NZRAB Disciplinary Procedures Manual

Transcription

1 1 As at 1 October 2015 Contents Page No 1. Introduction 2 2. Schematic of NZRAB complaints and discipline procedures 3 3. Complaints and Discipline Procedural Description 4 Investigating Committee 4.1 Investigating Committee Procedures in Detail The Logic Required of IC decisions Legal advice on Grounds for Dismissal by the Investigating Committee 10 Disciplinary Hearing 5.1 Disciplinary Hearing Procedures in Detail Procedure if an architect accepts there are grounds for discipline A Guide to Setting Penalties Aide Memoire for Organising Disciplinary Hearings Delegations 24

2 2 1. Introduction On 29 May 2015, new disciplinary procedures came into effect applying to current and former New Zealand Registered Architects, as required by the Registered Architects Act 2005 (the Act) and the amended Registered Architects Rules 2006 (the Rules). This manual describes how they work and provides other information to assist primarily: the Chair of the Disciplinary Hearing the other members of the Disciplinary Hearing the Chair of the Investigating Committee the other members of the Investigating Committee the Executive Officer and other secretariat staff. This manual is a living document and will be amended as required. The procedure is as follows: 1. A written complaint is received. 2. The secretariat determines if the NZRAB has jurisdiction. To have jurisdiction the complaint must be about a person who was a Registered Architect at the time the alleged events occurred and the alleged events must have occurred after 1 July If there is jurisdiction, the architect complained about (the architect) is advised of the complaint and asked to provide a written response. 4. The complaint and the architect s written response are submitted to an Investigating Committee which comprises three people, two of which must be Board members and one of which must not be an architect. 5. The Investigating Committee investigates the complaint. This may be done just on the documents provided, or the committee may interview the parties. However, at this stage a hearing with both parties present does NOT occur. 6. The Investigating Committee decides either to dismiss the complaint or that there is a case to answer. 7. If the Committee decides that there is a case to answer then a Board Disciplinary Hearing is held. 8. A Board Disciplinary Hearing is a formal hearing with both parties present, legal representation etc. The hearing is technically a Board meeting and the persons presiding are exclusively Board members. 9. The Board Disciplinary Hearing hears the complaint and decides whether or not there are grounds for discipline. 10. If there are ground for discipline submissions are received on penalty and then a penalty is imposed. This procedure is made possible by a series of delegations from the Board to the Board Chair, the Chief Executive and Investigating Committees. The delegations are appended at the end of this document. The procedure is also represented in the schematic overleaf

3 3 2. Schematic of NZRAB complaints and discipline procedures Complaint Received by office Staff check jurisdiction etc Complaint rejected if no jurisdiction etc Architect s response sought by staff Investigating Committee (IC) selected and advised IC conducts investigation forms view as to whether or not there is a case to answer Complaint dismissed IC decides Board Disciplinary Hearing required Board conducts Board Disciplinary Hearing decides whether or not there are grounds for discipline Complaint dismissed Board receives penalty submissions Board decides penalty

4 4 3 Complaints and Discipline Procedural Description Complaint laid 1. The NZRAB s disciplinary procedures require as a starting point that a complaint is laid. 2. A complaint: a. must be about the conduct of a Registered Architect (section 24(1) of the Act) b. must be in writing (Rule 59(2) c. must indicate what part of section 25(1)(a) to (d) of the Act and, if applicable, what part of the architects code of ethical conduct the complainant believes has been breached (Rule 59(d)). 3. A complaint must be dismissed: a. if it is about a person who was not a Registered Architect at the time the alleged events occurred (Rule 59(1)) b. the matter has already been dealt with or is already being dealt with (Rule 62(a)) c. the alleged events occurred prior to 1 July 2006, there being no provision for this in the Act (Rule 62(b)). 4. If the complaint is dismissed, the complainant is notified of the decision and the reasons (Rule 64(1)(a)), and the person complained about is also notified, unless the person complained about is not a Registered Architect (Note: this is a policy choice derived from Rules 64(1)(c) and 64(2)). 5. If the complaint is not dismissed under Rule 61, then a complaint file is created, the complaint is given a reference number and it is referred to an investigating committee. 6. In addition, the NZRAB can on its own account initiate a disciplinary procedure (inquiry) as if the NZRAB is the complainant (Rule 60). Under a Board delegation this can be done by the Chair or Chief Executive. Investigation 7. Once the NZRAB has decided not to dismiss a complaint under Rule 62, it is referred to an Investigating Committee (IC) to be investigated (Rule 61(a)). The Board appoints a number of ICs and the CE determines which IC a complaint is referred to. 8. At the same time, the architect complained about (the architect) is notified, provided with a copy of the complaint, and invited to provide a written response within 20 working days 1. The architect must also be advised that his or her written response may be the only opportunity he or she has to respond prior to a disciplinary hearing (Rule 65). Note also this must have occurred at least 30 working days before a Disciplinary Hearing is held (Rule 74(a)). 9. The IC must consist of at least two NZRAB Board members and one non-member. At least one member must be an architect and one must not be an architect (Rule 90). If 1 Twenty working days is 20 working days exclusive of the day of notification.

5 5 possible, the Board Chair should NOT serve on ICs to preserve his/her independence. 10. The IC then conducts its investigation (Rules 66, 67). The IC has control of its procedures (the Act, section 57 of the schedule see also Rule 67). A description of how ICs typically operate and legal advice as a guide for the IC when determining whether or not the complaint should be dismissed or referred to a Disciplinary Hearing (DH)(Rules 68 and 69) are provided below. 11. If the IC determines that there are one or more grounds to dismiss the complaint under rule 69, the IC prepares a report to the Board (Rule 66(1)) and then, under a delegated authority from the Board, the IC considers its report and decides that the complaint shall be dismissed. That ends the matter. 12. If the IC determines that there are no grounds to dismiss the complaint under rule 69, the IC likewise prepares a report to the Board (Rule 66(1)) and then, under a delegated authority from the Board, considers its report and decides that the complaint shall be referred to a Disciplinary Hearing (DH). 13. Note that if the IC decides under its delegated authority to dismiss the complaint, the IC s Report to the Board is available to the Board for its information, and if the IC decides under its delegated authority that a DH is required, then the IC s Report to the Board is provided to the DH, which, as per Rule 73(1), is a Board meeting. 14. When the IC makes a rule 68 decision to dismiss a complaint or refer it to a DH, the parties must be notified, provided with the reason for the decision and given a copy of the IC report (Rule 71(1)). 15. If the decision is to refer the complaint to a DH, the architect is also advised that, if appropriate, he or she should consider accepting that there are grounds for discipline under section 25 of the Act and given 20 working days to consider his or her response (policy). If the architect accepts there are grounds for discipline under section 25 of the Act, a different procedure applies, as outlined in Procedure if an architect accepts there are grounds for discipline. 16. Otherwise the IC provides its report and the complaint file to a lawyer (the prosecutor) retained by the Board who then prepares the charge that shall be the basis of the DH. Disciplinary Hearing 17. When a case is referred to a DH, the Board Chair consults with Board members and obtains agreement as to which Board members shall serve on the DH, in order to ensure that quorum requirements are met and conflicts of interest are avoided. 18. A DH is legally a Board meeting (Rule 73(1)), and so DH members must be Board members and the DH must be of a sufficient number to constitute a quorum under clause 29 of the Schedule to the Act (three for a six-person Board, four for a seven- or eight-person Board).

6 6 19. When a complaint is referred to a DH, the parties must be notified (including date, time, place and reason) and provided with the charge and the IC Report on the complaint (Rule 71(1). The architect is also provided with the complaint and invited to submit a response etc within 20 working days. which is forwarded to the DH members and the prosecutor prior to the DH (Rule 74(1) and Rule 76(1)(a)). 20. Prior to the hearing other steps can be taken to bring together information required for the hearing (Rules 74(1) and 75)). 21. At the DH the complaint is heard and a determination is made as to whether or not the charge as laid has been proved (Rule 72), this being a Board decision given that the DH is a Board meeting under Rule 73(1). A description of how DHs work is provided below. 22. Once the DH has made its decision, the parties are notified and advised of their appeal rights (Rule 78(1)). 23. If the DH decides to dismiss the complaint, that ends the matter (Rule 72(a)). 24. If the DH determines that there are grounds for disciplining the architect, the parties are invited to make submissions in regard to penalty, costs and public notification within a 20 working day period (Rule 78(1)). The DH then considers those submissions and makes final decisions in regard to penalty, costs and public notification. 25. Twenty working days after the notification of penalty, costs and public notification (to cover the appeal period) any board actions required in relation to penalty, costs and public notification are taken (Rule 78(2)). 26. Where a person has been ordered to pay a fine or costs under section 26(4) of the Act, payment may be made over 12 months if the person has presented a plan involving regular payments that the NZRAB has agreed to. If no such plan has been presented and agreed to and payment is not made, then, subject to a Board decision, 60 days after the date of the invoice for payment, if the person is a Registered Architect, his or her registration shall be suspended and then after 12 months cancelled, as allowed for under section 27(b) of the Act, and reasonable efforts shall be made to recover the money where practical. 27. Details of any penalty are affixed to the architect s entry of the New Zealand Architects Register for three years, as required under section 21(1)(a)(iii) of the Act. 28. The DH s decisions in regard to grounds for disciplining the architect and penalty are recorded as a Board minute and displayed on the NZRAB s website among the Board minutes in the usual way. If the finding is that there are grounds for disciplining the architect and the DH decides there shall be NO public notification, the name of the architect and the DH reports on grounds and penalty shall be redacted from the NZRAB s Board minutes on the NZRAB website (policy).

7 7 4.1 Investigating Committee Procedures in Detail The following describes a typical Investigating Committee (IC) investigation, though ICs are free under section 57 of the Registered Architects Act 2005 (the Act) to regulate their own procedures. This note also describes the logic of what the IC has to decide. 1. Prior to the IC commencing its investigation, the parties and the IC members are sent the complaint and architect s response, along with the relevant sections of the Act and the Registered Architects Rules 2006 (the Rules), which together form the complaint file (Rule 64(1)(a). The parties are also advised of the role and membership of the IC. 2. IC members read the complaint file and the IC Chair drafts a proposed inquiry plan. 3. An initial teleconference occurs at which the IC discusses the proposed inquiry plan and the complaint in general. 4. At the same teleconference, the IC decides if it needs any further information from the parties (Rule 67(c). For example, if the complaint is voluminous the complainant should be asked to identify the key facts and documents. 5. Minutes are taken at the first and subsequent teleconferences or meetings which are checked by the IC Chair and circulated to IC members. 6. The Executive Officer actions any IC requests for additional information, which when received is sent to IC members and the parties (the IC must clear whether the information sent to the other party is FYI or a further response is being requested). At least 20 working days are given to allow responses to additional information requests. 7. If during the IC process the parties submit unsolicited additional information the IC shall decide whether or not to receive it. 8. The IC holds further teleconferences or exchanges to discuss the complaint and any new information as required. 9. Once the IC has completed its investigation it forms a view as to whether the complaint should be dismissed or a Disciplinary Hearing is required (Rule 66). 10. If the IC comes to a preliminary view that it intends to dismiss a complaint under Rule 69(a) on the basis of evidence presented by the architect, the complainant should be invited to respond to the evidence prior to a final decision being made. 11. The IC Chair drafts a report to the Board that describes what the complaint is about and includes the IC s recommendation to the Board as to whether the complaint should be dismissed or a Disciplinary Hearing is required and the IC s reasons for its recommendation (Rules 66(1) and 71(1)). 12. Then, under their delegated authority, on the Board s behalf, the IC members consider the report and decide whether the complaint should be dismissed or a Disciplinary Hearing is required (Rule 68).

8 8 13. The IC s decisions are actioned by the EO (Rule 71). Meeting the parties Typically ICs do not hear submissions from the parties. However, sometimes ICs decide otherwise. The typical process for this is as follows: 1. The IC will have determined the objective of meeting with the parties, usually by teleconference in advance. 2. The parties are advised of the IC s focus to assist them prepare. 3. Typically the IC meets the parties in the locale of the complainant and architect. 4. The IC meets the complainant first and then the architect, in both cases without the other party present. 5. The IC may take private time during the meetings to consider matters. 6. The EO takes notes for the IC recording procedure but not the evidence presented, which subsequently are checked with the IC Chair and then circulated to the IC members, but not the parties. The services of a stenographer or recording technologies are NOT used. 7. Any additional written information tendered by either party during the meeting is given to the other party afterwards. 8. The parties are entitled to be represented or accompanied by a support person.

9 9 4.2 The Logic Required of IC decisions 1. In regard to the decisions that ICs are required to make, the following applies. 2. The IC s task is NOT to determine whether or not there are grounds for disciplining the architect. That is the role of the DH. The IC is required to determine whether the complaint should be dismissed or a DH is required to determine whether or not there are grounds for disciplining the architect. The IC can only dismiss a complaint if at least one of the grounds sited in Rule 69 apply. 3. Rule 69(a) says the IC, under a delegated authority from the Board, may dismiss a complaint if there is no applicable ground of discipline under section 25(1)(a) to (d) of the Act. 4. This means that the complaint should be dismissed if either: o o what s alleged, even if true, is not something for which an architect could be held to account under section 25(1)(a) to (d) of the Act; or the evidence does not establish a prima facie case; in other words, there is no case to answer. The test is whether a reasonable DH could find the charge proved on the evidence presented by the complainant. It is not for the IC to decide disputed questions of fact. 5. Note that if the IC comes to a preliminary view that it intends to dismiss a complaint under Rule 69(a) on the basis of evidence presented by the architect, the complainant should be invited to respond to the evidence prior to a final decision being made. 6. If the complaint cannot be dismissed under Rule 69(a) then the IC must consider whether or not the complaint can be dismissed under the other grounds in rule 69, namely that: (b) the subject matter is trivial; or (c) the matter is insufficiently grave to warrant further investigation; or (d) the complaint is frivolous or vexatious or is not made in good faith; or (e) the complainant does not wish action to be taken or continued; or (f) the complainant does not have a sufficient personal interest in the subject matter of the complaint; or (g) a disciplinary hearing is no longer practicable or desirable given the time that has elapsed since the matter giving rise to the complaint or inquiry arose. 7. Legal advice as to what these grounds for dismissal mean is provided below.

10 Legal advice on Grounds for Dismissal by the Investigating Committee GUIDANCE IN RELATION TO RULES 68 AND Rule 68 provides that the Board must either refer a complaint to a disciplinary hearing or dismiss the complaint on a ground in rule The Board cannot dismiss a complaint for any reason other than one of the rule 69 grounds, (e.g. it is not a ground for dismissal that the architect is famous, or very prominent within the profession or has an excellent record). 3. Rule 69 provides that the Board may dismiss a complaint or an inquiry without referring it to a disciplinary hearing if one of the grounds in (a) to (g) is established. 4. The significance of the word may is that it is not compulsory for the Board to dismiss a complaint if one of the grounds in (a) to (g) is established. The Board has a discretion, which, like all discretions, must be exercised for a proper purpose (protection of the public interest, maintaining professional standards, deterrence), taking into account relevant considerations (the allegations about the architect s conduct), and ignoring irrelevant considerations (e.g. personal animosity towards or dislike of the architect concerned). 5. If one or more of grounds (a) to (d) or (g) were established it is hard to imagine a case in which the Board would not dismiss the complaint. However there is scope for the Board to refer a complaint where ground (e) or (f) applies. 6. For example it might be that dismissal reason (f) (complainant has no stake in the matter) could be applied, but the complaint should be referred because the complaint is about a serious matter in which the public interest is involved. 7. The grounds upon which a complaint may be dismissed are as follows: (a) There is no applicable ground of discipline under section 25(1)(a) to (d) of the Act This ground applies in two situations: (i) (ii) where the facts alleged do not come within the grounds set out in s25(1)(a) to (d), so that, even if the facts alleged were true, they could not provide a reason for disciplining the architect concerned (e.g. the architect is accused of something that has nothing to do with the architectural process, such as being a member of a particular religion or organisation); and where the evidence does not establish a prima facie case. In other words there is no case to answer. This may occur where the complainant has failed to provide sufficient evidence, or where the architect has provided evidence, which completely refutes the complaint and there is no reasonable dispute about it (e.g. the complainant alleges that no terms of appointment were agreed before the architect undertook professional work; the architect produces an agreement signed by both parties containing all the necessary terms; and the complainant does not challenge the authenticity of the document).

11 11 (b) The subject matter of the complaint is trivial This ground applies where the facts alleged come within the grounds set out in s25 (1)(a) to (d) but the matters complained of are insignificant, paltry or inconsequential, and could not on any reasonable basis justify disciplinary action. (c) The alleged complaint is insufficiently grave to warrant further investigation This ground applies where the matters complained of or their consequences cannot be dismissed as trivial but are not weighty, important or serious enough to justify disciplinary action. (d) The complaint is frivolous or vexatious or is not made in good faith This ground applies where the complaint is without merit, i.e. there are no tenable grounds for making the complaint and it is: (i) trifling or superficial (frivolous); (ii) brought for the sake of annoyance or oppression (vexatious); or (iii) made for some ulterior, corrupt or dishonest motive (lack of good faith). An ulterior motive could involve ill-will towards the architect concerned rather than a genuine belief that his or her conduct warrants discipline. (e) The complainant does not wish action to be taken or continued This ground applies where the complainant gives notice to the Board that he or she does not wish to continue with the complaint. (f) The complainant does not have a sufficient personal interest in the subject matter of the complaint This ground applies where the complainant has no contractual or other relevant connection with the facts alleged, e.g. he or she is not the client, or a professional colleague of the architect involved in the professional services complained about. (g) An investigation of the complaint is no longer practicable or desirable given the time elapsed since the matter, giving rise to the complaint arose This ground applies where: (i) the complaint cannot be practicably investigated because of delay and e.g. relevant documents or witnesses are no longer available; or (ii) the value of investigating an apparently genuine complaint is outweighed by the prejudice which would be suffered by the architect if the investigation were carried out; or (iii) the events can be truly regarded as historic so that no good purpose would be served by investigating the complaint. The architect would suffer prejudice through delay if witnesses have died or are unavailable, or cannot remember the alleged events or relevant records have been lost or destroyed, preventing the architect from preparing a defence. Depending on the seriousness of the complaint the limitation period of 6 years, which applies to most civil claims, would be a useful guide as to whether a complaint is historic. An example of no good purpose may be where the architect concerned has retired in the period since the alleged events occurred.

12 Disciplinary Hearing Procedures in Detail A Disciplinary Hearing (DH) is a formal court-like hearing where a complaint is heard and a determination is made whether or not there are grounds for disciplining the architect (Rule 72(a). If the decision is that there are grounds for disciplining the architect, the DH also decides: the penalty if any whether the architect shall pay costs whether there shall be any public notification (Rules 77 and 78). A DH is legally a Board meeting and not a committee meeting (Rule 73(1)). This is why only Board members can serve on a DH and the quorum requirements that apply to the Board also apply to a DH. When an Investigating Committee (IC) decides that a complaint must be referred to a DH the following occurs. 1. The Board Chair (or in his or her absence the Deputy Chair) consults with Board members and obtains agreement on which Board members shall serve on the DH, in order to ensure that quorum requirements are met, conflicts of interest and any appearance of bias are avoided. The quorum requirement for a DH is the same as for a Board meeting. The Board members who served on the IC that investigated the complaint should not serve on the DH, given that they may have already formed a view about the matter. 2. The complaint is referred to the DH. This is done by one of the NZRAB s legal advisors (the prosecutor) preparing a charge based on the IC Report and the other documentation connected with the complaint. 3. When the DH meets, the Board Chair is the Chair if he/she attends, but if he/she does not attend the Board Deputy Chair chairs the DH, and if neither attends the DH elects a Chair from among its members (The Act, clause 30 in the schedule). If the Board Chair and the Deputy Board Chair are not intending to attend, the DH Chair should be provisionally agreed to at the time that the membership is being agree to, as in clause 1 above. 4. The participants in the DH are or can be: a. The DH members (Board members, one of whom is the DH Chair) b. The legal assessor (a lawyer who provides advice to the DH mainly in regard to process and natural justice) c. The architect d. The architect s counsel e. The complainant (who is in effect a witness) f. The prosecutor (who lays the charge) g. Other witnesses (technical or otherwise) h. The stenographer i. The Executive Officer (who provides administrative support)

13 13 j. Observers (members of the public/the media are entitled to attend, though typically DHs are not publicised beforehand). 5. At the hearing the facilities provided are: a. for the DH members, one long table at the head of the hearing room b. for the architect and his/her counsel, a table facing the DH members table c. for the complainant and the prosecutor, a table facing the DH members table d. for any witnesses, a table to the side of the hearing room e. for the stenographer, a table to the side of the hearing room f. for the EO, a table to the side of the hearing room g. for any observers, chairs at the back of the hearing room. 6. The DH members also have a room to retire to, as do each of the parties. 7. Typically the procedure at the hearing is as follows: a. The Prosecutor presents and speaks to the charge. b. The architect s counsel replies. c. Witnesses are cross examined. d. DH members ask witnesses questions. e. The Prosecutor and then the architect s council sum up. f. The Legal Assessor provides advice on decision-making and this ends the hearing. 8. The hearing has the discretionary option of permitting witnesses to be present prior to giving their evidence, or not, as appropriate. 9. Once the hearing has finished, the stenographer prepares a verbatim transcript of proceedings for DH and the parties. 10. The DH members either at the venue or later by or conference call discuss the complaint and the evidence presented at the DH, and decide whether or not the grounds of discipline alleged in the charge/s have been established on the evidence (Rule 72(a)). 11. The Chair of the DH writes a report describing the complaint and the decision made as to whether grounds for discipline have been proven. 12. The EO provides the report and thus the decision to the parties (Rule 78(1)). 13. If the decision is that there are grounds for disciplining the architect, the parties are invited to make written submissions regarding penalty (Rule 77) 14. Once submissions are received, or a notice period of 20 working has passed, by either an discussion or a teleconference, the DH determines penalty, costs and notification (Rule 72(b). Guidance in regard to determining the penalty is provided below. 15. The Chair of the DH writes a report describing the penalty and the reasons for it, which is provided to the parties as their notification required under Rule 78(1).

14 14 Procedure if an architect accepts there are grounds for discipline 1. When an Investigating Committee investigates a complaint and determines that a Disciplinary Hearing is required the notification to the architect shall include advice to the architect that he or she should consider accepting that there are grounds for discipline in order to avoid a full Disciplinary Hearing with its attendant costs. 2. If the architect responds with an indication that he or she accepts that there are grounds for discipline, the complaint is referred to one of the NZRAB s legal advisors (the prosecutor) who prepares: (a) a charge based on the IC Report and the other documentation connected with the complaint; and (b) a summary of facts relevant to the charge. 3. The charge and summary of facts are referred to the architect who is asked to confirm that he or she accepts that there are grounds for discipline as described in the charge and that the summary of facts is agreed. 4. If the architect confirms that there are grounds for discipline as described in the charge and that the summary of facts is agreed the architect is invited to prepare submissions in regard to penalty, costs and publicity and advised of the penalties provided for in section 26 of the Act. Unless he or she agrees to a shorter time frame the architect must be given not less than 20 working days to to prepare submissions. 5. Likewise, the prosecutor prepares submissions in regard to penalty. 6. When the Disciplinary Hearing is convened, the Chair begins proceedings by asking the architect to confirm that he or she accepts that there are grounds for discipline as described in the charge. 7. When that confirmation is received, the Disciplinary Hearing then invites submissions from the parties on penalties and from that makes its decisions.

15 A Guide to Setting Penalties 1. Section 26 of the Registered Architects Act 2005 (see below) prescribes a range of penalties that can be applied to an architect or former architect where grounds for discipline have been established. The following is a guide to assist Disciplinary Hearings set penalties. General principles in relation to disciplinary penalties 2. Disciplinary proceedings in a professional context serve a variety of purposes, including enforcing a high standard of professional conduct and protecting the public, by ensuring that the conduct of members conforms to the standards generally expected of them. 3. While protection of the public is a very important consideration, the issues of punishment and deterrence must also be taken into account in selecting the appropriate penalty to be imposed. Penalties such as censure and fines are designed in part to deter both the offender and others in the profession from offending in a like manner in the future. 4. The Disciplinary Hearing s (DH) task is to assess what penalty, if any, should be imposed, in a measured way in relation to the seriousness with which it regards the breaches which either the DH has found to be proved or the member has admitted. Penalties must not be excessive or out of proportion to the circumstances of the case. Generally speaking, like cases should be treated alike. 5. Cancellation of registration should be reserved for the most serious of cases. Suspension for up to 12 months may be imposed in serious cases where it is considered that a deterrent sentence is necessary for the protection of the public or as a significant punishment. 6. Censure may be imposed in cases which do not justify cancellation or suspension. 7. Imposition of conditions as to employment, supervision or the like may be justified by the facts of the case. Similarly ordering a person to undertake training may be justified by the kind of breach committed. 8. The maximum fine of $10,000 should be left for the most serious cases. Factors to be taken into account in setting the level of a fine should be the gravity of the offence, including its prevalence, the circumstances of the case, and the architect s ability to pay. However, no fine may be imposed in relation to an offence for which the architect has been convicted by a court. 9. Before determining any penalty, the DH should take into account any aggravating factors and any mitigating factors, and submissions from counsel for the prosecution and the architect.

16 16 Penalty Options 10. From section 26 of the Act, the penalties that can be imposed are as follows: Censure the architect Require the architect to undertake training Impose conditions on the architect for up to three years in that he or she has to work under some kind of supervision. Fine the architect up to $10,000 Suspend the architect s registration for up to 12 months Cancel the architect s registration. Under the Act only one of the above penalties can be imposed, except that: an architect being suspended, or censured or required to undertake training can also be fined an architect being required to work under supervision, or undertake training, or being fined can also be censured. Thus the following combinations of penalties are available: Training Supervision Censure Censure + training Censure + Supervision Fine Fine + Censure Fine + training Suspension Suspension + fine Cancellation. The following are suggested as questions that should be considered when determining a penalty, though they are not exhaustive. Was the failing deliberate or wilful, or not? Was the failing in regard to something that ought to be axiomatic to any competent architect, or not? Were the consequences of the failing severe, modest or negligible for the complainant? Were the consequences of the failing severe, modest or negligible for the wider public? Did the failing bring the profession into disrepute, or not? Did the architect attempt to remedy the fault prior to the complaint being laid, or not? Did the architect accept that there were grounds for discipline prior to the Disciplinary Hearing, or not?

17 17 Precedents 11. To date grounds for discipline have been proved in regard to two architects. 12. The first involved a boundary miscalculation and the architect claiming in the terms of appointment to have PI Insurance when this was not the case. The penalty was censure and supervision. 13. The second involved an architect undertaking architectural work with no terms of appointment. The penalty was censure and supervision. Costs 14. The NZRAB s overall stance is that where grounds for discipline have been proven 50 per cent of the actual costs shall be recovered, unless there is good reason otherwise. 15. Public notification The NZRAB s overall stance that where grounds for discipline have been proven against an architect public notification will NOT occur unless there are good reasons in terms of the public interest or in terms of protecting the reputations of other architects. This is apart from the mandatory requirements in terms of the register under sections 21(1)(a)(iii) and 21(2) of the Act... Registered Architects Act Disciplinary penalties (1) In any case to which section 25 applies, the Board may (a) do both of the following things: (i) cancel the person s registration and remove the person s name from the register; and (ii) order that the person may not apply to be re-registered before the expiry of a specified period: (b) suspend the person s registration for a period of no more than 12 months or until the person meets specified conditions relating to the registration (but, in any case, not for a period of more than 12 months) and record the suspension in the register: (c) order that the person be censured: (d) order that the person may, for a period not exceeding 3 years, practise only subject to any conditions as to employment, supervision, or otherwise that the Board may specify in the order: (e) order that the person undertake training specified in the order: (f) order that the person must pay a fine not exceeding $10,000. (2) The Board may take only 1 type of action in subsection (1) in relation to a case, except that (a) it may impose a fine under subsection (1)(f) in addition to taking the action under subsection (1)(b) or (c) or (e); or (b) it may order that a person be censured in addition to taking the action under subsection (1)(d) or (e) or (f). (3) No fine may be imposed under subsection (1)(f) in relation to an act or omission that constitutes an offence for which the person has been convicted by a court.

18 18 (4) In any case to which section 25 applies, the Board may order that the person must pay costs and expenses of, and incidental to, the inquiry by the Board. (5) In addition to notifying the action taken by the Board in the register, the Board (a) must notify the Registrar of Licensed Building Practitioners appointed under the Building Act 2004 of the action and the reasons for it; and (b) may publicly notify the action in any other way that it thinks fit.

19 Aide Memoire for Organising Disciplinary Hearings (DH) This is a working document to assist the Executive Officer with the logistics and organisation of Disciplinary Hearings. The order of preparations can change as required to accommodate changing circumstances. Complaints are not all the same and unforeseen circumstances arise. The Legal Assessor is available to provide advice on procedural matters. IC decides that the complaint should go to a DH. Open a hearing file which is separate from the complaint file (electronic and hard copy). Finding a venue and setting a date or dates for the DH Identify suitable venues in the locale where the architect and complainant reside. This should be done asap after IC makes decision to refer complaint to DH. The hearing room should be large, with good lighting, good ventilation/heating, and good acoustics. (Options to consider include hotels and large legal firms which often have suitable suites of meeting rooms). For the Board = one long table at the head of the room. For the Architect and his/her Counsel a table placed in front of the Board table. For the complainant and the Prosecutor = a table placed in front of the Board table. A witness stand placed on the right hand side of the room between the Board table and the tables for the counsels and opposite tables for the stenographer and EO. There should be a separate break-out room for the Board and if possible private break-out rooms for the architect and his/her counsel and the Prosecutor/complainant. Make sure an electronic whiteboard is available for the Board in its room. Advise venue of the specific table layout required and distances between tables. The Stenographer will require a typists chair and audio system. Send the Prosecutor the IC report and decision, contact details of the IC Chair and complaint file and asked him/her to draft the Notice of Complaint (Charge). Once the Prosecutor has looked at the papers, contact the person for an estimate of the number of days that may be required for the hearing. proposed dates to the Board members, who will be participating, the Prosecutor, the complainant, architect and his/her counsel, the Legal Assessor and the Stenographer. Use the prescribed notification days in the rules and work back.

20 20 Venue booked based on the day or days that suit the participants. Dates can be changed if required. Pre-hearing directions teleconference Set up a pre-hearing directions teleconference including Hearing Chair, Legal Assessor, Architect s counsel, Prosecutor, EO NZRAB. The Legal Assessor can Chair the meeting. (See example agenda below). These meetings usually take approx. 30mins. Draft notes of the above meeting, have them peer reviewed by the Legal Assessor and then send to all participants. Advise Board members and Stenographer by if there is anything they need to be aware of e.g. change to hearing days. Typical directions agenda Identify factual and legal issues. Anticipated interlocutories (any of which will be timetabled). Hearing time estimates. Confirmation or otherwise of the date(s) for the hearing and venue. Mode of giving evidence (usually written briefs). Numbers of witnesses. Timetable for exchanges of briefs of evidence is as set out below. On or before xxxx - Prosecutor is to send signed briefs of evidence to Defence and also separately 7 copies to the Board. On before xxxx Defence is to send signed briefs of evidence to Prosecutor and also separately 7 copies to the Board. On or before xxxx counsel is to notify the other party and the Board of any objections in regard to evidence. On or before xxxx Prosecutor to compile and serve on the Defence and also separately to the Board 7 copies of an agreed bundle of documents and opening submissions. On or before xxxx Defence to file and serve on the Prosecutor and also separately to the Board 7 copies of his/her opening submissions. EO NZRAB to send briefs of evidence and documents out to Board members, Legal Assessor and Stenographer on receipt. Any other matters. Monitor progress on actions and follow-up as required.

21 21 Three weeks before Organise travel and accommodation for the Board as required. Hearing members can travel the day before the hearing. Prepare the Hearing Chairperson s opening address and send to him/her. Place order for refreshments (and timing) and audio equipment with the venue. Specify table cloths for all tables. Prepare an oath card and an affirmation card for placement on the witness stand. One week before the hearing Send reminder about hearing to parties and Board members. Check copies of briefs of evidence should have been received for the hearing and these need to be sent out to the Board members along with the Notice of Hearing and copies of sections 24 to 36 inclusive of the Registered Architects Act 2005 and relevant Registered Architects Rules. Prepare table name plates for the parties attending the hearing. Check the NZRAB Bible is available for the witness stand. Prepare to a paper setting out order of seating for the Board so they enter the hearing room in the correct order. The Legal Assessor will be placed at the Board table to the left of the Hearing Chair. Day before the hearing EO NZRAB should travel to the hearing location in the afternoon before the DH if not in Wellington. Original complaint file is ready to take to hearing in case needed. Check out the rooms for any unforeseen issues. Establish the evacuation arrangements from venue staff and inform the Hearing Chair. On the day A Hearing is a formal occasion, so formal attire is appropriate. Liaise with venue staff to check arrangements re catering. Check room and furniture is set up as specified. - Name plates, water/glasses, note paper are set out on the tables. - On the witness stand = Bible, oath and affirmation cards and paper handkerchiefs 9sometimes witnesses are emotional) Welcome the participants show the parties to their rooms and help any of the parties with any last minute copying etc. EO opens The Executive Officer having taken his/her seat will announce: This NZRAB Disciplinary Hearing is now in session My name is xxxxxxxxxx I am the Clerk of the Hearing for this hearing. I certify that Board members are assembled for this hearing in accordance with the Registered Architects Rules. The Notice of Complaint was sent to name of architect on date. All the parties were advised that the hearing would be convened at 10.00am on date 201x at the xxxxxxxxxxxxxxxx.

22 22 Introductions by the Chair Good morning my name is XXXXXe and I will be chairing the proceedings today. With me are the other Board members who are Mr Andrew Symonds, the Clerk of the Hearing, is here to assist us as necessary. Mr Symonds will also administer the oath or affirmation for witnesses when they are called to give their evidence. xxxxxxxxxx is the Stenographer and is here to take down the evidence. Witnesses are requested to speak clearly and not too fast. xxxxxxxxxx has been appointed by the committee to act as Legal Assessor. He may be called upon during the hearing to provide directions on points of law. At the end of the hearing he/she will provide a summary of the evidence which has been heard, the relevant legal principles and the directions on the law as required. There may be occasions during the hearing when the committee must determine points of law. All attempts will be made to keep such interruptions to a minimum. The following text can be varied There will be a morning tea break at 11.00am 11.15am, lunch break at 1.00pm 2.00pm and afternoon tea break at 3.00pm 3.15pm. Refreshments will be served in the rooms allocated to counsel and the Board. Unless the hearing concludes earlier, the Board will rise at 5.00pm. The nearest fire escape is located at and people should assemble at.. Are there any housekeeping matters at this stage? I invite counsel to announce their appearances and invite counsel to advise the Board as to the identity of any other persons attending with them e.g. witnesses. Is the charge taken as read? If not, the EO can be asked to read the charge. The Chair asks of Prosecutor and Architect s counsel Do you agree that the committee has jurisdiction over the charge(s) which have been laid before it? Do you have any objections to the composition of the committee as it appears before you? I invite Prosecutors name to open EO will administer the Oath or Affirmation, if the person is not Christian. In accordance with normal court practice the person giving the information should swear on the bible or make an affirmation as the truthfulness of the information provided.

23 23 Oath on the Bible: The appellant, respondent, or witness must take the bible in his or her right hand state his or her full name and address and read the following words: I swear by almighty God that the evidence I give before this hearing will be the truth, the whole truth and nothing but the truth. Affirmation: The appellant, respondent, or witness must state his or her full name and address and read the following words: I do solemnly, sincerely and truly declare and affirm that the evidence I shall give before this hearing will be the truth, the whole truth and nothing but the truth. Record in a log documents presented during the hearing for reference. Make sure that a copy of each document is retained on NZRAB hearing file in case they are needed by the Board or for an appeal. Be alert to requests to assist counsel or Board members e.g. air conditioning adjustments or pass around copies of documents.

24 24 6. Delegations 28 May 2015 Minute NZRAB Electronic Board meeting Resolutions 1) That the Board accepts the recommendation of the Board Chair and the Chair of the Public Protection Committee that, as of 29 May 2015, being the day after the Registered Architects Amendment Rules 2015 were gazetted, the Board delegates: 1. to the Board Chair and/or Chief Executive (CE), a decision, under rule 60(1) & (2), to initiate an inquiry (which may be undertaken on the same basis as the investigation of a complaint in accordance with these delegations) 2. to the CE, a decision, under rules 59(1), 61(b), 62 and 63, as to whether a complaint can be dismissed because the person complained about was not a Registered Architect at the time the alleged events happened, or a prior complaint has already been dealt with or is being dealt with, or the alleged events occurred before 1 July to the CE, the task, under rule 64, of advising the parties if a complaint has been dismissed unless, in the CE s assessment, this is not required under rule 64(2) 4. to the CE, a decision, under rules 61(a) and 63, to refer a complaint to an Investigating Committee (IC) 5. to the CE, the task, under rule 64(1)(a), of notifying the parties if under rule 61(a) a complaint has been referred to an IC 6. to the CE, the task, under rule 65, of providing the architect with the complaint, inviting the architect to make a submission to the IC and advising that this may be the architect s only opportunity to respond prior to a Disciplinary Hearing (DH) 7. to the IC, the power to consider the IC s report to the Board made under rule 66(1)(b) and to decide, under rules 68, 69 and 70, whether to dismiss a complaint or have it placed before a DH 8. to the CE, the task, under rule 71(1), of advising the parties of the IC s decision to dismiss a complaint or refer it to a DH 9. to the CE, the task, under rule 71(2), of setting the date, time and place of the DH, and providing all the information required in advance of the hearing under rule to the CE, the task, under rule 78, of notifying the parties if the DH decides under rule 72(a) to dismiss a complaint, and the affected party s appeal rights 11. to the CE, the task, under rule 78, of notifying the parties of the Board s decision under rule 72(a) that there are grounds for discipline and inviting submissions on penalty, costs and public disclosure, and the affected party s appeal rights

25 to the CE, the task, under rule 78, of notify the parties of the penalty imposed, the reasons for the decision and appeal rights and then, if required, implementing any actions required of the Board. 2) That the Board delegates to the Board Chair the responsibility of notifying the individuals who currently hold the office of CE or are members of ICs of the terms of these delegations. 3) That the delegations in 1 and 2 are subject to the person concerned complying with the requirements of the Registered Architects Act 2005 and the Registered Architects Rules 2006 and any applicable policies and procedures. 4) That the delegations notified under resolution 2 continue in effect as long as the individual who has been given the delegation holds the position or until the delegation is revoked by the Board. Carried