Wayne Nutt is a retired engineer who worked for decades at DuPont’s chemical plant in Cape Fear, North Carolina. Since his retirement, he’s frequently lent his expertise to local neighborhood groups by testifying in public meetings about everything from the storm drainage design of new developments to traffic safety plans.
That civic engagement has now made Nutt the target of the North Carolina Board of Examiners for Surveyors and Engineers, which has threatened him with potential criminal charges for testifying about engineering matters.
The board argues Nutt’s pro bono testimony in a recent legal case constitutes the unlicensed practice of engineering, a misdemeanor in North Carolina that can come with the maximum penalties of a $1,000 fine and 60 days in jail. Nutt is now suing the board in federal court, arguing that the First Amendment guarantees his right to talk about engineering.
“It’s intimidating and intentionally so,” Nutt tells Reason. The board “pretty clearly said that only a licensed professional engineer can criticize or testify against a licensed engineer’s design and that’s not good for the public. That’s protecting engineers, that’s not protecting the public.”
An irony of Nutt’s case is that never during his 40-year career was he required to obtain a state engineering license. By virtue of being employed by a manufacturer, he qualified for an “industrial exemption” to North Carolina’s licensure laws.
That lack of a license hardly made him a less qualified engineer, however. His work for DuPont, and later DAK Americas, required him to be familiar with all sorts of chemical processes as well as federal safety regulations.
“I did a lot of research and development, and I did a lot of project work. I became very familiar with the whole process of research, development, design, and construction of a chemical plant,” he says.
Nutt’s retirement in 2013 meant that he no longer qualified for that “industrial exemption.” He nevertheless retained both his technical knowledge and a passion for deploying it in matters that he considered in the public interest.
His lawsuit notes that he’s offered his opinion in public testimony to a number of state agencies, from North Carolina’s Department of Environmental Quality to the U.S. Army Corps of Engineers.
None of this advocacy caused any issues for Nutt until this year. That’s when he agreed to testify for free in a lawsuit being litigated by his son Kyle, who is representing some homeowners alleging the drainage system of a nearby subdivision was flooding their property
In his testimony for the case, Nutt offered his opinion on the capacity and stormwater flow of the contested drainage system. During a deposition, lawyers for the defendant took issue with the fact that Nutt was commenting on technical matters without having an engineering license, and threatened to report him to the Board of Examiners.
In response, Kyle Nutt contacted the board to ensure his father’s testimony didn’t meet the state’s definition of “practicing engineering.” To both Nutts’ shock, a lawyer for the board informed them in a two-page email that “the definition of engineering includes testimony if engineering education, training or experience is required to render the testimony.” In order for the elder Nutt to testify, he had to have a professional engineering license.
The board followed up this opinion with a letter to Nutt in May saying that, because of his testimony in his son’s lawsuit, he was being investigated for the unlicensed practice of engineering.
That opens up Nutt to the possibility of fines from the board, and potentially even jail time. It also could prevent his ability to testify in the upcoming trial in his son’s lawsuit.
So last week, Nutt filed a federal lawsuit in the U.S. District Court for the Eastern District of North Carolina alleging that the Board of Examiners is violating his First Amendment rights by threatening to punish him for mere speech.
“The Board’s position is that it is perfectly legal for Wayne Nutt to spend decades gaining hands-on engineering expertise by designing pipes that are actually built…but that it would unlawful for him to simply publicly state his opinions about a pipe designed by someone else,” reads the complaint.
The lawsuit asks for a permanent injunction prohibiting the Board of Examiners from enforcing its prohibition on people without licenses speaking or testifying about engineering topics.
“The state may be able to regulate what you can build but that doesn’t mean it can regulate what you can say about what other people have built,” says Robert McNamara, an attorney with the Institute for Justice (which is helping to represent Nutt).
McNamara says that the Board of Examiner’s investigation of Nutt is part of a broader pattern of licensing boards acting as if the First Amendment doesn’t apply to them.
The Institute for Justice has previously represented Oregon man Mats Järlström, who was fined for referring to himself as an engineer when arguing that red light cameras in his neighborhood were improperly timed and resulting in unfair tickets. Oregon regulators eventually agreed to drop the fine. Järlström’s red light policy recommendations were eventually adopted by the Institute for Transportation Engineers.
Last month, Reason reported on the case of Charles Marohn, the head of urban policy nonprofit Strong Towns, who is being threatened with fines and other sanctions from Minnesota’s engineering licensing board for calling himself an engineer in speeches and in an author biography on his website while his engineering license was temporarily expired. Marohn is likewise suing his state’s board for violating his First Amendment rights.
“Occupational licensing boards are the new censors in America and they are exercising their power with extraordinary energy,” says McNamara. “If the First Amendment doesn’t apply to licensing boards, an awful lot of people are going to stripped of their right to speak.”
Nutt expresses a similar concern.”There’s a lot of information and expertise just in the public and they’re being discouraged from getting up and talking about a development that might negatively impact their neighborhood,” he says.
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