july 2009 issue
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Professional Practice & Ethics Corner
APEGGA members with professional practice or ethics questions are welcome to mail them to Ray Chopiuk, P.Eng., Director, Professional Practice, APEGGA, 1500 Scotia One, 10060 Jasper AVE NW, Edmonton, AB T5J 4A2; fax them to 780-426-1877; or e-mail them to rchopiuk@apega.ca. |
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Q I was looking through some back issues of The PEGG on the APEGGA website and found an article on a discipline decision concerning a stipulated order in which the parties involved are not named. I wanted more information on the disciplinary action. Is it possible to obtain transcripts? Why are the parties’ names sometimes omitted?
A First, a bit of background information. As you noted, the discipline case was resolved by means of a recommended (or stipulated) order process, which does not require a formal discipline hearing to be held. The Engineering, Geological and Geophysical Professions Act stipulates the procedures to be followed in discipline matters and makes provision for the alternative process.
In this instance, a compliant against the member would have been received and investigated by APEGGA’s Investigative Committee. If, during the course of the investigation, the member admits to conduct that constitutes unskilled practice or unprofessional conduct, the Investigative Committee is allowed to recommend any order (sanction or penalty) that it considers appropriate. The recommended order must be provided to a member of the Discipline Committee who acts as a case manager.
The Discipline Committee case manager reviews the Investigative Committee’s recommended order, with the understanding that the Investigative Committee represents APEGGA’s interests and the interests of the public. Along with the recommended order, the case manager will have received an agreed statement of facts that should provide him or her with a clear understanding of the substance of the matter and the member’s plea regarding the particular actions that are considered to be unskilled practice or unprofessional conduct.
The case manager proceeds on the assumption that the facts are true and considers whether they support a finding of unskilled practice or unprofessional conduct. The case manager assesses whether the proposed orders are fair and reasonable.
The orders that the Investigative Committee recommends may include one concerning publication of the case. In this instance, the Investigative Committee would have recommended that, instead of publishing the entire decision, an article summarizing the case be published. It would also have recommended that the names of the member and parties involved not be included. In other instances, the Investigative Committee might recommend publishing the decision in full, with names.
In general, a case manager considers whether a recommended order is “in the ball park,” recognizing that reasonable people can disagree on what is an appropriate sanction. The case manager would have accepted that APEGGA (through the Investigative Committee) had a good reason for recommending that names not be published.
The Discipline Committee case manager can either agree with the order or reject it. If the case manager agrees with it, he or she must discuss the order with the member and if the member agrees with it, then the order becomes effective, as if it had been made by the Discipline Committee following a formal hearing. If the case manager rejects the order, the matter must be referred to the Discipline Committee for a formal hearing.
That’s one reason why parties’ names are sometimes not published. As far as obtaining transcripts, there would have been no transcript prepared in this case since the matter did not proceed by way of a formal hearing. Even if it had, APEGGA’s governing Council has a policy stating that transcripts are not available to the public.
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