Complicated situations: things that haunt us.

previous discussion: http://clsaforum.californiasurveyors.org/phpbb3/viewtopic.php?f=6&t=6231&p=38169

Peter Ehlert, post: 330734, member: 60 wrote: This is the summary of a disciplinary action against a well known and respected surveyor.
I submit for your review. Things get very complicated and are difficult to sort out.
Please read it All and consider the law in California before you opine.
thanks, Peter
http://www.bpelsg.ca.gov/public/l--4597_dec949.pdf

Let's be careful out there!

I don't know the company or the surveyor as I never worked in that part of Cali but in this case there are many red flags that the board found. From simply reading their summary it seems their case is rather clear cut. How would I learn to know and respect this surveyor if there are no footsteps to follow in this case. No recorded survey???? Corner record???. There was lack of disclosure to the parties, and No contract. Right there this individual is not protecting himself, company and or the client. Im guessing the surveyor and company in question may have the lowest overhead possible due to the minimal rates listed for the non-surveys.
Personally I feel if we are placing demarcations to show a line of record, boundary, etc, then that is a survey and the contract should clearly state what will be done, what is agreed upon for payment and what is the deliverable. Cali state regs are also pretty clear cut in this regard as well. Just my 0.02 from a quick read of the summary. Naturally Im sure there are always two sides to the opinions.

For me the Jury is Out. (i.e. still forming an opinion)

I do have a couple thoughts/comments:

Kenny Fargen is a Past President of CLSA (1991). I do not know him socially but I rember his work with the association very favorably.

Question: when did the requirement for a written contract come into effect? this work was in 2004, maybe that predates the requirement.

Remark: I see a bunch of "he said she said" in the presentation, with the ALJ taking credence to the complainant. The true facts may vary, or not.
Comment: If what Mr. Fargen said was accepted as true (or if he had a better lawyer) the result could have been quite different.

Remark: there is a serious lack of documentation by all parties involved.
Comment: This could have been quite easy and painless for all IF a good paper trail had been made and presented.

Remember: This is a Summary, the back story to all of the events would be quite interesting.

Peter Ehlert, post: 330766, member: 60 wrote: Question: when did the requirement for a written contract come into effect? this work was in 2004, maybe that predates the requirement.

Section 8759 of the PLSA was added in 2000, largely in response to such undocumented activity as this case presents.

I'm guessing he forfeited his license rather than going through all of the items listed as requirements.

Holy Cow, post: 330776, member: 50 wrote: I'm guessing he forfeited his license rather than going through all of the items listed as requirements.

nope, he is current, and apparently has completed the CE requirement.
Actually he is lucky to live near one of the two schools in Ca. that could meet the requirement.

http://www2.dca.ca.gov/pls/wllpub/WLLQRYNA$LCEV2.QueryView?P_LICENSE_NUMBER=4597&P_LTE_ID=750

Once again I am surprised at the lack of posts on this subject matter. This could happen to anyone of us licensed surveyors. I'm not sure how to judge this particular case with the information available. I do know that after Peter added the human element to the case I immediately started to think about it differently. I do think that when we come across poor survey practices that clearly break the law and practice of a prudent land surveyor we should contact the licensee and then depending on their reaction escalate the situation to the State Board in order to preserve our profession. How the boards handle the situation is another issue. Lucas, just said again in his most recent article "The surveyor‰Ûªs opinion on the location question can certainly be challenged and, if wrong, corrected, but relative to all of the surveying activity that takes place across the country on a daily basis, this rarely ever happens."
(POB Aug 2015, http://cdn.coverstand.com/12060/266617/e7dd0e15acb1de0282ff2b1c5f905d9783dec5a6.15.pdf )
In this case the surveyor got caught because the two neighbors did not just live by what the surveyor put in the ground. Most of the time they do and that is why we are supposed to do it right. My 2 cents, Jp

Not being familiar with the California spin on this, 'round here most of these issues start out as an axe grinding affair. If he actually finds the other end of the line and sets lath in between with no recording does this become an issue?

I don't have any problem with sticking some wood in between a couple of existing monuments I trust without recording, although ~30% of the surveyors in my recording state would. An area grey enough it's not gotten anyone in trouble to my knowledge.

However, finding one and doing the math so you can turn an angle is taking a risk. A risk I never plan on taking if for no other reason the cost of the survey never seems to cover the cost of the improvement to be moved or removed. Let alone the issues of licensure.

I feel for the guy. Licensed since 1979 and it seems his feet were held to the fire. Makes me wonder if the board gave him an 'out' and he refused it. I would much prefer he be told to fix it and file on his dime.

Steve

sjc1989, post: 330874, member: 6718 wrote: Makes me wonder if the board gave him an 'out' and he refused it. I would much prefer he be told to fix it and file on his dime.
Steve

I thought something similar, only I wondered if there was a refusal to compensate the client for the error.
Seems like something fell through the cracks after he was aware that he had not performed the initial survey correctly.

I suppose what elevated the situation was the lawyers involved, combined with nasty neighbors.

Just because someone has been licensed a long time, does not mean they do good work or don't get lazy once in awhile.

Right out of the gate I saw a problem. Respondent was doing a survey of an "area." You are going to stake a line between points you haven't verified? That's a high-wire walk right there.
The guy had 40 acres. I'll survey that and you can pick the area most important for more markings and paint and witness marks, etc.
Olsen would not have paid $700 for my services doing anything on 40 acres. Even some topo for a sand mound would cost more than that because I have to relate the septic field to some known points.

I'm scared sick by these cases. I don't ever want to be known as Respondent. Sometimes I get antsy about lack of work and try to think up ways to make a buck without charging people what I know it will take to complete the work. When you play those ideas out, you end up trying to figure a way out of a problem. I say no, Matt. Do your job!

After reading the lawsuit one glaring suggestion to every Surveyor reading this is to always prepare a CONTRACT for any boundary work.

Don‰Ûªt know about an ‰ÛÏinformal survey‰Û what‰Ûªs up with that?
In Florida I think one might be able to circumvent any MTS rules via a provision for ‰ÛÏSpecific Purpose Survey‰Û or ‰ÛÏinformal survey‰Û as mentioned in the lawsuit. I really don‰Ûªt know much about them as I have never performed one.

Jury is in on this one.

B-)

What catches my eye is the same as what prompted the CLSA website post that you linked: The "facts" summarized in Factual Finding paragraph 35. Per that paragraph, failure to find a record monument requires the unsuccessful and unlucky searcher to file a Record of Survey in order to place "others on notice of the change". This is a definition of material evidence, physical change, or material discrepancy most surveyors have not considered to be R/S worthy. Further, a R/S is apparently required if you know that your client is going to be doing something (like build a fence) that might "disrupt or destroy" monuments. Is it not a reasonable conclusion then that every time you find (& verify, of course) existing monuments so a client can build a fence that you must do a Record of Survey? This seems like the board has expanded the scope of Section 8771 from public ways and easements to every Joe's backyard. Also, a R/S is apparently required if you know that your client is going to do something that might make it more difficult for others to find a monument. Is your client going to level out his yard or maybe plat some shrubs near the property corners? Time for a R/S. Additionally, we learn from the board in Factual Finding paragraph 7 that fencing just a part of a boundary "does not make sense."
This all comes out of a case where the fence built was the least ground disturbing fence one can build (t-post & wire). Was the board just piling it on? I hope not, as that seems really unprofessional and unnecessary considering the big hole the subject LS appears to have dug himself into. So if they're not piling on are they just making stuff up as they go?
I see a few lessons in this case: Do good work, don't put your boots on without a contract and budget to do a R/S, do not ask your client or his neighbors nor let then speak of how they plan to use the survey, and beware The Board. This case and others I am aware of show that, as Matt Harnett says, you do not want to be referred to as Respondent, innocent or not. Try to solve any problems or claims of problems locally.

BajaOR, post: 332240, member: 9139 wrote: What catches my eye is the same as what prompted the CLSA website post that you linked: The "facts" summarized in Factual Finding paragraph 35. Per that paragraph, failure to find a record monument requires the unsuccessful and unlucky searcher to file a Record of Survey in order to place "others on notice of the change". This is a definition of material evidence, physical change, or material discrepancy most surveyors have not considered to be R/S worthy. Further, a R/S is apparently required if you know that your client is going to be doing something (like build a fence) that might "disrupt or destroy" monuments. Is it not a reasonable conclusion then that every time you find (& verify, of course) existing monuments so a client can build a fence that you must do a Record of Survey? This seems like the board has expanded the scope of Section 8771 from public ways and easements to every Joe's backyard. Also, a R/S is apparently required if you know that your client is going to do something that might make it more difficult for others to find a monument. Is your client going to level out his yard or maybe plat some shrubs near the property corners? Time for a R/S. Additionally, we learn from the board in Factual Finding paragraph 7 that fencing just a part of a boundary "does not make sense."
This all comes out of a case where the fence built was the least ground disturbing fence one can build (t-post & wire). Was the board just piling it on? I hope not, as that seems really unprofessional and unnecessary considering the big hole the subject LS appears to have dug himself into. So if they're not piling on are they just making stuff up as they go?
I see a few lessons in this case: Do good work, don't put your boots on without a contract and budget to do a R/S, do not ask your client or his neighbors nor let then speak of how they plan to use the survey, and beware The Board. This case and others I am aware of show that, as Matt Harnett says, you do not want to be referred to as Respondent, innocent or not. Try to solve any problems or claims of problems locally.

I agree, I don't like 35 either. And the fence comment caught my eye too.

But when your client is in litigation you survey the world, spare no expense. Trying to save the client money leads to this sort of thing.

I call BS on Olson (or is it Olsen) not knowing he was working for the other guy.

Unfortunately we are all reviewing a Summary made by a layman and we don't even have the attachments he is referencing.

Yes, it is clear that he (Respondent) failed to make a proper written contract. Big Fail. It also appears that he did not properly document any disclosure of a possible conflict of interest. Damn! I feel that those two things compounded into multiple misunderstandings about what he did and why.

in the very begging of the summary the ALJ made personal judgment calls on who to believe, and built upon that in the remainder. The ALJ is clearly a novice when it comes to what we do and the laws and rules we act under.
A true house of cards.

I feel that it is Probably True that the initial work was a Measurement Task as Respondent stated, and that would be outside of the preview of the Board. But we will never know unless we develop a way to get inside the heads of the various parties at the beginning...

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Side Issue: The cost of investigation, onerous.
If he had not been found to be culpable would the complainant had to pick up that tab? Of course not!
anybody here familiar with the movie Brazil? 🙂