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DIMENSIONS OF THE GEOLOGIST'S PROFESSIONAL DUTY
E.D. Michael
July 23, 2009
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The geology of Malibu is such that the process of land development there is especially dependent on the expertise of the civil engineer, the engineering geologist, and the geotechnical engineer, the latter synonymous with "'soils engineer." As state-licensees, these professionals are favored, because the public is required by law to obtain their services for construction projects. In return, the professional is considered to owe a duty of due care to the client which is partly fiduciary, i.e., the interests of the client are to be protected not only in terms of safety, but economically as well. However, underlying all is the legislative determination that licensing is necessary to protect the safety of the public. In other words, the licensee owes a duty to the public at large. It is not always true that the economic interest of the client is coincident with the safety of the public, and at the working level, this may lead to differences of opinion between the licensee and the client, or between the licensee and the professional of the local agency charged with seeing both that proposed projects comply with code standards, and that a certain level of technical competence on the part of the licensee is maintained. Generally, problems of this sort are avoided or resolved through experience. However, in the process of obtaining permits, especially the grading permit and the building permit, four problems can arise.
DEFECTS IN THE REVIEW PROCESS
City representatives involved in the planning review process are not omniscient. Mistakes are made. Rules having to do with the manner in which geotechnical investigations are conducted cannot be applied to all circumstances relevant to a particular property. This can lead to an overly strict interpretation of the rules by the agency representatives, and consequently excessive costs, or even preventing development. Such strict interpretation of the rules may be perfectly justified technically because of uncertainty and therefore concern for agency liability.
Nevertheless, where matters cannot be resolved "over the counter," the public hearing, a less- than-perfect fact-finding process, is the developer's only immediate remedy. Typically in Malibu, this process begins with a Planning Commission hearing to decide whether Planning Division findings, conditions, and recommendations, should be upheld as consistent with the City's Land Use Plan. In the event of an adverse decision, the developer is forced to go before the City Council. If unavailing there, the developer's only recourse, necessarily with legal representation, is an appeal to the Superior Court, or possibly beyond, to seek a writ of mandate with a price tag few developers can afford. The obverse of this is the circumstance where a proposed development is opposed by a neighbor whose concerns may or may not be justified.
The varying physical conditions of real property cannot always, as a practical matter, be shoe-horned into compliance with rigid interpretations of Planning or Building code restrictions. A fairer process of review is needed. Much of the problem of agency-biased review could be avoided by an independent body of professionals such as Los Angeles County's Geology and Soils Engineering Review Board, the essential purpose of which is to offer a degree of rational independent judgment in Code interpretation.
LICENSEE ERROR
Unfortunately, the expertise or motives of the licensee may be questionable. This is especially the case for the client whose expectations are based on the initial erroneous advice regarding purchase, especially that from a licensee who expects to do the development work, when in the course of review by the agency, it becomes apparent that site problems were not fully explained. In some cases, this can be avoided by an opinion of a licensee whose only task is that of an initial site examination independent of any actual work concerning development.
LICENSEE MALPRACTICE
Publically funded projects can be fair game for independent professionals from whom an agency may request a proposal. In other words, a licensed professional may enter into a contract with an agency to do work that, either without the knowledge of the agency or worse, with its connivance, is technically ill-conceived, simply because it is deemed desirable for political purposes. Problems of this sort are suggested by the manner in which environmental issues, since about 1995, have held center stage in Malibu regarding the Civic Center area.
CITY CONTRACT-LICENSEE STATUS
The City's geotechnical staff from the outset has been from the private sector, either individuals or companies under contract, rather than City employees. This arrangement is far more efficient for small cities because it avoids maintaining a separate geotechnical staff or department. Furthermore, it has the advantage of avoiding the myriad employment problems associated with civil service.
The City's geotechnical contractors have provided the City much valuable advice and continue to do so. On the other hand, there lurks in the contractor arrangement the possibility of patronage which can be a two-way street. That is, the contractor, desirable of maintaining advantageous business relations, may be reluctant to offer technical criticism of City-sponsored projects. These circumstances can be especially difficult for the City Geologist who, as a scientist, must be especially circumspect not only when offering opinions deemed to be at odds with the prevailing political climate, but also because, as a State licensee, it is a matter of public duty.
CONCLUSIONS
The professional duty of geologist as a scientist, and especially as a licensee, can be compromised when enmeshed in the various problems of local government. For the system in Malibu to have a fairer configuration, an independent method of project review is highly desirable. One approach to this problem is the aforementioned Geology and Soils Engineering Review Board that has been used in Los Angeles County for many years. The Board is composed of members of the County staff as well as licensees from private geotechnical practice.
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