Key Points

For reasons of public safety New Mexico state law requires that all city public works projects be under the responsible charge of a licensed Professional Engineer (PE) acting on behalf of the city. Santa Fe’s streetlight upgrade project is a public works project, but not under the responsible charge of a PE. Director Wheeler claims to be unaware of the law. Additionally, Director Wheeler and Dalkia Project Developer Ernst both informed a City Councilor, in writing, that there is no engineering discipline or licensure that addresses roadway lighting. This is patently false. It is unimaginable that a qualified public works director, or firm that provides engineering services, could make such a claim out of ignorance: i.e., it is hard to credit the making of this claim as anything but a deliberate attempt to mislead a responsible city official. 

What Does The Law Require?

NM Stat §61-23-26 (2017) reads “It is unlawful for the state or any of its political subdivisions or any person to engage in the construction of any public work involving engineering uses the engineering is under the responsible charge of a licensed professional engineer.”

NM Stat §13-1-66.1 (2020) defines a “Local public works project” to be “a project of a local public body that uses architectural or engineering services requiring professional services costing fifty thousand dollars ($50,000) or more or landscape architectural or surveying services requiring professional services costing ten thousand dollars ($10,000) or more, excluding applicable state and local gross receipts taxes.”

NM Stat §61-23-3 (2017) defines “responsible charge” to mean “responsibility for the direction, control and supervision of engineering or surveying work, as the case may be, to assure that the work product has been critically examined and evaluated for compliance with appropriate professional standards by a licensee in that profession, and by sealing or signing the documents, the professional engineer or professional surveyor accepts responsibility for the engineering or surveying work, respectively, represented by the documents and that applicable engineering or surveying standards have been met”

The streetlight upgrade, with a design and installation cost of over $2.8 million dollars, thus appears to be a public works project. The City of Santa Fe is certainly a political subdivision of the state. Thus, state law requires that the streetlight project be under the responsible charge of a licensed professional engineer. 

Two other provisions of state law are relevant to this discussion. 

NM Stat §13-1-117.2 (2020) appears to place a similar requirement on local public bodies, like the city, when procuring professional services. In this context, “professional services” includes engineers, and construction managers and businesses providing such services. Thus, even the contracting by Santa Fe of Dalkia to provide professional design and engineering services, should also have been under the charge of a licensed professional engineer.

Finally, NM Stat §61-23-27 (2017) reads, in its entirety, “No person except a licensed professional engineer shall be eligible to hold any responsible office or position for the state or any political subdivision of the state that includes the performance or responsible charge of engineering work.” Presumably the Santa Fe Director of Public Works is a responsible position that includes the performance of engineering work. This statute appears to suggest that Santa Fe’s Director of Public Works would need to be a licensed PE, or to have on staff a licensed PE who assumes those responsibilities. Director of Public Works Wheeler is not and has never been a licensed professional engineer and the Department of Public Works has no licensed PE on staff. 

What is a Professional Engineer?

Briefly, a PE license is earned by those engineers who have, through a well-defined combination of work experience & internship, continuing education, and examination, met or exceeded the engineering profession’s highest standard of competence in one or more engineering sub-disciplines. It is not a “lifetime” license or award: maintaining a PE license requires substantial continuing education and professional development in engineering (and, in New Mexico, ethics).  

In the state of New Mexico, Professional Engineer licenses are awarded and regulated by the New Mexico Board of Licensure for Professional Engineers and Professional Surveyors.

Why A professional engineer?

Public works necessarily involve public safety. This is most obvious for bridges, and buildings, and waterworks, sewage treatment plants. It may be less obvious, but is no less true, for street lighting, where over-, under-, or improperly-lighting a street will lead to increased traffic accidents and fatalities. Professional engineers are the leading practitioners of engineering in their profession. 

Professional Engineers should the responsibility not only for their work but also for the lives affected by that work. A substantial part of the education and continuing education of a PE is in professional ethics, as defined by the NSPE Code of Ethics. The first principle of that code of ethics is to “Hold paramount the safety, health, and welfare of the public.” 

Setting-aside the clear public safety concerns, involvement of a Professional Engineer in public works projects provides a municipality legal and financial protection in the event of an accident, a death, or a larger disaster. When a municipality has placed a public works project under the responsible charge of a licensed PE, that municipality has demonstrated that it has done the utmost care in project design and execution. Courts of law recognize this. Courts of law also recognize that the failure to involve a PE – especially where one is required by law – shows a disregard for public health and safety. 

What Did Director Wheeler and Dalkia Claim?

At our request, in August 2021 Councilor Michael Garcia asked Public Works Director Wheeler whether a licensed PE had been placed in responsible charge of the Streetlight upgrade project. After several months without any response from Director Wheeler, in October 2021 he repeated the following questions to Dalkia Project Developer Ernst:

“Questions sent:

    1. Can help me learn if there is a licensed professional engineer in responsible charge of the city streetlight project?
    2. If so, and since professional engineers are licensed by specially, what is the specialty of the professional engineer in responsible charge of this project of the city? 
    3. If we do not have a professional engineer, do you know if the need for a professional engineer for this project was waived by the appropriate NM professional society?”

Dalkia Project Developer Ernst responded:

“For context the National Council of Examiners for Engineers and Surveying (NCEES) administers Professional Engineer exams and awards those licenses. NCEES has no “lighting Engineer” category. The industry standard for lighting design is the National Council on Qualifications for the Lighting Professions (NCQLP), who administers the Certified Lighting Professional examination and awards this licenses. 

We have Randy Shapiro, who holds a Lighting Certification from the NCQLP, working on this project throughout our community-guided design.”

Shortly thereafter Director Wheeler finally responded to Councilor Garcia, stating “I am not aware of a requirement from any regulating agency to have a PE on the streetlight project. There was an appropriately credentialed professional on the lighting design.”

We discuss each of these claims in turn, beginning with Director Wheeler’s. 

Director Wheeler’s claim

If we credit Director Wheeler’s statement at face value then we are faced with staggering conclusion that Santa Fe’s Director of Public Works is, despite four years in that position and being engaged in engineering projects in New Mexico State for her entire professional career, unaware of the fundamental state law governing the responsibilities of her department, her position as Director of Public Works, or public works projects. This law holds for all public works in the state of New Mexico, whether carried-out by the state or by any political sub-division of the state. It is a requirement not just in New Mexico: every state in the United States has a similar requirement. It was the law when Director Wheeler was an “Environmental Services Manager” with the County of Los Alamos, where she claims that she “[l]ed the $10M project to site, permit, design and construct a solid waste transfer station and administration building.” It was the law when she was “Environmental Services Manager” for the City of Santa Fe. It was the law when she was CEO of SunPower by Positive Energy Solar. Other Santa Fe City Departments – notably, Public Utilities – are aware of the requirement and follow it. That Director Wheeler might be unaware of this fundamental responsibility of her Department and her position is all the more remarkable because her predecessor knew these things and the Public Works Department, before her taking it over in 2018, acted in accord with the law. Quite simply, it beggars belief. 

We deal with the statement “[t]here was an appropriately credentialed professional on the light design” below. 

A fundamental precept of factual and moral responsibility is that when a person acts from ignorance, that person is culpable for their action only if they are culpable for the ignorance from which they act. The nature and context of Director Wheeler’s purported ignorance is such that, if she is truly ignorant of the law and her responsibility under it, she is fully culpable for that ignorance and any events that follow from it.

Dalkia Project Developer’s claim

Dalkia Project Developer Ernst’s “answer” to Councilor M. Garcia can only be described as entirely false and grossly misleading:

  • Is there a PE qualification for lighting?
    • Street and highway lighting is a well-established and recognized sub-discipline of Civil Engineering. Lighting and lighting design. Lighting more generally is also understood as a sub-discipline of Electrical Engineering. [Director Wheeler ought to know this: though she has never been a licensed PE her undergraduate degree is in Electrical Engineering.] Typically, a PE for a roadway lighting project would be licensed in Civil Engineering with a specialization in transportation and street or highway lighting.
    • In New Mexico, roadway lighting – streets and highways, and including traffic intersections and their lighting – is the responsibility of state or local Traffic Engineers. Traffic engineering is universally recognized as a sub-discipline of Civil Engineering. Traffic Engineers are generally required to be licensed professional engineers.
    • The City of Santa Fe had a licensed PE traffic engineer on staff, whose responsibility included street lighting. This PE retired shortly just as Director Wheeler was appointed. Director Wheeler has chosen not to fill that vacant position. 
  • Is there an industry standard for lighting design?
    • Lighting standards for all types of illumination – from architectural lighting to interior and exterior lighting to roadway and traffic lighting – are developed by the Illuminating Engineering Society (IES) in collaboration with the with the American National Standards Institute (ANSI). The NCQLP plays no role in the development of lighting standards or in carrying-out any of the research that goes into the development of these standards. 
  • Is the NCQLP “Certified Lighting Professional” qualification an “industry standard” license?
    • The NCQLP is an industry group: it is not an engineering professional society. It does not issue “licenses.”
    • The NCQLP acknowledges and emphasizes the existence of legally required professional engineering certifications and licenses, and plainly asserts that its own certification does not replace those. In particular, the NCQLP emphasizes that the “certification” it offers is not a qualification in lighting design or auditing: from the NCQLP web site (Scope of Practice) “The LC credential is supplemental to and does not replace legally required professional certifications and licenses such as architecture, engineering, and contracting. Because the LC credential is a minimum qualification, it does not recognize expertise. Also, LC is not a specific qualification in highly specialized practices such as lighting design, survey and auditing or lighting product manufacturing.
    • The named “appropriately credentialed [lighting] professional” – Randy Shapiro – works in sales. His Bachelor’s degree is in psychology. He has no engineering background or training.
    • The State of New Mexico does not recognize NCQLP “certification” (not “license”) for any purpose, let alone as a substitute for licensing as a professional engineer or as a qualification for being in responsible charge of a public works project. 

If we assume that Project Developer Ernst wrote, without any attempt to misinform or mislead, her “understanding” to Councilor Garcia, then we must assume that Dalkia as an organization is incompetent or malfeasant in electing to place an incompetent Project Developer “in charge” of the Santa Fe project. This is consistent with Dalkia’s offering guaranteed energy savings contracts in New Mexico without seeking the certification, required by state law, to do so

Frankly, malfeasant is more believable. 

Discussion

The streetlight upgrade project is just one city project. Is failure to follow public safety laws and requirements characteristic of how Director Wheeler’s Public Works Department has functioned in other projects? Knowing her disregard for the public safety responsibilities of her position, how confident are you of your safety using the facilities Mayor Webber has placed her in charge of?

Public Works Director Wheeler, like City Finance Director McCoy, is another Mayor Webber appointment apparently entirely unqualified for her position.

Taking Action

We know it can be discouraging to ask, and ask, and ask, city councilors, local news organizations, and state government officials, and get no reply, or no satisfactory reply. Nevertheless, “nothing in this world can take the place of persistence . .  Persistence and determination alone are omnipotent.” Every email, every letter, every phone call, share, or vote makes a difference. It is the accumulation of each of these acts that lead to change.

We’ve provided what we believe to be a factual and well-documented discussion of what the law appears to require and where the city has fallen short. Write your Councilors and ask them to provide an equally factual and well-documented discussion either confirming or disputing the statements made here: in particular

  • Do the plain words of the state law identified here require, as they appear to, that public works projects be under the responsible charge of a licensed professional engineer? If not, please explain. 
  • Is Director Wheeler, under the plain words of the state law identified here, qualified to be in responsible charge of city public works projects? If not, please explain.

If City Councilors agree that the law requires city public works projects be under the responsible charge of a licensed PE, what are the city councilors going to do to address the problems created by Mayor Webber and his appointees?

Get the word out! Share this blog with everyone you think might be interested in responsible city government. 

The city and area news media have a role to play here as well. Contact the New Mexican, the Santa Fe Reporter, Searchlight New MexicoKRQE TV and KSFR radio news, and other local radio and TV news outlets and urge them to provide their own, independent reporting on the issues raised here. This is a matter of public safety: they ought not let it lie, or be allowed to do so. 

Contact the Office of the State Auditor. City government has a fundamental responsibility to be effective stewards of the taxpayers’ money. Beyond the question of the audits and the Mayor Webber’s governments financial incompetence in keeping its books is the question of whether the city has followed the state law related to public works and public works contracts. The State Auditor’s office is responsible for holding local (as well as state) government and elected officials accountable in the use of public funds.

Contact the Office of the Attorney General and ask that they investigate Santa Fe’s Department of Public Works for violations of laws addressing public safety and the procurement of city services involving public works.