TO: Massachusetts Board of Registration of Architects
FROM: AIA Massachusetts
DATE: March 11, 2014 (revised since February 18 version) RE: Comments to proposed changes in the Board’s regulations
The Working Group convened by AIA Massachusetts (AIA-MA) has prepared this revised memo in response to the draft proposed changes to the regulations, 231 CMR 2.00 – 4.00, circulated by the Massachusetts Board of Registration of Architects (the Board). The members of the Working Group are Elise Woodward, Dan Lewis, Tom Hartman, John Nunnari (executive director), and Jay Wickersham (legal counsel).
AIA-MA appreciates the effort that the Board has put into reviewing its current
regulations, and making available for review and comment a broad set of proposed draft changes. We are also appreciative of the Board’s openness in meeting with our Task Force and hearing our comments, as the Board works to refine the regulatory changes. This memo reflects discussion at the most recent Board meeting, held on February 19.
We support most of the proposed changes to the Board’s regulations; in this memo we have focused upon a limited number of topics where we believe that further discussion of alternative approaches would benefit the profession and support the Board’s underlying goal of protecting the public health, safety, and welfare.
1) Practice of Architecture
The definition of the “practice of architecture” would be expanded beyond the statute in four ways [see 231 CMR 2.04(2) (draft)], to include the design of:
any assemblies and components of buildings; the interiors of buildings;
space within the site surrounding such buildings; and review of life safety and code requirements.
Comment / suggestion: At the February 19 meeting, Board members suggested removing these changes and returning to the statutory definition. We understand that the first and fourth expansions (assemblies and components; code reviews) have been criticized by the ACEC, although we also note that the architectural statute already contains an exclusion, allowing a professional engineer to “perform such services included in the practice of architecture as may be incidental to his engineering work” [M.G.L. c. 112, §60L(5)]. However, AIA-MA still supports retaining the second and third proposed expansions of the definition of practice (interiors, space surrounding buildings). Both of these types of services are consistent with professional standards of architectural practice; we believe
they would provide valuable clarifications of the architect’s role, without impinging on the roles of engineers or other design professionals.
2) Responsible Control
A) The definition of “responsible control” would be changed to more closely correspond to the standards in the NCARB Model Law, by deleting the provision which currently states that that if technical submissions are prepared in the office where an architect is regularly employed, then it may be presumed that the architect exercised responsible control. [231 CMR 4.01(5)(b)(1) (draft)]
Comment: We support this change, which would align the regulations more closely with national practice standards as represented by the NCARB Model Law.
B) Currently, under the statute and the regulations, any “officer” of a corporation can sign and seal documents if he or she is registered. The draft regulations would narrow the definition of “Officer” to the Chief Executive Officer, the Treasurer, or a member of the Board of Directors: the term “Architect Officer” would designate those Officers who are registered. [231 CMR 2.04 (draft)]
Comment / suggestion: As discussed at the February 19 meeting, AIA-MA is concerned that the changed rule would mean that a corporate Vice President or Secretary who is not on the firm’s Board of Directors could no longer seal and sign documents. This change would have a significant, if unintended, impact on firm structure and governance. In many firms there are multiple Vice Presidents who have the title and responsibilities of a “principal,” including managing projects, signing contracts, and sealing documents, but who are not on the Board of Directors. Preventing these architects from exercising responsible control over projects may hamper them from rising into positions of fuller responsibility; it could also cause a firm’s Directors to be over-extended in their (ostensible) oversight of large numbers of projects.
We also believe that this change is inconsistent with the Massachusetts
Corporations Law, chapter 156D of the General Laws. Under Section 8.40(a) of M.G.L. c. 156D, the term “officer” is defined to include “a president, a treasurer and a secretary and such other officers [as are] described in its bylaws or appointed by the board of directors in accordance with the bylaws.” [emphasis added]
For this reason, we continue to advocate keeping language that is consistent with the current statute and with the Corporations Law. See Attachment A for our proposed modification the regulatory definition of “Officer.” Attachment A also addresses the situation of a member-managed LLC, using language drawn from the existing regulations.
3) Electronic seals and signatures
The regulations do not contain any provision allowing electronic seals or signatures. However, in 2010 the Board adopted a policy permitting electronic signatures (but not seals). The Board has suggested that it could adopt its policy on electronic signatures as
part of the Regulations, and that it could address electronic seals as well. This would be consistent with the NCARB Model Law, which states that an architect’s “signature and seal may be electronic.”
Comment / suggestion: We support adding explicit language to the regulations that would permit the use of electronic seals and signatures. We note that the Engineering Registration Board recently adopted provisions on electronic seals and signatures in its regulations, at 250 CMR 5.03. We suggest that a consistent approach between the two sets of regulations, if found appropriate by the Board, could be efficient and beneficial for both professions.
4) Firm practice rules
Currently, the Massachusetts statute and the regulations require that a registered architect who is an “officer” of a corporate firm must sign the contract and exercise “professional and supervisory” control over the services. [M.G.L. c. 112, §60L(8)] There is no
statutory requirement for firm ownership. (States with similar firm practice rules include Vermont, New Hampshire, Florida, Texas, and California.)
The Board’s draft regulations would create a new two-tier system, with firms classified as either “Professional Firms” or “Firms.” To qualify as a Professional Firm, at least 2/3 of the equity must be owned by “Architect Officers” (see part 2(B) above) who are registered in Massachusetts. Firms that fail to satisfy the 2/3 ownership standard would be categorized as “Firms.” [See 231 CMR 2.04 (draft)] A Firm (but not a Professional Firm) would have to make an extensive annual
filing that describes all of its current projects in Massachusetts. At its discretion, the Board would have the power to require additional filings, and to ban a
noncomplying Firm from practicing in Massachusetts. [231 CMR 4.04(1) (draft)]
Comment / suggestion: As discussed at the February 19 meeting, this proposed change has raised the greatest concern among AIA-MA members for reasons including the following:
The draft regulations would require a Firm in its annual filing to submit complete data on all of its projects, even if the Firm is not the architect of record: that is, master plans, feasibility studies, concept designs, space planning, etc.
The regulations could cause many Massachusetts-based and out-of-state firms whose work is of very high quality to be viewed as “second-rate” because they would be classified as Firms.
Even a corporation that is 2/3 owned by MA-registered architects might be classified as a Firm, because some of the owners would not qualify as Architect Officers.
The Board has not followed the national model for firm practice set forth in the NCARB Model Law. We note that NCARB, in its commentary on the Model Law, expressly says that the benefits of having firms owned by registered architects are
“illusory,” and that this approach was carefully considered and rejected. For the full text and commentary of the NCARB Model Law, go to:
http://ncarb.org/~/media/Files/PDF/Special-Paper/Legislative_Guidelines.pdf We understand from the February 19 discussion that the Board has significant concerns about certain firms that are apparently not observing the legal standards for placing registered officers in responsible control of their Massachusetts projects – with the risk of deficient designs that could endanger the public health, safety, and welfare. The Board wishes to develop a regulatory framework that will enable it to take appropriate
disciplinary actions against such firms, as well as against individual registrants. In response to these concerns, we propose for the Board’s consideration the following alternative approach, which would meet both of the Board’s goals:
to provide publicly available information on firms practicing in Massachusetts; and
to empower the Board to take appropriate disciplinary action against non-compliant firms.
1) As part of the application and/or renewal process, each Massachusetts registrant would have to list the Business Enterprise with which he/she practices (unless the
architect practices as an unincorporated sole proprietorship). In addition, each individual registrant would be asked to reaffirm his/her understanding of the Massachusetts requirement that a licensed officer execute contracts and exercise professional and supervisory control over its services (see 2(B) above).
2) Each Business Enterprise practicing in Massachusetts would make an annual filing, listing its primary business address (in-state, or if none, out-of-state), the names of its officers and directors, and whether each such officer and director is licensed as an architect, engineer, or other design professional in Massachusetts or another
jurisdiction. In addition, the CEO of each Business Enterprise would be asked to reaffirm his/her understanding of the Massachusetts requirement that a licensed officer execute contracts and exercise professional and supervisory control over its services (see 2(B) above).
3) The Board would retain the discretionary ability to require additional
information, and to take disciplinary action, against all Business Enterprises – not just those that are categorized as “Firms.” This would ensure that a Business Enterprise could not evade the Board’s jurisdiction by creating an affiliated entity that qualified as a “Professional Firm.” By enlarging the Board’s powers in this way, the two-tier reporting system for Firms and Professional Firms would no longer be necessary.
See Attachment A for the complete text of our proposed modifications to the regulatory language.
Currently the regulations require LLPs and LLC, but not corporations, partnerships, or other types of business enterprises, to carry professional liability insurance. The insurance coverage can be calculated in one of two ways:
$50,000 + ($25,000 x the number of MA registered architects), up to a cap of $500,000 in the aggregate; or
$300,000 per claim and at least $1,000,000 annual aggregate.
The proposed change would apply this insurance coverage requirement to all Business Enterprises - a category that apparently includes sole proprietorships. [231 CMR 4.04(7)]
Comment: AIA-MA members have voiced significant concerns about the fiscal impact of mandatory insurance requirements upon the large number of Massachusetts architects who are sole practitioners, including both those who have sole proprietorships and those who are incorporated. We do not support this regulatory change because of its fiscal impact upon small businesses. We also do not support an alternative approach that would require architects to make mandatory disclosures to clients about insurance, finding that this is better addressed through contractual agreements of the parties. At the February 19 meeting, members of the Board proposed that the insurance
requirement for LLPs, LLCs, and corporations would effectively be reduced to zero. AIA-MA would support this modification. Note also our proposed modification of the
definition of “Business Enterprise” to exclude sole proprietorships (see Attachment A). 6) Internship
Under the current regulations, a candidate cannot start earning IDP credits until after completing the 3rd year of a professional degree. The draft regulations would remove this time limit. [See 231 CMR 2.04(2) (draft)]
Comment: As with other areas of the regulations, we support making the internship provisions of the regulations consistent with NCARB national standards.
7) Continuing Education
The Board is proposing extensive changes in the continuing education requirements and standards, including the deletion of current provisions that give limited continuing
education credits for teaching courses in architectural programs. [See 231 CMR 3.01 - .03 (draft)] We understand it is the Board’s intention, in making these changes, to have the Massachusetts standards for continuing education more closely correspond to the standards of the AIA
Comment: Although concerns have been voiced about the impact of this regulatory change, we support making the Massachusetts standards consistent with the national standards of the AIA, and we believe that the appropriate forum for future changes would be to lobby the AIA itself.
Attachment A – AIA-MA proposed changes to firm practice provisions
2.04: Definitions
(1) The meanings of words as defined in M.G.L. c. 112, s. 60A shall apply in 231 CMR 2.00 through 4.00 unless otherwise required by the context.
(2) The following words, as used in M.G.L. c. 112, ss. 60A to 60O inclusive and in 231 CMR 2.00 through 4.00, shall have the following meanings unless the context requires otherwise:
. . .
Business Enterprise – means a corporation, partnership, limited liability company, or other form of enterprise, but not including a sole proprietorship.
[delete the definitions of “Firm” and “Professional Firm”]
Officer – means an individual who in the case of a corporation is a president, a treasurer, a secretary, or such other officer as is described in its bylaws or
appointed by the board of directors in accordance with the bylaws a member
of the board of directors, the chief executive officer, or the treasurer; in the case of a limited liability company is a manager (or, in the case of a limited liability company in which management of the business is vested in one or more members, is a member); and in the case of a partnership, is an equity partner. Persons having equivalent authority and responsibility in another form of business enterprise shall also be deemed Officers. [Note: If the definition of “Officer” is changed in this way, to correspond to the statute and the
Corporations Law, then the definition of “Architect Officer” can be retained.] 4.04: Practice by a Business Enterprise
(1) Practice by a Business Enterprise Firm
(a) Basic Requirements for Business Enterprises Firms
A Business Enterprise Firm may hold itself as being able to perform, may enter into agreements to perform, and may perform any of the services involved in the practice of architecture only if the Business Enterprise Firm meets all of the following conditions:
1. All agreements by the Business Enterprise Firm for the
performance of architectural services are executed on its behalf by an Architect Officer;
2. All architectural services performed by the Business Enterprise Firm are performed under the responsible control of the same Architect Officer who executed the agreement unless the Board approves a change in the Architect Officer who is in responsible control;
3. The Business Enterprise Firm timely files all required reports with the Board; and
4. The Business Enterprise Firm acknowledges and agrees that it shall be subject to the sanctions outlined in these regulations if it fails to meet the Board’s requirements.
(b) Required Annual Reporting for Business Enterprises Firms
Every Business Enterprise Firm seeking to engage in the practice of architecture in Massachusetts shall file with the Board, before the last day of January in each year, the following information (which must be
accurate and complete up to the first day of January):
1. The address of the primary office of the Business Enterprise from which architectural services are provided in
Massachusetts, or, if the Business Enterprise does not have such a Massachusetts office, the address of its primary office outside the state. The address of a registered agent does not qualify as the primary office.
2. The names and home addresses of its Officers (and, in the case of a corporation, its directors), and whether each such Officer and director is licensed as an architect, engineer, or other design professional in Massachusetts or any other jurisdiction.
(c) Business Enterprise Firm Additional Recordkeeping
If the Board, in its discretion, determines that the responsible control burden undertaken by an the Architect Officer of a Business Enterprise may exceed his or her capacity (when other responsibilities of the
Architect Officer are taken into account), the Board may direct the Business Enterprise Firm to provide additional records, which may include the following:
[1. is moved from (b) above]
1. With respect to every project in Massachusetts for which the Business Enterprise Firm is currently engaged to provide architectural services:
a. A description of the project identifying the project owner and the location and scope of the project;
b. The name of the Architect Officer who signed the
agreement by the terms of which architectural services are being performed;
c. The date of the agreement; and
d. The name of the Architect Officer who has the project in his or her responsible control.
2. causing the Architect Officer to maintain a log indicating the nature and extent of the Architect Officer’s control, time dedicated, and detailed knowledge of the technical submissions prepared for each of his/ her the projects. A copy of the log shall be submitted to the Board quarterly.
(d) Effect of disciplinary action on Business Enterprises Firms
If an architect employed by a Business Enterprise Firm engages in conduct which constitutes grounds for disciplinary action, in addition to taking action against the architect, the Board may direct the Business Enterprise Firm to remedy the conditions that gave rise to the conduct so as to reasonably ensure that such conduct is not thereafter likely to recur.
(e) Effect of Noncompliance on Business Enterprises Firms
If the Business Enterprise Firm fails to timely submit filings or otherwise meet directives of the Board pursuant to 231 CMR 4.04(1) through (4), the Board may prohibit the Business Enterprise Firm from undertaking any new projects in Massachusetts until the Board is
convinced that the failure has been remedied by the Business Enterprise Firm and will not recur.
(2) Practice by a Professional Firm
A Professional Firm may practice architecture in Massachusetts provided it meets the following requirements:
(a) Any agreement to perform architectural services shall be signed on the Professional Firm’s behalf by an Architect Officer; and
(b) All architectural services performed by the Professional Firm are performed under the responsible control of the same Architect Officer
who executed the agreement unless the Board approves a change in the Architect Officer who is in responsible control.
