The effect of disciplinary determinations on civil suits involving engineers.

• Author: Yi, Jonathan
• Position: Florida

In Florida, disciplinary proceedings (1) against a professional engineer routinely begin after the Florida Board of Professional Engineers receives a uniform complaint form from a citizen reporting that an engineer has violated certain licensing statutes. (2) After a citizen files the complaint--asserting that property damage was sustained as a result of the engineer's deficient work, for example--the citizen may open a civil suit based on the same underlying facts. The initiation of a civil suit compounds the already complex nature of disciplinary proceedings and gives rise to a host of questions concerning the range of evidentiary effect that prior administrative determinations may have on subsequent civil suits involving the engineer.

This article aims to clarify that range by examining statutes and case law that impose parameters on the effect that administrative determinations may have on civil suits. Starting with a list of governing statutory provisions and rules, the article will proceed with an overview of the disciplinary process involving an engineer. Next, the preclusive effect of administrative determinations will be considered, followed by a discussion of whether such determinations may have evidentiary, though not preclusive, effect in subsequent civil suits. This part of the discussion will culminate in the development of a partial evidentiary framework that can be used to better assess the impact that disciplinary determinations may have on civil suits. Finally, the article will examine the procedural and substantive considerations that should accompany the representation of an engineer throughout the disciplinary process.

The focus of this article is limited to concerns associated with representing professional engineers. Nevertheless, the principles discussed here may be applicable to the disciplinary process of other design professionals, and to a lesser extent, other licensed professionals in Florida.

Standards Governing the Disciplinary Process

A solid grasp of the interplay between a complex set of applicable statutes and rules is necessary to represent the engineer effectively throughout the disciplinary process. A partial list of the governing standards includes:

1) Administrative Procedure Act, F.S. Ch. 120, and the Model Rules of Procedures;

2) F.S. Ch. 455, which outlines administrative disciplinary procedures applicable to professionals in Florida under the jurisdiction of the Department of Business and Professional Regulations (department);

3) F.S. Ch. 471, under which engineers are regulated;

4) Rules (3) promulgated by the Florida Board of Professional Engineers (board) to implement statutory provisions; (4) and

5) Rules (5) governing the Florida Engineers Management Corporation (FEMC), which provides administrative, investigative, and prosecutorial services on behalf of the board.

Additionally, because disciplinary proceedings--which may result in revocation or suspension of licenses--are penal in nature, (6) certain safeguards have been extended to the professional. These include the right to remain silent pursuant to the U.S. Constitution and the Florida Constitution, (7) as well as the right to the representation and advice of counsel or other qualified persons. (8)

An Overview of the Disciplinary Process

The disciplinary process will likely unfold in the following manner. After a complaint is filed with the board, FEMC is required to investigate and determine legal sufficiency of the allegations within 30 days of receipt of the complaint. (9) A complaint is legally sufficient if it contains ultimate facts showing that there has been "a violation of [F.S. Ch. 455], of any of the practice acts ... regulated by the department, or of any rule adopted by the department or [the] board." (10) If the complaint is legally sufficient, FEMC must furnish the engineer with a copy of the complaint that resulted in the initiation of the investigation within 15 days. (11) The engineer then has the opportunity to respond to the charges within 20 days after service of the complaint. (12) At this point, a basic investigative hearing may be conducted to obtain relevant information. (13)

Upon completion of the investigative process, FEMC prepares and submits to the probable cause panel an investigative report, which contains findings and recommendations as to whether probable cause exists to warrant further agency action. (14) Next, the panel--composed of three board members or two board members and one former board member--examines FEMC's investigative file and decides whether probable cause exists within 30 days. (15) The board may then direct the department to file an administrative complaint against the engineer in accordance with F.S. Ch. 120. (16) The department may decline this instruction if it determines that probable cause finding was unwarranted. (17) In such circumstances, FEMC may prosecute the administrative complaint in accordance with F.S. Ch. 120. (18) Before an administrative complaint is filed, however, an engineer must have the opportunity to repudiate the charges and correct any deficiencies contained in the record. An administrative complaint filed without first satisfying this requirement is subject to immediate dismissal. (19)

An engineer desiring to contest the charges may try his or her case in a formal or an informal proceeding pursuant to F.S. [section]120.57(1) and (2), respectively. (20) A formal hearing "shall be held pursuant to [C]hapter 120 if there are any disputed issues of material fact." (21) A formal hearing is granted only upon a showing that a dispute as to material facts exists. (22) Conversely, an informal hearing may be held if the engineer does not dispute the material facts in the administrative complaint, and may only be used to present information to mitigate the seriousness of the charges. (23) Under each, parties have an opportunity to "confront each other at a common time and situs and present evidence, legal authority, and argument in support of their respective positions." (24) Other differences exist as well.

Formal hearings, which resemble a trial, (25) are directed to the Division of Administrative Hearings (DOAH), where an administrative law judge may make factual findings and provide the board with the recommended disposition or penalty. (26) At the conclusion of a formal hearing, a recommended order is submitted to the board. The parties have 15 days to submit written exceptions to the recommended order. (27) The board may adopt the recommended order as the board's final order, but also has the authority to modify or reject certain conclusions of law upon a review of the entire investigative file. (28) The board has 90 days to render a final order after submission of the recommended order. (29)

Informal hearings offer a less structured method of dispute resolution, and "in proper application will afford full relief faster and more conveniently." (30) Section 120.57(2) does not explicitly delineate procedural rights of the parties. Nevertheless, general rules applicable to proceedings that affect substantial interests still apply, and pursuant to F.S. [section]120.569, a recommended order will follow the conclusion of an informal proceeding. The board must adopt or reject as its final order within 90 days under F.S. [section]120.569(l) unless the time period is waived or extended. Regardless of whether a formal or informal hearing is employed as the method of adjudication, a party adversely affected by agency action is entitled to judicial review. (31)

Preclusive Effect of Administrative Findings on Subsequent Civil Suits

The threshold question is whether factual or legal determinations rendered by an agency during the disciplinary process...