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Editor’s Note: Following are
the details of an April 30, 2003, APEGGA Discipline Committee
decision, arrived
at
after a panel heard a complaint against a member and a permit-holding
company. In this case there are no findings against the member
or the permit-holder, so their names and other identifying
features have been removed before publication in The PEGG.
THE CHARGES (ALLEGATIONS)
The allegations brought by the Investigative Committee before
a hearing panel are:
1. That in or about March 1997, the company named in the
complaint, Company A, submitted an engineering report on
behalf of a client, prepared by the APEGGA professional engineer
named in the complaint, Member A, and which report did not
meet acceptable engineering standards in that it failed to
identify all potential or contributing causes of failure
of a piece of equipment, and which factors should have been
identified in the report and indicated for further discussion.
2. That the conduct of Member A and Company A in the foregoing
respects constitutes unprofessional conduct and a violation
of Rules of Conduct #4 and #10 of the APEGGA Code of Ethics.
RULES OF CONDUCT #4 AND #10
4. Professional engineers, geologists and geophysicists
shall act for their clients or employers as faithful agents
or trustees; always acting independently and with fairness
and justice to all parties.
10. Professional engineers, geologists and geophysicists
shall conduct themselves toward other professional engineers,
geologists, and geophysicists, and toward employees and others
with fairness and good faith.
SUMMARY OF THE FACTS
The complainant performed a mechanical design of a unit
fabricated by a company which he 51 per cent owned – Company
B – and supplied to a plant operated by another company,
Company C. The design of the unit followed the process design
and data prepared by an engineering firm on behalf of Company
C.
The unit began its service in August 1996 and failed in January
1997. The failed unit was redesigned and refabricated by
the complainant’s company, Company B, and the new unit
was back in service by February/March 1997.
As part of the investigation into the initial failure, Company
C retained Member A of Company A to review the failure and
to recommend repair/restoration procedures for the replacement
unit.
The testing and evaluation of the failed unit was performed
by Company A and the discussions regarding design/fabrication
of the replacement unit included the complainant, Member
A, and two other engineers
The panel heard evidence that the mood of the collective
meetings between the complainant, Member A and one of the
other engineers, rather than being confrontational were in
fact co-operative and collegial. The purpose of the meetings
was clearly to identify and correct the problem as opposed
to a search for culpability.
It is clear that Company B was not singled out for blame
for the failure because it participated in the redesign and
reconstruction of the unit, and was fully paid for this work
by Company C.
A report was prepared by Company A for Company C, dated
March 21, 1997. The report was clearly marked “preliminary” on
the cover page. The report identified that its purpose was
to “determine the failure mechanism(s) and recommend
a review/restoration procedure” for the failed unit.
The report identified a cause of the failure and said that
original design contributed to failure of some of the unit’s
equipment.
At the end of 1997, Company B received notice of a lawsuit
from Company C’s insurers. Apparently this lawsuit
was against Company C’s wishes.
The complainant sent a letter of complaint March 7, 2000,
arguing that Member A’s report expressed opinions outside
of Member A’s area of expertise and that those opinions
differed from those offered by Member A at previous meetings.
Essentially the complaint was caused by the lawsuit launched
by the insurers, who were relying upon design criticisms
contained in Member A’s report.
FINDINGS AND REASONS
The panel concluded that the original meetings between the
complainant, Member A and another engineer were held with
the sole, mutually agreed purpose of solving the failure
of the unit, rebuilding it and getting the process back on
line. There appeared to be no intent to find blame on anyone’s
part and the process appeared to be very professional and
constructive.
The panel believes that Company A’s report was also
issued as a constructive document with the clear intent of
identifying and solving the problem. The language of the
report did not attempt to lay blame and the discussion of
design issues was part of the report but not its main focus.
The report conclusions did not mention the complainant or
Company B by name, and the panel concluded that the criticisms
could equally have applied to the firm that designed the
process and provided input data used by Company B.
The panel heard evidence from the complainant that his original
reaction to the Company A report was positive, and there
was no evidence presented that he complained about the report
at the time.
Clearly the report was labeled “preliminary,” which
would imply that it was not final and was therefore incomplete.
The panel heard evidence that Company A completed a thorough
investigation of the various failure factors. It may well
be that Member A intended to supplement his preliminary report
with these findings but was not asked by Company C to complete
and issue a final report.
The panel’s opinion is that it was not the conduct
of any APEGGA members that was the real cause of dispute
leading to the hearing. Instead, the lawsuit brought by Company
C’s insurers is the cause of this problem. The insurers,
in our view, went on a “fishing expedition,” and
in so doing used Member A’s report in a manner for
which it was not intended, and also misinterpreted a discussion
of design considerations as a direct criticism of the complainant,
which we also believe was not Member A’s intention.
The panel therefore does not agree with the charges against
Member A and Company A, and does not find them guilty of
unprofessional conduct or in violation of rules of conduct
#4 and #10 of the APEGGA Code of Ethics.
The panel however does wish to caution Member A that, when
preparing future reports of this nature, he should be mindful
that:
1) The report should clearly state its scope and purpose,
and when a report is marked “preliminary,” the
reasons for this notation should be explained together with
a description of additional work yet to be completed.
2) Member A should be aware that reports are not always used
solely for their intended purpose and that the wording of
a report should be carefully presented and qualified in order
to avoid potential abuse by third parties.
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