First Amendment

Retired Engineer Offers Free Expert Testimony for Flood Victims. Licensing Officials Threaten Him With Criminal Charges.

Wayne Nutt worked as an engineer for decades. But because he's not licensed, North Carolina's engineering board says that he can't share his expertise in public.

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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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  1. So, if you present yourself as a licensed professional and you’re not don’t be surprised when that attracts the attention of the licensing board.

    Anyway getting that PE license is not difficult the problem is many an engineer neglected to take the FE (formerly EIT) exam early on, so they didn’t want to take two 8 hours tests back to back. Later they complain it’s unfair. Look plan ahead, and don’t blame others for your mistake.

    1. Did you get a free-speech license for your Government-Almighty boot-licking post just now? If not… When they come for YOU… “Look plan ahead, and don’t blame others for your mistake”.

      Did this man ever claim to be licensed when he was not? I see no indication of that, liar!

      Toady!

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    2. nowhere in the article did he claim to be a licensed engineer.. but we understand, just like the cab drivers in NY fighting rideshare apps, you paid the price for entry, and how dare anyone else get in without paying the entry fee.

    3. The fe and pe were developed to make Civils feel better about themselves, and for c/d engineering students to put on their resume

    4. At the same time, nothing makes your stance on free speech and due process more clear than “Only government-approved experts are allowed to testify.”

    5. Where, precisely, do you see evidence that he presented himself as a licensed professional?

      He presented himself as a professional, certainly. But as his entire prior career demonstrates, it is both possible and explicitly allowed under NC law to be a professional engineer without holding a license.

      And by the way, it doesn’t matter how easy the exam is. It could be as easy as spelling your own name correctly and paying a $1 fee – it would still run afoul of the First Amendment

    6. You can always spot a moron who couldn’t be bothered with actually reading the story and thus make bogus complaints about said article they didn’t read.

    7. Buckleup get the fuck out of here you fucking shill.

    8. Remember when the Congress, Senate and President all passed a bill to make it a crime to lie about military honors and service? Remember when the Supreme Court said it was unconstitutional based on the First Amendment? But you think this abridgement of the First Amendment is ok? Get the fuck out of here!

    9. But he did NOT present himself as a “licensed professional.”

      He simply said, “I have expertise in this matter.”
      (If the opposing lawyer doesn’t like that, he can cross-examine.)

      Why should he bother with a PE license? It’s a waste of time.

    10. Nowhere in the article does it say Mr. Nutt presence himself as a licensed engineer so your argument is specious. No one – private or government – has the right to regulate what you say. Mr. Nutt was not even taking money for providing his experience-based opinion. I am a systems engineer but never needed or obtained a license. The lack of a license does not negate my education nor does it mean I cannot refer to myself as an engineer. The Constitution still applies.

  2. >>qualified for an “industrial exemption” to North Carolina’s licensure laws

    and now he doesn’t. pay l’etat or shut up.

    1. As was mentioned in the article, it is very common to require a “Professional Engineer” license if you are actually putting your name on the design documents as the designer of a project. This has nothing to do with anyone, licensed or not, engineer or not, having the constitutional right to make a public statement about that design. And I suspect that everyone objecting here has probably figured that out by now. Unless of course I misread the sarcasm and, in fact, nobody is actually objecting. It wouldn’t be my first time.

  3. I’m not sure what actual expertise a Chemical, Electrical or Mechanical Engineer has in drainage. That work is usually done by a Civil Engineer who has experience and training in that type of work and is familiar with the construction materials and methods involved.

    1. I’m not sure what actual expertise a Chemical, Electrical or Mechanical Engineer has in drainage.

      I’m sure I heard this (or analogous) putdown from someone else:

      If you need to drain molten sodium from a nuclear reactor, you call a nuclear engineer. If you need to regulate the flow of water through a turbine or oil through a refinery, you call an ME. If you need to move 10,000 gallons of liquid reagents to manufacture product in line, you call a chemE. If you need to make sure water runs downhill, you call a CE.

      1. back in college all the other disciplines referred to them as “sidewalk engineers”

    2. Quite a bit for a Mechanical or Chemical Engineer. Both work with flow and piping issues. I’m a Mechanical Engineer and I have a side business doing 3D Heat and Flow modeling. The man mentioned worked in designing chemical plants, so I’d say that he probably knows quite a bit about piping and liquid flow. I’ve designed water cooling systems and know about piping and the sizing of pumps.

      1. That has little to do with calculating runoff and drainage.

        1. Double down on your minimized thinking capacity. Don’t let facts and reasonable explanations faze you.

  4. It is now illegal to say to the government, “your pipe is fucked up, fix it douchebags”.

    You shouldn’t need a license to do that.

    1. Yeah man! Fix yer ditches, bitches!

    2. But if you don’t have a license that they can threaten to revoke, then how are they supposed to make sure that you don’t say things that make them look bad?

    3. Your government is fucked up, fix it Americunts

      1. It’s terminal. It’s systemic. It’s over. The government is in its death throes, they will try to take the world with them. Expect heavy losses of life. I give it 20 years.

  5. Even if he wins, his opinions probably can’t be on Facebook or Twitter – or a video of himself testifying. It’s really all the same discussion just in different forums. We don’t want the ideas discussed so shut the presenter down. At least until those in charge – like with Mats Järlström – decide to adopt the ideas.

  6. So did he stay long enough to get retirement, while knowingly doing nothing until retirement, and then turned on those paying for his retirement?

    1. What article are you reading?

  7. Just ‘cuz you put kittens in the oven don’t make ’em biscuits.

    1. SC has a practice law. You’re not allowed to practice engineering, or hold yourself to be an engineer without a license. This guy does not have a license.
    2. SC’s practice law allows a few occupations to use the title engineer within the very narrow scope of their occupation. People who run choo-choo trains can call themselves engineers so long as they don’t try to design bridges. Similarly, SC’s manufacturing exemption allowed this guy to call himself an engineer so long as he only claimed expertise in the stuff his Company manufactured. Not only does he no longer work at that Company, his testimony in the particular case goes WAY outside of his previous manufacturing expertise.
    3. There is absolutely nothing in South Carolina’s law that prevents him from testifying about this issue. He just can’t lie about his credentials while doing it.

    1. I’m going to also refer you to the Stolen Valor Act and the Supreme Court’s feelings on the constitutional validity of said act. I said feelings so that you can not argue against it with out being systemically racist, sexist, homophobic and several other woke taboos.

  8. This could be a useful case. My experience with state boards is that some of them don’t think the U.S. Constitution applies to them.

    1. What part of the constitution is this particular board violating?

      1. The First Amendment, genius. Try reading the article. Then the Constitution. I’ll save you some effort.

        Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

        1. The first amendment gives you the right to lie about your qualifications in legal proceedings? That’s a new one!

  9. This is a stupid controversy. I’ll bet every one of you dirtbags piling onto buckleup also piled onto “DOCTOR Jill Biden” for not being the kind of doctor you picture when you think of a doctor (which is obviously “DOCTOR Indiana Jones” ;P). So don’t pretend nuance matters to you now.

    Wayne Nutt might be the nicest guy you ever met and he might know a lot about adjacent engineering subjects. This article doesn’t even say what kind of engineering program he completed. Chemical? Mechanical? Industrial? Civil? Wayne Nutt wanted his testimony to have legal consequences for somebody else, and his authority on the subject was called into question by the defense. Any good lawyer would do that. Wayne “god bless’im” Nutt called the licensing board and admitted practicing as a civil engineer without a license. Why does this law exist? Do we want the opinions of not just field-adjacents, students, hobbyists, but also dropouts, crackpots, flat-earthers, etc. to hold equal weight in court to licensed professionals? How would you like an unlicensed lawyer? Wayne Nutt is not being sued by “The Government” for opining at public meetings, he’s being sued for misrepresenting his credentials in a court of law. Did his clients know he was unlicensed? As Tucker Carlson says, “I’m just asking questions,” except I’m being sincere. His testimony could throw a case away from his clients. This (biased) article makes it sounds like he made a mistake. He will pay the fine, he won’t do time if his lawyer clients support him. But here we are now on Reason.com and Youtube.com and other right wing media websites.

    Considering the current times, I question the sincerity of this story. Is this really about how mean the government is being to Wayne Nutt, or is this, as the conclusion seems primed to imply, about pumping up certain groups who make outrageous claims and demands? This article focuses on Wayne Nutt’s self-serving quest to be a court witness against licensed professionals…or maybe just to get out of a $1000 fine. Is this also an invitation for unlicensed therapists who want to “pray the gay away”? Or perhaps certain unlicensed election auditors who want their purple lights and Italian server theories to be taken seriously?

    I would rather pay the $1000 than be an instrument of the right wing propaganda machine.

    1. This!

  10. While serving professionally in the US Navy, I practiced nuclear, electronic, electrical, mechanical, and network engineering. In parallel I also practiced computer hardware, software, embedded, database, system and process engineer on numerous greenfield projects. Add business, operations and intelligence analyst as well as system and network architect. The IT engineering/analyst/architecture was also something I did for the VA, too. Lastly, being subject to recall despite physical disability, I still maintain a nuclear security clearance.

    That’s all documented to a fare-thee-well. Now, some board says that none of those qualifications exist unless I jump through certain hoops? I don’t think so and I’m certain the DoD doesn’t either. These licensing restrictions fly in the face of the First Amendment and a funny little feature of the Declaration of Independence which the Supreme Court does recognize. That is the “pursuit of happiness” which if you aren’t aware has nothing to do with being happy but everything to do with your job/employment of choice. I still work on various projects, actually I spend most of my time not engaging with them. These jobs chase me. It seems they don’t regard state licensing as something to be worried about starting from universities and major IT firms.

    Sorry, these boards seem far more interested in control than in actually shaping their members for better employment. I know, I just checked the California system and it is nothing than a process to extract rents from practitioners. If they have a problem, well Hell, I just refer them to DoD and a bunch of admirals whose careers I saved along the way.

    1. Briny…Had Nutt simply provided his resume as you have, it’s doubtful that the SC board would have become involved. Instead, he represented himself as a Professional Engineer in a legal proceeding. It is likely that he did this to give his testimony more legal weight, because whether you like it or not, the State of South Carolina does, in fact, give the testimony of folks who have taken the time (4 years) to get a PE license more weight than those who haven’t.

      This particular article misrepresents and misconstrues the facts in Nutt’s case.

  11. Most licensing requirements are put in place to a). Generate revenue for the state, and b). Serve as a barrier to entry to reduce competition for those with licenses. Why else would florists be required to have licenses in some jurisdictions? When was the last time you heard of a horrible flower arranging accident? I understand the need to license engineers when it comes to paid services such as designing buildings, roads, bridges, etc. But to speak on a matter like a drainage ditch in court for free, how does paying a fee to the state make any difference?

    1. Jeff:

      Part of SC’s engineering statute includes a heightened standard for Professional Engineers testifying in cases that are matters of public interest. Had Nutt not represented himself as a Professional Engineer, and only as a guy who had engineering training and experience, there would have been no problem. Instead, he claimed to hold a credential (a PE) which he does not have.

      Regardless of whether you believe there is a valid reason for the State to license people, you probably don’t believe that it’s OK to misrepresent one’s credentials when testifying as an expert witness in a legal proceeding.

      That’s what Nutt did.

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