|
|
This is the fourth in a four-part series on this blog addressing licensing boards governing the design professions, comprised of: (a) Part 1 – Introduction to Licensing Boards and Revisions of Laws and Regulations; (b) Part 2 – Qualifications of Perspective Licensees and Licensing Exams; (c) Part 3 – Issuance of Licenses and Registrations; and (d) Part 4 - Enforcement.
This article describes the enforcement functions of licensing boards governing the design professions and how their operations affect personnel engaged in architecture, engineering, and other design professions in the United States. In this article, laws, rules, and regulations are referenced as either “laws and regulations” or “statutory requirements”.
|
An important responsibility of licensing boards is investigating alleged misconduct by design professionals and enforcing applicable laws and regulations. Licensing boards are typically not empowered to investigate complaints of alleged excessive fees or charges but can investigate claims of fraudulent billing. To this end, licensing boards function similar to a court, although their authority is limited to specific laws and regulations. Therefore, a licensing board is neither a criminal nor civil court. The board has the right to issue subpoenas to persons, compel submittal of evidence, and receive depositions and testimony.
What Constitutes Misconduct?
Professional misconduct is the failure of a licensed professional to comply with standards of practice. The National Council of Architectural Registration Boards (NCARB) publishes model statutory language for the regulation of the practice of architecture in the United States. Section 501 of NCARB Model Laws and Regulations indicates that misconduct includes the following:
“a. A conviction for or other official determination of a violation of any law, rule, or regulation of (Jurisdiction), any other Jurisdiction, or the federal government, pertaining to any aspect of the Practice of Architecture;
b. Unprofessional conduct relating to the Practice of Architecture;
c. Failure to conform to the accepted minimum standard of care;
d. Financial misconduct such as improper or fraudulent billing practices;
e. Incapacity or impairment, for whatever reason, that prevents an Architect from engaging in the Practice of Architecture consistent with the accepted minimum standard of care;
f. Conviction of a felony;
g. Engaging, or aiding and abetting any Person with engaging, in the Practice of Architecture without being licensed or registered pursuant to this Act;
h. Falsely using the title of “Architect” or any derivative thereof;
i. A conviction or other official determination of engaging in the Practice of Architecture in another Jurisdiction without being duly licensed in that Jurisdiction;
j. Attempting to use or using the License or seal of another Architect as their own;
k. Having had any license to engage in the Practice of Architecture subjected to disciplinary action by a licensing authority recognized by the Board, if the basis of such disciplinary action would have resulted in a violation in (Jurisdiction);
l. Failure to comply with policies and procedures related to the examination and Approved Experience Program required by the Board for an initial License;
m. Having been sanctioned by the NCARB Board of Directors;
n. Failure to report to the Board any information as required under Article VI[,] – Complaints[,] of this Act;
o. Failure to disclose a fact or misrepresentation of a fact to the Board;
p. Failure to cooperate with the Board in an investigation pending against any Person;
q. Failure to comply with any stipulation or agreement of any Board disciplinary action; or
r. Any other grounds as provided by the Board in regulation.”
Additional grounds for disciplinary action, such as violating the security of the Architecture Registration Examination, are set forth in Section R501 of NCARB’s Model Laws and Regulations.
Similarly, the National Council of Examiners for Engineering and Surveying (NCEES) publishes suggested language for state and territorial laws and regulations governing the practice of professional engineering and land surveying in the United States. Section 150.10.A of NCEES’s Model Law (revised September 2021) establishes the following as misconduct for licensees and interns, where interns are persons who have successfully passed the Fundamentals of Engineering Exam, also known as Engineer-in-Training exam (bracketed text, below, is not present in the original but is included here for clarity):
“1. Any fraud or deceit in obtaining or attempting to obtain or renew a certificate of licensure
2. Any negligence, incompetence, or misconduct in the practice of engineering or surveying
3. Conviction of or entry of a plea of guilty or nolo contendere [i.e., pleading no contest to the charges without admitting guilt] to any crime that is a felony, whether or not related to the practice of engineering or surveying; and conviction of or entry of a plea of guilty or nolo contendere to any crime, whether a felony, misdemeanor, or otherwise, an essential element of which is dishonesty or which is directly related to the practice of engineering or surveying
4. Failure to comply with any of the provisions of this Act or any of the rules or regulations of the board
5. Discipline (including voluntary surrender of a professional engineer’s or professional surveyor’s license in order to avoid disciplinary action) by another jurisdiction, foreign country, or the United States government, if at least one of the grounds for discipline is the same or substantially equivalent to those contained in this Act
6. Failure to provide information requested by the board as a result of a formal or informal complaint to the board that alleges a violation of this Act
7. Knowingly making false statements or signing false statements, certifications, or affidavits in connection with the practice of engineering or surveying
8. Aiding or assisting another person in violating any provision of this Act or the rules or regulations of the board
9. Violating any terms of any Order imposed or agreed to by the board or using a seal or practicing engineering or surveying while the licensee’s license is inactive or restricted
10. Signing, affixing, or permitting the licensee’s seal or signature to be affixed to any specifications, reports, drawings, plans, plats, design information, construction documents or calculations, surveys, or revisions thereof which have not been prepared by the licensee or under the licensee’s responsible charge
11. Engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public
12. Providing false testimony or information to the board
13. Habitual intoxication or addiction to the use of drugs or alcohol
14. Providing engineering or surveying services outside any of the licensee’s areas of competence”
In addition, Section 150.30.A of NCEES’s Model Law indicates the following as grounds for disciplinary action against unlicensed individuals:
”1. Engaging in the practice or offer to practice of engineering or surveying in this jurisdiction without being licensed in accordance with the provisions of this Act
2. Using or employing the words “engineer,” “engineering,” “surveyor,” “surveying,” or any modification or derivative thereof in his or her name or form of business activity except as licensed in this Act
3. Presenting or attempting to use the certificate of licensure or seal of a licensee
4. Engaging in any fraud or deceit in obtaining or attempting to obtain a certificate of licensure or intern certification
5. Impersonating any licensee
6. Using or attempting to use an expired, suspended, revoked, inactive, retired, or nonexistent certificate of licensure”
Examples of Misconduct Cases
Examples of malpractice convictions are available in licensing boards’ newsletters or online listings of disciplinary cases. A summary of a majority of reported disciplinary cases for architects and engineers in New York and Pennsylvania for the period January 2022 through April 2024 is presented below:
New York State – Architecture
“…failing to comply with the mandatory continuing education requirements ...”
“…failing two audits of the New York City Department of Buildings [NYCDB], … which resulted in the revocation of a permit.”
“…filing 14 professionally certified applications with the ... [NYCDB] during the period of probation imposed as a sanction … in grossly negligent violation of the New York Administrative Code.”
“…filing five professionally-certified applications with the ... [NYCDB] that contained false statements.”
“…certifying and affixing his signature to documentation submitted to the building department, authenticating that a property complied with codes, without visually inspecting said property.”
“…submitting four professionally-certified applications for construction document approval, … to the ... [NYCDB], which contained errors that resulted in permit revocations.”
“…filing four professionally certified applications with the ... [NYCDB] that contained violations of the Rules of the City of New York.”
“…filing … forms with the ... [NYCDB], which contained materially erroneous statements.”
“…willful failure to comply with mandatory continuing education requirements.”
“…filing four limited supervisory check applications with the ... [NYCDB] that contained violations of the Rules of the City of New York.”
“…professional misconduct for … Theft of Funds from Employee Benefit Plan, a felony.”
“… using the exact drawing of another architect, without his permission, to file a plan/work application with the … [NYCDB].”
“…filing six professionally certified applications with the … [NYCDB] that contained violations of the Rules of the City of New York.”
“… submitting three professionally-certified applications for construction document approval, … to the ... [NYCDB], which contained errors constituting a violation of the New York City Administrative Code.”
“… submitting two professionally-certified applications for construction document approval … to the ... [NYCDB], even though both applications contained errors, which resulted in permit revocations.”
“… practicing as an architect while not registered or otherwise authorized to practice architecture.”
New York State – Professional Engineering
“…convicted of Driving While Intoxicated.”
“… failing to furnish the department with written reports indicating whether or not he was mentally fit to practice his profession, and failing to answer and submit quarterly questionnaires … as required by the terms of probation imposed ...”
“… filing five professionally certified applications with the ... [NYCDB] that contained violations of the Rules of the City of New York.”
“… filing eight applications with the ... [NYCDB], which contained materially false statements.”
“… failing to notify the ... [NYCDB] that the approved Department of Building plans were not being executed and that the excavation support system was inadequate.”
“… Criminally Negligent Homicide, a felony; and Reckless Endangerment in the 2nd Degree, a misdemeanor.”
“… willful failure to comply with mandatory continuing education requirements.
“… submitting plans and documents for two jobs to the ... [NYCDB] that were not of sufficient clarity to show compliance with applicable laws.”
“…filing six professionally certified applications with the ... [NYCDB] that contained violations of the Rules of the City of New York.”
“… negligently making material false statements in a ... [NYCDB] professional certification which resulted in revocation of a permit.”
“… receiving fees from a third party in connection with the performance of engineering services.”
“… receiving fees for performing engineering services as an individual, independent practitioner, who is also a minority shareholder in a general business corporation that is not authorized to perform engineering services; and sharing said fees with the majority shareholder, who is not a licensed professional.”
“… submitting four professionally-certified applications for construction document approval, … to the ... [NYCDB], even though the applications contained errors, which resulted in permit revocations.”
Pennsylvania – Architecture
“[Design firm name] unlawfully used a sign, card, or device implying that it was competent to engage in the practice of architecture without prior approval by the Board; [Person 1] unlawfully used the title architect in a manner that would imply he was engaged in the practice of architecture without licensure by the Board; and [Person 2] aided and abetted the unlicensed practice of the profession.”
Pennsylvania – Professional Engineering
“… practiced the profession of an engineer on a lapsed and expired license.”
“… practiced the profession of an engineer without being properly licensed to do so.”
“… had a license to practice engineering, … suspended or revoked … for conduct relating to the practice of engineering, … by the proper licensing authority of another state...”
“…practiced the profession of an engineer without being properly licensed to do so under this act.”
“…engaged in conduct that is unprofessional and inconsistent with honorable and dignified bearing for any professional engineer, by acting for [Person’s] client or employer in professional matters otherwise than as a faithful agent or trustee, or by accepting any renumeration other than [Person’s] stated recompense for services rendered, as evidenced by [Person’s] failure to disclose a conflict of interest to [Person’s] client.”
“…has a felony of the third degree, and due to the nature of the criminal convictions, licensure of the respondent would pose a substantial risk to the health and safety of the respondents’ clients or the public, or a substantial risk of further convictions.”
“…engaging in gross negligence in the practice of engineering.”
Key Concepts Regarding Enforcement
Each licensing board’s jurisdiction includes all aspects of the subject design profession in the state, regardless of whether or not an alleged violator was a licensed design professional. Therefore, a state licensing board’s authority extends to: (1) unlicensed individuals accused of violating the state's associated laws and regulations; (2) individuals licensed in other jurisdictions, but not in the board’s jurisdiction, accused of violating the state's associated laws and regulations; (3) other senior personnel from a design consulting firm’s leadership, especially when such individuals placed in responsible charge a person accused of misconduct; as well as (4) persons properly licensed and registered to practice the subject design profession in the state.
Anyone can file a complaint with the licensing board. Complaints may be filed by a coworker or colleague of the alleged violator, a client of a design professional consulting firm, a person with an interest in the project(s) where alleged violations occurred, members of the licensing board, employees or representatives of any other authority having jurisdiction over a specific project, or a member of the general public. Complaints must be in writing, present the circumstances of the alleged misconduct, and typically cannot be anonymous. Section 602 of NCARB’s Model Laws and Regulations and Section 240.15.A.8 of NCEES’s Model Rules (revised August 2022) require licensees, applicants for licensure, and firms to report known or suspected misconduct, and NCARB Section 602 further obligates licensees to self-report their own misconduct. In some states, such as Colorado and California, licensed individuals are required to report to the appropriate licensing board, within a stipulated period, malpractice claim settlements or judgments greater than a statutorily indicated amount, regardless of whether the claim was covered under professional liability insurance. At its discretion, the board may elect to make such information available to the public.
Enforcement Procedures
When a complaint is received, the authority having jurisdiction will perform an initial evaluation to determine whether the licensing board has jurisdiction and, when the complaint is within the board’s jurisdiction, an investigator will be assigned, who will then contact the complainant to obtain additional information. When the board does not have jurisdiction, it may refer the matter to another entity of competent jurisdiction.
Receiving notice of alleged misconduct from a licensing board is a serious matter. A person or firm accused of misconduct may choose to be represented by legal counsel rather than attempting to represent themselves. When the person is employed by a business or other organization where the alleged misconduct occurred during the course of the person’s performance, in good faith, of their responsibilities, the organization will typically furnish legal counsel to represent the accused.
For hearings, the board may either appoint an “examiner” to preside or, in the absence of an examiner, the board chairman may preside at disciplinary hearings, typically with the advice of the board’s legal counsel.
Procedures for the board’s investigation and subsequent action are fairly straightforward. For example, Section 150.20 of NCEES’s Model Law states in part (bracketed text, below is not present in the original and is included here for brevity and clarity):
“C. All complaints shall be reviewed by the board or an investigative committee designated by the board. After review, the board or the investigative committee shall determine or recommend, as appropriate, if charges are warranted.
D. All charges, unless dismissed by the board as unfounded, trivial, or unless settled informally, shall be heard by the board. The time and place for the hearing shall be fixed by the board, and a copy of the charges, together with a notice of the time and place of hearing, shall be personally served on or mailed to the last known address of such accused individual at least 30 days before the date fixed for the hearing. The summons and notice of charges shall be prepared in accordance with [NCEES’s] Model Rules 250.30. At any hearing, the accused individual shall have the right to appear in person or by counsel, or both, to cross-examine witnesses in their defense and to produce evidence and witnesses in their defense. If the accused individual fails or refuses to appear at the hearing, the board may proceed to hear and determine the validity of the charges in the accused individual’s absence. The hearing shall be conducted in accordance with [NCEES’s] Model Rules 250.30.
E. If after such hearing a majority of the board votes in favor of sustaining the charges, … [the required disciplinary action shall be imposed].
F. Order of the Board
The board shall issue an order within [insert number] days of the date of the hearing. It shall include and shall state separately:
-
- Findings of fact that are based exclusively on the evidence and on matters officially noticed, stated by a concise and explicit statement of the underlying facts supporting the findings.
- Conclusions of law
The prosecutor and/or respondent shall be delivered a copy of the findings of fact and conclusions of law by person or by mail with return receipt requested. The attorney of record for the respondent shall also be mailed a copy.
G. Discipline[:] Upon an order by the board in which the respondent is found guilty of the charges preferred, the board may take appropriate disciplinary action against the respondent.”
Additional requirements for procedures for hearings and related matters are presented in Section 250.30 of NCEES’s Model Rules (revised August 2022).
Boards may conduct hearings, allowing the accused to defend themselves, give testimony, present witnesses, and submit evidence. Rules for presenting evidence may differ from those for criminal cases and may be the same or similar to those in civil cases. Hearings will typically proceed in a manner similar to those of other administrative bodies with opening statements, testimony, cross-examination, and closing statements. In addition to legal counsel and the presiding person, board members may ask questions during hearings, unless they have a conflict of interest or bias in the case at hand. A written record of each hearing, including motions and rulings of the opposing parties, record of evidence, and, possibly, transcripts, is prepared and remains in the board’s files.
Consequences of Misconduct
The licensing board’s decisions in misconduct cases are rendered in writing. Consequences of misconduct may include one or more of the following: (1) censure or reprimand, (2) imposing probationary terms on a licensee, (3) suspension of licensure for a specified period, (4) permanent revocation of license, (5) denial of licensure or renewal to an applicant, (6) fine or civil penalty, (7) the board may obtain injunction(s) from a court or authority of competent jurisdiction to compel compliance, and (8) adverse publicity. In some jurisdictions, certain severe offenses, such as practicing the profession without a license, or repeat offenses, may be a felony. Each state’s licensing board’s website includes a feature whereby anyone may verify licensure status or lookup licensees. In the event of disciplinary action, the licensee’s record displayed as a result of such online searches will indicate the outcome of the disciplinary action. Also, results of disciplinary cases may be published online on the board’s website. Board decisions may be appealed through civil courts of competent jurisdiction.
A determination of misconduct has the potential to adversely affect the licensee’s ability to renew or obtain licensure in other jurisdictions, retain membership in professional organizations, remain employed, and/or obtain new business from clients.
Enforcement and Design Firms
Design firms are subject to disciplinary action similar to individuals. Statutory requirements for submitting complaints against a firm, the need for representation by legal counsel, procedures, and potential consequences for firms are all very similar to those presented above for disciplinary cases against individuals. The outcome of disciplinary action against a firm may fall on the firm itself or upon individuals within the firm’s senior staff and management.
Conclusions
Licensing boards have authority to establish requirements for what constitutes misconduct relative to the design professions and are empowered to enforce the associated laws and regulations. Anyone can submit a written complaint to a licensing board alleging a violation of the applicable statutory requirements. In evaluating complaints, boards will perform investigations and conduct hearings in a manner similar to other administrative bodies. Consequences of misconduct can be serious and may include reprimand, temporary or permanent loss of licensure, and others. Additionally, disciplinary action is likely to have other serious outcomes, including adverse effects on licensure in other jurisdictions, employment, business opportunities, and reputation, both for individuals and design firms.
Acknowledgments: The author gratefully acknowledges the assistance of the following, who kindly reviewed and commented on drafts of this article: Jerry Cavaluzzi, Esq, of Westchester County, NY, who is Chief Risk Officer and General Counsel for Kennedy/Jenks Consultants, Inc.; and James K. Lowe, Jr., Esq., P.E. (VA, emeritus), who has more than 45 years experience in the A/E industry. The author is solely responsible for the content of this article.
Original text Copyright 2024 by Kevin O’Beirne
The content of this blog post is by the author alone and should not be attributed to any other individual or entity.
The author of this blog post is not an attorney and nothing in this blog post constitutes legal advice. Readers in need of legal advice should consult with a qualified, experienced attorney.
Kevin O’Beirne, PE, FCSI, CCS, CCCA is a professional engineer licensed in NY and PA with over 35 years of experience designing and constructing water and wastewater infrastructure for public and private clients. He is the engineering specifications manager for a global engineering and architecture design firm. He has been a member of various CSI national committees and is the certification chair of CSI’s Buffalo-Western New York Chapter. He is an ACEC voting delegate in the Engineers Joint Contract Documents Committee (EJCDC) and lives and works in the Buffalo NY area. Kevin O’Beirne’s LinkedIn page