Disclaimer Any opinions offered are my own and not those of my - - PDF document

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Kodi Jean Church, PE, F.NSPE Attorney Briggs and Morgan, PA NSPE Annual Meeting July 18, 2013

Disclaimer

Any opinions offered are my own and not those of my employer. No information contained in this presentation is to be construed as legal advice This presentation is provided for

• advice. This presentation is provided for

informational and educational purposes. If presented with a claim or other legal action related to your licensure, consult with an attorney.

Presentation Overview

 Model Rules  Nat’l Society of Professional Engineers  Nat’l Council of Examiners for Engineering

and Surveying (“NCEES”) y g ( )

 Administrative Enforcement  Court Enforcement

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NSPE Code of Ethics

 http://www.nspe.org/Ethics/CodeofEthics/index.

html

 Three parts  Fundamental Canons  Fundamental Canons  Rules of Practice  Professional Obligations

NSPE Fundamental Canons

 Six Cannons  Safety, health, and welfare of the public  Area(s) of competence  Public statements in objective and truthful manner

ub c s a e e s

• bjec

e a d u u a e

 Faithful agents or trustees of employer/client  Avoid deceptive acts  Honorable, responsible, ethical, and lawful conduct

NCEES Rules of Professional Conduct

 http://www.ncees.org  Rules used to test ethics on FE exam  Three obligations:

To Societ

 To Society  To Employer and Clients  To Other Licensees

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Disciplinary Actions

 Differ by state  Some examples:  Suspend or revoke a license  Civil penalties  Civil penalties

○ Ex: “up to $10,000 per violation”

 Fees for costs of proceedings  Community Service  Education

Complaints

 May have “duty” to report  Requirements to report differ by state  Compile supporting materials

M b i d t id f ll

 May be required to provide follow up

information or testify before Board

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Administrative Actions

 Minnesota  New York  Florida

T

 Texas  California  Louisiana

Minnesota

 2011-0065 (AELSLAGID)  Six month lapse in license  Self-reported  Reprimand/$3,000 fine

Reprimand/$3,000 fine

 2012-0046  Delinquent state taxes  Revocation

New York

 25622 (NYS Office of the Professions)  Applicable Rules:  Board of Regents, Section 29.1(b)(3)  Board of Regents Section 29 3(a)(4)  Board of Regents, Section 29.3(a)(4)  Education Law, Article 145, Section 7206

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New York

 Fees from third party  Maintaining records  Lapse in registration

1 ear s spension

 1-year suspension  2-year probation  100 hours public service  $20,000 fine

Florida

 2007050379 & 2007068938 (FEMC)  Rule 61G15-23.002: “sign, seal and

date” final engineering documents

 Failed to date  Failed to date  Board found plans materially deficient  Structures also found structures over-

stressed at design load

Florida

 2007050379 & 2007068938 (FEMC)  Action:  Costs of nearly $12,000  2-year probation

y

 NCEES Structural Exam  Appear before Board  Approved Engineering Professionalism and

Ethics Course

 Submit list of all completed projects after

reinstatement

 Project Review at 6 and 18 months  Complete Board study guide

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Texas

 Case No. D33735 (TxBPE)  Employment contract dispute  Brought by former engineering firm

employer

 “Conflict of Interest” conditions to be

avoided:

 Engage in activity compromising professional

integrity of firm

 Receive gifts from present or potential interested

parties

 Ownership of firms that could benefit from

company projects

 COI violation “is ground for termination”

Texas

 Employment Timeline  June 8 – officially resigned from KOI  June 5 – Received proposal for geotechnical

investigation from HTS g

 June 26 – Email to HTS “This puts me in a

very uncomfortable position.”

 July 1 – Updated record to AES  Board found engineer initiated engineering

proposal as AES while employed by KOI

Texas

 Board found:  Engineer failed to honor employment

contract

 Engaged in “simultaneous business activity”

g g y

 Engineer responded to Board:  Never signed employment agreement  Claimed resignation on May 29, not June 8  1-year suspension, $2,000 fine, and

Level I engineering ethics course

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California

 Case No. 883-A (CaPELSG)  Contract/Cost Dispute  August 13, 2004 – Contract for tract map  August 13, 2004 – Developer paid $10,000 retainer: retainer:

○ “as credit toward [engineer’s] future monthly

billings for services.” (emphasis added)  May 26, 2005 – County processed tract map  September 7, 2005 – Engineer’s involvement

ended

 October 21, 2005 – Developer received “first,

• nly, and last billing of $16,012.50”

 December 5, 2004 – Complaint filed with Board

California

 Findings – Engineer failed to:  Research latest design standards  Include preliminary grading, sewer, etc on Tract Map  Meet site plan approval time limits  Prepare preliminary drainage study  Verify accuracy of engineering work  Maintain project communications  Include time completion milestones in contract  Determine development standards that applied to the project  Engineer “falsely claimed to the Board that his [tract map] included all” County requirements.

California

 Contract for services insufficient under the

Business and Professions code because it failed to:

 Provide accurate description of services  Include license number  Provisions for additional services  Provisions for additional services  Stipulated agreement:  Stayed license revocation  4-year probation  Submit reports  $5,000 fine  Take and pass Board Rules Exam  Notify all prospective customers of the violation  College level course or 30 hours of CLE credit

related to land planning

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Louisiana

 Case No. 2010-118 (LaPELS)  Licensee convicted of felony  LA Revised Statute 37:698(A)(3)  “The board shall have the power to take di i li ti i t li disciplinary action against any licensee . . . Found by the board to be guilty of . . . (3) Conviction of a felony or of any crime of moral turpitude or entry of a plea of guilty or nolo contendere to a felony charge or to a crime of moral turpitude under the laws of the United States or any state, territory, or district of the United States

Louisiana

 Enforcement:  Suspension for a year  Administrative costs of $2,024.85  Complete the Board’s online Louisiana Laws and Rules Quiz  Complete the Board’s Louisiana Professionalism and  Complete the Board s Louisiana Professionalism and Ethics Quiz  Submit updated violence risk assessments performed by a Medical Psychologist at the 5 and 10-month intervals during suspension  An additional year of suspension, and $2,000 fine, for each failed violence risk assessment  Revocation of license for failure of any violence risk assessment performed during any additional suspension period;  Publishing of this matter on the Board’s official journal.

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Clarke v. Morsilli, 714 A.2d 597 (1998)

 Parties:  Clarke – Engineer/RI Board of Registration  Anthony – Engineer  Facts: Cl k ti i t d i A th ’ di i li  Clarke participated in Anthony’s disciplinary proceedings (1-year suspension for firm)  Clarke’s firm took Anthony’s firm’s construction project  Anthony filed complaint  Disposition:  Code of Ethics violation  Reversed fine

In re Robbins, 737 A.2d 370 (1999)

 Parties:  Robbins – Engineer for Dept. of Env. Consv.  Labor Relations Board – Denied Robbins’ grievance  Facts:  Robbins was employed by DEC  Responsible for disposal permits  Refused to approve an application  Filed a grievance that he was forced to approve application  Disposition:  The DEC did not interfere with ethical cannons  Although Robbins was a PE, his responsibilities did not require a PE License

Moransais v. Heathman, 744 So.2d 973 (1999)

 Parties:  Moransais – Home Buyer  Heathman – Home Seller  Bromwell & Carrier – Inspector (PEs)

Bromwell & Carrier Inspector (PEs)

 Facts  Moransais hired Bromwell for inspection  No defects in report  Moransais uncovered defects after purchase  PE inspectors were not parties to contract

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Moransais v. Heathman

 Disposition:  Defects were of the type that should have been discovered during inspection  FL Law holds professionals liable for negligent acts  Liability regardless of whether they signed the contract  “performing architectural and engineering services are performing professional services, and the law imposes upon such persons the duty to exercise a reasonable degree of skill and care, as determined by the degree of skill and care ordinarily employed by their respective professions under similar conditions and like surrounding circumstances.”

United States v. Wynn, 684 F.3d 473 (4th Cir. 2012)

 Parties:  Wynn – Engineer for runway plan  Talbert & Bright – Wynn’s employer  Oconee County – Contracted with Talbert  Dept of Health and Env Ctrl Agency from  Dept. of Health and Env. Ctrl – Agency from whom permits were required  Facts:  Wynn drafted stormwater & erosion plan  County approved plans  Wynn failed to send plans to DHEC for permit  Lead engineer asked Wynn for DHEC permit  Wynn cut seal off other plans and copied it onto runway plans

United States v. Wynn

 The precipitating event:  Severe rains caused “orange-colored” water runoff to nearby properties  DHEC inspected site and asked for plans and permits pe s  County provided plans with DHEC seal (sent by Wynn)  DHEC requested copy of Wynn’s plans  Wynn emailed(!!) plans to DHEC  DHEC discovered invalid permit  Wynn convicted of mail fraud and wire fraud

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United States v. Wynn

 Wynn’s defense:  Did not intend to defraud County or DHEC  Misrepresentation was not “material”  Did not use interstate wires to deceive Oconnee County  Court’s Decision  Declined to reverse conviction  Cut & pasted seal so “the DHEC would not interfere with construction and the County . . . would continue to pay Talbert”  Material because “had a natural tendency to influence . . . target”  $118,000 in damages + fraud charges

Key Concepts

 Identify actual or perceived conflicts early  Understand limitations of licensure and practice  Ensure compliance with necessary requirements  Disclosure  Disclosure

Contact Information:

Kodi Jean Church Briggs and Morgan, PA 80 S th 8th St t S it 2200 80 South 8th Street, Suite 2200 Minneapolis, MN 55402 612.977.8591