Chapter 112, Section 81P of the Massachusetts General Laws defines those circumstances when the Board may sanction (up to and including revocations of license) a registrant for certain types of activities. It is this section of the law that provides the greatest insight into the proper role of the registrant relative to the preparation of instruments of service. This section of the law reads in part:
"The Board may revoke the certificate of registration of any registrant who is found guilty of… (c) The affixing of his signature to plans, drawings, specifications or other instruments of service which have not been prepared by him or in his office, or under his immediate and responsible direction, or permitting his name to be used for the purpose of assisting any person, not a registered professional engineer or registered professional land surveyor, to evade the provisions of this chapter."
Pursuant to MGL c.30A, §2 & 3, the Board adopted certain regulations associated with the Registration Law, Chapter 112, Section 81D - 81T. The regulation that deals with Supervision and Responsibility for Practice is 250 CMR 5.02, which reads:
"The practice of engineering or of land surveying by a person, firm, co-partnership, corporation or joint stock association construed to practice or to offer to practice engineering or land surveying shall be under the direct charge and supervision of a person, or persons, holding a valid certificate of registration under the statute and that person, or persons, shall be responsible for the performance of such work in a competent manner to avoid gross negligence or misconduct that could endanger the life, health and safety of the public."
It is the opinion of the Board, the term "immediate and responsible direction" and "under the direct charge and supervision" found in the aforementioned law and regulation are synonymous statements imposing a duty that must be met by the registrant whenever affixing his or her stamp or signature to any instruments of service prepared by another person.
In concurrence with Section 81P, supra, the Board has opined that a registrant may not sign or seal any instrument of service that was not " produced by the registrant personally or under the registrant's direct personal supervision" as set forth in paragraph (3) of 250 CMR 3.05, Professional Practice.
In concurrence with Section 81P, supra, the Board has opined that a registrant must " be able to provide acceptable written documentation that supervision was performed by the registrant with hands-on access to project data and documents throughout the duration of the project" as set forth in paragraph (11) of 250 CMR 3.05 Professional Practice.
Chapter 112 and 250 CMR make other such references to the concept of Direct Charge and Supervision, some are quite obvious and others are much more obscure. From these various references it is clear that the relationship between the registrant and those persons assisting in the preparation of instruments of service is an essential element of professional practice and protecting the public interest.
The Board has found that the concept of Direct Charge and Supervision that best conforms to the intent of the registration law and that best protects the public interest is characterized by the following criteria:
- That the registrant exercised unambiguous decision-making authority with respect to the preparation of the instruments of service he or she is stamping and signing, without interference or undue influence from any other individual or entity.
- That those unlicensed persons assisting in the preparation of the instruments of service were subordinates directly to the registrant (or another registrant in his/her direct charge) and not indirectly through some other person or entity that was capable of subverting the registrants wishes, i.e. that the registrant could reasonably have compelled the assisting person to carry out his or her charge with regard to those activities and practices regulated by the registration law, rules and regulations. .
- That the registrant (or another registrant in his/her direct charge) had the freedom and authority to assign persons of his/her choosing to assist in the preparation of instruments of service.
- That the registrant exercised due care in assigning tasks to persons assisting in the preparation of instruments of service based upon the registrant's knowledge of each person's expertise, knowledge and skill levels.
- That the registrant has a verifiable record that products produced by those assisting him/her were subject to regular and continuing review and supervision throughout the development process, from the time of contract to the time of delivery.
- That those assisting the registrant in the preparation of instruments of service had continuous access to and guidance from the registrant throughout the development process.
This Advisory Ruling is issued pursuant to a determination made by a majority of members present at the duly called meeting of the Board of Registration of Professional Engineers and Professional Land Surveyors on November 16, 2000.