Licensing Board Review Is Not Limited by Contracted Scope of Services

A Vermont licensing board refused to adopt a registered engineer’s argument, that his professional services were circumscribed by a contract scope of work, in assessing whether he had “failed to conform to the essential standards of acceptable and prevailing practice.” The Vermont Supreme Court has upheld the licensing board’s approach. Thus, the licensing agency, supported by the courts, has held that a registered professional engineer may be cited for falling below minimal standards of practice, even when the engineer’s client was satisfied with the services.

The engineer, Bombardier, was engaged by an insurance company to investigate the cause of buckling in flooring in a home. One known condition was that a plumbing contractor had notched a support beam at the top. Bombardier examined the notch from an access hole above the beam, but did not go under the floor to examine the beam from below. He reported that the cause of settlement or sagging was due to settlement of exterior sonotubes and not due to the notched beam.

The homeowner engaged his own engineer, who concluded that the floor settlement was due to the notched beam. This report was provided to Bombardier, and he was asked by his client (the insurance company) if there was anything in the second report to cause him to either reinspect the property or revise his report. Bombardier indicated there was nothing to cause him to revisit or revise his report. The insurance company denied the homeowner’s claim, and the homeowner then reported Bombardier to the Vermont licensing board.

Bombardier defended his services to the board, arguing that his own insurance company client was satisfied with his services, which were conducted pursuant to the scope in his contract with the insurer. And he argued that the report to the board was made by a frustrated homeowner with an axe to grind. But the board was unmoved.

The board found that Bombardier’s inspection of the home was deficient in several respects: failing to ask the homeowner about the history of the house; failing to ask the contractor (present on-site) about prior renovations and the then-ongoing work; failing to conduct a full inspection or viewing of the framing members in question; making assumptions about the support of portions of the house vis-à-vis the sonotubes; preparing a minimal sketch of the framing (which had errors) in support of his opinion; and then refusing to reconsider his position when provided with credible support for a much different conclusion. In sum, the board found that Bombardier “failed to conform to the essential standards of acceptable and prevailing practice.” He was reprimanded and assessed an administrative penalty of $1,000. Bombardier appealed to an Administrative Officer, who affirmed the board’s decision, and then Bombardier appealed to the courts.

The court addressed Bombardier’s arguments, about the scope of his contract and the genesis of the board’s investigation, as follows:

The question of whether a professional engineer has engaged in unprofessional conduct does not turn on whether a client is upset or has filed a complaint. The license holder and the client may properly limit the scope of the work to be undertaken; nothing in this decision should be construed to the contrary. Further, the scope of the undertaking impacts the applicable professional standards. At the same time, the client may be quite happy with the results obtained. The fact that a professional engineer may properly limit the scope of his or her work and that a client is satisfied with that work are separate considerations from whether there has been compliance with applicable professional standards in performing the particular work that the professional engineer has agreed to undertake. Similarly, the fact that one might sue a professional engineer for damages in superior court does not obviate the engineer's independent duty to avoid unprofessional conduct nor does it deprive the Board of its statutory authority to address such conduct.

The licensing board, charged with protecting the public, had identified specific instances or issues with Bombardier’s performance of his investigation leading to his report, and had found that his services failed to meet the professional standards that the board is charged to enforce. The fact that Bombardier might have a satisfied client, or that he had met the scope of services he contracted to provide, were not dispositive.

This case demonstrates that licensing boards can determine professional obligations have not been met, independent of whether the licensed professional has discharged his/her obligations under a contract. And that licensed professionals must remain aware of professional standards and the duties they have to the public by virtue of their licenses. The case is In re Bombardier, 2018 VT 11 (Jan. 26, 2018).

Some readers will remember a prior decision, in the aftermath of the 1981 Kansas City Hyatt tragedy, when the Missouri licensing board held that certain duties of a registered professional engineer could not be delegated, and the engineer would remain responsible to the public for failing to discharge his duties. See Duncan v. Missouri Bd. for Architects, Professional Engineers & Land Surveyors, 744 S.W.2d 524 (Mo. Court of Appeals, 1988).

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