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Re: EOR, Damages ...and the dreaded disciplinary actions

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In a message dated 2/23/00, Oshin Tosounian, S.E. <SDGSE(--nospam--at)aol.com> asked:

Then, how is an engineer subject to disciplinary action by the board of 
engineers for inadequate design [if the engineer is liable only for those
damages "actually" caused by his "inadequate" design, and there were no such
damages?] Could it stem from the same [lawsuit] complaint [for which] the
engineer was found not liable? Or, should there be a separate complaint
filed with the board, which has nothing to do with the original lawsuit.

George Hakim replied:

This is a great topic...and fortunately you can have this question answered 
by a Member of the Board of Engineers.  
This coming March 16th, at the monthly meeting held by the "Consulting 
Structural Engineers Society" our guest speaker will be a member of the
Board of Engineers in charge of disciplinary actions.

For more information on this meeting, call me at 213- 386-9778 or e-mail at 
forensiclaw(--nospam--at)aol.com
-------------------------------

For much of 1993 and lingering into 1994, the Calif PE Board held many
committee and board meetings where this exact concern was on the agenda. The
larger issue was what the definitions (for enforcement purposes) of
negligence and of incompetence are. The Board staff's erroneous use of
"departure from standard practice" for negligence had dramatically blown up
in the Board's face at its Nov 1992 meeting, which I attended. See my
posting of 2/22/00, last two paragraphs, for background on this incident. 

For more than a year thereafter the Board sought a definition that would not
look illegal, but which would not tie its hands or cause inconvenience in
prosecuting engineers. The definitions were to be fed as gospel to the
Board's PE expert witness consultants, who, not knowing law, would use what
they were told to see negligent conduct as much as possible. Two
state-employed attorneys were consulted; Mr Rucoba, a deputy attorney
general, and Mr Duke, on staff at the Department of Consumer Affairs. Both
were regularly attending to the Board's needs, but they disagreed on what
the definitions should be. A lengthy series of drafts were tendered and
debated and revised. I attended most of the Board's Enforcement Committee
meetings in that time frame and I still have the paperwork from all the
meetings.

Also attending was William M. Goode, the retired deputy attorney general who
first blew the whistle to the Board on what their staff had done to corrupt
the hired experts. (Be clear that the Board Members do not involve
themselves with who gets accused of violations or whether the grounds follow
established law and have merit. Staff does everything unsupervised. Board
members only see "who done it" and what he done AFTER the "trial", ie, after
the hearing before an administrative law judge ("ALJ") where the engineer is
prosecuted by a deputy attorney general. The Board members then either
accept or alter the ALJ's recommended outcome and penalty, as they see fit.
Appeal from that may only be taken in Superior Court under CCP 1094.5, and
can succeed only by showing abuse of discretion by the Board as evidenced in
the record.)  

Mr Goode immediately called attention to the same fact that George Hakim
has, that in civil law, liability for negligence is only for damages
proximately caused by the negligence. No damage-- no liability.

However both of the state-employed staff attorneys and the PE Board
Enforcement Committee chairman, Mr Lazarian (an attorney also) countered
that the law the Board uses is administrative law, not civil tort law, and
they need not await the onset of damages in order to discipline PE licensees. 

They added that their purpose is to detect negligent licensees and take them
out of circulation before any more potential damages to the public might
result, not to "make whole" third persons already damaged, as the civil
courts already serve that money-transfering purpose. This view prevailed and
still does. 

So the answer is, no damages need have occurred as a condition of accusing
an engineer of negligence and seeking revocation of license or lesser
penalties. 

In the two license revocation cases in which I have furnished defense advice
to counsel and appeared as a defense witness at the hearing before the ALJ,
no Board-ordained definition of negligence was adhered to by the judge. Each
used his/her own resources, which appeared to be based on "Standard of CARE"
as used in the BAJI (jury instruction) definition of negligence, not on
"standard of Practice" like the PE Board people are still parrotting. In
both of the lengthy ALJ Recommended Decisions, much weight was given to
expert testimony on standard of care under the circumstances, and this in
turn involved plenty of building code interpretations. Expert testimony was
also decisive in other cases I have read where the ALJ's similarly
recommended dismissal of all charges.

To answer another question, both of the cases I testified in were separate
complaints lodged with the PE Board by an angry homeowners, after the
homeowners had pursued collecting monetary damages in Superior Court from
both contractor and engineer, and had won a hefty judgment against the
contractor in one instance, and obtained an adequate settlement from the
contractor in the other. Neither engineer had to pay much. The homeowner in
each case still harbored rage at the engineer, and the Board's and Attorney
general's staffs were only too happy to oblige the homeowner. 

After 1994 or so, the legislature gave the PE Board authority to order that
monetary restitution be paid by the accused licensee to any damaged party,
so a tort lawsuit in court is not the complainant's only recourse any longer. 

During those 1993-94 PE Board meetings on negligence definitions, we regular
spectators in attendance often joked privately that the Board's best
definition of negligence would be a simple description of how their staff
operates. The second best would be how the Board members themselves operate.
When you hang out there among them, such musings are unavoidable.

Late in 1994, when Board administrative rulemaking on disciplinary penalty
orders was underway, and prospective penalties for negligence were being
discussed, then-new Board member George Shambeck inconveniently asked, "what
is the definition of negligence, anyway?" Chairman Lazarian blurted back,
"We don't have one, and it's too big a job for this committee to write one.
It's a job for the PE Act Rewrite!"

The ill-fated PE Act Rewrite since came and went without attempting any
definition of negligence, and now Mr Shambeck is Board President. The
Enforcement Committee chair is CE/SE/GE James Foley, of City of San Jose,
who wasn't around during any of this history. But Mr Lazarian is still
there, and in my view is the only Board Member who can speak knowingly on
this subject. But remember, he's an attorney and likes to prevail. No Board
staffer would be both knowing and candid. Be mindful that this Board is
above all dedicated to its own bureaucratic survival, control, and hegemony
over all licensees.

Charles O. Greenlaw SE   Sacramento CA