CHAPTER 467

FORMERLY

HOUSE BILL NO. 987

AN ACT TO AMEND CHAPTER 28, TITLE 24, DELAWARE CODE, RELATING TO PROFESSIONAL ENGINEERS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend §2806, Title 24, Delaware Code, by adding at the end of paragraph (e)(3) the following:

"Any member, associate member or holder of a certificate of authorization in inactive status shall be ineligible to practice engineering in the State of Delaware."

Section 2. Amend §2807, Title 24, Delaware Code, by striking the entire section and by substituting in lieu thereof the following:

"§2807. Council of Delaware Association of Professional Engineers

(a) There shall be a Council which will be the governing board of the Association. The Council shall consist of thirteen (13) members, twelve (12) of which shall be elected, and the remaining one (1) appointed by the Governor. A quorum of the Council shall be a majority of the members of the Council. The twelve (12) elected members shall be elected and hold office on the basis of the following constituencies:

(1) One (1) shall be from each of the following five (5) engineering disciplines: Civil, Chemical, Electrical, Mechanical and any other;

(2) One (1) shall be from each of the following four (4) fields of employment: Government, Industry, Private Consulting Practice, and Education; and

(3) One (1) shall be from each of the three counties: New Castle, Kent and Sussex.

(b) A person elected as a Council member shall, at the time of the election, and during the term of office, be a citizen of the United States of America, a resident of the State of Delaware, a member of the Association, and be qualified to represent the constituency from which the person was elected. The appointed member shall be a citizen of the United States of America and a resident of the State of Delaware.

(c) The term of office for members of Council shall be four years. A member of Council, whether appointed or elected, may not serve more than two consecutive terms on the Council.

(d) Three (3) members of Council shall be elected each year for a four-year term to fill vacancies in the field of discipline, field of employment, and county of residence. Each Council vacancy will be designated by discipline, field of employment, or county of residence in accordance with the constituency designation specified in subparagraph (a) above and each designated vacancy will be voted upon separately by members of the Association. A candidate for Council must announce at the time of nomination or petition the vacancy for which that candidate is seeking election and the candidate must be qualified by discipline, field of employment or residence to fill the vacancy for which that candidate is seeking election. For purposes of election, the candidate's discipline shall be that shown on the Roster, the field of employment shall be that held by the candidate, and the county of residence shall be that of the candidate at the time of nomination or petition as well as at the time of election. The terms of office for Council members shall commence on September 1 of the year elected or appointed and shall expire on August 31 of the year ending the term.

(e) The foregoing provisions of this Section 2807 notwithstanding, the members of the Council as of June 15, 1978, whether appointed or elected, shall continue to hold office until their respective terms expire and the membership of the Council as provided above shall be elected pursuant to the provisions of §2808 below."

Section 3. Amend Title 24, Delaware Code, by striking §2808 in its entirety and substituting a new §2808 in lieu thereof:

"§2808. Council election and appointment procedure

(a) As of June 15, 1978, the Council consists of eleven (11) members. Commencing on June 16, 1978, the expiring terms of the then Council members shall be filled by successor Council members for four (4) year terms each as follows:

(1) The one (1) appointed member whose present term expires on June 30, 1978, will be replaced by one (1) elected member representing the constituency of New Castle County. Within 30 days from the date of enactment of this legislation into law, the Council shall adopt a procedure for electing a member to fill the New Castle County constituency vacancy, such procedure shall be duly noticed to the Association members and the election by the Association members shall be held no later than 60 days following the date of the adoption of such election procedures.

(2) In accordance with the nominating and election procedure in effect on April 30, 1978, the other expiring terms will be filled as follows:

(i) The two (2) members whose terms expire August 31, 1978, will be replaced by two (2) members repre

senting the constituency of: Civil Engineering and Industry.

(ii) The three (3) members whose terms expire in 1979 will be replaced by three (3) members representing the constituency of: Electrical Engineering, Private Consulting Practice and Kent County.

(i) The three (3) members whose terms expire in 1980 will be replaced by three (3) members representing the constituency of: Mechanical Engineering, Education and Sussex County.

(ii) The two (2) members whose terms expire in 1981 will be replaced by three (3) members representing the constituency of: Chemical Engineering, Government and from any other engineering discipline not previously designated.

(3) The appointed member of Council, as provided in §2807 (a) above, shall be appointed by the Governor in 1978 for a four-year term commencing September 1, 1978.

(b) Thereafter three (3) members of the Council shall be elected each year for a four-year term to fill the same discipline, field of employment or residence vacancies on the Council as were held by members of Council whose terms expired in that year. The appointed member shall likewise be appointed every four years.

(c) Any vacancies occurring in the present Council other than by reason of the expiration of the member's term shall be filled for the balance of that term by a person having the qualifications and representing the same constituency. That person shall be appointed by a majority vote of the Council.

(d) The twelve (12) Council members shall be elected by members of the Association by means of a letter ballot returned within thirty (30) days after the mailing thereof. The members in contest for each elected Council position receiving a plurality of votes from those voting within the prescribed time for that Council position shall be declared elected to that Council position."

Section 4. Amend §2811, Title 24, Delaware Code, by striking the second paragraph thereof and substituting in lieu thereof the following:

"When any member of Council resigns, dies, moves his or her residence from the State or otherwise ceases to be a member, or in the case of an elected member who changes his or her engineering discipline in the roster if elected to fill a discipline position on the Council, or in the case of an elected member who changes his or her field of engineering employment if elected to fill a field of engineering employment position on the Council, or in the case of an elected member who changes his or her county of residence if elected to fill a county residency position, the

office shall be declared vacant."

Section 5. Amend §2817, Title 24, Delaware Code, by striking the sub-title "(2) Science Graduates" and subsection (2)(a) and by substituting in lieu thereof the following:

"(2) Related Science Graduates

(a) Graduation from a Council approved four-year science curriculum related to engineering or from a Council approved four-year baccalaureate degree curriculum in engineering technology."

Section 6. Amend §2817, Title 24, Delaware Code, by striking subsection (5) and by substituting in lieu thereof the following:

"(5) Comity

(a) The Council may, upon application and payment of the required fee and without further examination issue registration as a professional engineer to any person holding a valid certificate of registration as a professional engineer issued to that person by a proper authority of a state, territory or possession of the United States, the District of Columbia, or any foreign country, based on requirements not inconsistent with provisions of this Act and which requirements were of a standard not lower than that specified in the applicable registration act in effect in this State at the time such certificate was issued. A personal interview may be required by Council to ascertain the facts in the case.

(b) A person holding a valid certificate or registration record issued by the National Council of Engineering Examiners, whose qualifications meet the requirements of this Act, may be registered by Council as a professional engineer upon receipt from the National Bureau of Engineering Registration of a certified copy of such certificate together with the usual application form and fee from the applicant, without the requirements for cerification of education, experience, and references otherwise required and without further examination.

(c) If the person who has been registered in Delaware pursuant to §2817 (5)(a) has his license to practice revoked in the State in which the person was registered at the time registration in Delaware through comity was sought, then the authorization issued in Delaware shall be automatically revoked following 30 days' written notice from the Council unless the person makes application to the Council for consideration for retaining the Delaware authorization and the Council acts favorably on such application."

Section 7. Amend §2818, Title 24, Delaware Code, by striking the fourth paragraph thereof.

Section 8. Amend §2819, Title 24, Chapter 28, Delaware Code, by

striking the entire section and by substituting in lieu thereof the following:

"§2819. Requirements for certification as an engineer-in-training

The following shall be considered as minimum satisfactory evidence that the applicant is qualified for certification as an engineer-in-training:

(1) Graduation from a Council approved engineering curriculum of four years or more, or graduation from a Council approved science curriculum related to engineering of four years or more, or graduation from a Council approved baccalaureate degree curriculum in engineering technology; and

(2) Successful passage of an eight-hour written examination in the fundamentals of engineering. A college or university student who is a senior of satisfactory academic standing in one of the above Council approved curricula may be permitted to take the fundamentals of engineering examination prior to graduation. The Council may at its discretion permit other students to take the fundamentals of engineering examination prior to graduation."

Section 9. Amend §2820, Title 24, Delaware Code by striking the words "definite time" as they appear in the second paragraph and by substituting in lieu thereof the words "specified time period".

Section 10. Amend §2820, Title 24, Delaware Code, by replacing the word "Persons" where it appears as the first word of the first paragraph with the word "Individuals" and by inserting a new third paragraph after the second paragraph to read as follows:

"An engineering corporation or partnership may be issued a permit subject to the above limitations, provided that one of its officers or partners or one of its employees (a) is designated as being in responsible charge of the engineering activities and decisions and (b) holds a valid permit or is registered under this Act."

Section 11. Amend §2821, Title 24, Delaware Code, by striking the section heading and by substituting in lieu thereof the following words: "Certificates of Authorization"; by striking the words "or Permittees" and "and Permittees" wherever the same shall appear in said §2821; and by deleting from the first sentence of paragraph "(a)" the words "or more" in both places and deleting the word "Shareholders" and substituting the word "employees".

Section 12. Amend Chapter 28, Title 24 of the Delaware Code, by striking §2822 in its entirety and substituting in lieu thereof the following:

"The State of Delaware, its political subdivisions, agencies, commissions, and authorities shall not solicit or receive proposals for, or engage in the construction of public works involving the

practice of engineering, unless:

(a) The engineer, partnership or corporation submitting a proposal is authorized to practice engineering under this Chapter; and

(b) The engineering study, drawings, specifications and estimates have been prepared by, and the construction is executed under the responsible charge or direct supervision of a Registrant or Permittee. Any contract executed in violation of this section shall be null and void."

Section 13. Amend Chapter 28, Title 24, Delaware Code, by striking §2823 and by substituting in lieu thereof the following:

"§2823. Disciplinary action; appeals

(a) The Council shall have the power to review the professional conduct of any individual, corporation, or partnership authorized under this Act to engage in the practice of engineering in Delaware. Following such review the Council shall have the power to warn, or reprimand or censure or suspend for a period of time not exceeding two years, refuse to renew or revoke any authorization issued to practice engineering in Delaware to any individual, corporation or partnership found guilty of:

(1) The practice of any fraud or deceit in obtaining any authorization to practice engineering in this State.

(2) Any gross negligence, incompetence, or misconduct in the practice of engineering.

(3) Violation of the Code of Ethics promulgated by the Council.

(b) Any individual, corporation or partnership aggrieved by any disciplinary decision by Council may appeal such decision to the Superior Court. The appeal shall be filed within 30 days of the day the notice of the decision was mailed. The appeal shall be on the record without a trial de novo. If the Court determines that the record is insufficient for its review, it shall remand the case to the Council for further proceedings on the record. The Court, when factual determinations are at issue, shall take due account of the experience and specialized competence of the Council and of the purposes of the Delaware Professional Engineers' Act under which Council has acted. The Court's review, in the absence of actual fraud, shall be limited to a determination of whether the Council's decision was supported by substantial evidence on the record before it.

(c) When an action is brought in the Court for review of a Council decision, enforcement of such decision may be stayed by the Court only if it finds, upon a preliminary hearing, that the issues and facts presented for review are substantial and the stay

is required to prevent irreparable harm.

(d) No appeal for relief of the Court shall be considered as having been taken or made until it has been filed with the Prothonotary and served upon the Council in accordance with the Rules of the Court."

Section 14. Amend 62825, Title 24, Delaware Code, by striking the second and eighth paragraphs of paragraph "(3)" and by substituting in lieu thereof two new paragraphs respectively as follows:

"Each partner of a partnership and each officer or director of a corporation which practices engineering in violation of the provisions of this Act shall also be liable jointly and severally with and to the same extent as such partnership or corporation unless such partner, officer or director who is so liable sustains the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the violation is alleged to exist.

Whoever violates any of the provisions of this Chapter shall be fined not less than five hundred dollars ($500) nor more than five thousand dollars ($5,000), or be imprisoned not more than six months, or both."

Section 15. Amend Title 24, Delaware Code, by renumbering §2826 as §2827 and introducing a new §2826 to read as follows:

"§2826.

Whenever it appears to the Council that any person has engaged or is about to engage in any act or practice constituting a violation of any provisions of this Chapter 28, it may in its discretion bring an action in the Court of Chancery to temporarily restrain or to enjoin the acts or practices and to enforce compliance with this chapter. The Court shall not require Council to post a bond."

Section 16. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Approved July 11, 1978.