At recent meetings of the Board of Registration of Hazardous Waste Site Cleanup Professionals (the "Board"), questions have been raised regarding the Board's intent in including "hold paramount" language in the "Rules of Professional Conduct" section of the Board's regulations. See 309 CMR 4.03(1). In order to minimize public confusion on this issue, the Board is distributing the attached minutes from the March 17, 1993 meeting of the [Board's] Regulations Committee, which is where this regulatory provision was developed and most comprehensively discussed.
Board of Registration of Hazardous Waste Site Cleanup Professionals
REGULATIONS COMMITTEE MINUTES
Approved by Board at 4/14/93 Meeting
MARCH 17, 1993 MEETING
The Regulations Subcommittee convened at 3:45 PM, March 17th, in Conference Room 1 of the State Transportation Building directly following the Board's regular meeting.
Members present were John Seferiadis, Rob Sargent, Larry Feldman, Bill Rizzo, Wayne Johnson, Gretchen Latowsky, Lee Lyman, Jim Colman (for Commissioner Greenbaum) and Susan Shepherd.
Others present included Rob Schlein, Robert Ruddock, Fred Civian, Terry Samuels, Frank Lilly, Rachelle Zani, Irene Halpin, Hank Southworth, Al Thoman, John Clark, and Steve Roberson.
Rob Schlein of Posternak, Blankstein and Lund, serving as pro bono counsel to the Board, presented his report and a written memorandum regarding the extent of liability exposures that may stem from different versions of the "hold paramount" language. That language would describe the extent of LSPs' responsibilities to the public when performing "professional services" as defined by the LSP Regulations. The remarks and comments of Mr. Schlein and the Board are presented below:
Increase in Liability: Mr. Schlein's research revealed no record of any court action using wider "hold paramount" language as the basis of judgments against engineers or other professionals. Ms. Halpin pointed out that an absence of decisions does not mean that broad statements of responsibility to the public have not been the basis of suits that were either dismissed or settled; however, there is no practical manner of verifying either the existence or outcome of those actions.
While some concern had been expressed that wider "hold paramount" language creates a hypothetical increase in exposure, Mr. Schlein suggested to the Committee that the language reflected a legitimate "aspirational goal" for the new profession, and would not create a new liability to non-clients. Mr. Schlein informed the Committee that there was a trend to legal actions by non-clients against professionals (such as accountants), but that these legal actions tended to be based on other causes, such as the Standard of Care contained in the Code of Professional Conduct (which was not being questioned), and that "hold paramount, " if used at all would be appended to these other causes.
Therefore Mr. Schlein concluded that the existence or absence of "hold paramount" language alone would not result in any difference in LSPs' exposure to liability. Mr. Schlein also reported that, as requested by members of the Committee, he had circulated his memorandum to David Hatem of Burns & Levinson and Evan Slavit of Hinckley, Allen, and both had concurred in his conclusion.
Ways to limit liability: As a safeguard in anticipation that someone may not understand the purpose of the Board's re-insertion of wider "hold paramount" language, Mr. Schlein suggested that it would be appropriate for the Board to specifically describe how the Board intends such language to be used by third parties. Insurers use these statements of intent to craft their perceptions of liability; the Board's clarification of how it intends such wider language to be used could reduce a perception that such language is intended to significantly increase exposure to liability. Such a statement could also reinforce the 21E Study Committee's intent (as described by Jim Colman) that the Program Redesign and LSP legislation be "liability neutral" to LSPs (i.e., the legislation itself should not significantly change exposure to liability). Staying "liability neutral" has two major implications: that the Board refrain from creating a significant increase in liability and that the Board not prohibit third parties from exercising legal rights they presently possess.
Mr. Schlein recommended that the Committee consider stating that violations of the wider "hold paramount" language be reported to the Board, and that the Board exercise its licensing and other enforcement authority against violators of that responsibility.
Committee participants had differing perceptions about the implications of the "hold paramount" language and LSPs' exposure to liability, and differing opinions about the usefulness of a statement of intent. It was generally accepted that the sites work industry commonly had a higher level of litigation than other professions, and that wider language would be more likely to be used in this particular field as a rationale for suits than in other fields. Some believed that statements of intent to manage liability exposure would not limit any legal actions, and therefore had no use and should not be included. Others countered that the insurance industry did find such statements of intent to be useful.
Ms. Shepherd moved and Mr. Lyman seconded a motion to recommend that the Board adopt the wider "hold paramount" language and clarify the Board's intent that such language is not intended to increase liability exposure (see attached "HOLD PARAMOUNT LANGUAGE AMENDMENT"). Mr. Sargent moved and Ms. Shepherd seconded an amendment stating that it is the Board's intent that the wider language "by itself" is not intended to increase liability.
Ayes: 5 Sargent, Lyman, Johnson, Shepherd, Colman
Noes: 2 Seferiadis, Feldman
The Committee then discussed the changes in the Experience section of the regulations recommended by the Applications Subcommittee, and decided to continue that discussion at the next Regulations Subcommittee meeting, set for Friday, March 26th, 10 AM - 2 PM, at GZA's offices in Newton Upper Falls.
HOLD PARAMOUNT LANGUAGE AMENDMENT
from the Regulations Subcommittee Meeting of 3/17/93
Insert in Section 3.00 (2)a:
(a) A licensed site professional shall hold paramount the public health, safety, welfare and the environment in the performance of professional services.
Insert as preamble to Section 3:
(1) Professional Competency. In order to safeguard the public health, safety, welfare and the environment and to establish and maintain a standard of professional integrity, the Board has established these Rules of Professional Conduct to provide guidance to the licensed site professional. These Rules shall be binding on every person holding a certificate of registration issued by the Board and licensed by the Board to render hazardous waste site cleanup opinions within the meaning of M.G.L. c. 21A, Section 19.
Any person who may become aware of the failure of a licensed site professional to comply with an obligation or prohibition imposed by these Rules of Professional Conduct may file a complaint with the Board pursuant to XXX CMR 6.00, but these Rules are not intended to impose upon a licensed site professional any additional exposure to liability to persons other than his or her client, and it is not intended that a violation of these Rules shall by itself give rise to a cause of action or create any presumption that a legal duty has been breached.
All licensed site professionals are charged with having knowledge of these Rules of Professional Conduct and shall be deemed to be familiar with the provisions and to understand them.