.

Being a professional is not limited to maintaining an ethical standard and understanding and adherance to the laws governing the profession.

It also means achieving an understanding of tact, professional etiquette and the promotion of our profession's image.

[DWoolley]

If I put a burr under the saddle, I cannot feign surprise when I get some kick. Evan, I apologize that my rhetoric crossed the line to patronization.

On topic, we have two separate competing world views which I have tempered by my limited exposure to statewide practice, meaning the problems I realize locally may not exist in other regions.

Locally, I do not see the problem being education. I have regular contact with scofflaws. In my experience, there is no lie, excuse or yarn to fantastic to be told and retold as to why a record of survey was not filed. Nobody says “oh, no kidding, that’s the law now?” Nobody. I have yet to hear gratitude or receive a promise to turn over a new law abiding leaf with their newly minted “education”. Most often the scofflaw’s primary concern is how I obtained the work product and/or who will pay for them to file a map. Imagine. Contrition? Shame? Embarrassment? Absolutely not. Yes, every once in awhile we run into a wiseacre, usually from out of our area (affectionately called a “runner” in house), that decides after the initial discussion not to return the phone calls, emails or certified letters. They are now the Board’s problem.

There were approximately 15, 000 ALTA surveys spread between 8 counties between the years 2005 and 2009 in California. Where are the records of survey? The current argument is far worse than “I didn’t set monuments”, the maps I have seen lately do not show ANY monuments (to think I was carrying on about maps only showing TWO found monuments). It is my understanding this shift in mapping is due to use of “no reference” monuments triggering filing requirements. Not kidding. Forget about the records of survey for a minute, what about the standard which is being certified too?

Evan, I am reluctant to turn the lights on in your area to reveal a few cockroaches and kill Santa Claus in one fell swoop. Here goes…

Sampling of loan documents in Sacramento County, in the context of ALTA surveys:

Commercial Properties sold in Sacramento County in 2006? 870
With deed exceptions or metes and bounds descriptions? 482
Records of Survey submitted: 95


Of the 95 records of survey submitted, remove the public works records of survey (Caltrans, ACOE, etc.), remove the lot surveys and so on, you will find compliance is nearly non-existent.

There is a fellow in the same region that proudly advertises having a database of over 7,000 ALTA and boundary surveys (interestingly, a county by county check reveals there is not as many maps filed by him). He further proclaims in writing he has “Provided expert opinions on cases against Land Surveyors” for our Board. Great. I have spoken with him on more than one occasion, it is a catch me if you can situation. He knows the law and he doesn’t care. Who are the fools, us or him? Based on his number of projects (workload), advantage him. Now consider this, the damage is not limited to the 7,000 or so properties, each property has a more than one neighbor with a common line. Imagine, as many as 7k, 8k, 10k, 21,000 properties FUBAR by a single practitioner. It might be bearable if this were an isolated situation, it is not.

Education? Ignorance? I am not convinced.

Last point, malice? What does malice have to do with price of eggs in New York? We are discussing negligence, negligence per se, constructive fraud (which very specifically states there is no requirement for the subject to realize a benefit or had no intent of wrong doing), unjust enrichment, unfair competition and on and on and on. Malice has no place in the conversation; we are discussing civil infractions.

DWoolley

[E_Page]

If we are discussing merely civil infractions, then where do the "lowest of the low" come into the picture?

The "lowest of the low" are commiting not just civil infractions, but actual crimes of fraud with intent for unjust gain. Malice is a necessary ingredient in that intent.

[DWoolley]

Evan,

The current recession, which is second only to the Great Depression in terms of unemployment, homelessness, foreclosures, suicide, etc., is a result of civil infractions and not criminal infractions. I cannot determine the importance or unimportance on your particular infraction meter. To me, these civil infractions rate higher than many criminal infractions, especially in terms of masses effected negatively.

That being said, I will offer perspective on the “lowest of the low” (LOTL).

Surveyor A understands land surveying has many legal aspects which translates to evaluating evidence i.e. improvements, real property documents, adjacent real property documents, examining the chain of title, determining junior and senior rights, searching for each monument of record and documenting those not of record, understanding measurement and technology etc. and ultimately resolving conflicting evidence and filing the necessary record of survey. Surveyor A must also train his staff in the same and allocates time for his own continuing education.

Surveyor B is contented to take the current vesting deed or worse, the preliminary title policy Schedule A and “establish” a boundary with two monuments, any two monuments. Surveyors B have no understanding or consideration of Surveyor A’s methods of land surveying practice. Surveyor B has no need for continuing education or staff training unless it allows for the further cutting of corners. Period.

Surveyor B can easily offer services at 40-60% less cost than Surveyor A sans no evaluation of evidence, no evaluation of adjacent property, no evaluation of conflicting elements, no record of survey, no filing fees, etc. You see, Surveyors B have never seen a gap or an overlap, it is impossible with their practice methods. When Surveyor B only finds two monuments and “establishes” a description without consideration of other evidence, what is to check? In the eyes of the price conscience public Surveyor B offers the same services as Surveyor A. The fact Surveyor B has no affinity to running dirty and ripping off the public allows him to expand his business. Locally, many of LOTL Surveyors B has 2x-4x as many staff as the prudent Surveyors A. Which also means they mess up 2x-4x and many properties. Surveyors A have a difficult time even in the good times.

The staff of the Surveyors B (LOTL) believes land surveying is easy and often have aspirations of starting their own company, therefore the LOTL morph and multiply. How do you suppose Surveyor B offspring start their business? By cutting more corners and offering their services for less to their previous employers clients. Meanwhile, Surveyor A lingers and the idea of growth is a far fetched as the idea of unicorns. I resent the Surveyors B for what they do to the profession in their shyster business approach, “training” staff to break the law and essentially killing off the business of Surveyor A through attrition and numbers. Unless a surveyor is fortunate enough to work for a public land surveying organization with well trained staff, such as the US Forest Service, the BLM, Caltrans, (and others), the Surveyors A business model does allow for business expansion (staff) and proper training. All of which manifests itself in the failure to file records of survey. I am extremely fortunate to be a Surveyor A (thanks to the uncompromising training of other Surveyors A) and to be treading water in the current economy. I am only able to do this based on my legal experience in land title and by providing services to other land surveyors which have the ability to judge a land surveyor by the skills and not the price.

Yes, I consider the Surveyor B’s to be the lowest of the low when I see what they have done and will continue to do to our chosen profession. Similar to all vermin, they will continue to multiply exponentially over the Surveyors A for the reasons I have outlined until the profession is no longer willing to accept their shady practices or the last of the Surveyors A have fallen or retired.

How much lower to get the “low” rating or to become actual crimes on your bar graph? Rhetorical question.

DWoolley