Pursuant to Notice, this matter came on for hearing before Harry L. Hooper, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, on June 29, 2005, in Pensacola, Florida.
Whether the Board of Professional Engineers should penalize Respondent because of negligence in the practice of his profession.
On August 4, 2004, Petitioner, Florida Engineers Management Corporation (Corporation), filed an Administrative Complaint, before the Board of Professional Engineers (Board) alleging that Respondent, Jeremiah J. Walker (Mr. Walker), was negligent in the practice of engineering. This Complaint alleged that
Mr. Walker, by issuing a Certificate of Construction Completion which was incorrect, allowed the resumption of water service though a potable water system at Hurlburt Air Force Base, Florida, which had not been disinfected or bacteriologically surveyed or evaluated.
In a Petition for Formal Hearing executed on February 3, 2005, Mr. Walker requested that the Board dismiss the complaint or in the alternative, that the Board provide a formal administrative hearing. On April 1, 2005, the Board forwarded the matter to the Division of Administrative Hearings.
On May 26, 2005, the Corporation filed an Amended Administrative Complaint. This Administrative Complaint did not allege that Mr. Walker had allowed impure or unsanitary water to flow through the pipes at Hurlburt Field. Rather, it alleged that Mr. Walker submitted a Certificate of Construction Completion to the Florida Department of Environmental Protection indicating that the potable water system was complete and, "in code compliance with minor deviations from the permitted
construction plans and specifications when in fact it was not." The case was set for hearing June 3, 2005.
On June 2, 2005, a Second Amended Administrative Complaint was filed which alleged only that Mr. Walker executed Part IV of a Certificate of Construction Completion which was submitted to the Florida Department of Environmental Protection indicating that the potable water system was complete and, "in code compliance with minor deviations from the permitted construction plans and specifications when in fact it was not." It added the sentence, "However, the certification was submitted for the entire project." It is this Complaint that was considered the charging document at the hearing.
At the hearing, Petitioner presented the testimony of three witnesses. Respondent also presented the testimony of three witnesses. Respondent offered Exhibit Nos. 1 through 7, and had six accepted into evidence. The parties' offered Joint Exhibit Nos. 1 through 4 which were received into evidence. Joint Exhibit No. 4 is the Deposition of Andrea Bishop.
A Transcript was filed on July 20, 2005. After the hearing, Mr. Walker and the Corporation timely filed Proposed Findings of Fact and Conclusions of Law on September 9, 2005, and they were considered in the preparation of this Recommended Order.
References to statutes are to Florida Statutes (2002) unless otherwise noted.
Respondent Mr. Walker holds professional engineer's license no. P.E. 40276. His license was issued by the Florida Board of Professional Engineers. During times pertinent he was employed by the U.S. Army Corps of Engineers (Corps).
The Corporation is charged with providing investigative and prosecutorial services to the Board in accordance with Sections 455.32, 471.005(9), and 471.038, Florida Statutes.
The Board has the authority to assess penalties against professional engineers pursuant to Section 471.033(3), for violations of Section 471.033(1).
Mr. Walker has been the Resident Engineer, Construction Division, with the Corps at Hurlburt Field, Florida during all times pertinent. Hurlburt Field is a U. S. Air Force Base. The Corps of Engineers administers major construction projects at Hurlburt Field. During times pertinent Mr. Walker supervised about eight people.
In late 2001 or early 2002, the Corps awarded a contract to widen Cody Road and Independence Road, which are located on the premises of Hurlburt Field. Both required the relocation of water lines.
The Corps gave a design contract for the road widening project to an architect engineer firm named JE/Sverdrup, of Jacksonville, Florida. JE/Sverdrup prepared an Application for a Public Drinking Water Facility Construction Permit for submission to the Florida Department of Environmental Protection (DEP).
DEP was involved in this construction contract because it required the relocation of over 5,000 linear feet of potable water lines. The person who actually signed the permit application was Ronald J. Lowe, Professional Engineer, for a permittee identified as Colonel Timothy Boone, U. S. Air Force. The permit request was submitted to DEP on May 24, 2001. Base Civil Engineering acted as liaison with DEP through its employee Andrea Bishop (Ms. Bishop). The Corps, and Mr. Walker, had no contact with DEP.
Permit/Certification No. 0184807-001-DS/C, addressing the road widening project, was granted on June 15, 2001. DEP expected the permit to be closed out upon completion of the construction or upon completion of part of the construction. In order to close out a permit, DEP required a certification by a licensed professional engineer, to the effect that the construction was in accordance with the plans submitted with the permit; that the record drawings for the substantially completed portions of the project were adequate; and that all deviations
from the construction permit were indicated, must be provided. Also, a satisfactory analysis of bacteriological samples must be provided.
On August 16, 2002, subsequent to the completion of substantial construction work, a Certification of Construction Completion and Request for a Letter of Clearance to Place a Public Drinking Water Facility into Service (Certificate of Completion) was signed by Lieutenant Colonel Jeffrey L. Pitchford, Commander, 16th Civil Engineer Squadron. During the course of construction of this project, Lieutenant Colonel Pitchford, at least weekly toured the sites with Mr. Walker. Lieutenant Colonel Pitchford was aware of what the status of the project was on an on-going basis.
At the time the Certificate of Completion was fully executed, work on Independence Road had been completed. Work on Cody Road had not been completed. Lieutenant Colonel Pitchford was aware of that fact.
The Certificate of Completion contained attachments that included pressure gauge information, bacterial test results, and red line "as built" drawings. The pressure gauge information said that the tests were conducted on Independence Road. The red line "as built" drawings submitted were drawings of Independence Road. The bacterial analysis does not reveal on what road samples were taken. A careful reading of the
Certificate of Completion, as submitted, reveals that it addresses only the completion of Independence Road.
The Certificate of Completion is divided into four parts. Part I is entitled "Project Name and Construction Permit Number, Permittee, Etc." It identifies the project and the permit number, among other items of information. Ms. Bishop, the Compliance Program Manager, at Base Civil Engineering at Hurlburt Field, completed Part I of the form. As representative of the U. S. Air Force, Ms. Bishop is the only liaison to DEP. There is no controversy with regard to the manner in which Part I was completed.
Upon completion of Part I, Ms. Bishop, in accordance with established procedure, sent the Certificate of Completion to the Corps. Mr. Walker executed Part IV and returned it to Ms. Bishop. Thereafter, Parts II and III were executed by Lieutenant Colonel Pitchford, as described below.
Part II of the Certificate of Completion is entitled "Statement by Permittee." The person who signed Part II, Lieutenant Colonel Pitchford, certified as authorized representative of Hurlburt Field, that the contractor had furnished Hurlburt Field with record drawings for the substantially completed portion of the project and that record drawings were available in his office.
Lieutenant Colonel Pitchford also certified that, "if this project involves the construction of any new or altered treatment facilities, an operation and maintenance manual for the new and altered treatment facilities included in the substantially completed portion of this project is available for review at the site of the new and altered treatment facilities." Lieutenant Colonel Pitchford signed Part II on August 16, 2002.
Part III is entitled "Statement by Owner/Operator of Project After It Is Placed into Service." This was signed by Lieutenant Colonel Pitchford. In this part he certified that as representative of Hurlburt Air Force Base, he will be the owner/operator after it is placed in service. He also certified that he received a copy of the record drawings and that they were available for his review at his command.
Part III of the Certificate of Completion also stated that the project, 0184807-001-DS/C, was substantially complete. This block was signed by Lieutenant Colonel Pitchford on
August 16, 2002. As noted earlier, when Mr. Walker executed Part IV, Parts II and III were not completed.
Part IV of the Certificate of Completion is entitled, "Certification of Construction Completion by Professional Engineer in Responsible Charge of Inspecting Construction of Project." Part IV was executed by Mr. Walker on August 15, 2002. By his signature he certified that as a professional
engineer in Florida he was responsible for inspecting the construction of the road widening project in order to determine if the work "is proceeding in compliance with the construction permit and approved plans and specifications."
In Part IV of the Certificate of Completion he also certified that, ". . . the substantially completed portion of this project has been constructed in accordance with the construction permit. . . ." Moreover, he certified, among other things, that the record drawings for the substantially completed portion of the project are accurate, and, that to the best of his knowledge all water mains have been disinfected and bacteriologically tested in accordance with certain DEP rules. He certified that the certification was based upon an on-site observation.
Importantly, Part IV, signed by Mr. Walker, also asserted that, "This certification does not necessarily constitute a certification of final completion of construction. Additional construction may be needed to satisfy all conditions of the construction contract documents."
Part IV has an inked stamp impression upon it, which was also signed by Mr. Walker, which averred that the project was designed by the Mobile District of the U. S. Army Corps of Engineers and that the initials or signatures on the document were made within the scope of his employment.
The fully executed Certificate of Completion was submitted to DEP by Ms. Bishop. Mr. Walker was not involved in submitting it. DEP received the Certificate of Completion and erroneously concluded that both the Cody Road Project, as well as the Independence Road project, had been completed. Accordingly, they closed out the project.
Subsequently, a former employee in Mr. Walker's Office sent letters to government agencies asserting that due to Mr. Walker's negligence, impure water had been provided to personnel at Hurlburt Air Force Base. This was investigated. The investigation determined that impure water had not been provided to those using the potable water system on the base.
Because of the erroneous assumptions made by DEP based on the Certificate of Completion, the permitting process was reviewed by DEP, the Corps, and the U. S. Air Force. It was determined that Hurlburt's permit certification process needed review because the erroneous conclusions drawn by DEP were the result of systemic problems with the procedures used. Following this review, Hurlburt Air Force Base developed a new Standing Operating Procedure, so that this type of error and miscommunication might be avoided in the future. This was sent to DEP on December 8, 2003.
DEP revised their Certificate of Completion form effective August 28, 2003. The revision was not done solely because of the incident with the form used in the Hurlburt Field construction.
When Mr. Walker signed Part IV of the Certificate of Completion, the only other part of the form that was completed was Part I. The information certified by Mr. Walker was entirely correct and truthful. Moreover, the language in Part IV specifically noted that, "This certification does not necessarily constitute a certification of final completion of construction."
Dr. Chen H. Lin is a professional engineer with an ecology and environmental consulting firm. He is a graduate of a university in Taiwan with a Bachelor in Civil Engineering degree, has a Master in Civil Engineering degree from Auburn University, and a Ph.D. in Environmental Engineering from the University of Florida. He is licensed as a professional engineer in Florida, Alabama, South Carolina, and Michigan. He was accepted as an expert in civil engineering and in the permitting process with DEP in reference to water, waste-water, and waste-water treatment.
It is Dr. Lin's opinion that Mr. Walker did not exercise due care and was negligent as a professional engineer
because he filled out and signed Part IV of the Certificate of Completion at a time when Parts II and III were blank.
Dr. Lin is a credible expert witness and his testimony is given great weight as to generally accepted standards applicable to professional engineers. However, his experience with specific military procedures is limited. Therefore, his opinion that Mr. Walker was negligent is rejected because of the factual context and procedures that existed at the time within the Corps and Base Civil Engineering at Hurlburt Field.
James J. Mallett is a registered professional engineer in Florida and has been since 1963. He is also licensed in Alabama, Georgia, Tennessee, and Louisiana. He graduated from Auburn University in 1955 and received a Master of Civil Engineering degree from the University of Illinois. He also has a Master of Business Administration degree from the University of Alabama at Birmingham.
Mr. Mallett has worked in the area of water system projects in many states and with the military and the U. S. Army Corps of Engineers since the late 1970s. He has worked on water projects at Hurlburt Field and is familiar with the processes used there. It is his opinion that it is standing operating procedure at Hurlburt to complete the Certificate of Completion in the manner in which the form at issue was completed.
It is his opinion that Section IV does not imply that the project is completed and that if DEP had read the form closely they would have known that the Certificate of Completion addressed only Independence Road. Mr. Mallett believes the form is confusing. He does not believe that it was negligent for
Mr. Walker to sign Part IV prior to the completion of Parts II and III.
Mr. Mallett's testimony is more credible than the testimony of Mr. Lin as to the presence or absence of negligence, because Mr. Mallett is more familiar with the specific procedures used at Hurlburt Field and military construction projects in general. It is his opinion that
Mr. Walker's actions, in the context of the procedures employed at Hurlburt Field, were entirely correct and were not negligent. This opinion is accepted as fact.
Ms. Bishop's testimony provided the actual cause of the error, which was a result of the lack of communication among the Corps and the Base Civil Engineering Section and herself.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.69 and 120.57(1), Fla. Stats.
Section 471.033(1)(g), authorizes the Board, on whose behalf the Corporation has prosecuted this matter pursuant to
Section 471.038(3), to discipline an engineer proved guilty of negligence in the practice of engineering.
The charge in this case is penal in nature and must be strictly construed, with ambiguities being resolved in favor of the licensee. Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977) and Elmariah V. Department of Professional Regulation, 574 So. 2d 164 (Fla. 1st DCA 1990).
As the party asserting the affirmative of an issue, the Corporation has the burden on proof. Department of Transportation v. J.W.C Co., 396 So. 2d 778, 790 (Fla. 1st DCA 1981).
In order for the Board to suspend or revoke an engineer's license, impose an administrative fine, issue a reprimand, or mete out any other penalty provided in Section 471.033(3), the Corporation must prove the charges by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987) and Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).
The grounds proven must be those specifically alleged in the Administrative Complaint. See, Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1987).
Florida Administrative Code Rule 61G15-19.001(4), defines the term "negligence," for the purposes of disciplinary proceedings, to mean "the failure by a professional engineer to utilize due care in performing in an engineering capacity or failing to have due regard for acceptable standards of engineering principles." The rule further explains:
Professional engineers shall approve and seal only those documents that conform to acceptable engineering standards and safeguard the life, health, property and welfare of the public.
Failure to comply with the procedures set forth in the Responsibility Rules as adopted by the Board of Professional Engineers shall be considered as non-compliance with this section unless the deviation or departures therefrom are justified by the specific circumstances of the project in question and the sound professional judgment of the professional engineer.
The Responsibility Rules, noted in Florida Administrative Code Rule 61G15-19.001(4), are set forth in Florida Administrative Code Rule 61G15-30. They are inapplicable to this case.
The allegation of the complaint, at paragraph 5, that Mr. Walker submitted a Certification of Construction Completion to DEP was not proven. Mr. Walker had no dealings with DEP. The implication of the allegation, at paragraph 5, that
Mr. Walker indicated "that the Potable Water System was complete and in code compliance with minor deviations from the permitted
construction plans and specifications when in fact it was not," is not proven. Furthermore, it was not proven that Mr. Walker was negligent in the practice of professional engineering.
The award of attorney's fees to Mr. Walker is not permitted pursuant to Section 120.595. The Corporation did not participate in these proceedings for an improper purpose.
RECOMMENDED that the Florida Board of Professional Engineers enter a final order dismissing the Administrative Complaint against Mr. Walker.
DONE AND ENTERED this 22nd day of September, 2005, in Tallahassee, Leon County, Florida.
HARRY L. HOOPER
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2005.
Douglas D. Sunshine, Esquire
Pamela A. Moine, Esquire Assistant United States Attorney Northern District of Florida
Paul J. Martin, Executive Director Florida Board of Professional Engineers 2507 Callaway Road, Suite 200
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.
