April 24, 2013 – New Mexico Board of Licensure for Professional Engineers and Professional Surveyors v. William M. Turner, No. 31,041

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: April 24, 2013
NO. 	31,041
NEW MEXICO BOARD OF LICENSURE
FOR PROFESSIONAL ENGINEERS AND
PROFESSIONAL SURVEYORS,
Petitioner-Appellant,
v.
WILLIAM M. TURNER,
Respondent-Appellee.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Valerie A. Huling, District Judge
Gary K. King, Attorney General
Santa Fe, NM
Mary H. Smith, Assistant Attorney General
Albuquerque, NM
for Appellant
Martin E. Threet and Associates
Martin E. Threet
Albuquerque, NM
for Appellee

OPINION
HANISEE, Judge.
{1} 	The 	New 	Mexico 	Board 	of 	Licensure 	for 	Professional 	Engineers 	and
Professional Surveyors (the Board) appeals the district court’s reversal of the Board’s
decision finding that William Turner practiced engineering without a license in
violation of the Engineering and Surveying Practice Act (ESPA). The Board argues
that the district court erred by (1) determining that the Board’s interpretation of the
ESPA improperly infringed on Turner’s free speech rights; (2) reweighing the
evidence in the administrative record and substituting its judgment for that of the
Board; and (3) making its own findings of fact. 	For reasons explained below, we
affirm the district court.
I. 	BACKGROUND
{2} 	Turner is a hydrologist, with a Ph.D in geology-hydrology, and was an elected
member of the Middle Rio Grande Conservancy District (MRGCD) Board of
Directors in 2007. Although Turner has taken civil engineering courses relating to
open channel flow, he is not a licensed engineer. In 2007, at the request of one of his
constituents, Turner conducted an inspection of MRGCD irrigation ditches to
substantiate the damage caused by the placement of demolition and construction
waste, which Turner referred to as “un-engineered rip-rap,” into the ditches. For ease

1The term “rip[-]rap” is defined as “a foundation or sustaining wall of stones
or chunks of concrete thrown together without order . . . [or] a layer of this or similar
material on an embankment slope to prevent erosion.” Merriam-Webster’s Collegiate
Dictionary 1011 (10th ed. 2010).
2
of reference, we hereafter refer to the demolition and construction waste as un-
engineered rip-rap 1 throughout this Opinion.
{3} 	Upon completion of his investigation, which focused mainly on the Pajarito
Ditch in Bernalillo County, Turner prepared and presented a report at the February 27,
2007 MRGCD Board of Directors meeting which expressed his concerns regarding
the condition of MRGCD ditches. The report was titled “The Consequences of Using
Un-Engineered Rip-Rap in MRGCD Ditches and Recommendations.” 	The report
criticized MRGCD’s method of using un-engineered rip-rap in ditches to prevent
erosion because “while it may be cheap, [its use] leads to some extremely dire
consequences that affect public safety and the general welfare.” Turner applied the
Manning Equation, a civil engineering mathematical formula, to compare the
conveyance capacity of ditches containing un-engineered rip-rap to that of ditches
with fine sand bottoms. In concluding that water flow is more impeded in rough than
in smooth channels, he asserted that MRGCD’s use of un-engineered rip-rap in ditches
resulted in the “significant reduction in ditch conveyance capacity[ which] means that

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farmers are unable to obtain adequate water supplies.” Turner also cautioned that the
reduction of conveyance capacity could also lead to dangerous flooding in ditch levees
and subsequent bank erosion that could lead to failure. 	The report particularly
criticized MRGCD’s Chief Engineer Subhas Shah, who, according to Turner, directed
the un-engineered rip-rap to be deposited in the ditches.
{4} 	Turner reiterated that he was not an engineer multiple times during the MRGCD
Board of Directors meeting, when giving and in response to comments about his
presentation. 	In addition, Turner insisted that MRGCD should hire a registered
engineer to deal with the issues highlighted in his report. 	At the end of Turner’s
report, he stated that he “is not a registered professional engineer [and that t]his report
should be reviewed by a [r]egistered [p]rofessional [e]ngineer.”
{5} 	Dennis Domrzalski, a contract employee of MRGCD, thereafter filed a
complaint against Turner with the Board, alleging that Turner engaged in the
forbidden practice of engineering without a license when he wrote and presented his
report at the MRGCD Board of Directors meeting. 	In a letter responding to the
complaint, Turner asserted that he “was never paid for the services, nor were the
services ever considered anything more than [an] opinion by a board member for a
reason to obtain a[] licensed [p]rofessional [e]ngineer’s services.”

2See NMSA 1978, § 61-23-23.1(A) (2003) (amended 2012) (“The [B]oard may
investigate and initiate a hearing on a complaint against a person who does not have
a license, who is not exempt from the [ESPA] and who acts in the capacity of a
professional engineer within the meaning of the [ESPA].”).
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{6} 	Nonetheless, the Board’s professional engineering committee conducted an
administrative hearing 2 on December 16, 2009, nearly three years after Turner’s
February 2007 presentation to the MRGCD Board of Directors. At the proceeding,
the Board was presented with testimony and documentary evidence from the Board’s
prosecutor and Turner. 	On February 26, 2010, the Board issued its Decision and
Order containing its findings of fact and conclusions of law. The Board concluded
that Turner had in fact practiced engineering without a license, in violation of the
ESPA, 	NMSA 	1978, 	Sections 	61-23-2 	(2003) 	and 	61-23-3 	(2005), 	“by 	his
investigation and evaluation of the planning and design of ‘engineering works and
systems’—MRGCD ditches—described in his . . . [r]eport . . . and his presentation of
that [r]eport to the MRGCD Board of Directors.”
{7} 	The Board’s decision explained that Turner’s “repeated use of the terms
‘engineered’ and ‘engineering’ in his [r]eport, as used in the context of his
investigation and evaluation of the ‘un-engineered rip-rap’. . ., indicates that [Turner]
engag[ed] in the ‘practice of engineering’ as defined by Section 61-23-3(E).” The

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Board stated that Turner’s report “constitutes ‘engineering’ insofar as it applied the
Manning Equation in his investigation and evaluation of the Pajarito Ditch to conclude
that there are consequences of using ‘un-engineered’ rip-rap in MRGCD ditches.”
The Board’s decision went on to state that Turner engaged in the practice of
engineering “when he applied engineering principles, equations and concepts to
investigate and evaluate the flow of water in MRGCD ditches, and when he compared
‘A Smooth Well-Engineered Ditch’ with ‘A Badly or Completely Non-Engineered
Rip-Rapped Ditch.’ ” Pursuant to NMSA 1978, Section 61-23-10(E) (2005) (stating
that the board has exclusive authority over practice disputes), the Board ordered
Turner to cease and desist from any further unlicensed practice of engineering, pay a
$2,500 civil penalty, and pay an additional administrative hearing cost in the amount
of $2,670.93.
{8} 	Turner timely appealed the Board’s decision to the district court. 	In its
appellate capacity, the district court determined that the Board’s decision was not
supported by substantial evidence. 	The district court concluded that “Turner’s
conduct in evaluating an engineering issue, performing engineering calculations,
writing his conclusions, and presenting them publicly, cannot constitute the practice
of engineering without a license.” 	The district court explained that the Board’s

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actions violated Turner’s First Amendment right to freedom of speech, adding that
“[i]f Section 61-23-10(E) authorizes the [] Board to order Turner to cease and desist
from observing an engineering system, considering possible problems through
calculations and analysis, writing his observations and conclusions, and speaking
public[ly] on these issues, then Section 61-23-10(E) would be unconstitutional.” The
Board now petitions for review of the district court’s reversal. 	We granted the
Board’s petition for certiorari under Rule 12-505(D)(2)(d)(iii)-(iv) NMRA (stating
that we may grant such a writ when a case presents significant questions of
constitutional law or issues of substantial public interest).
II. 	DISCUSSION
{9} 	The Board asserts that the district court erred by determining that the Board’s
application of Sections 61-23-2, -3, and -10(E) to these facts violated the First
Amendment, by reweighing the evidence in the administrative record and substituting
its judgment for that of the Board, and by making its own findings of fact. We apply
the same statutorily-mandated standard of review as the district court in reviewing
administrative decisions. 	Miller v. Bd. of Cnty. Comm’rs of Santa Fe Cnty.,
2008-NMCA-124, ¶ 16, 144 N.M. 841, 192 P.3d 1218. 	“The district court may
reverse an administrative decision only if it determines that the administrative entity

7
acted fraudulently, arbitrarily, or capriciously; if the decision was not supported by
substantial evidence in the whole record; or if the entity did not act in accordance with
the law.” Id. (alterations, internal quotation marks, and citation omitted). This Court
“will conduct the same review of an administrative order as the district court sitting
in its appellate capacity, while at the same time determining whether the district court
erred in the first appeal.” 	Rio Grande Chapter of Sierra Club v. N.M. Mining
Comm’n, 2003-NMSC-005, ¶ 16, 133 N.M. 97, 61 P.3d 806. “Although a court will
generally defer to an agency’s interpretation of an ambiguous statute or regulation that
it is charged with administering, it is the function of courts to interpret the law in a
manner 	consistent 	with 	the 	legislative 	intent.” 	Howell 	v. 	Marto 	Elec.,
2006-NMCA-154, ¶ 16, 140 N.M. 737, 148 P.3d 823.
A. 	The District Court Did Not Err in Determining that the Board’s Decision
Violated the First Amendment
{10} 	The Board construed Turner’s report and presentation to be a violation of
Section 61-23-2, which states:
The [L]egislature declares that it is a matter of public safety,
interest and concern that the practices of engineering and surveying merit
and receive the confidence of the public and that only qualified persons
be permitted to engage in the practices of engineering and surveying. In
order to safeguard life, health and property and to promote the public
welfare, any person in either public or private capacity practicing or
offering to practice engineering or surveying shall be required to submit

8
evidence that he is qualified to so practice and shall be licensed as
provided in the [ESPA]. It is unlawful for any person to practice, offer
to practice, engage in the business, act in the capacity of, advertise or 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, licensed engineer or surveyor unless that person is licensed
or exempt under the provisions of the [ESPA.]
In reversing the Board’s decision, the district court noted the breadth of the ESPA’s
definition of the “practice of engineering”:
“[E]ngineering”, “practice of engineering” or “engineering practice”
means any creative or engineering work that requires engineering
education, 	training 	and 	experience 	in 	the 	application 	of 	special
knowledge of the mathematical, physical and engineering sciences to
such creative work as consultation, investigation, forensic investigation,
evaluation, planning and design of engineering works and systems,
expert technical testimony, engineering studies and the review of
construction for the purpose of assuring substantial compliance with
drawings and specifications; any of which embrace such creative work,
either public or private, in connection with any utilities, structures,
buildings, machines, equipment, processes, work systems, projects and
industrial or consumer products or equipment of a mechanical, electrical,
hydraulic, chemical, pneumatic, environmental or thermal nature, insofar
as they involve safeguarding life, health or property, and including such
other professional services as may be necessary to the planning, progress
and completion of any engineering work. The “practice of engineering”
may include the use of photogrammetric methods to derive topographical
and other data. 	The “practice of engineering” does not include
responsibility for the supervision of construction, site conditions,
operations, equipment, personnel or the maintenance of safety in the
work place[.]
Section 61-23-3(E). With this broad definition in mind, the district court found that

9
the Board’s interpretation and enforcement of Section 61-23-2 were unconstitutional.
{11} 	After reviewing the record, we agree that the Board’s interpretation and
application of the statute were unconstitutional. Despite the definitionally expansive
reach of “practice of engineering,” the Board had the obligation to apply Section 61-
23-2 in a constitutional manner. See State v. Wade, 100 N.M. 152, 154, 667 P.2d 459,
461 (Ct. App. 1983) (stating that courts always strive to construe a statute, “if
possible, so that it will be constitutional”); see also State v. Morley, 63 N.M. 267, 271,
317 P.2d 317, 319 (1957) (“Where two constructions may be reasonably adopted, one
of which will render an act wholly nugatory, and the other will make it effectual, the
latter should be adopted.” (internal quotation marks and citation omitted)).
{12} 	In evaluating the constitutionality of the Board’s application of this professional
regulation, we apply the four-part O’Brien test. State v. Ongley, 118 N.M. 431, 433,
882 P.2d 22, 24 (Ct. App. 1994). Under the O’Brien test, the law will be upheld as
constitutional if it satisfies each of the following elements:
[1] if it is within the constitutional power[s] of the [g]overnment; [2] if
it furthers an important or substantial governmental interest; [3] if the
governmental interest is unrelated to the suppression of free expression;
and [4] if the incidental restriction on alleged First Amendment freedoms
is no greater than is essential to the furtherance of that interest.
Ongley, 118 N.M. at 433, 882 P.2d at 24 (alterations in original) (internal quotation

10
marks and citation omitted) (citing United States v. O’Brien, 391 U.S. 367, 377
(1968)).
{13} 	Consistent with the district court’s ultimate determination, the fourth prong of
the O’Brien test is decisive in this case. 	According to Section 61-23-2, the
government’s stated interest in implementing this statute is to regulate the practice of
engineering in order to “safeguard life, health and property and to promote the public
welfare.” Section 61-23-3 was effectuated to govern the activities of persons who
engage in work and provide professional services in the field of engineering. With this
in mind, “the true test [to satisfy the fourth prong is] whether the restrictions imposed
on free expression by the [ESPA] are greater than necessary to further the State’s
interest in ensuring that only qualified persons practice [engineering] within its
borders.” Ongley, 118 N.M. at 434, 882 P.2d at 25.
{14} 	We first emphasize that the Board’s enforcement of this statute against Turner
for his actions in investigating, writing, and presenting a report on the un-engineered
rip-rap fails to, in any meaningful way, further the objective of the ESPA. 	We
underscore that Turner investigated and reported on the rip-rap issue at a public
meeting of the MRGCD Board of Directors (on which Turner had been elected to sit),
at the behest of a constituent, and that during the meeting, he repeatedly disclaimed

3NMSA 1978, Section 73-14-46 (1927) expressly permits a conservancy board
to make examinations of “stream flow and other scientific and engineering subjects
as are necessary and proper for the purpose of the district[,] and they may issue reports
thereon.”
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any status as an engineer and instead asked for the Board of Directors to seek
evaluation by a licensed engineer. By restricting speech by any person—including an
elected official of a board concerned with the very subject of engineering 3
—under
circumstances where the speaker expressly refuses to offer the services of an engineer,
does not represent himself to be an engineer, and does not speak in a way that would
cause the public to rely on him as an engineer, the Board failed to act in a manner that
advances the objective of the statute. Plainly, life, health, property, and the public’s
welfare were not jeopardized in the least by Turner’s discussion of this engineering
issue as a concerned MRGCD Board of Directors’ member in a public forum.
{15} 	At its worst, the Board’s interpretation of Section 61-23-2 results in a targeted
topical elimination of Turner’s right to freedom of speech: 	it punishes Turner for
participating in public discourse about technical aspects of engineering matters related
to the ongoing management of water in New Mexico. 	Furthermore, the Board’s
statutory 	construction 	prophylactically 	eliminates 	alternative 	channels 	of
communication for Turner to express such ideas. See Ongley, 118 N.M. at 434, 882

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P.2d at 25 (holding that a statute prohibiting the practice of medicine without a license
did not violate the defendant’s right to freedom of speech, where the statute left “open
numerous alternative channels of communication for [the d]efendant to express his
ideas and opinions concerning effective treatment for various diseases or conditions”).
In fact, the Board went so far as to order Turner to globally refrain from further
dissemination of his concerns, the results of his investigation, or his paper in any
manner or place. Yet the Board has no proprietary interest in the words and concepts
of the general field of engineering when professional work is not afoot. Such broad-
brushed 	interpretation 	of 	Section 	61-23-2 	results 	in 	excessively 	burdensome
restrictions on speech that are unnecessary to protect the public from the unlicensed
practice of engineering.
{16} 	We acknowledge that Turner’s investigative work and the actual work involved
in drafting the report can be viewed differently from the pure speech of his
presentation to the MRGCD Board of Directors. 	His investigation and writing
involved to some degree the use of engineering concepts. We conclude nevertheless
that this activity is protected by the First Amendment also. The investigation, written
report, and presentation to the MRGCD Board of Directors comprise a single piece
performed by Turner at the behest of a constituent and in his capacity as an MRGCD

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board member. Without the ability to use words and ideas that have use in the field
of engineering, Turner’s investigation and report would have had nothing of substance
to present at the MRGCD Board of Directors meeting in regard to his belief that un-
engineered rip-rap in the ditches was impeding water flow. It bears repeating that the
investigation was conducted and the report was produced for the sole purpose of
presentation to the Board for its consideration. Turner had no client, engaged in no
business, nor acted in any capacity in which he could reasonably be confused with an
engineer. See Section 61-23-2.
{17} 	The genesis and purpose of Turner’s actions distinguish them from the acts of
the defendant in Ongley. In Ongley, the defendant was not convicted of violating the
Medical Practice Act for delivering a lecture on injection techniques. 	Rather, his
conviction was based on his act of giving injections to patients at the seminar. Ongley,
118 N.M. at 432, 882 P.2d at 23. There, this Court concluded that conduct involving
actual patients was subject to reasonable regulation because it went to the heart of the
state’s interest inherent in the regulation of the practice of medicine. Id. at 434, 882
P.2d at 25. 	Here, the investigation and report were equivalent to the preparation
necessary for and leading up to the lecture which was recognized as protected conduct
in Ongley. Moreover, the Board’s construction of Section 61-23-2 with regard to the

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investigatory aspect of Turner’s actions results in excessively burdensome restrictions
on speech in this context that are unnecessary to protect the public from the unlicensed
practice of engineering. Absent any indication that the investigation and report were
intended for use in any context other than as support for Turner’s presentation to the
MRGCD Board, they are protected expressive conduct.
{18} 	We therefore affirm the district court’s reversal because the Board’s overtly and
unreasonably open-ended interpretation of Section 61-23-2 resulted in constitutionally
impermissible restrictions on Turner’s speech.
B. 	The District Court Adhered to the Proper Standard of Review and Did Not
Engage in Fact Finding
{19} 	The Board opines that the district court “elected to disregard the Board’s ‘fact-
finding competence’ and instead reevaluated the evidence to support a determination
contrary to that made by the Board.” The Board contends that the district court failed
to describe how “the administrative record as a whole did not support the Board’s
[d]ecision.” The Board asserts that the district court did not view the “evidence in the
light most favorable to the Board’s [d]ecision, and improperly ignored the Board’s
expertise in engineering.” The Board also argues that the district court made factual
findings by concluding that Turner’s conduct could not constitute practicing
engineering without a license. We disagree.

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{20} 	The district court concluded that the Board’s application of Section 61-23-2 to
this case was unconstitutional. In its memorandum opinion, the district court noted
the facts as they were stated by the Board in its written decision. The district court
reversed based upon its legal conclusion that the Board’s application of the law to the
facts it found was unconstitutional. 	As such, the district court’s decision is best
characterized as a conclusion that the Board did not act in accordance with the law.
See Miller, 2008-NMCA-124, ¶ 16 (“The district court may reverse an administrative
decision . . . if it determines that . . . the entity did not act in accordance with the law.”
(second alteration, internal quotation marks, and citation omitted)). We conclude that
the district court’s decision was based in law, required no fact finding or reevaluation
of evidence, and was not a product of improper review.
{21} 	Although the Board asserts that only the Board can determine whether a
person’s behavior falls within the statutory definition of “the practice of engineering,”
this assertion is incorrect. 	“When an agency addresses a question of law by
construing or applying a particular statute, courts will grant some deference to legal
determinations that fall within agency expertise.” 	Chavez v. Mountain States
Constructors, 1996-NMSC-070, ¶ 21, 122 N.M. 579, 929 P.2d 971. But our Supreme
Court explicitly cautions that the deference afforded to an administrative body’s legal

16
determinations “is not absolute.” Doña Ana Mut. Domestic Water Consumers Ass’n
v. N.M. Pub. Regulation Comm’n, 2006-NMSC-032, ¶ 10, 140 N.M. 6, 139 P.3d 166.
Courts “will reject an agency’s interpretation even of an ambiguous statute if it
appears unreasonable or inconsistent with legislative intent.” Id. “[I]t is the function
of the courts to interpret the law, and courts are in no way bound by the agency’s legal
interpretation.” Rio Grande Chapter of Sierra Club, 2003-NMSC-005, ¶ 13 (internal
quotation marks and citation omitted). 	“[A] court may [even] substitute its own
interpretation of the applicable law for that of the [administrative body].” Id. We too
“disagree with [the Board’s] characterization of our review function.” Id. Here, the
district court properly exercised its power of judicial review to reverse the Board’s
decision based on its correct interpretation of Section 61-23-2 and the United States
Constitution.
{22} 	Thus, we conclude that the district court did not engage in fact finding,
reevaluating evidence, or improper appellate review. The district court’s reversal was
based upon the Board’s failure to adhere to the constitution in applying Section 61-23-
2.
III. 	CONCLUSION
{23} 	Based on the foregoing, we conclude the district court did not err. We affirm.

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{24} 	IT IS SO ORDERED.
________________________
J. MILES HANISEE, Judge
WE CONCUR:
RODERICK T. KENNEDY, Chief Judge
MICHAEL D. BUSTAMANTE, Judge