In a fee dispute a few years ago, an Alabama appeals court ruled that the responsible surveyor had not exercised appropriate supervision during the survey, and therefore the firm was not entitled to payment. The theory, in part, was that because the surveyor did not physically visit the site during the project, the firm violated the licensing statute, which provided that subordinates could perform surveys only if they were "done under the responsibility and supervision" of the registered surveyor. Now, each case is unique, and that particular case had elements that could lead reasonable surveyors to disagree with one another over the appropriateness of the decision, but the issue it raises will be encountered by most professionals during their careers and thus deserves close examination.
The question boils down to this: Does genuine professional responsibility for a survey require the surveyor to be present during the fieldwork? Lay people probably would assume so. After all, the "work" is done in the field; isn’t it? Doesn’t it follow that the surveyor should participate in it? The answer to the question lies in the nature of our product, or perhaps in the nature of surveying itself.
The Current Situation
Most surveyors now have one or more field crews feeding them data or carrying out their instructions; no longer is it the norm to have the surveyor on site directing the effort. Why? There are several reasons. First, by its nature, fieldwork contains long periods where professional expertise is not needed (cutting a 600-foot sight line, for instance). Second (at least in retracement), because of the mountain of evidence normally confronting the surveyor, in-depth analysis is required to arrive at a defensible solution. This analysis can be more thorough when it has the benefit of quiet contemplation and the assistance of analytical tools—which generally are located at the office. Third, business communications demand that surveyors be accessible to clients and regulators frequently during the day. Although digital communications are making that less of a burden, there remain significant obstacles to effective collaboration from the field. And finally, because of competitive pressures, it generally is not cost effective to have registered surveyors, who typically are the most expensive people in the surveying organization, load all of their time onto a single project. Thus, for a variety of reasons, it is generally more efficient to have surveyors in the office instead of in the field—triggering the question under consideration.
Conceptually, the doctrine of responsible charge requires the involvement of the professional where the expertise possessed by a professional is needed. In other words, the restrictions placed on unlicensed practice presume that some tasks can be performed safely only by an individual who has demonstrated an ability to do so. Therefore, involvement in every project, at least for those tasks, is essential to comport with the intent of the licensing statutes. But what are those tasks?
The Mandate
Our fundamental charge is to make correct decisions—decisions concerning the identification of the problem, the approach to solution, the factors affecting the question, the evidence necessary to reach a defensible conclusion and so forth. As it turns out, in most cases those decisions can be made equally as well in the office as in the field.
But what about supervising the fieldwork? Suggesting that surveyors must be on site to properly supervise the work is to imply that one must physically see and touch the evidence to properly form an opinion about it. Indeed, a dissenting opinion in the case above observed that the case could "establish a new standard that could stifle a professional’s effective use of auxiliary personnel" and "appears to suggest that the licensee be on one end of the chain." Surveyors have never functioned without helpers, and as we progress further into the information age it will become increasingly important to assimilate and sift large amounts of data while focusing on its relative importance and context. This is as it should be.
Other professions use auxiliary personnel to gather evidence. Few title attorneys spend their time examining indices at the courthouse; yet they still deem themselves competent to render opinions on the quality of land title, based on the material gathered for them by their subordinates. In the same manner, accountants use bookkeepers, doctors use nurses, engineers use designers and so forth. In fact, one would be hard pressed to find any profession in which subordinates played no significant role. We are not out of step here.
Our Product
The ultimate nature of our product is intellectual, not mechanical. Therefore, where the licensee is involved in the key decisions concerning the project, in the identification of the problem, in the methods and evidence used to render an appropriate solution, and in the solution itself, he or she probably has satisfied the responsibility requirement and therefore fulfilled his or her obligation to the public. But the involvement must be active and ongoing—not merely review after the fact.
Now, situations may arise frequently where, to render an appropriate opinion, one must visit the site to inspect the physical evidence first-hand. In cases such as this, not visiting the site violates the responsible charge requirement, for the doctrine requires that the surveyor evaluate the evidence, not only for its competence—its appropriateness for consideration in the solution—but also for its sufficiency—its adequacy in supporting a defensible opinion. Hence, in instances where the information gathered may fall short of the mark, an on-site inspection is mandatory. But that does not happen in all cases, or even in a majority of cases.
So, how close is close enough? Although at first blush most would presume that on-site involvement is central to the surveyor’s task, on reflection it seems clear that our sought-after product is an opinion founded on an adequate understanding of the situation. If we have actively directed and sanctioned the decision-making process, we will have discharged our obligation under the mandate mentioned above.
Copyright © 1999 By Joel M. Leininger, LS