By John J. Rimes III, Esq.
When a complaint is opened against a Professional Engineer, the PE has the right to respond with any information that might be relevant to the issues that formed the basis of the complaint.
After being notified by the Florida Board of Professional Engineers of the complaint and the basis for it being opened, most PEs file a response that is considered during the investigation into the complaint. Usually, the material received from the PE addresses the issues that are used to resolve the complaint, either with a Closing Order or with an Administrative Complaint.
However, that is not always the case.
PEs should be aware that when an investigation is opened, the issues that were initially alleged in a complaint may not necessarily be the same as those that surface during the investigation. For example, it is not unusual for a case involving technical engineering issues to be expanded during the investigation to include matters not discussed in the initial complaint, either by new facts coming to the investigator’s attention or by new issues identified by the Board’s engineering consultant during a technical review.
Thus, the ultimate charge against the PE may not be the same as that contained in the initial notice of complaint that was sent to the PE. The law does not require the Board or the Florida Engineers Management Corporation to send out additional notices if things change during the investigation.
The law provides a method for the PE to be made aware of changes to the scope of the case. A PE has the right to see the outcome of the investigation before the file goes before the Board’s Probable Cause Panel, or PCP, and to submit a response that will be considered by the panel.
Section 455.2255(1), Florida Statutes, Classification of Disciplinary Actions, provides that a PE can, by filing a written request with FEMC during the investigation, receive a copy of the final investigative report and can file a written response to that report. However, a written request must be filed with FEMC before the case is complete to take advantage of this right.
As a result, PEs would be well advised, in any response to the initial notification that a complaint has been filed and an investigation opened, to make an explicit request for a copy of the final investigative report. This gives the PE a last chance to respond to the matters that are going before the Probable Cause Panel. Such a right when exercised can be crucial to the fairest resolution of the case.
As a matter of fact, on several occasions, by seeing the final report, the PE could have ended any likelihood that an Administrative Complaint would be issued by providing dispositive answers to issues that arose during the investigation, but that were not necessarily discernible from the initial complaint material. If the PE had sent that information to FEMC before the case went to the panel then it is very likely that charges would not have been brought. By not taking advantage of this statutory right, however, the PE was charged with a violation that could have been avoided.
In short, if a PE receives notice that a complaint has been filed and an investigation opened, then at a minimum the PE should request in writing to be sent a copy of the final investigative report prior to the transmission of the file to the PCP.
To learn more about the complaint and enforcement process, visit the Legal Overview page on FBPE’s website, fbpe.org.
John J. Rimes III is the Florida Board of Professional Engineers’ chief prosecuting attorney and the Florida Engineering Management Corporation’s vice president.