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January 2007 ISSUE

apegga appeal board decision


Date of Hearing: August 21, 2006
Date of Decision: August 21, 2006

IN THE MATTER OF the Engineering, Geological and Geophysical Professions Act
— and —
THE APPEAL OF the decision of the Discipline Committee in the matter of the conduct of Terry D. Mulvey.

HEARING PANEL
Jim Seale, P.Eng. (Chair)
Vic Benz, P.Eng.
Edo Nyland, P.Geoph.
Fred Otto, P.Eng.
           
Panel Counsel and Staff: 
Paul Sharek, LL.B.,
Appeal Board legal counsel
Al Schuld, P.Eng., Deputy Registrar,
Appeal Board Designate

APPEARANCES
APEGGA:         
Barry Massing, LL.B., Counsel for the
Investigative Committee

Terry D. Mulvey

INTRODUCTION
This appeal is an appeal of the orders only of the Discipline Committee by the APEGGA Investigative Committee. On December 16, 2004 the decision and orders of the APEGGA Discipline Committee were issued. Mr. Terry Mulvey of Lloydminster was the subject of a series of complaints to the APEGGA Investigative Committee over a period of several months. Following their investigation of these complaints, the Investigative Committee decided to proceed with a series of charges and prosecuted these charges arising from the complaints of five separate complainants under a single formal hearing. The details are included in the Discipline Case Number 02-006-FH. There was a finding of guilt on the majority of the charges of unprofessional conduct made in the case. The Discipline Committee imposed the following sanctions:

1.  Mr. Mulvey is to be reprimanded for his unprofessional conduct towards his professional association, his clients and employee.
2.  Mr. Mulvey’s registration is to be suspended for an eight- (8) month period. The Sanction is to be imposed commencing February 1, 2005 because of Mr. Mulvey’s particular circumstances. He practices alone and requires at least some time to ensure that his clients’ engineering needs are looked after, that his projects are wound down and that arrangements can be made to ameliorate the effects of this Order on his employees.
3.  Mr. Mulvey is ordered to pay a fine of $5,000.00 to APEGGA and the payment of this fine shall be a requirement for satisfying this sanction.
4.  Mr. Mulvey is ordered to pay to APEGGA, 50 per cent of the costs of the discipline hearing, this amount being $24,293.23 and the payment of these costs will be a requirement for satisfying this sanction.
5.  The details of the proceedings of this case will be published with names in The PEGG and a summary will be placed in the notices sections of the Edmonton Journal and a newspaper local to Lloydminster.
6.  In the event that Mr. Mulvey returns to active practice, he shall be restricted from filing Builders’ Liens without doing so through legal counsel for a period of ten (10) years.
7.  The suspension of Mr. Mulvey’s registration as a professional engineer shall continue until all of these conditions are satisfied.

In January 2005, the Investigative Committee decided to appeal only the sanctions of that decision. Mr. Mulvey also appealed and filed an appeal of the decision and orders of the Discipline Committee. However, Mr. Mulvey subsequently decided to drop his appeal and offered to resign from APEGGA.

APPEAL BY INVESTIGATIVE COMMITTEE
On January 13, 2005 a Notice of Appeal of the Orders of the Discipline Committee panel in the matter of the conduct of Terry Mulvey was filed by the APEGGA Investigative Committee. The Investigative Committee sought an increase in the penalties against Mr. Mulvey including, but not limited to:

1.  Cancellation of his registration with APEGGA;
2.  Alternatively, a longer period of suspension than that ordered by the Discipline Committee;
3.  Payment of all costs of the discipline hearing by Mr. Mulvey;
4.  Increase in the fine to the maximum permitted under the Engineering, Geological and Geophysical Professions Act.

Pursuant to Section 57 of The Engineering, Geological and Geophysical Professions Act, the hearing was open to the public. No additional evidence was presented by the Investigative Committee, and the record of the Discipline Hearing was made available to all parties to this appeal. The hearing of the Investigative Committee appeal occurred on August 21, 2006.

Mr. Massing presented the appeal on behalf of the Investigative Committee. He noted that the decision of the Discipline Committee found guilt on approximately 30 of 35 charges brought against Mr. Mulvey. He pointed out that there were numerous breaches of the APEGGA Code of Ethics stemming from the multiple complaints presented to the Discipline Panel.

Mr. Massing submitted to the Appeal Panel that the number of convictions was so great, and the nature of the conduct was such that an eight month suspension was wholly inadequate under all of the circumstances. He made reference to the fact that the convictions included, among other things, swearing false affidavits, filing false lien claims, and defying a Court Order in connection with liens. Such conduct, Mr. Massing asserted, was a pattern of behaviour. It created stress for Mr. Mulvey’s clients, and interfered with their financial circumstances and the completion of client projects. Instead of assisting his clients, Mr. Massing stated that Mr. Mulvey had become their worst enemy.

Mr. Mulvey was present at the hearing. He requested the opportunity to respond to the Investigative Committee’s Appeal. Mr. Massing did not object, and indeed acknowledged that Mr. Mulvey had a right to respond.

Mr. Mulvey did not quarrel with the decision of the Panel, and in fact it was hardly open to him to do so as he had abandoned his appeal. He acknowledged that he did not argue with the findings that the Discipline Committee had made. As far as sanctions were concerned, the main thrust of Mr. Mulvey’s submissions was that he had resigned, and so to his mind, the Investigative Committee’s appeal was pointless, as he was already out of the profession by his personal choice. At the same time, he acknowledged that he understood that there was a difference between the effect of a resignation and a cancellation.

In response to Mr. Massing’s submissions, Mr. Mulvey maintained that he “did not hurt anybody”. When asked to expand on that, he said that he “did not threaten physical violence”, and stated that he “didn’t hurt anyone physically”. He admitted he may have caused some stress, and if he hurt anyone, it was “in the pocket book”. But the clear theme of his presentation overall was that he had resigned, and so his voluntary resignation should serve to conclude matters.

The above comments, of course, do not include all submissions by the participants, or all dialogue. But the comments do capture the essence of the representations that were made.

After reviewing all of the evidence, the Discipline Committee decision, and all of the submissions on appeal, the Appeal Panel determined that it will allow the Investigative Committee’s appeal in part. The Appeal Panel noted that the Discipline Committee had no difficulty finding Mr. Mulvey guilty of a significant number of charges which involved false sworn statements, the filing of false liens, defying a Court Order, and the like. The Discipline Committee even recognized that these were not isolated matters, but constituted a pattern of behaviour (they called it at page 29 of their decision a “way of doing business”). Such conduct goes to the heart of the concept of professional integrity. The Discipline Committee elsewhere referred in its decision to Mr. Mulvey’s behaviour as being a “shell game”, and that he abused his rights to file liens. The Discipline Committee also characterized Mr. Mulvey’s conduct as “dishonourable and disgraceful”. They found as a fact that he caused financial and emotional stress to his clients, he interfered with the completion of projects, and he interfered with his clients’ proprietary rights.

Under all of the circumstances then, the Appeal Panel considered that the decision of the Discipline Committee was in error in assessing a suspension only, and the Appeal Panel ordered that the APEGGA membership of Mr. Mulvey be recorded as cancelled by the Appeal Board pursuant to Sections 63(j) and 69(1)(c) of The Engineering, Geological and Geophysical Professions Act.
The Appeal Panel also wishes to express its view that it was apparent from the record, and from what took place at the appeal, that Mr. Mulvey accepted little responsibility for his conduct, which conduct gave rise to a series of complaints about him. The Appeal Panel considered that Mr. Mulvey’s disregard for professionalism and ethics was such that “the need to maintain the public’s confidence and the integrity of a profession’s ability to properly supervise the conduct of its members” was not given sufficient weight in determining the sanctions arising from the findings of guilt on the charges. (Quoted from The Regulation of Professions in Canada, at 14-2 The Purpose of Sentencing, James T. Casey.)

In addition, even at the appeal hearing, Mr. Mulvey did not exhibit an understanding of the concept of professionalism, and from his responses to questioning from the members of the Appeal Panel, he did not seem to attribute to the Code of Ethics of our profession the significance that one would expect of a member of a self-governing profession.

Further, it is necessary to comment on the issue of protection of the public. In The Regulation of Professions in Canada, at 14-2 The Purpose of Sentencing, James T. Casey also states “The fundamental purpose of sentencing for professional misconduct is ... to ensure that the public is protected from acts of professional misconduct”. The Appeal Panel considered the aspect of public protection in reaching its decision to effect a cancellation. It was of the view that the concept of protection of the public is not restricted to guarding against putting the physical safety of the public at risk. There are other interests of clients and the public which require the issue of protection of the public to be addressed.

Finally, the Appeal Panel noted that the Discipline Committee may have been operating under a misapprehension about the effect of a cancellation on a member’s career. On page 29 of the Discipline Committee decision, it was stated “It has not been demonstrated to us with sufficient clarity that Mr. Mulvey is incorrigible or beyond redemption and rehabilitation and that he should lose the privilege of practicing his profession for the balance of his life”. The Appeal Board Panel noted that the EGGP Act in Section 75(3) to 75(5) and General Regulation 47, specifies a process for potential reinstatement of a member’s cancellation under the authority of Council, and that cancellation does not necessarily mean a loss of the privileges of practicing for the balance of that person’s life.

For the above reasons, and as stated above, the Appeal Board orders cancellation of Mr. Mulvey’s membership. The Appeal Board upholds the remaining sanctions of the Discipline Committee as follows:

  • Mr. Mulvey is to be reprimanded for his unprofessional conduct towards his professional association, his clients and employee.

  • Mr. Mulvey is ordered to pay a fine of $5,000.00 to APEGGA and the payment of this fine shall be required for satisfying this sanction.

  • Mr. Mulvey is ordered to pay to APEGGA, 50 per cent of the costs of the discipline hearing, this amount being $24,293.23 and the payment of these costs will be a requirement for satisfying this sanction.

  • The details of the proceedings of this case will be published with names in  and a summary will be placed in the notices sections of the Edmonton Journal and a newspaper local to Lloydminster.

  • In the event that Mr. Mulvey returns to active practice, he shall be restricted from filing Builders’ Liens without doing so through legal counsel for a period of ten (10) years.

Dated at the City of Edmonton, in the Province of Alberta, this _21st___ day of September, 2006.