State Board of Architects Update — February 2016

SBOA Report — February 2016

JCorkill_croppedJohn F. Corkill Jr., AIA
Director, MD State Board Liaison

At its February meeting, the State Board of Architects welcomed new Secretary Iris Beasley and Executive Director Steve Long to their first meeting. SBOA also heard from their legal counsel about a new challenge to the registration system we have had since 1935.

In 2010, the US Federal Trade Commission found the North Carolina Board of Dental Examiners in “restraint of trade” when they prohibited non-dentist tooth whiteners from operating shopping mall kiosks.

In 2015, the dentists took the FTC all the way to the US Supreme Court – and lost. Big Time.

Thus, the FTC can continue on its mission of reducing professional services to the lowest common denominator – money. Since 1978, when architects were forbidden to fix their prices, our fees have suffered and the profession labors under a chronic lack of adequate fees, especially on small jobs.

Now, the FTC seems to see greedy monopolists wherever a group of learned professionals have a registration law. FTC brands Registration Board members who are members of the registered profession “interested persons,” meaning they are interested in maximizing their fees as they vote on Board matters.

Some observers are fearful that the zealotry of the FTC will result in stripping Professional Boards of their regulatory power, or disestablishing the Boards altogether.

The only way to avoid federal prosecution is for any such Board to operate as a part of the local state government, to which the Tenth and Eleventh Amendments to the US Constitution grant “sovereign immunity” from legal actions from those, like the FTC, who swear eternal war against monopolies.

In Maryland, the Attorneys General who serve the professional design boards as legal counsel were called into a special meeting to hear about a proposed answer to the above challenge. To make absolutely certain that the Boards are operating under Maryland’s immunity from FTC challenge, DLLR proposes that the DLLR Secretary be given power to countermand any decision by any Board.

There is a Senate Bill in the current legislature, SB1083, that proposes to give any Maryland Cabinet Secretary that ultimate power over the boards, which currently are given final power over their registered professionals, subject, of course, to the courts.

In Maryland, where the past decade has seen sister professions awarded slices of the architect’s pie, the aggressive actions of engineers and others to win turf battles could be seen as “Restraints of Trade,” since there have been no proofs of public harm as justification for forbidding Architects to design the “integral parts” of their buildings as permitted by the Architects’ Law. Thus, the public has to pay for a plethora of professional seals where just one, the architect’s, used be all they needed.

Senate Bill 1083 proposes that the Secretary, or a “Designee,” would have the power to overrule decisions by any Maryland professional board, including SBOA.

Members of the National Council of Architectural Registration Boards have long pointed out that their membership (architects’ board members from the 50 states and some territories) is selected “by the people,” where the AIA is just a self-appointed Trade Association, or a mere pressure group, preying upon the public. But with Senate Bill 1083 passed into law, that claim would no longer hold. Despite the fact that the governors elected by the people of the 50 states appoint board members, since nothing the boards do will have any real power over their professionals, that argument is no longer as strong.

In fact, some have asked, “If board members as “interested persons” only vote for their own pocketbooks and since their boards have no real power, since unelected “designees” may veto any of their decisions, why not save all the bother and disestablish them altogether?

In over twenty years of decisions by the State Board of Architects, it is clear that in Maryland, the architects on the board often vote against their pocketbooks, since their job is to protect the public from their fellow architects, not to increase their profits. Many architects, unaware of the SBOA’s duty to protect the public health, safety and welfare from erring architects, feel that our colleagues on the SBOA should be at the head of our parade, beating the drum for higher fees and better perquisites.

The US Federal Trade Commission seems to share this last opinion, but in Maryland, that is absolutely not the case, and since it is not, Senate Bill Number 1083 is utterly unnecessary.


ARCHIVES

SBOA Report — Winter 2016
SBOA Report — December 2015
SBOA Report — Fall 2015
SBOA Report — Summer 2015
SBOA Report — Winter/Spring 2015