Rules of the Game: At a Complaint Hearing
Professional Surveyor Magazine - August 2010
Knud Hermansen, LS, PhD, PE, Esq.
Part 3 of 4 Read Part 1 Read Part 2 Read Part 4
In this article’s examples, names have been deleted and in some cases wording and facts changed to preserve confidentiality.
As I have asserted previously, there is a good chance all surveyors will have to respond to a complaint filed with the licensing board, regardless of the effort, competency, and thoroughness of the surveyor. Parts 1 and 2 of this series give tips for avoiding a complaint and, when that fails, preparing for the complaint hearing. This article provides advice on conducting yourself during the complaint hearing itself.
Make All Arguments Now
The law is clear that the accused surveyor must make all arguments (even the complex, legal ones) to the board of licensure at or prior to the hearing, or these arguments will be barred from the appeal. For example, if the surveyor believes the board is acting contrary to the constitution, the surveyor must make this claim during the hearing (Figure 1
), (which is another reason for following my advice in Part 2 to consult with legal counsel).
Analyze Your Defense from All Angles
If you deem any avenue of defense to be advantageous for acquittal or dismissal, you must examine it and exploit it. The accused surveyor must analyze his or her defense from at least four areas:
The facts do not warrant discipline.
Arguing the facts of the complaint and justification of one’s actions is usually the first and only defense employed by the accused surveyor. Arguing the merits is an important defense but should not be the only defense considered. In preparing the defense, take care to specifically address each and every one of the complainant’s assertions—no matter how absurd or obvious your justification (Figure 2
There may exist a common law or statutory immunity or defense that prevents prosecution or permits the acts complained of.
One or more statutory or common law immunities or defenses may apply and relieve the accused surveyor of prosecution (Figure 3
The board or investigator may have violated process that would allow for the complaint to be dismissed.
In this regard, the accused surveyor or the surveyor’s counsel must closely examine the state’s administrative procedures act (APA), state constitution, and federal constitution. The accused surveyor and surveyor’s counsel must determine if the board and investigator had to and did follow the proper process up to and during the hearing. In particular, consider if the board and investigator followed proper notice procedures, acted under a sworn complaint, had ex parte communications, acted with bias, acted outside of mandatory time constraints, etc. (Figure 4
The board may have exceeded their authority or jurisdiction, and therefore their actions must stop or a decision against the surveyor reversed.
Examine the statute creating and governing board actions as well as the state and federal constitution (Figure 5
The final article in this series provides advice on miscellaneous aspects of the complaint hearing process, including the importance of having another person perform a competent review of any written response before sending the response to the board, how you consider the board members themselves, and general advice on the process.
About the Author
Knud Hermansen, LS, PhD, PE, Esq.Knud is a professor in the surveying engineering technology program at the University of Maine. He provides consulting services in the areas of boundary retracement, boundary litigation, roads, easements, property title, land development, and alternative dispute resolution.
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