vs.
WILLIAM T. COOPER, P.E.,
Respondent.
) Case No. 02-3167PL
Pursuant to notice, the final hearing was held in this case on October 2, 2002, by video teleconference at sites in Tampa and Tallahassee, Florida, before Carolyn S. Holifield, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Douglas D. Sunshine, Esquire
For Respondent: David P. Rankin, Esquire
Law Offices of David P. Rankin, P.A. 3837 Northdale Boulevard, Suite 332
Whether Respondent, William T. Cooper, pled guilty to acts which directly relate to the practice of engineering or the
ability to practice engineering within the meaning of Subsection 471.033(1)(d), Florida Statutes, and, if so, what penalty should be imposed on his license to practice engineering.
By Amended Administrative Complaint (Amended Complaint) dated April 29, 2002, Petitioner, the Florida Engineers Management Corporation, notified Respondent, William T. Cooper, that the Board of Professional Engineers intended to take disciplinary action against his professional engineering license on the grounds enunciated in Subsection 471.033(1)(d), Florida Statutes. Specifically, the Amended Complaint alleged that Respondent pled guilty to acts which directly relate to the practice of engineering or the ability to practice engineering.
Respondent challenged the allegations and timely requested a formal hearing. The matter was forwarded to the Division of Administrative Hearings (Division) for the assignment of an administrative law judge to conduct a formal hearing and prepare a recommended order. Prior to hearing, the parties executed a Pre-hearing Stipulation in which they stipulated to certain facts that required no proof at hearing. These stipulated facts have been incorporated in this Recommended Order.
At hearing, Petitioner presented the testimony of Calvin Johnson, Esquire, and Howard Haynes, Professional Engineer.
Petitioner's Exhibits 1 through 4 were admitted. Respondent
testified on his own behalf and presented the testimony of James Eckert, Esquire, and John Norton. Respondent's Exhibits 1 through 8 were admitted.
The Transcript of the proceeding was filed with the Division on October 18, 2002. At the conclusion of the hearing, by agreement of the parties, proposed recommended orders were to be filed ten days after the Transcript was filed. Prior to that date, Respondent moved to extend the time for filing the proposed recommended orders. The unopposed motion was granted, and the time was extended until November 7, 2002. Both parties timely filed Proposed Recommended Orders under the extended time frame, which have been considered in preparation of this Recommended Order.
Respondent, William T. Cooper (Respondent), is and has been at all times material to this matter, a licensed professional engineer in the State of Florida having been issued License No. PE 20462.
On March 22, 2000, Respondent was charged by criminal indictment by the Fifteenth Statewide Grand Jury in Leon County, Florida. That indictment contained twelve separate counts.
On August 29, 2000, Respondent entered a Plea Agreement with the State of Florida in the Circuit Court of the Second Judicial Circuit in Leon County, Florida. Pursuant to the terms
of the Plea Agreement, Respondent entered a plea of guilty to Counts Seven and Eight of the indictment and agreed to pay restitution in the amount of $84,000 to the State of Florida. The amount of restitution is equivalent to the amount of the fees that Respondent was paid for his services. In the Plea Agreement, the State agreed to nolle prosse Counts One though Six and Counts Nine through Twelve against Respondent, and it also agreed that a formal adjudication of guilt would be withheld. Finally, the Plea Agreement provided, that by entering a plea of guilty, Respondent "admits the facts of the charge."
Counts Seven and Eight of the indictment charged Respondent with two counts of Grand Theft, in the first degree, and both counts provide in relevant part the following:
WHITE CONSTRUCTION CO., INC., by and through its officers, representatives and employees, and WILLIAM THOMAS COOPER, JR. as part of a related transaction . . . committed GRAND THEFT in the First Degree and did thereby knowingly obtain or use or endeavor to obtain or use U.S. Currency or other property with an equivalent value to-wit "delinquency days" with a value of $100,000 or more, the property of another to-wit Florida Department of Transportation, hereinafter FDOT, with the intent to temporarily or permanently deprive said person of a right to the property, or benefit therefrom, or to appropriate the property for the defendants' own use or to the use of a person(s) not entitled thereto, by filing false and fraudulent charges or claims or lawsuits for damages allegedly
attributable to the FDOT, and fraudulently opposing delinquency status declared by FDOT, that included false or fraudulent charges or claims in that the claim(s) presented contain(s), when all line items are considered together, damages and/or delays for the same days and the same equipment expenses on multiple occasions, and/or fraudulent or false claims for equipment not owned by WHITE CONSTRUCTION CO., INC.
Count Seven relates to Project Number 36210-3439 on Interstate 75 (I-75) in Marion County, Florida, and to activities which allegedly occurred between January 30, 1996, and January 30, 1998. Count Eight relates to Project Nos. 36210-3440 and 36210-3441 on Interstate 75 (I-75) in Marion County, Florida, and relates to activities which allegedly occurred between July 16, 1997, and March 17, 2000.
The indictment arose out of certain work performed by Respondent after he was retained by attorneys representing White Construction Company to do cost evaluation and preparation of cost damages, and to testify regarding those matters in depositions and, if necessary, at trial.
Respondent was not retained by the law firm to work as an engineer.
Prior to retaining Respondent, the attorneys who represented White Construction Company had retained several engineering firms to identify and analyze all the engineering issues. The attorneys who retained Respondent spent an amount
in excess of $120,000.00 for those services performed by those engineering firms. Moreover, as a result of the engagement of those engineering firms and the work they performed, the engineering issues had already been identified before the Respondent was retained.
During the time he was retained by the law firm that was representing White Construction Company, Respondent went to the job sites, the I-75 road improvements in North Central Florida, a total of three times. The largest continuous time the Respondent was on the construction site was four hours.
In order to do the work that the law firm had retained him to do, prepare cost evaluations and calculate cost damages, Respondent received and relied on the information provided by the engineers, as well as information provided by White Construction Company and the Florida Department of Transportation.
Respondent did not identify or analyze engineering issues. Rather, his responsibility was to take the analysis of various engineering issues that had been done by the engineering firms and to calculate the claim cost. In carrying out this responsibility, Respondent was not allowed to question the calculations performed by the engineers.
Respondent had no knowledge that the information provided to him was in any way a misrepresentation of the truth.
Since the time Respondent calculated those claims, he learned that there had been false representations made by White Construction Company. For example, Respondent later learned that statements made to him regarding equipment and labor that were on the jobs for which he prepared claims were not on the subject jobs.
The attorneys that retained Respondent requested that he prepare the claims both with concurrences and without concurrences. Respondent complied with this request and sent the claims to the law firm.
A "concurrency" refers to an instance where the same labor and equipment used for one or more projects are reported on two or more claims with overlapping periods of time. For example, a contractor may submit a claim for June through August, after which he submits another claim for August though December, and, finally, he submits a claim that covers the middle of December to January. The concurrency occurs if the same labor and equipment costs included in the first claim are also included in an overlapping time period in the second claim. If the labor and equipment costs in the second period are also included in an overlapping time period in the third claim, there is concurrency with respect to the labor and equipment costs that have been included on both claims for the same time period.
It is a customary practice in claims preparation for contractors to ask a claims preparer to prepare separate claims that include the concurrencies as well as to prepare claims with the concurrences taken out. When the claims include concurrencies, someone must go back and take the concurrencies out. The owner or contractor decides who will be responsible for doing this. In this case, the law firm that retained Respondent requested only that he prepare the claims with concurrencies and those without concurrencies.
The claims preparer does not submit the claims and has no control over which claims the contractor presents for payment. The claims which were at issue in the underlying legal proceeding were not submitted by Respondent.
The claims prepared by the Respondent and certified and presented to the Florida Department of Transportation by White Construction Company totaled $30 million. However, the claims prepared by Respondent could only have totaled $30 million if all the concurrencies remained in all the claims.
Respondent never submitted claims to the Florida Department of Transportation or otherwise indicated to the Department that White Construction Company was entitled to the total amount of the claims including the concurrencies.
James D. Eckert, Esquire, was qualified and accepted as an attorney who is an expert in the field of criminal law and criminal defense.
Mr. Eckert represented Respondent in matters related to the criminal indictment referenced in paragraph 2. He took discovery with regard to Counts Seven and Eight but never found any evidence that incriminated Respondent.
The reason Respondent entered a plea of guilty to Counts Seven and Eight of the criminal indictment was for reasons other than he was guilty. Mr. Eckert recommended that Respondent enter a plea because of several compelling factors. These factors included the following: the Statewide Prosecutor was offering to withhold adjudication; the trial would have lasted at least six weeks and cost Respondent more than
$150,000.00; all witnesses who could corroborate Respondent's innocence had announced that they were invoking the Fifth Amendment and would not testify; and the Plea Agreement was intended to be a total settlement of the entire situation.
Both the Florida Department of Transportation and the Florida Department of Law Enforcement agreed to the terms of the plea agreement.
As support for its position in this case, Petitioner relies on a few excerpts from the more than 700-page deposition
transcript of Respondent taken in 1998, and its witnesses interpretation of that deposition.
According to testimony presented by Petitioner, one basis of the charge against Respondent was that, at the deposition in the underlying civil action between White Construction Company and the Florida Department of Transportation, Respondent was "introduced as the engineer for White Construction Company that was most knowledgeable about claim issues that were submitted to the Department in the damage lawsuits in addition to his representations in depositions."
A review of the deposition transcript, however, reveals that Respondent was not introduced as an engineer, but was represented as the person most knowledgeable about the claim damages.
Petitioner also presented testimony that, with regard to claims preparation, Respondent was acting as an engineer to the extent that he was involved in "technical issue identification and development." No specific facts were given to support this general statement or the allegations in the Amended Complaint.
The evidence presented by Petitioner did not establish that the conduct described in paragraphs 25 and 27, even if true, was the same conduct that was the basis of Counts Seven and Eight of the indictment. Moreover, Petitioner failed to
show that, in either case, Respondent was acting as an engineer or that the conduct was directly related to the practice of engineering or the ability to practice engineering.
Engineering education, training, and experience are not necessary or required to prepare claims and cost damages. This is evidenced by the fact that there are many people who prepare claims such as the ones prepared by Respondent and who use the same methodologies that were used by Respondent but who are not engineers.
There was no evidence presented to support the allegation in the Amended Administrative Complaint that the acts to which Respondent pled guilty directly relate to the practice of engineering or the ability to practice engineering.
Respondent has been licensed as a professional engineer since 1974. Except for the complaint that is the subject of this proceeding, Respondent has never had a complaint filed against his license.
CONCLUSIONS OF LAW
The Division of Administrative has jurisdiction over the subject matter pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.
Petitioner, the Florida Engineers Management Corporation, a Florida not-for-profit corporation, was created to "provide administrative, investigative, and prosecutorial
services to the Board of Professional Engineers (Board) pursuant to Subsection 471.038(2), Florida Statutes.
The Board is empowered to revoke, suspend, or otherwise discipline the license of a professional engineer for any of the grounds enumerated in Section 471.033, Florida Statutes. Subsection 471.033(3), Florida Statutes.
Respondent is a licensed professional engineer in the State of Florida and is subject to discipline by the Board.
In the Amended Complaint, the Board seeks to revoke Respondent's license for the grounds in Subsection 471.033 (1)(d), Florida Statutes, which provides the following:
The following acts constitute grounds for which disciplinary actions in subsection (3) may be taken:
* * *
Being convicted or found guilty of, or entering a plea of nolo contender to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of engineering or the ability to practice engineering.
The term "engineering" is defined in Subsection 471.005(7), Florida Statutes, which provides in pertinent part the following:
"Engineering" includes the term "professional engineering" and means any service or creative work, the adequate performance of which requires engineering education, training, and experience in the application of special knowledge of the mathematical, physical, and engineering
sciences to such services or creative work as consultation, investigation, evaluation, planning, and design of engineering works and systems, planning the use of land and water, teaching of the principles and methods of engineering design, engineering surveys, and the inspection of construction for the purpose of determining in general if the work is proceeding in compliance with the drawings and specifications, any of which embraces such services or work, either public or private, in connection with any utilities, structures, buildings, machines, equipment, processes, work systems, projects, and industrial or consumer products or equipment of a mechanical, electrical, hydraulic, pneumatic, or thermal nature, insofar as they involve safeguarding life, health, or property; and includes such other professional services as may be necessary to the planning, progress, and completion of any engineering services.
Disciplinary proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So. 2d 487 (Fla. 1973). Therefore, in disciplinary proceedings such as this, Petitioner must prove the alleged violations by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern
and Company, 670 So. 2d 932, (Fla. 1996).
The nature of clear and convincing evidence has been described as follows:
[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and
the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Inquiry Concerning Davey, 645 So.2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Petitioner failed to meet its burden of proof.
The evidence established, and it is undisputed, that Respondent entered a guilty plea to Counts Seven and Eight of the above-referenced indictment. However, Petitioner failed to establish, by even a preponderance of evidence, that the acts to which Respondent pled guilty directly relate to the practice of engineering or the ability to practice engineering.
RECOMMENDED that the Board of Professional Engineers enter a final order dismissing the charges in the Amended Administrative Complaint against, Respondent, William T. Cooper.
DONE AND ENTERED this 6th day of January, 2003, in Tallahassee, Leon County, Florida.
CAROLYN S. HOLIFIELD
Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2003.
David P. Rankin, Esquire
Law Offices of David P. Rankin, P.A. 3837 Northdale Boulevard, Suite 332
Douglas D. Sunshine, Esquire
Natalie A. Lowe, Executive Director Board of Professional Engineers 2507 Callaway Road, Suite 200
Hardy L. Roberts, III, General Counsel Department of Business and
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
