Professional Engineers Of North Carolina

SPR 2014

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L e g a L B e at 22 the Professional Engineer Spring 2014 After receiving a notice of citation for contested case hearing or a notice of contemplated action, if the licensee has not already, he or she should consider stopping any further discussion of charges with the board orally, communicate everything in writing and preferably through an attorney. Tere might be some opportunity for informal settlement discussions with the board by the licensee's counsel, but it could be risky for the licensee to try and settle the case in person. Once counsel understands the case, and the licensee and counsel decide on a strategy, the licensee can then proceed to the conference or hearing. As noted above, prior to the issuance of a notice of citation for contested case hearing or a notice of contemplated action, the investigation is confdential. After the issuance, however, the board will provide a copy of the complaint, the name of the party who fled the complaint, the investigator's written record of the interview with the licensee and a list of the board's evidence. Te evidence may include drawings and other documents that the licensee should request be provided by the board. Te board, however, does not have to provide its witness statements, and any such testimony will only be at the contested case hearing. If the licensee requests a settlement confer- ence, the conference is held with the board's settlement committee at the board's ofce in Raleigh. Te settlement committee is comprised of: (1) the board member who served on the review committee; (2) one public member from the board; (3) the legal counsel of the board; and (4) the board's executive director. If a notice of contemplated action is received, and prior to the settlement conference, the licensee should request copies of other prior board disciplinary actions involving similar facts. While every case is diferent, it may be possible to examine whether the punishment in the notice of contemplated action is consistent with prior board decisions. While the board is not bound by its prior disciplinary actions, it has a genuine interest in trying to be equitable. If the punishment in the notice of contemplated action appears harsh, the board may consider reducing it. While no sworn testimony is taken at the settlement conference that could be introduced at the contested case hearing, anything said by the licensee at the settle- ment conference could lead to other charges being brought against the licensee by the board. Te licensee should strongly consider bringing an attorney to the settlement conference. Te licensee may face a real dilemma at the settlement conference. Te settlement committee will probably not look favorably upon the licensee who lets his or her attorney do all the talking. Te licensee may appear uncooperative to the board. On the other hand, the licensee may say something that might lead to a new line of investigation and expand the charges. Te licensee and his or her attorney should have a thorough discussion prior to the settlement confer- ence about how much the licensee should talk at the hearing and what topics should and should not be covered. After the settlement conference, the settlement committee will essentially decide whether to recommend the board proceeds with the contested case hearing, or notice of contemplated action, or to dismiss the charges or accept admission of guilt with no further action. Te settlement committee makes a recom- mendation to the board just like the review committee. Tus, the settlement conference afords the licensee a valuable opportunity to reset the board's actions. On average, the board conducts only two or fewer contested case hearings each year. If the contested case hearing happens, the licensee should defnitely consider retaining an attorney if he or she has not already. Te contested case hearing is very much like a trial, and not an informal meeting like the settlement conference. Te board and licensee introduce evidence through exhibits and testimony. A court reporter creates a transcript of the proceed- ings and an ofcial record is created. Te contested case hearing is held at the board's ofce in Raleigh. Te board retains outside counsel to assist in the prosecution of the charges against the licensee. Te full board acts as the adjudicator. Te contested case hearing follows the procedures in the Administrative Proce- dures Act (N.C. Gen. Stat. ยง 150B). If the Legal_Winter14.indd 22 3/27/14 11:35 AM

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