(Draft of brief submitted by Arthur Schwartz, NSPE General Counsel, on
or about 3/29/02)

SUPREME COURT
STATE OF LOUISIANA

No.  __________________

DAVID A MONTS,	
			Plaintiff-Applicant
vs.

BOARD OF SUPERVISORS OF LOUSIANA STATE UNIVERSITY AND AGRICULTURAL AND
MECHANICAL COLLEGE d/b/a UNIVERSITY OF NEW ORLEANS, PATRICK M. GIBBS,
FRANK H. SCHAMBACH, and GUSTAVE S. CANTRELL, 

Defendants-Respondents

ON APPLICATION FOR WRITS OF CERTIORARI, MANDAMUS, OR REVIEW DIRECTED
TO THE COURT OF APPEALS, FOURTH CIRCUIT, 
STATE OF LOUISIANA
No. 2001-CA-1497
    
MOTION AND ORDER FOR LEAVE OF COURT TO FILE AMICUS CURIAE BRIEF ON
BEHALF OF PLAINTIFF-APPLICANT DAVID A. MONTS


					RESPECTFULLYSUBMITTED,

MAY IT PLEASE THE COURT:

    The NSPE and the LES through undersigned counsel, respectfully
    submit this amicus curiae brief in support of the
    plaintiff-applicant David A Monts ("Petitioner").  As shown
    herein, this court should reverse the judgment of the Appeals
    Court.

STATEMENT OF THE CASE

The NSPE and the LES are non-profit professional engineering
membership associations.  The NSPE is an individual membership society
with 58,789 individual members throughout the United States and abroad
who practice engineering in industry, government, education,
construction and private practice.  The LES is a state society of the
NSPE and has 1,539 members practicing in Louisiana.  All members of
LES are also members of NSPE.  The stated mission of the NSPE/LES is
to promote the ethical and competent practice of engineering, advocate
licensure, and enhance the image and well-being of its members.  The
core values of the NSPE/LES embrace the protection of the public,
ethical conduct, professionalism, competency, service to the public
and the promotion of engineering licensure for the protection of the
public health and safety.

One of the most important goals of the NSPE/LES and its members is the
promotion of the ethical and competent practice of engineering for the
protection of the public health and safety.  To this end, the NSPE/LES
has developed policies and procedures to encourage the enactment and
enforcement of sound engineering, design, building, construction and
related codes and standard for the protection of the public health and
safety.

The NSPE/LES is deeply concerned the Appellate Court's conclusion that
Petitioner's speech did not address a matter of "public concern" will
effectively negate the crucial role that licensed professional
engineers and architects employed in government and elsewhere play in
rendering essential professional and technical judgment in facilities
design and construction matters.  The Appellate Court's decision will
discourage uniquely qualified licensed professional engineers and
architects employed in Louisiana and elsewhere from coming forward and
advising their employers, clients and members of the public about
critical health and safety matters.

This amicus brief is submitted with the following objectives: first to
urge this court to reverse the decision of the Appellate Court finding
that the code violation complaints by Petitioner were not matters of
public safety;  second, to reverse the Appellate Court's findings that
Petitioner's complaints about Defendant's overruling or ignoring the
recommendations of design professionals on issues of architectural and
engineering design was not protected speech; third, to reverse the
Appellate Court's findings that Petitioner's complaints that
Defendant's tendency to implement architectural and engineering design
projects without a complete review by a licensed architect or engineer
was not protected speech; fourth, that Petitioner's complaint to
Defendant's attorneys regarding design standards and code enforcement
problems that needed to be addressed was not protected speech; and
fifth, to inform the Court as to the broader  ramifications that its
decision will have with respect to not only Petitioner, but also to
licensed professional engineers and architects similarly situated in
Louisiana and elsewhere in the United States.

DISCUSSION

	Pursuant to La. R. S. 37:681. General Provisions, "In order to
	safeguard life, health, and property, and to promote the
	public welfare, any person in either public or private
	capacity, or foreign or domestic corporation, practicing or
	offering to practice professional  engineering,
	shall be required to submit evidence that he is qualified to
	so offer to practice in this state engineering
	, as defined in this Chapter, or to use in connection with his
	name or otherwise assume, use, or advertise any title or
	description tending to convey the impression that he is a
	professional engineer
	, unless such person has been duly licensed under the
	provisions of this Chapter."  By enacting the Louisiana
	Legislature has clearly and unambiguously declared the
	practice of engineering and the work performed by licensed
	engineers to be inextricably bound to the protection of the
	life, health, and property, and to the promotion of the public
	welfare.  Likewise the Louisiana Legislature, though its
	enactment of the Louisiana State Building Code
	(La. R. S. 40:1722) and related state and local electrical,
	mechanical, plumbing codes and standards, has entrusted
	licensed architects and professional engineers with the code
	development, code enactment, code compliance and code
	enforcement.  To assure the public is adequately protected,
	the Louisiana Legislature has established rigorous
	educational, experience, examination and continuing education
	requirements for practicing licensed architects and engineers
	(La. R. S. 37:693).  The Louisiana Legislature has clearly
	recognized the critical judgment that is required to be
	exercised by licensed architects and engineers in a broad
	range of code compliance matters (La. R. S. 37:682(10)(a)).
	The United States Supreme Court has declared that "engineering
	is an important and learned profession."  National Society of
	Professional Engineers v. United States, 435 U.S. 679 (1978).
	For these and other reasons, the Appellate Court's conclusion
	that code-related complaints by Petitioner (which were based
	upon Petitioner's knowledge and expertise as a licensed
	professional engineer in the state of Louisiana) did not
	constitute matters of public concern, is deeply troubling to
	the NSPE/LES and should be reversed.

1. Petitioner's Code Violation Complaints Are Matters of Public
   Concern
 
 One has to wonder what kinds of issues reach the "matters of public
 concern" threshold if not concerns expressed by a duly qualified
 licensed professional engineer regarding electrical, plumbing and
 structural code violations relating to the maintenance and operations
 of public educational facilities inhabited by students, faculty and
 members of the public.  The failure of a facility to comply with an
 electrical, mechanical and/or structural code can result in
 explosions, fires, destruction of property, mechanical breakdown,
 structural collapse, smoke damage, bodily injury and/or death as well
 as the consequential damages relating to these perils.  For the
 Appellate Court to conclude that these matters "cannot be said to be
 matters of public safety" simply defies simple reason.
 
2. Petitioner's Complaints about Defendant Overruling or Ignoring
   Recommendation of Design Professionals on Issues of Architectural
   and Engineering Design Should be Considered Protected Speech.
 
 The Louisiana Engineering Licensure Law La. R. S. 37:682(12) defines
 the obligation of a licensed professional engineer to be in
 "Responsible Charge" of design decisions.  The statute and Louisiana
 Professional Engineering and Land Surveying Board rules define
 "Responsible Charge" as
 "the direct control and personal supervision of engineering work".
 Professional Engineers licensed under the laws of the state of
 Louisiana are disciplined by the Louisiana Professional Engineering
 and Land Surveying Board for failing to comply with the Board's
 Professional Standards (LAC 46:LXI.101-3301) and permitting
 unqualified individuals to exercise "responsible charge" over
 engineering design decisions.    By dismissing Petitioner's
 complaints, the Appellate Court has failed to acknowledge the
 statutory and regulatory "responsible charge" obligation that is
 required of all licensed professional engineers and that is
 fundamental to the practice of engineering and architecture.  A
 professional engineer's exercise of "responsible charge" in the
 rendering of professional services is the essence of the practice of
 engineering.  Therefore, Petitioner's complaints about defendant
 overruling or ignoring Petitioner's recommendations are therefore
 justified under Louisiana law and should be considered protected
 speech.      
 
3. Petitioner's Complaints that Defendant's Tendency to Implement
   Architectural and Engineering Design Projects Without a Complete
   Review by a Licensed Architect or Engineer Should be Considered
   Protected Speech
 
 The Louisiana Engineering Licensure Law La. R. S. 37:682(12) defines
 the obligation of a licensed professional engineer to be in
 "Responsible Charge" of design decisions.  The statute and rules
 define "Responsible Charge" as
 "the direct control and personal supervision of engineering
 work". Professional Engineers licensed under the laws of the state of
 Louisiana may be disciplined by the Louisiana Professional
 Engineering and Land Surveying Board for failing to comply with the
 Board's Professional Standards (LAC 46:LXI.101-3301) and permitting
 unqualified individuals to exercise "responsible charge" over
 engineering design decisions. By dismissing Petitioner's actions, the
 Appellate Court failed to recognize the statutory and regulatory
 "responsible charge" obligation that is required of licensed
 professional engineers and that is fundamental to the practice of
 engineering and architecture. A professional engineer's exercise of
 "responsible charge" in the rendering of professional services is the
 essence of the practice of engineering.  Therefore, Petitioner's
 complaint that defendant's tendency to implement architectural and
 engineering design projects without a complete review by a licensed
 architect or engineer is therefore justified under Louisiana law and
 should be considered protected speech.
 
4. Petitioner's Complaint to Defendant's Attorneys Regarding Design
   Standards and Code Enforcement Problems that Needed to be Addressed
   by Defendant should be Considered Protected Speech
 
 Petitioner's act of reporting certain design standards and code
 enforcement problems that required attention to Defendant's attorneys
 demonstrated a good faith effort by Petitioner to seek the attention
 of those Petitioner believed best able to influence the Defendant to
 correct the problems.  In this connection, in its 2001 NSPE Ethics In
 Employment Task Force Report (www.nspe.org/ethics/eh1-report.asp)
 which was developed in order to assist engineers facing professional
 conflicts in the workplace, the NSPE notes that:
 
  "If there is no company policy, or if the policy does not address
  the particular concern, the employee should get advice from a person
  in the company that the employee trusts. That person should be in a
  position to assist the employee in the proper handling of the
  situation. Some possibilities, as appropriate, are:
 
                Any member of Supervisory Management
                Legal Department (emphasis added)
                Corporate Compliance Administrator
                Personnel
                Corporate Security
                Ethics Hot Line (1-800-888-XXXX) if available 
 
 (NSPE Ethics in Employment Task Force Report, NSPE Ethics in
 Employment Task Force Members: Karen S. Pedersen, P.E., F.NSPE,
 MidAmerican Energy, 
 Professional Engineers in Industry (Chair), Douglas E. Benner, P.E.,
 Professional Engineers in Industry, Robert W. Emery, P.E., Eastman
 Chemical, Professional
 Engineers in Industry, Donald E. Goodwin, Daimler Chrysler, Industry
 Advisory
 Group, K. B. Kleckner, P.E., Goodyear, Industry Advisory Group,
 William J. Lhota, P.E., American Electric Power, Board of  Ethical
 Review, Industry Advisory Group, Jimmy H. Smith, Ph.D., P.E.,
 Murdough Ctr. or Engineering Professionalism, Texas Tech University)
 
 Clearly, NSPE and those public and private entities that participated
 in the Task Force effort recognized that those attorneys representing
 the employing institution were a reasonable and legitimate source of
 assistance and guidance for employees making a sincere and good faith
 effort to resolving an employment concern in the workplace.
 Therefore petitioner's complaint to defendant's attorneys regarding
 design standards and code enforcement problems that needed to be
 addressed by Defendant should be considered protected speech.  
 
5. The Louisiana Supreme Court the broader  ramifications that its
   decision will have with respect to not only Petitioner, but also to
   licensed professional engineers and architects similarly situated
   in Louisiana and elsewhere in the United States

Ironically, because Petitioner did not "go public", but instead stayed
within employer channels, Petitioner's personal and professional
interests have been placed in jeopardy.  Unless the Appellate Court's
decision is overturned, licensed professional engineers and others
employed by public agencies in Louisiana and elsewhere who observe
public misconduct will effectively face a "Hobson's Choice" -  (1)
"stay within agency channels" and seek to resolve the matter
internally, however, in the event of a retaliatory discharge by the
employer, face the likelihood that a court will rule (as the Appellate
Court) that the employee's allegations did not constitute a "public
concern" since it was not publicly reported and was therefore is not
protected under the First Amendment; or (2) "go public", as suggested
by the Appellate Court, severely undermine an existing employment
relationship, and suffer long-lasting if not permanent professional
and personal damage.
   


CONCLUSION

	For the foregoing reasons, the NSPE/LES urges this court
	first, to reverse the Judgment of the Appellate Court and
	reverse the decision of the Appellate Court finding that the
	code violation complaints by Petitioner were not matters of
	public safety; second, to reverse the Appellate Court's
	findings that Petitioner's complaints about Defendant's
	overruling or ignoring the recommendations of design
	professionals on issues of architectural and engineering
	design was not protected speech; third, to reverse the
	Appellate Court's findings that Petitioner's complaints that
	Defendant's tendency to implement architectural and
	engineering design projects without a complete review by a
	licensed architect or engineer was not protected speech;
	fourth, that Petitioner's complaint to Defendant's attorneys
	regarding design standards and code enforcement problems that
	needed to be addressed was not protected speech; and fifth, to
	inform the Court as to the broader  ramifications that its
	decision will have with respect to not only Petitioner, but
	also to licensed professional engineers and architects
	similarly situated in Louisiana and elsewhere in the United
	States.

						RESPECTFULLY SUBMITTED
..................................
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