Disclaimer. Presentation Overview 8/7/2013

Transcription

1 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 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 ) Administrative Enforcement Court Enforcement 1

2 NSPE Code of Ethics html Three parts 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 e s in objective e and truthful u manner Faithful agents or trustees of employer/client Avoid deceptive acts Honorable, responsible, ethical, and lawful conduct NCEES Rules of Professional Conduct Rules used to test ethics on FE exam Three obligations: To Society To Employer and Clients To Other Licensees 2

3 Disciplinary Actions Differ by state Some examples: Suspend or revoke a license 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 May be required to provide follow up information or testify before Board 3

4 Administrative Actions Minnesota New York Florida Texas California Louisiana Minnesota (AELSLAGID) Six month lapse in license Self-reported Reprimand/$3,000 fine Delinquent state taxes Revocation New York (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

5 New York Fees from third party Maintaining records Lapse in registration 1-year suspensionspension 2-year probation 100 hours public service $20,000 fine Florida & (FEMC) Rule 61G : sign, seal and date final engineering documents Failed to date Board found plans materially deficient Structures also found structures overstressed at design load Florida & (FEMC) Action: Costs of nearly $12,000 2-year probation 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 5

6 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 June 26 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 g in simultaneous business activity 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 6

7 California Case No. 883-A (CaPELSG) Contract/Cost Dispute August 13, 2004 Contract for tract map August 13, 2004 Developer paid $10,000 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, only, and last billing of $16, 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 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 7

8 Louisiana Case No (LaPELS) Licensee convicted of felony LA Revised Statute 37:698(A)(3) The board shall have the power to take disciplinary i 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, Complete the Board s online Louisiana Laws and Rules Quiz 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. 8

9 Clarke v. Morsilli, 714 A.2d 597 (1998) Parties: Clarke Engineer/RI Board of Registration Anthony Engineer Facts: 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) Facts Moransais hired Bromwell for inspection No defects in report Moransais uncovered defects after purchase PE inspectors were not parties to contract 9

10 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 (4 th 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 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 County provided plans with DHEC seal (sent by Wynn) DHEC requested copy of Wynn s plans Wynn ed(!!) plans to DHEC DHEC discovered invalid permit Wynn convicted of mail fraud and wire fraud 10

11 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 Contact Information: Kodi Jean Church Briggs and Morgan, PA 80 South 8 th Street, t Suite 2200 Minneapolis, MN