laws, rules, regulations and ethics -...

Laws, Rules, Regulations and Ethics

J i A M L hl EJanice A. McLachlan. Esq. Director, Office of Legal Services

New York State Department of Transportation

Laws, Rules, Regulations and EthicsEthics

• Legal Requirements for Bridge Inspections• Basics of Bridge/Highway Design/Planning

Tort Law• Sections 17 and 19, Public Officers Law • Education Law/Ethics• Education Law/Ethics

Legal Requirements for Bridge InspectionsInspections

• Established by Chapter 781 of the Laws of 1988.

• Enacted 12/29/88 and took effect 6/1/89.• Contained in Sections 230 et seq. of the

Highway LawHighway Law.

Legal Requirements for Bridge InspectionsInspections

• The New York State Legislature found it necessary to establish by statute a program of comprehensive bridge management and inspection within NYSDOT.

Legal Requirements for Bridge Inspections Highway Law §231Inspections, Highway Law §231• Program establishment: The

Commissioner is authorized and directed to establish a program of comprehensive bridge management, inspection, maintenance and long term planning for bridges owned, operated and maintained by the State and it’s political subdivisions.

Legal Requirements for Bridge Inspections Highway Law § 231Inspections, Highway Law § 231• The Program includes:

1. Establishment of a Bridge Information Data base.

2. Adoption of a Uniform Code of Bridge Inspection (17 NYCRR § 165).

Legal Requirements for Bridge Inspections Highway Law §231Inspections, Highway Law §231• §231 (2). The Commissioner is authorized

to:1. Close any bridge (and re-open).2. Bring a civil action against an entity to

comply.3. Conduct an inquiry.4. Access books, records, etc. related to bridge

design, construction and inspection.

Legal Requirements for Bridge Inspections Highway Law §231Inspections, Highway Law §231• §231 (2) . The Commissioner is

Authorized to (cont.):5. Provide technical assistance in any public

entities development of bridge management plans.

6. Enter Railroad right of way to inspect highway bridges.

Bridge Information Center, Highway Law §231(4)Highway Law §231(4)

• A Bridge Information Database must be developed and include for all bridges:– Ownership– Location– Construction date– Design engineer– Design typeg yp

Bridge Information Center, Highway Law §231(4)Highway Law §231(4)

• Bridge Management Database (cont.)– Maintenance history– Dates of substantial rehabilitation– History of collapse/failure

Legal Requirements for Bridge Inspection Highway LawInspection, Highway Law

• All information is subject to FOIL §231(4)(b).

• Designs must be submitted to the gCommissioner for any construction/substantial alteration and signed by a PE. §231 (5).

Legal Requirements for Bridge Inspection Highway LawInspection, Highway Law

• The Commissioner must file an annual report each January. § 231(6)

• Persons and entities subject to this article jmust cooperate. §231 (7)

Uniform Code of Bridge InspectionInspection

• Required by Highway Law § 232• Contained in 17 NYCRR Part 165

– Content must meet or exceed federal law.– Bridges must be inspected every two years.– Must be further inspected if bridge isMust be further inspected if bridge is

threatened by storm, flood, etc.– Must review most recent inspection report.ust e e ost ece t spect o epo t

Uniform Code of Bridge InspectionInspection

– Establish a rating system.– Include Underwater Inspections/scour.– Applies to publicly owned bridges.– The code shall establish requirements for

performing bridge structural and foundation t l ti i j ti ithsystem evaluations in conjunction with an

inspection. § 232(4).

Structural Integrity and Safety Rating SystemRating System

• Under 17 NYCRR 165.10, NYSDOT ranks structural integrity and safety– Condition– Load capacity– Redundancyy– Fracture susceptibility– Hydraulic vulnerabilityy y

Uniform Code of Bridge InspectionInspection

• Bridge Inspections must be performed by a licensed PE or by a person under the direct supervision of a PE. § 232 (5) and 17 NYCRR §165.5.

Uniform Code of Bridge InspectionInspection

• The Commissioner must establish criteria for a design engineer, who is responsible for reconstruction or substantial alteration, to provide maintenance guidelines to owners. §232(6).

Types of Bridge Inspections17 NYCRR §165 417 NYCRR §165.4

• General Inspection• Diving Inspection• In Depth InspectionIn Depth Inspection• Special Inspection

General Bridge Inspections17 NYCRR §165 4(a)17 NYCRR §165.4(a)

• A general inspection is a regularly scheduled inspection which focuses on:– Bridge Condition.– Ability to Function.– Safety and Maintenance Issues.y– Produces basic statistical data to study,

monitor and manage bridges.

General Bridge Inspections17 NYCRR § 165 4 (a)17 NYCRR § 165.4 (a)

• Two Types

(1)Biennial Inspection• Performed every 2 years• All new or reconstructed bridges within 60 days of

j t t i t t ffi hi hproject acceptance or opening to traffic, whichever is first.

General Bridge Inspections17 NYCRR §165 4 (a)17 NYCRR §165.4 (a)

(2) Interim Inspections• Applies to bridges which are:

– Posted for load capacity– Receive a general recommendation or condition rating ofReceive a general recommendation or condition rating of

3 or less– Active structural flag

Legal Requirements for Bridge InspectionInspection

• §233 Highway Law– NYSDOT shall inspect any bridge/culvert

deemed unsafe by the Regional Director, county or town superintendent.

– NYSDOT can post the bridge.– NYSDOT by official order, can close a bridge,

set up barricades or undertake repair.

Public Authorities, County, Town or Village BridgesTown or Village Bridges

• §234 Highway Law– Must have their bridges inspected.– Can ask NYSDOT to inspect.– Must reimburse NYSDOT for costs.– Municipalities can also close bridges.p g

• BASICS OF DESIGN AND PLANNING TORT LAWPLANNING TORT LAW

Basics of Design/Planning Tort LawLaw

• Tort liability is based upon a civil action against an individual or the State for a negligent act.

• Negligence is the failure to do what an ordinary, reasonably prudent person would y, y p pdo under similar circumstances.

• Claimant is seeking monetary damagesClaimant is seeking monetary damages.

Basics of Design/Planning Tort LawLaw

• Damages are to compensate an individual for economic loss (i.e. lost wages, out of pocket expenses) and non-economic loss (pain and suffering).

• New York has waived sovereign immunity.g y• State has consented to have liability

determined against itdetermined against it.

Basics of Highway/Planning Tort LawTort Law

• Claims against the State are in the Court of Claims (except Article 78).

• Judges only/no juries.g y j• Bifurcated trials.• Court can apportion liability• Court can apportion liability.• Appeals go to Appellate Division(4

D t t ) th C t f A lDepartments) then Court of Appeals.

Dutyy• The State has a non-delegable duty to

design, construct and maintain its roadways in a reasonably safe condition and breach of that duty will result in liability to the State for injuries there from. Friedman v. State, 67 NY2d 271.

Qualified Immunityy• In the field of traffic design engineering,

the State is afforded qualified immunity from liability arising out of a highway planning decision. Friedman v. State, supra., Weiss v. Fote, 7 NY2d 579.

Qualified Immunityy• Under the doctrine of qualified immunity,

the State can only be found liable for injuries “arising out of the operation of a duly executed highway safety plan where there is proof that the plan was executed without adequate study or lacked a reasonable basis.” Weiss v. Fote, supra.

Qualified Immunityy• In the area of highway safety…courts

should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits. Something more than a mere choice of conflicting opinions of experts is (cont.)

Qualified Immunityy• …required before the State or one of its

subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public. Weiss v. Fote.

Qualified Immunityy• To accept a jury’s verdict as to the

reasonableness and safety of a plan of governmental services and prefer it over the judgment of a governmental body which considered and passed on the matter would be to obstruct normal governmental operation and ….(cont.)

Qualified Immunityy• …put in inexpert hands what the

legislature has seen fit to entrust in experts.

• Absent some showing that due care was not exercised (in the design) or that no ( g )reasonable official could have adopted it (the State can’t be found liable). Weiss v. ( )Fote.

Public Officers Law §17 andPublic Officers Law §17 and §19

Public Officers Law § 17§• The State will provide for the defense of

an employee in any civil action in the state or federal court where the alleged civil act or omission occurred while the employee was acting within the scope of his employment.

• State will pay a judgment or settlement.p y j g

Public Officers Law § 19§• The State will reimburse an employee the

costs of the defense of a criminal proceeding in state or federal court which arise out of an act which occurred while the employee was acting within the scope of his employment.

• Reimbursement takes place upon p pacquittal.

• EDUCATION LAW/ETHICS

Education Law• Public Officers Law does not apply to

complaints to the NYS Education Department (NYSED) concerning the conduct of licensed professionals.

• NYSED’s inquiries are limited to the qcompetence of the individual to practice the profession.p

Education Law• NYSED determinations involve

– Annulment of a license.– Limitations on registration or issuance of any

further license.– Fines.– Training Requirements.– Public Service Requirements.

Education Law• Professional Seals

– Professionals sealing designs not prepared by them or someone under their direct supervision must follow 8 NYCRR Section 29.3 (a)(3).R i th h itt l ti f th– Requires a thorough written evaluation of the professional services represented… (cont.)

Education Law• Professional Seals (cont.)

…by the documents including but not limited to drawings, specifications, reports, designs, calculations and references to applicable codes and standards.

Questions1. What are two types of information the

Bridge Information Database must include?

2. How often does NYSDOT perform biennial bridge inspections?g p

3. What has New York waived which allows the State to be sued in tort?the State to be sued in tort?

Questions4. Under the doctrine of ______________,

government engineers are deemed experts in their design decisions so long as they conduct a reasonable study and have a rational basis.

5. Under section 17 of the Public Officers Law, the State will provide what to an , pemployee in a civil action?

Questions• 6. Education Law inquiries are limited to

the ______________of an engineer practicing his or her profession.