November 2007 Issue
Professional Practice & Ethics Corner
APEGGA members with professional practice or ethics questions are welcome
to mail them to Ray Chopiuk, P.Eng., Director, Professional Practice, APEGGA,
1500 Scotia One, 10060 Jasper AVE NW, Edmonton, AB T5J 4A2; fax them to 780-426-1877;
or e-mail them to rchopiuk@apegga.org.
Q In a recent issue of The PEGG, I noticed a Discipline Committee decision in which an APEGGA member had been found guilty of unprofessional conduct, but it didn’t look like a hearing was ever held. The penalty looked somewhat lenient. Was the matter settled through some sort of plea bargaining?
A When charges of unprofessional conduct or unskilled practice are brought against an APEGGA member, there are two ways in which the Discipline Committee can conclude the matter — a formal discipline hearing or a recommended order. What you saw was a decision that was the result of a recommended order process. The pro-cedures for handling discipline matters are prescribed in Part 5 of the Engineering, Geological and Geophysical Professions Act. APEGGA’s disciplinary committees and boards strictly adhere to those procedures.
A discipline case formally begins when APEGGA receives a written complaint about a member’s conduct. If the complaint is not frivolous or vexatious and can’t be mediated between the member and the complainant, the Investigative Committee proceeds with an investigation.
In a case such as the one you saw, the Investigative Committee would have looked into the complaint and done whatever is necessary to ascertain the facts and circumstances surrounding the complaint. It would then have determined that there was sufficient evidence to substantiate a charge of unprofessional conduct (or unskilled practice, as the case may be) against the member.
If the member had disputed the charge, the matter would have been referred to the Discipline Committee for a formal discipline hearing where both parties (the member and the Investigative Committee) would have the opportunity to present their sides of the argument prior to a decision by a Discipline Committee panel. In the instance you read about, however, the member would not have disputed that he or she did do certain things and that those actions constituted unprofessional conduct. A hearing was not required to determine the facts and prove the charge.
When a member admits to unskilled practice or unprofessional conduct, our act provides for the Investigative Committee to recommend an order (sanction or penalty) that it thinks is appropriate under the circumstances. That recommendation must be presented to a member of the Discipline Committee who has been designated to act as a case manager.
In most, if not all, cases, the member and the Investigative Committee will have agreed on the recommendation. Not unexpectedly, the Discipline Committee has yet to be presented with a recommended order where the member has admitted to unprofessional conduct or unskilled practice but has not agreed with the Investigative Committee’s recommendation.
To be complete, the referral includes a statement of facts to which the parties have agreed, the conduct to which the member has admitted, and the recommended sanction. To determine whether the order is fair and reasonable, the case manager looks to see if the facts of the matter are clear and whether they support a finding of unprofessional conduct or unskilled practice. He also looks to see if the recommended sanction is in keeping with the finding.
If the case manager does not agree with the order, he or she will return it to the Investigative Committee, perhaps to obtain clarification of some aspect of it. If the case manager agrees with the order, he or she must then discuss it with the member.
If the member agrees with the order, then the case manager finalizes the order and the decision goes into force as if it had been made by the Discipline Committee following a formal hearing. If either the case manager or the member rejects the order, the matter must be referred to the Discipline Committee for a formal hearing.
The case manager does not, however, entertain any plea bargaining by the member, if the member wants to admit to a reduced charge or does not agree with the sanction recommended by the Investigative Committee.