Opinion
C.A. No. 03A-07-001 WLW.
Submitted: April 24, 2004.
Decided: July 27, 2004.
Upon Appeal of the Decision of the Council of the Delaware Association of Professional Engineers. Affirmed.
Scott E. Chambers, Esquire of Schmittinger Rodriguez, P.A., Dover, Delaware; attorneys for the Appellant.
James J. Hanley, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware; attorneys for the Appellee.
ORDER
Introduction
This is the Court's decision on David Johns' appeal of the decision of the Council of Delaware Association of Professional Engineers ("Council") revoking his professional engineering license. The State has answered the appeal.
Background
On June 11, 2003, the Council conducted a disciplinary hearing regarding Johns, a licensed professional engineer engaged in the design of septic systems, during which the Council voted to revoke Johns' professional engineering license. Johns did not appear at the hearing. The Council heard testimony from a number of managers at the Department of Natural Resources Environmental Control ("DNREC") regarding deficiencies in permit applications submitted by Johns in the years leading up to the hearing.
The Court will briefly recite the most pertinent facts here. However, a more complete statement of the facts can be found in the Court's original decision on this matter. Johns v. Council of the Delaware Association of Professional Engineers, Del. Super., C.A. No. 03A-07-001 WLW, Witham, J. (January 29, 2004).
Brian Carbaugh, a professional engineer providing expert testimony for the State, testified that certain aspects of the manager's warnings issued by DNREC regarding deficiencies in Johns' applications and designs did demonstrate an extreme departure from the standard of care. Carbaugh further testified that Johns' failure to properly and accurately complete the construction and review documentation submitted to DNREC was "probably both an extreme departure from the standard of care as well as a violation of the code of ethics." Mr. Carbaugh answered additional questions from Council members, including the following exchange,
Transcript of June 11, 2003, hearing conducted by the Delaware Association of Professional Engineers regarding David Johns, p. 25.
Q. Mr. Carbaugh, on reviewing all these complaints and violations, is it your opinion, professional opinion, that in some cases there may be a demonstration of negligence here?
A. I have to refer back to the — because my laymen's terminology of negligence and the legal definition of negligence as it's been explained to me, as I remember any deviation from the standard of care is negligence, but the negligence alone was not in violation of the professional engineers' act. A gross deviation from the standard of care or a significant — extreme deviation from the standard of care, that denoted gross negligence, and it was gross negligence which was the issue with regards to the Professional Engineers Act. In my review in taking all of the — everything in composite together may be an extreme deviation from the standard of care and gross negligence.
Q. In your professional opinion?
A. In my professional opinion. But I felt that the failure to again coordinate between said evaluation and the placement design of the system, and not just once, but on multiple occasions clearly was an extreme deviation from the standard of care and representing gross negligence. So in my review that's where I had directed my professional opinion.
Tr. 35-36.
After a discussion off the record, the Council found Johns guilty of gross negligence and violations of the Code of Ethics. The Council then heard testimony regrading Johns' previous conduct. The Council learned that in 1991 the State of Virginia issued a written reprimand to Johns for certifying inspection reports which were not in compliance with their standards. In December 2000, Johns was found guilty of violating Canons 1.B and 2.B of the Code of Ethics and censured by the Delaware Council. After discussing the matter, the Council voted to revoke Johns' professional engineering license.
24 Del. C. § 2823(a)(2) (2003).
24 Del. C. § 2823(a)(3) (2003).
In August 2003, this Court denied Johns' Motion for a Stay of the Council's Order, concluding that Johns failed to demonstrate that the revocation of his license resulted in irreparable harm. Johns filed an appeal contending that he received inadequate notice of the hearing, the Council erred in relying on the testimony of Mr. Carbaugh as an expert, and the Council's revocation of his license constituted excessive punishment. In January 2004, the Court reversed the decision of the Council and remanded to allow Johns to receive proper notice for the hearing. However, upon a motion for reargument filed by the State, this Court vacated its original decision, concluding that pursuant to the Administrative Procedures Act, Johns had received proper notice of the hearing. This is the Court's decision on the remaining issues raised in Johns' appeal — whether Johns' should have reasonably believed the hearing was postponed, whether the Council properly relied on the expert testimony, and whether the penalty imposed was excessive.
Discussion
Title 24 Del. C. § 2823 of the Delaware Code provides for an appeal of a disciplinary decision by the Council to the Superior Court. When factual determinations are in issue, the Court "shall take due account of the experience and specialized competence of the Council and of the purposes of the Delaware Professional Engineers' Act under which Council has acted." In the absence of actual fraud, the Court's review "shall be limited to a determination of whether the Council's decision was supported by substantial evidence on the record before it." Johns' Reliance on his Conversation with Terry Fluke
24 Del. C. § 2823(c) (2003).
Id.
Johns contends that he contacted the Delaware Association of Professional Engineers after receiving notice of the hearing. Johns spoke to Terry Fluke, an administrative assistant at DAPE, and requested that his hearing be postponed pending a final resolution of an appeal in another matter before a different administrative agency. According to Johns, Fluke agreed and asked him to fax information to the Council. Johns asserts that he faxed the requested information to DAPE. Thus, he argues that he reasonably believed that the hearing had been postponed based on his conversation with Fluke. However, the State submitted the affidavit of Terry Fluke which states that Fluke told Johns that he would have to speak to Peggy Abshagen, the Executive Director for DAPE, regarding a postponement of the hearing. Fluke states that she suggested Johns fax the information the Abshagen, as Fluke did not have the authority to change the date of the hearing. As far as Fluke was aware, Johns did not fax the information to Abshagen.
Johns submitted a signed affidavit with the above assertions. Appellant's Appendix A-13.
Appellant's Appendix A-64.
The notice Johns received from the Council provided that his hearing date was on June 11, 2003, and stated that if he needed additional information he needed to contact Executive Director Peggy Abshagen. A phone number, fax number, address, and e-mail address were provided so Johns could contact Abshagen. However, Johns called DAPE only one time and spoke only with Fluke. If Johns faxed the information Fluke suggested he fax to Abshagen, he failed to follow up to make sure the fax was received and the hearing date postponed. Johns was aware of the serious nature of the hearing and the importance of being present. Johns must accept the consequences of his failure to follow through on his request. His assertion that the Council failed to follow its own procedures is without any support. The letter he received in May 2003 providing notice for the hearing clearly stated that he needed to speak to the Executive Director if he needed additional information. Thus, Johns should have spoken to Abshagen to request the postponement. He should have been aware that speaking to anyone other than Abshagen was not appropriate and was not following the procedure set forth in the letter. Accordingly, the Council properly held the hearing on June 11, 2003, as the notice to Johns provided.
Expert Testimony of Brian Carbaugh, P.E.
Johns contends that the Council erred in relying on Carbaugh's testimony because he failed to offer his opinions to a reasonable degree of engineering certainty and he failed to articulate the applicable standard of care. The State asserts that Johns is precluded from objecting to Carbaugh's testimony because Johns was not present at the hearing. In addition, the State contends that Carbaugh's testimony was properly considered as expert testimony.
Carbaugh testified before the Council as an expert professional engineer providing insight into the process used to design septic systems and the standard of care required in the process. Carbaugh graduated with a bachelor's degree in civil engineering from the University of Delaware in 1982 and has been a practicing engineer since that time. He is a licensed professional engineer in Delaware and holds a Class C designer's license, as well as a Class A percolation tester's license. He stated that he spends virtually all of his professional hours in the practice of professional engineering.
Carbaugh testified regarding the process of designing an on-line septic system, including the review procedure required by DNREC. In response to a question from the Council, Carbaugh testified that he believed most of Johns' violations could be attributed to lack of due care, although he believed Johns' improper design of a drip system was due to his lack of proper knowledge of a new type of design. In addition, Carbaugh stated that although DNREC caught the mistakes Johns made in his designs, so no harm actually resulted, if the system of checks had not been in place, the errors would have resulted in a risk to public health and the environment. Finally, Carbaugh testified that in his professional opinion, some of Johns' conduct did constitute an extreme deviation from the standard of care.
Although Johns was not present at the hearing and did not object to the testimony of Carbaugh, the Court will not decide the issue on this basis. The question here is whether Carbaugh's testimony was properly considered by the Council. An expert's opinion must be given to a reasonable degree of probability and may not be based on speculation or mere possibilities. While it is true that Carbaugh did not say the phrase "reasonable degree of engineering probability," the Court does not require a testifying expert to actually utter those words. Rather, the Court must examine the testimony as a whole to determine whether the opinions were given to the appropriate degree of probability.
Flood v. Riley, 2002 Del. Super. LEXIS 525, *4.
See id. (a doctor testifying as an expert was not required to actually state that his testimony was given to a reasonable degree of medical probability).
Upon reviewing Carbaugh's entire testimony, it seems clear to the Court that it was not based on mere speculation. Carbaugh is an experienced professional engineer who described for the Council the standard of care required in the design of a septic system and how Johns' conduct deviated from that standard. Further, he explained that although no one was harmed by Johns' mistakes, if the system of checks had not been in place at DNREC the public and the environment would have been harmed. Finally, Carbaugh expressed his opinion that Johns' actions were "an extreme deviation from the standard of care and gross negligence" and that Johns' failure to coordinate between the evaluation and placement design of the system on multiple occasions "clearly was an extreme departure from the standard of care and represent[ed] gross negligence." Based on his testimony as a whole, it appears that substantial evidence was presented supporting Carbaugh's opinion. Accordingly, the Council properly considered and relied upon the expert testimony.
Tr. 35.
Tr. 36.
Council's Decision to Revoke Johns' license
Johns argues that the Council's decision to revoke his professional engineering license amounted to excessive punishment and was not supported by substantial evidence. The State, however, asserts that the evidence supports the Council's decision and, absent a showing that the agency acted arbitrarily or capriciously, such decision cannot be reversed. In support of this, the State points to the evidence establishing that Johns was previously reprimanded by the State of Virginia and censured by the Council in 2000.
Title 24 Del. C. § 2823(a) of the Delaware Code gives the Council the authorization to:
[R]equire the successful completion of additional training or education courses and/or to refuse registration, warn, or reprimand or censure or suspend for a period of time not exceeding 2 years, refuse to renew or revoke any authorization issued to practice engineering in Delaware to any individual, corporation or partnership found guilty of:
* * *
(2) Any gross negligence, incompetence or misconduct in the practice of engineering.
(3) Violation of the code of ethics promulgated by the Council.
An administrative agency's choice of penalty is a matter of discretion to be exercised solely by the agency as long as it is based on substantial evidence and within its statutory authority. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." In Warmouth, the Court stated that the question is not whether the Court would have imposed the same penalty as the agency, but whether that punishment is so disproportionate to the offense in light of all of the circumstances as to be shocking to one's sense of fairness.
Warmouth v. Delaware State Board of Examiners in Optometry, 514 A.2d 1119, 1123 (Del.Super.Ct. 1985).
Olney v. Cooch, 425 A.2d 610, 613 (Del. 1981) (citing Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966)).
Warmouth, 514 A.2d at 1123 (citing In re Polk License Revocation, 449 A.2d 7 (N.J. 1982)).
The Council concluded that Johns violated 24 Del. C. § 2823(a)(2) in that he was grossly negligent in designing on-site wastewater disposal systems outside of approved soils, using incorrect design criteria, and providing for improper placement of systems and components. In addition, the Council found that Johns violated 24 Del. C. § 2823(a)(3) when he submitted false or inaccurate documents. Further, the Council concluded that Johns had been previously warned by the Council and by DNREC concerning his deficient performance without effect. Finally, the Council found Johns' continuous failure to adhere to the standard of conduct and Code of Ethics could have harmed the public and the environment if the deficiencies had not been discovered by DNREC.
Based on this and the previous reprimand in Virginia and censure by the Council, the Council's present decision to suspend Johns' professional engineering is not shocking to this Court's sense of fairness. The Council concluded that Johns' designs and conduct did not comply with the standards required of a professional engineer in Delaware. Thus, the Court finds that the Council's decision is supported by substantial evidence and is not arbitrary or capricious.
Conclusion
After a thorough review of the parties' briefs, the Council's decision, and the transcript of the hearing, this Court concludes that the Council's decision was based on substantial evidence and not contrary to law. Therefore, the Council's decision to suspend David Johns' professional engineering license is affirmed.
IT IS SO ORDERED.