Update on the Strong Towns Lawsuit
I’ve been asked for an update on the federal lawsuit we filed against the Minnesota Board of Engineering Licensure. There are now two legal actions taking place. The first is our action in federal court and the second, filed later, is a Board-initiated enforcement action at the state level. It is unlikely both will run to full term and more likely that one will supersede the other.
Remember, the central dispute here is not about whether I was doing any engineering work that requires a license—I wasn’t, and not even the Board is claiming I was. The legal argument the Board is making is that I continued to represent myself as a professional engineer in my bio on the Strong Towns website during a period of time when my license had inadvertently lapsed, and that merely having my bio reflect that I was a “professional engineer”—even outside of the context of doing, or even offering to do, any engineering work—is a violation of state law.
They are also arguing that I lied to the Board in my renewal application when I said that I had not been practicing engineering, nor holding myself out for work as an engineer. The assertion that I “lied” on this second point is a major part of their case against me.
According to the legal argument they are making, no person is allowed to use the term “professional engineer” to describe themselves in any context, at any time, unless they have a current license under Minnesota law.
Note: I don’t think that is what the law says, and I doubt that if an actor called themselves a “professional engineer” in a play, for example, the Board would be exercised. Follow that example and ask yourself: is my work as an author, public speaker, and advocate more like an actor in a play or more like an engineer preparing plans and specifications and overseeing projects? Only one of those (the one working on plans) is “practicing” engineering, but according to the Board’s legal argument, all of us would violate state law if we called ourselves “professional engineers” without holding a current license.
The reason the Board is exercised with me, and would not bother with the actor, is that my speech impacts them and their members. Their concern, as one Board member said in a meeting, is that people listen to my words. In their state filing, they compared my use of the term “professional engineer” to a business absconding with an industry trademark, as if the state’s interest isn’t about the practice of engineering but about creating a monopoly of licensed professionals able to speak with authority on related issues. That argument should offend everyone.
Especially since, as I suggested, the law does not say what the Board claims. The law they are claiming I inadvertently broke during my lapse in licensure is Minnesota Statutes 326.02, subpart 1 and 3. These statutes regulate the practice of engineering, among other professions. In fact, subpart 3 is titled “Practice of Professional Engineering” which, from a plain reading, denotes that it regulates those who are practicing, or at least seeking to practice, engineering as a professional. No reasonable person reading this statute is going to assume it regulates those who are not practicing, and not even attempting to practice, engineering. Why would it?
After all, that is what Board members and the Board’s executive director told the Minnesota legislature when the law was amended to add the “no person may use” language back in 2014. Here is the language as it appeared in 2013 and then how this additional language they now have concerns with was added in 2014. The Minnesota House held one hearing on this amendment and, fortunately, there is a recording available so we can understand the reasoning for the change.
The audio quoted below is brief and starts at at 1:40:40, with the key part at roughly 1:44:25. It is then that Dennis Martenson, an engineer and a Board member, along with the current executive director of the Board, Doreen Johnson, testified that the goal of the amendment was:
…eliminating confusion that will arise from those who use PE to mean “project engineer” or “principal engineer.”
In other words, some people were calling themselves PE to mean “project engineer” and some were calling themselves PE to mean “principal engineer,” but the Board wanted to eliminate confusion over who is licensed and who is not, allowing only licensed engineers to use the “professional engineer/PE” label. That seems kind of silly to me since anyone can look at the roster of licensed individuals on the Board’s website and clear up any confusion but, nonetheless, that is the reason they gave and the legislature accepted it.
Either way, the section of the statute, the language of the law itself, and the reasoning asserted by the Board to the legislature are all addressing people who are practicing engineering. The Board has no role, and no jurisdiction, for regulating the speech of anyone who is not, or is not attempting to be, a practicing engineer.
If this all seems silly, it is. This matter with me should have been resolved a year ago when the Board did their due diligence in asking me whether or not I practiced engineering while my license was lapsed, and I responded honestly and forthrightly as a licensed professional that I had not. There is no basis, and no standing, for the Board to take this any further.
Unfortunately, the Board has adopted the posture of our antagonists—the original complaint called me a “fraud,” language the Board referenced as well—and they are attempting to use their power to slander me and discredit the Strong Towns movement. As I write in the forthcoming book, Confessions of a Recovering Engineer, a book they definitely don’t want you to read:
Some of this may simply be petty people flexing their narrow authority in the manner that those who serve on such boards sometimes do, but it’s hard not to read more into their actions. They have ample discretion to drop the matter and move on, but they have stubbornly refused, insisting—as part of any final resolution—that I admit to being dishonest and intentionally misrepresenting myself to the public. If board members are not sympathetic to those trying to use this process to slander me, they are eagerly doing their bidding.
Not only is this a waste of taxpayer resources, it’s an abuse of power that is ultimately going to do harm to the engineering profession. Needless and unnecessary.
Cover image via Unsplash.