OSBEELS Update & Law Enforcement Process

Transcription

1 OSBEELS Regulation Department 2015 PLSO Conference Oregon State Board of Examiners for Engineering and Land Surveying OSBEELS Update & Law Enforcement Process Purpose of Presentation 1. OSBEELS Authorities Pertaining to Complaint Investigations & Grounds for Disciplinary Action a. Oregon Revised Statutes (ORS) 672, ORS 209, ORS 92, ORS 537 b. Oregon Administrative Rules (OAR) Chapter Complaint Process a. Role of Regulatory Department Staff b. Role of Law Enforcement Committee (LEC) 3. PLS practice issues 4. LEC Statistics 5. Question and answer session Part 1: OSBEELS authorities pertaining to complaint investigations Grounds for Disciplinary Actions Authority of the Board to Investigate Complaints ORS , Investigation of complaints: o The State Board of Examiners for Engineering and Land Surveying shall carefully investigate any complaints or information relating to violations of ORS to Grounds for Disciplinary Action: Licensure ORS , Grounds for suspension or revocation of certificate or permit or refusal to issue, restore or renew certificate or permit; grounds for reprimand. The State Board of Examiners for Engineering and Land Surveying may suspend, revoke or refuse to issue, restore or renew a certificate or permit, or may reprimand an individual enrolled as an intern or holding a certificate or permit: (1) For violating any provision of ORS ; (2) For gross negligence, negligence or incompetence in the practice of engineering, land surveying or photogrammetric mapping; (3) Subject to ORS , for conviction of a felony; (4) For conviction of a misdemeanor involving the practice of engineering, land surveying or photogrammetric mapping; (5) For failing to pay a civil penalty or fee in the manner prescribed by a final order of the board, or for failing to meet any other term of a final order of the board; or (6) For violating a rule of professional conduct prescribed by the board. (statute revised 2013) Grounds for Disciplinary Action: Civil Penalty ORS , Civil penalties (1) In addition to any other penalty provided by law, any person who violates any provision of ORS to or any rule adopted thereunder shall forfeit and pay to the State Board of Examiners for Engineering and Land Surveying a civil penalty in an amount determined by the board of not more than $1,000 for each offense. (2) Civil penalties under this section shall be imposed as provided in ORS (3) Notwithstanding ORS , civil penalties recovered under this section shall be deposited into an account established by the board as provided in ORS Moneys deposited are appropriated continuously to the board and shall be used only for the administration and enforcement of ORS to and to Oregon State Board of Examiners for Engineering and Land Surveying 1

2 OSBEELS Regulation Department 2015 PLSO Conference Grounds for Disciplinary Action Other Statutes/Rules ORS (11); A registered professional land surveyor failing to comply with the provisions of subsections (1) to (9) of this section, ORS to or a county ordinance establishing standards for surveys or plats is subject to disciplinary action by the State Board of Examiners for Engineering and Land Surveying. OAR , Civil Penalties for Violations of ORS to , , and County Ordinances o Pursuant to ORS (11), the Board may impose civil penalties against a registrant for any violation of ORS to , (1) to (9), or of any county ordinance that establishes standards or plats, in an amount not to exceed $1,000 per offense. OAR 820, Division 20: Rules of Professional Conduct OAR ; Preamble OAR ; Registrants Shall Hold Paramount the Safety, Health and Welfare of the Public in the Performance of their Professional Duties OAR ; Registrants Shall Perform Services Only in the Areas of Their Competence OAR ; Obligation of Registrants to Issue Statements only in an Objective and Truthful Manner OAR ; Obligation of Registrants to Act in Professional Matters for Each Employer or Client as Faithful Agents or Trustees, and to Avoid Conflicts of Interest OAR ; Obligation of Registrants to Avoid Improper Solicitation of Professional Employment OAR ; Examination Subversion OAR ; Obligation Not to Engage in Unprofessional Behavior Rule Processing Complaints Part 2: Complaint Process OAR , Complaint Process (1) Anyone may submit a complaint against a licensed or unlicensed person. Complaints must be in writing and include evidence to document all charges. (2) The Board will conduct a preliminary review of the complaint to establish that there is sufficient evidence to justify proceeding and that the allegations against the respondent are such that, if proven, would result in a penalty or sanction. (3) If the Board concludes that the complaint may be valid, the Board will contact the respondent by mail and request written comments. Written comments must be received by the Board within two weeks after the Boardʹs request was mailed, unless the Board authorizes an extension. Otherwise, the Board will evaluate the complaint using available evidence other than respondentʹs comments. (4) The Board will evaluate all evidence and analysis, including any documentation or comments received from the respondent, Board investigators, Board expert witnesses or peer reviewers, Board staff or a committee of the Board. The Board will then proceed as follows: (a) If the Board determines that the evidence is insufficient to issue a notice of intent to sanction, the complainant and respondent will be so notified in writing; (b) If the Board determines that the evidence is sufficient to issue a notice of intent to sanction, the Board will issue such notice. (5) Upon request of the Board, digitally signed documents must be provided to the Board in a form that can be processed by the Board s information processing system. Complaint Process Begins Initial Complaint Review Complaints initiated by: Submission of a complaint form surveyor against surveyor, client against surveyor or unlicensed person, surveyor against unlicensed person Anonymously Board generated, such as the result of a CPD audit, or Board generated as a result of information received through another investigation 1) Initial Role of Regulatory Department Staff: o Receive complaints and prepare a memorandum for the Law Enforcement Committee (LEC) o Provide only what complainant submitted o No investigation of the complaint is done; book report 2) Initial Role of the LEC: o Perform a preliminary evaluation of complaint, examine evidence o If the evidence is sufficient and the allegation is within the Board s jurisdiction, LEC directs staff to open a case o If the evidence is not sufficient, or the allegation is outside of the Board s jurisdiction, LEC directs next step (close the record, further review, or refer matter to other jurisdiction) Such as Oregon Board of Architect Examiners, Building Codes Division, Landscape Architect Board, Construction Contractors Board, Oregon State Board of Geologist Examiners Oregon State Board of Examiners for Engineering and Land Surveying 2

3 OSBEELS Regulation Department 2015 PLSO Conference Open Law Enforcement Case LEC Reviews Investigations Complaint Received, Staff Memo to LEC LEC prelim. evaluation Open case: Staff send respond to allegations letter; 14 day response time set by OAR Once a case is opened, the case becomes less about the complainant and more about whether the respondent violated the regulatory requirements under the authority of the Board. Not open case: Staff notify complainant Once case queued for active investigation, Staff interview relevant parties and compile case evidence Staff write a case summary and assemble evidence; Summary provided to the LEC Primary Role of LEC: o Review case summaries and evidence o LEC determines whether or not there are violations of statutes and rules under the authority of the Board o When the LEC determines there is no violation(s), the LEC recommends to the Board case closure (e.g., allegations unfounded, insufficient evidence, compliance met, etc.) o When the LEC determines there is a violation(s), the LEC directs staff to issue a Notice of Intent (NOI) to assess sanctions, including licensure discipline and/or civil penalty o LEC considers the civil penalty factors, OAR Complaint Process: Factors Complaint Process: NOI OAR , Civil Penalty Factors (1) In establishing the amount of a civil penalty to be assessed pursuant ORS , the Board may consider the following factors: (a) The nature, gravity and magnitude of the violation; (b) Prior violations, including administrative, civil or criminal proceedings in any state; (c) Whether the violation was repeated or continuous; (d) Whether the violation was an inadvertent act or an intentional act; (e) The history of the respondent in taking steps necessary or appropriate to correct any violation; (f) The opportunity for and the difficulty in correcting the violation at issue. (2) In considering the factors set forth in section (1) of this rule, the applicable factors may be given varying weight depending upon the circumstances of the violation. Notice of Intent (NOI) is sent to respondent: o Legal document detailing violation(s) and proposed sanction(s), such as licensure discipline, civil penalty, and/or other disciplinary action o Includes Notice of Contested Case Rights and Procedures 21 days to respond using the Options Form As next discussed, your options include: 1. Uncontested response 2. Request informal conference 3. Request a hearing with an Administrative Law Judge (ALJ) through Office of Administrative Hearings (OAH) 4. Fail to respond NOI Response: Uncontested NOI Response: Informal 1. Uncontested response: o Respondent decides to not contest the violation(s) and proposed sanction(s) listed in the NOI o LEC recommends case for approval on Consent Calendar o Staff prepare a Default Final Order o At the next regularly scheduled Board meeting, members vote on the Consent Calendar to accept the Default Final Order and approve Board President s signature o Copy of signed Default Final Order is sent to respondent o Staff monitor the case and the Default Final Order until its terms are satisfied 2. Request Informal Conference with LEC o Respondent s opportunity to explain the events in question LEC may dismiss the case, negotiate a lesser sanction, uphold the NOI as issued, or issue an Amended NOI o Offers respondent forum to negotiate a settlement A settlement agreement is prepared and signed by respondent If no settlement is reached, case is referred for a formal hearing o With respondent s signature on the settlement agreement, a Final Order is voted on at the next Board meeting for acceptance and for approval of Board President s signature o Once signed, a copy of the Final Order is sent to respondent o Staff monitor case and Final Order until terms satisfied Oregon State Board of Examiners for Engineering and Land Surveying 3

4 OSBEELS Regulation Department 2015 PLSO Conference NOI Response: Hearing (1) 3. Request for a Hearing o Request is forwarded to the Oregon Department of Justice for processing, scheduling, and OSBEELS representation All communication is through their offices o Hearing is conducted by an Administrative Law Judge (ALJ) through the Office of Administrative Hearings (OAH) ALJ issues Proposed Order LEC reviews Proposed Order and makes recommendation for the Board to consider Results in the Board issuing a Final Order o Final Order binding on respondent and Board o See ORS and OAR , Contested Cases NOI Response: Hearing (2) ORS , Disciplinary Hearings; judicial review (1) The State Board of Examiners for Engineering and Land Surveying shall accord opportunity for hearing as provided in ORS chapter 183, when the board proposes to: a) Refuse to issue or renew a certificate of registration or enrollment; b) Revoke or suspend a certificate of registration or enrollment; c) Issue a reprimand; or d) Impose a civil penalty under ORS (2) Judicial review of orders under subsection (1) of this section shall be in accordance with ORS chapter 183. (3) Any person aggrieved by a decision of the board under ORS or is entitled to judicial review of the decision in accordance with the procedure for contested cases provided by ORS chapter 183. Failure to Respond to NOI 4. Failure to Respond o If no response within 21 days, LEC is notified at next regularly scheduled meeting o LEC recommends a Default Final Order with sanctions set as proposed in the NOI; placed on Board s Consent Calendar o Default Final Order voted on at next Board meeting for acceptance and approval for Board President signature o Copy of signed Default Final Order sent to respondent Notice by registered or certified mail to the registrantʹs last address on file with the Board shall constitute service (OAR ) Example of why it is important that your contact information is kept current with Board Part 3: PLS Practice Issues Discussion Topics 1. Failing to renew on time 2. Address changes; Service of Notice; and Name Changes 3. Sealing and signing survey documents, or marking as preliminary 4. Plats & Monument Removal 5. Right of entry 1. Renew before Expiration Depending on the first letter of your last name, the Board assigns one of four expiration dates: o Even or Odd Years, and o June 30 th and December 31 st Oregon State Board of Examiners for Engineering and Land Surveying 4

5 OSBEELS Regulation Department 2015 PLSO Conference Lack of Timely Renewal Each year the Board sends out courtesy renewal reminders on or about April 1 st and October 1 st o Provides plenty of time to renew registration before expiration date of either June 30 th or December 31 st o Requires proper payment and CPD Organizational Form o Between 3,000 to 4,000 renewal notices are sent each cycle If not renewed on time, your registration expires July 1 st or January 1 st No longer authorized to practice o Lacking CPD? Contact Account Specialists o Paid late? Must pay delinquency fee to become active o Can result in law enforcement case because you are prohibited from engaging in professional practices Renewing on Time: OAR 820 OAR , Registrants or Certificate Holders Not Qualified to Practice Registrants or certificate holders who are delinquent, retired, inactive, suspended or revoked by the Board, are not authorized to engage in the professional practice of engineering, land surveying, photogrammetric mapping, or the professional activities of a certified water right examiner as defined in ORS Chapter 537 and OAR chapter 690. Except as provided in section (2), registrants or certificate holders who are delinquent, retired, inactive, suspended or revoked may not hold out as professional engineers, professional land surveyors, professional photogrammetrists, or certified water right examiners. 2. Lack of Address Change A simple matter becomes a law enforcement case: 1. In CPD cases when registrants do not receive notices to participate in a CPD audit o Failure to respond results in a transfer of the file to the Regulation Department 2. In professional practice cases when registrants do not receive renewal notices, but thought they had renewed and were later found engaging in unlicensed practices o I thought something was wrong I never received my new pocket card. I thought my company or secretary took care of it. 3. In law enforcement cases when a registrant does not respond to inquiries from investigators Address affects Service Notice OAR , Address Changes; Service of Notice; and Name Changes (1) It is the registrantʹs responsibility to inform the Board in writing, within 30 days, of any address change, including any change of an e mail address. Notice by registered or certified mail to the registrantʹs last address on file with the Board shall constitute service. (2) It is the registrant s responsibility to inform the Board in writing, within 30 days, of any name change. Documentation showing current legal name must be submitted. 3. Maintain a Professional Seal ORS requires registration to engage in professional land surveying practices. Your seal indicates that you are registered and hold a valid certificate to practice land surveying pursuant to ORS to It also requires: o Every final document is stamped with the seal of and signed by the registrant. o The signature and stamp of a registrant constitute a certification that the document was prepared by the registrant or under the registrant s supervision and control. o A registered professional engineer not also registered as a professional land surveyor shall not establish, reestablish or restore land boundaries, corners or monuments between lands not held in common ownership or intended for conveyance. What is a Final Document? OAR , Final Documents (1) In addition to the final documents identified in ORS (2) and (2), final documents include plats, design information, and calculations. All final documents must bear the seal and signature of the registrant under whose supervision and control they were prepared. (2) Documents that are not final documents must be marked as ʺpreliminaryʺ, ʺnot for constructionʺ, ʺreview copyʺ, ʺdraft copy, subject to changeʺ, or with some similar wording to indicate that the documents are not intended to represent the final work product of the registrant. Oregon State Board of Examiners for Engineering and Land Surveying 5

6 OSBEELS Regulation Department 2015 PLSO Conference To Seal or Not to Seal? Final Documents: o Only two states seal and sign or mark preliminary o Not all professional correspondences are Final Documents o Final Documents might include draft documents for client discussion, jurisdictional review, or professional distribution o If you prepare documents as part of your professional duties, such as property descriptions, they should be sealed or marked before distribution or submittal o If a document will not be under your control be cautious, consider it final affix your seal or mark it preliminary before handing it out 4. Plats & Monument Removal Setting of monuments requires filing a map of survey or plat with the County Surveyor within 45 days. However, some surveyors withhold filing due to a lack of payment or to a county review process, like planning. The surveyor has some recourse: 1. If monuments have been set, but the plat has not been submitted to the county surveyor for review, up to the 45th day after the setting of the first monument, all monuments set may be removed, and no further action is legally required. Plats & Monument Removal 2. If monuments have been set, and the plat is submitted for filing within 45 days of the setting of the first monument, the monuments may be removed within the 45 days, inclusive of the review period granted the county surveyor, so long as notice is provided to the county surveyor that there is no longer an intent to file the survey (or plat). 3. If monuments have been set and the plat has been submitted for review, and if the 45th day has passed, the monuments may not be removed, unless they are interior and exterior lot corners not defining the perimeter boundary. 5. Right of Entry: Refresher ORS , known as the right of entry law, allows land surveyors to access private property given certain conditions: o Effective January 1, 2012, right of entry law requires: Surveyors to pay for property damage caused during the course of surveying, Provide landowners with copies of the survey, and Provide notice of entry to both landowner and property occupant o For a discussion on changes to right of entry see Oregon Examiner article, Land Surveyors, Water Right Examiners and Right of Entry Laws, published Spring 2013 Right of Entry: Specific Points ORS gives land surveyors the exclusive right to enter private lands upon proper notice. To comply, you must: o First provide notice to the landowner by first class mail or by personal notice. If the land is occupied by a person other than the landowner, notice must also be given to the occupant by first class mail or by personal notice o Notice that is given by first class mail must be mailed at least seven days prior to the entry onto the land. Notice that is given by personal notice must be hand delivered to the landowner or occupant or be posted in a conspicuous place where the landowner or occupant may reasonably be expected to see the notice o The notice shall give the professional land surveyor s name, address, telephone number, purpose, availability of the survey and the presence of any temporary or permanent monuments or other markers to be left on the land Right of Entry: ODOT ORS allows ODOT employees to enter private property as long as there is notice as described in ORS : o Therefore, while ODOT employee private property entry criteria are covered under ORS and ORS , registered land surveyors, regardless of place of employment, must follow the right of entry guidelines of ORS o Please see article for text of ORS and ORS Oregon State Board of Examiners for Engineering and Land Surveying 6

7 OSBEELS Regulation Department 2015 PLSO Conference Right of Entry: CWRE ORS allows CWREs to enter property under the following conditions: o Any person may enter upon any land for the purpose of locating a point of diversion of the water intended to be appropriated, and upon any land lying between such point and the lower terminus of the proposed ditch, canal or flume of the person, for the purpose of examining the same and of locating and surveying the line of such ditch, canal or flume, together with the lines of necessary distributing ditches and feeders, and to locate and determine the site for reservoirs for storing water. o If a CWRE is entering a property for any of the above stated reasons, they would not need to comply with ORS o If a CWRE is also a registered land surveyor and is entering a property for any reason other than those stated above, compliance with ORS is required. Right of Entry: Apartments Professional Practices Committee (PPC) was asked how right of entry notification should be applied in the case of an apartment complex: o Legal counsel confirmed that tenants of an apartment complex would be regarded as occupants ʺother than the land ownerʺ and, as such, EACH tenant must receive notice by first class mail or by personal notice. o Additionally, it was determined that the landlord of an apartment complex cannot act as an agent of the professional land surveyor in delivering notice to the tenants. o See, Oregon Examiner article, Right of entry notification in apartment complexes, published Fall Right of Entry: Final Thoughts PLSO created door hangers to assist land surveyors in staying in compliance with right of entry under ORS o PLSO door hangers have ORS on one side and survey and contact information on the reverse, which satisfy the personal notice requirement Reminder: just talking to someone about surveying their property does not satisfy the personal notice requirement Have a Question for the Board? If you have questions regarding professional practices, or need interpretations of OSBEELSʹ rules and statutes, please visit the OSBEELS website at and complete the Questions form: o Located under the ʺContact Usʺ tab o o Completed Questions forms will be forwarded to the appropriate Committee for consideration and discussion LEC Statistics: 2013 Current For January 23, 2013 to January 23, Number of Cases Opened (49 current cases) 167 Number of Cases Closed: 15 Allegations unfounded 1 Allegations Withdrawn 29 Compliance Met 2 Deceased 1 Insufficient Evidence 12 Letter of Concern 6 NOI Withdrawn 2 Other 64 Final Order 35 Settlement Agreement Of the Professional Engineers (55%) 15 Professional Land Surveyors (9%) 2 Professional Photogrammetrists (1%) 58 Unlicensed practice (35%) LEC Statistics: 2013 Current For January 23, 2013 to January 23, Number of Cases Closed, Disciplinary Action (66 CPD cases) 63 Professional Engineers (65%) 8 Professional Land Surveyors (8%) (5 right of entry) 2 Professional Photogrammetrists (2%) 24 Unlicensed Practices (25%) Of the 97 2 License revocation 20 Suspension 11 Permanent retirement w/o reinstatement 88 Civil penalty 2 Respondent action in lieu of penalty Oregon State Board of Examiners for Engineering and Land Surveying 7

8 OSBEELS Regulation Department 2015 PLSO Conference Navigating Finding Statutes and Rules Finding Regulation Info Finding Complaint Form Asking the Board a Question Question & Answer OSBEELS Board Member Ron Singh, PLS OSBEELS Investigators Main number: Monika Peterson James R. (J.R.) Wilkinson Oregon State Board of Examiners for Engineering and Land Surveying 8

9

10

11

12

13

14

15

16

17