Engineers, as licensed professionals pursuant to the New York State Education Law (hereinafter “Educ. Law”), must comply with a rigorous code of professional ethics. These rules and the definition of professional misconduct are set forth in the Educ. Law and by the rules promulgated by the New York State Board of Regents (hereinafter “Board of Regents”). (N.Y. Educ. Law § 6509 and 8 NYCRR §§ 29.1 and 29.3).
While the vast majority of engineers take their responsibilities extremely seriously, and many complaints brought are simply frivolous, all engineers should understand the process involved in responding to an investigation by the New York State Education Department (hereinafter “Educ. Dep’t.”).
Complaints made to the Educ. Dep’t. are investigated by a professional conduct officer. In the instance the complaint involves a question of professional expertise, the officer may, but is not required to, consult with a panel of three members of the State Board for Engineering, Land Surveying and Geology (hereinafter the “Board of Engineering”), which was created to assist with “matters of professional licensing, practice, and conduct.” (N.Y. Educ. Law § 6508). The investigation may be as simple as requesting certain documents or may involve a more in-depth process involving all the project documents and in-person meetings.
After his review, the professional conduct officer has two options: 1) He may terminate the proceeding because substantial evidence is lacking or 2) he may determine – after consulting with a professional member of the Board of Engineering – that substantial evidence exists in support of the complaint. (N.Y. Educ. Law § 6510(1)(b)). If the matter moves forward, it will involve either expedited procedures or adversary proceedings. (N.Y. Educ. Law § 6510(3) and 8 NYCRR §17.3). Both processes are discussed below.
Minor or technical violations may be resolved by what are known as expedited procedures. (N.Y. Educ. Law § 6510(2)(a)). Some examples that qualify for expedited procedures include: “isolated instances of violations concerning professional advertising or record keeping, and other isolated violations which do not directly affect or impair the public health, welfare or safety.”
The professional conduct officer, with the advice of a member of the Board of Engineering, has the discretion to determine whether a violation is minor or technical. If it is determined that a violation exists, but is minor, the professional conduct officer (after consulting with a member of the Board of Engineering) may issue an administrative warning or prepare and serve formal charges. If the latter option is chosen, a violations panel will schedule a meeting with the engineer. Thereafter, the panel may issue a censure and reprimand and/or may impose a fine not to exceed five hundred dollars for each instance of minor or technical misconduct.
In the instance a complaint is not terminated for lack of substantial evidence or resolved by way expedited procedures, disciplinary proceedings will continue and the engineer will be subject to adversary proceedings. (N.Y. Educ. Law § 6510(3)).
The initial step once adversary proceedings are initiated is a hearing, similar to a trial, before a panel of at least three individuals, two of which must be members of the Board of Engineering. At the hearing, the design professional (or his counsel) can (among other things): produce witnesses and evidence in his defense; cross-examine adverse witnesses; and examine adverse evidence. (N.Y. Educ. Law § 6510(3)(a)). Importantly, the hearing panel is not bound by the rules of evidence and a guilty verdict requires only a preponderance (i.e., 51%) of the evidence. (N.Y. Educ. Law § 6510(3)(c)).
After the completion of the hearing, the panel issues a written report with findings of fact, a ruling on each charge (a guilty verdict requires at least two votes), and a recommended penalty in the instance of a guilty verdict. (N.Y. Educ. Law § 6510(3)(d)).
Review of the Regents Committee
The report of the hearing is reviewed by a three person “Regents Review Committee” appointed by the Board of Regents. (N.Y. Educ. Law § 6510(4)(a)). This committee acts similar to an intermediate appellate court and will schedule a meeting to discuss the findings of the hearing. Thereafter, the Review Committee will prepare their own report and forward it to the Board of Regents. (N.Y. Educ. Law § 6510(4)(b)).
Decision of the Board of Regents
Once the Board of Regents receives the report of the Regents Review Committee, it evaluates all the prior evidence, proceedings, and rulings and issues a final order. (N.Y. Educ. Law § 6510(4)(c)).
The penalties which can be imposed include but are not limited to: censure and reprimand; suspension, revocation, or annulment of the engineer’s license; and a fine not to exceed ten thousand dollars per guilty charge. (N.Y. Educ. Law § 6511).
While many complaints are meritless, the disciplinary process detailed above can be involved and serious. If a complaint is filed with the Educ. Dep’t., all engineers should engage legal counsel in order to understand the full scope of the ramifications and to chart out an appropriate course in responding to the Educ. Dep’t. Ideally, counsel should be retained prior to any substantive communications with the Educ. Dep’t.