APRIL 2008 Issue
Professional Practice
APEGGA Discipline Committee
Hearing and Decision
Editor’s Note: The former member named here appealed this decision to the APEGGA Appeal Board. The appeal was dismissed, and since then the time has expired for an appeal to be taken to the Alberta Court of Appeal.
Since appeals are exhausted, policy now allows The PEGG to publish the decision.
Background
On April 23, 2004, the Discipline Committee received, from the Investigative Committee, the referral for a discipline hearing concerning Michael J. Mozdzenski (member) and Quad-M Engineering Ltd. (permit holder). The Discipline Committee acknowledged the referral and contacted the member/permit holder and the Investigative Committee (the parties), advising of several dates on which the matter could be heard.
After hearing from the parties, the Discipline Committee issued a formal notice on October 19, 2004 setting February 23 and 24, 2005 as the dates of the hearing. At the same time, the Discipline Committee, according to its standard process for disclosure of documents, requested that the parties disclose, to the panel and to each other, copies of documents on which they intended to rely at the hearing.
On February 15, 2005, the member’s new legal counsel requested an adjournment to afford him time to prepare for the hearing. The Investigative Committee did not oppose the request, and the adjournment was granted. A new hearing date of September 15 and 19, 2005 was subsequently set.
The Hearing
The hearing began on September 15, 2005, with the member representing himself and the permit holder. Counsel for APEGGA, Barry Massing, represented the Investigative Committee. The hearing resumed on the 19th of September and adjourned that day. The hearing reconvened on March 7, 2006 and continued on March 8th and 9th and adjourned. The hearing resumed April 24, 2006 and was adjourned when the member requested an opportunity to obtain legal counsel. The Discipline Committee panel issued its written decision granting the adjournment on April 24th. The hearing resumed on June 9, 2006 with the member, again, representing himself and the permit holder. Prior to cross-examination of his evidence, the member indicated that he refused to participate any further and left the hearing room. The hearing continued, in the absence of the member/permit holder, with closing arguments from the Investigative Committee.
Charges (Allegations)
As stated in the notice of hearing, the matters to be decided, as brought by the Investigative Committee before the panel, are the following.
“October 2000 Proposal to SPERD
1. That you sought to mislead the St. Paul Education Regional District (SPERD) in Quad-M’s October 2000 proposal by creating an exaggerated and false impression of Quad-M’s relevant project involvement, its experience, and its level of expertise, thereby engaging in unprofessional conduct and contravention of APEGGA Code of Ethics Rule of Conduct #9.
2. That you sought to mislead SPERD in Quad-M’s October, 2000 proposal by offering the participation of Vista Communications Technologies in a “combination of enterprises” when there was no agreement by Vista to participate in such a fashion and without the consent or knowledge of Vista that such arrangement was under discussion with SPERD, thereby engaging in unprofessional conduct and contravention of APEGGA Code of Ethics Rules of Conduct #4, #9, and #10.
3. That you treated Vista Communications Technologies unfairly by using Vista’s name, reputation, and corporate information to increase the apparent strength of your October, 2000 proposal to SPERD without the knowledge or consent of Vista, thereby engaging in unprofessional conduct and contravention of APEGGA Code of Ethics Rules of Conduct #9 and #10.
4. That you sought to mislead SPERD in Quad-M’s October, 2000 proposal by offering the participation of Highlight Construction in a “combination of enterprises” when there was no agreement by Highlight to participate in such a fashion and without the knowledge or consent of Highlight that such arrangement was under discussion with SPERD, thereby engaging in unprofessional conduct and contravention of APEGGA Code of Ethics Rules of Conduct #4, #9, and #10.
5. That you treated Highlight Construction unfairly by using Highlight’s name, reputation, and corporate information to increase the apparent strength of your October, 2000 proposal to SPERD without the knowledge or consent of Highlight, thereby engaging in unprofessional conduct and contravention of APEGGA Code of Ethics Rules of Conduct #9 and #10.
6. That you sought to mislead SPERD in Quad-M’s October, 2000 proposal by offering the availability of a “Lloyds of London” professional liability insurance policy when no such policy was, nor had been, in existence, thereby engaging in unprofessional conduct and contravention of APEGGA Code of Ethics Rule of Conduct #10.
7. That you misled SPERD in Quad-M’s October, 2000 proposal by giving further assurance in a letter dated 4 December 2000 that the towers would be to CSA standard, when non-CSA towers were supplied, without the knowledge or consent of SPERD to abandon the CSA design standard for the said towers, thereby engaging in unprofessional conduct and contravention of APEGGA Code of Ethics Rule of Conduct #1.
September 2001 Proposal Update
8. That you sought to mislead SPERD in Quad-M’s September, 2001 proposal update by offering the participation of Vista Communications Technologies as a “key team player” when there was no agreement by Vista to participate in such a fashion and without the knowledge or consent of Vista that such arrangement was under discussion with SPERD, thereby engaging in unprofessional conduct and contravention of APEGGA Code of Ethics Rules of Conduct #9 and #10.
9. That you treated Vista Communications Technologies unfairly by using Vista’s name, reputation, and corporate information to increase the apparent strength of your September, 2001 proposal update to SPERD without the knowledge or consent of Vista, thereby engaging in unprofessional conduct and contravention of APEGGA Code of Ethics Rules of Conduct #9 and #10.
10. That you sought to mislead SPERD in Quad-M’s September, 2001 proposal update by offering the participation of Highlight Construction as a “key team player” when there was no agreement with Highlight to participate in such a fashion and without the consent or knowledge of Highlight that such arrangement was under discussion with SPERD thereby engaging in unprofessional conduct and contravention of APEGGA Code of Ethics Rules of Conduct #4, #9, and 10.
11. That you treated Highlight Construction unfairly by using Highlight’s name, reputation, and corporate information to increase the apparent strength of your September, 2001 proposal update to SPERD without the knowledge or consent of Highlight, thereby engaging in unprofessional conduct and contravention of APEGGA Code of Ethics Rules of Conduct #9 and #10.
12. That you sought to mislead SPERD in Quad-M’s September 2001 proposal update by offering the participation of Williams Wireless Technologies as a “key team player” when there was no agreement by Williams to participate in such a fashion and without the consent or knowledge of Williams that such an arrangement was under discussion with SPERD, thereby engaging in unprofessional conduct and contravention of APEGGA Code of Ethics Rules of Conduct #9 and #10.
13. That you treated Williams Wireless Technologies unfairly by using Williams’ name, reputation, corporate information, and written guarantee to increase the apparent strength of your September, 2001 proposal update to SPERD without the knowledge or consent of Williams, thereby engaging in unprofessional conduct and contravention of APEGGA Code of Ethics Rules of Conduct #9 and #10.
SPERD WAN Engineering Studya
14. That you in Quad-M’s 30 October 2001 “SPERD WAN Engineering Study” misled SPERD about the path study work done, greatly exaggerating both what was actually done and the reliability of what was produced, thereby engaging in unprofessional conduct and contravention of APEGGA Code of Ethics Rules of Conduct #4, #9, and #10.
Management and Execution of SPERD WAN Construction Project
15. That between January, 2000 and May, 2002 you deliberately misled or attempted to mislead SPERD about the nature and cause of the WWAN communications problems that Quad-M had encountered, and about related matters, including:
a) usual industry methods,
b) reliability of path simulation, and
c) the general state of development of microwave engineering science,
thereby engaging in unprofessional conduct and contravention of APEGGA Code of Ethics Rules of Conduct #4, #9, and #10.
16. That you deliberately misled SPERD as to who was responsible for the WWAN communications problems wrongly blaming Williams Wireless when responsibility for such problems rested with Quad-M Engineering Ltd., thereby engaging in unprofessional conduct and contravention of APEGGA Code of Ethics Rules of Conduct #4, #9, and #10.
17. That you did not treat Williams Wireless fairly in advising SPERD that Williams was to blame for WWAN problems that in fact were the responsibility of Mike Mozdzenski and Quad-M Engineering Ltd., thereby engaging in unprofessional conduct and contravention of APEGGA Code of Ethics Rule of Conduct #10.
18. That you failed to act for your client, SPERD, as a faithful agent or trustee in that you appointed a person as a project manager whose qualifications were clearly inadequate and below entry level for the position, thereby engaging in unprofessional conduct and contravention of APEGGA Code of Ethics Rules of Conduct #1, #4, #9, and #10.
19. That you failed to act for your client, SPERD, as a faithful agent or trustee by unilaterally changing the fibre cable route in St. Paul, thereby denying SPERD secondary benefits it had planned without the knowledge or consent of SPERD, thereby engaging in unskilled practice of the profession, unprofessional conduct, and contravention of APEGGA Code of Ethics Rules of Conduct #1, #4, and #10.
20. That you failed to act for your client,
SPERD, as a faithful agent or trustee by making significant and material project changes without the knowledge or consent of your client, thereby engaging in unskilled practice of the profession, unprofessional conduct, and contravention of APEGGA Code of Ethics Rules of Conduct #1, #4, and #10.
21. That you failed to have proper regard for the safety and welfare of the public by installing 100-foot towers in Alberta school yards which were not designed for ice loading, thereby engaging in unskilled practice of the profession, unprofessional conduct, and contravention of APEGGA Code of Ethics Rules of Conduct #1, #2, #4, and #10.
22. That you engaged in conduct that “harms or tends to harm the standing of the profession generally” in that you undertook to do work of a “Land Agent” contrary to the provisions of the “Land Agents Licensing Act”, and doing that work incompetently, thereby engaging in unprofessional conduct and contravention of APEGGA Code of Ethics Rules of Conduct #2, #9, and #10.
23. That, in undertaking SPERD’s WAN project, you failed to restrict your practice to work that you are competent to perform, thereby engaging in unskilled practice of the profession, unprofessional conduct, and contravention of APEGGA Code of Ethics Rules of Conduct #1, #2, #4, #9, and #10.
24. That you failed to restrict your practice to work you were competent to perform by virtue of training and experience, by undertaking structural engineering decisions and responsibilities related to communication towers, thereby engaging in unskilled practice of the profession, unprofessional conduct, and contravention of APEGGA Code of Ethics Rules of Conduct #1, #2, #4, #9, and #10.
25. That you failed to act for your client,
SPERD, as a faithful agent or trustee in that you voided Solectek’s link quality warranty by substituting
locally-fabricated cabling for Solectek’s matched cabling, without the knowledge or consent of SPERD, thereby engaging in unskilled practice of the profession, unprofessional conduct, and contravention of APEGGA Code of Ethics Rules of Conduct #1, #2, #4, #9, and #10.
Other Conduct Issues
26. That you wrongly tampered with radio communications equipment belonging to others, in Glentel’s station on Moose Mountain, thereby engaging in unprofessional conduct and contravention of APEGGA Code of Ethics Rules of Conduct #1 and #10.
27. That Mike Mozdzenski engaged in conduct that “harms or tends to harm the standing of the profession generally” by making a threat of injury or death against Mr. Grant Dorosh, thereby engaging in unprofessional conduct and contravention of APEGGA Code of Ethics Rules of Conduct #1 and #10.
Matters of Skill
28. That in the early stages of the SPERD WWAN project, you did not appreciate, nor understand, the technical aspects of the job, including:
a) importance of path study,
b) path study methods,
c) accuracy limitations of hand-held GPS receivers,
thereby creating adverse consequences for the project, thereby engaging in unskilled practice of the profession, unprofessional conduct, and contravention of APEGGA Code of Ethics Rules of Conduct #1, #2, #4, #9, and #10.
29. That you failed to review path work done by Williams Wireless Technologies prior to relying on that work for project planning and prior to undertaking professional responsibility for that work before applying your signature and seal, thereby engaging unskilled practice of the profession, unprofessional conduct, and contravention of APEGGA Code of Ethics Rules of Conduct #1, #2, and #3.
30. That you neglected to undertake spectrum analysis and the development of a channel plan based on spectrum analysis until these oversights were discovered by a subcontractor in February, 2002, thereby engaging in unskilled practice of the profession, unprofessional conduct, and contravention of APEGGA Code of Ethics Rules of Conduct #1, #2, #9, and #10.
31. That you either did not understand the significance of, or chose to ignore, the radio manufacturer’s stated environmental limits in your selection of radio equipment for this project, thereby engaging in unskilled practice of the profession, unprofessional conduct, and contravention of APEGGA Code of Ethics Rules of Conduct #1, #2, #9, and #10.
32. That, with respect to radio equipment installation for the project, you either did not understand the significance of, or chose to ignore, the radio manufacturer’s requirement to ensure matched impedances by using the manufacturer’s cabling, thereby engaging in unskilled practice of the profession, unprofessional conduct, and contravention of APEGGA Code of Ethics Rules of Conduct #1, #2, #4, #9, and #10.
33. That you selected a tower height for the St. Paul hub that was inadequate and could not provide vertical antenna spacing for the number of antennas expected that met or reasonably approached the radio manufacturer’s specifications, thereby engaging in unskilled practice of the profession, unprofessional conduct, and contravention of APEGGA Code of Ethics Rules of Conduct #1, #2, #4, #9, and #10.
34. That you either did not understand or chose to ignore latency effects in the design of SPERD’s WWAN, thereby engaging in unskilled practice of the profession, unprofessional conduct, and contravention of APEGGA Code of Ethics Rules of Conduct #1, #2, #4, #9, and #10.
35. That you falsely certified towers as having been inspected before the towers were inspected and provided a certification of little or no benefit to the client, thereby engaging in unprofessional conduct and contravention of APEGGA Code of Ethics Rules of Conduct #1, #4, #9, and #10.”
Findings and Reasons
Michael J. Mozdzenski (member) and Quad-M Engineering Ltd. (permit holder) were retained by their client, the St. Paul Education Regional District (SPERD), to provide SPERD with a wide area communications network. The member and permit holder face numerous charges relating to that project as well as to other events that occurred during the period of the project or to relationships that were formed during the project.
This case concerns allegations that the member and permit holder engaged in unprofessional conduct, unskilled practice and violations of the Code of Ethics. The volume of material presented and the time devoted to the examination of the issues was significant. The hearing was held on 7 days over 4 separate sittings that spanned a period of 9 months. In reaching its findings, the panel reviewed the significant number of documents entered into evidence, the direct testimony and cross-examination of witnesses, and the hearing transcript.
The panel had to deal with the member’s request for legal representation at APEGGA’s expense as the member raised the issue of his own competence to understand the proceedings and raise a proper defence. The member had made reference to his health condition during the investigation and the hearing. The panel was alerted to his health from the beginning and made specific inquiries early in the process, and continually, to confirm that the member was well enough to continue. The member raised the issue again during the hearing, specifically in regard to what time the lunch break was, and the panel inquired if the member was fit to continue until lunch. Throughout the hearing, the member consistently did not provide the panel with support documentation as to the state of his health.
When the member made the request for legal assistance, the panel adjourned the hearing to provide the member time to obtain medical assistance and ordered the member to produce a medical report as to his inability to continue. In addition, the panel provided the member with the opportunity to engage legal counsel. The member was advised that there is no provision in statute or regulations for APEGGA to provide legal assistance to a member. When the hearing resumed on June 9, 2006, the member failed to produce medical documentation as to his inability to continue.
The panel has been observant of the member during the course of the hearing, especially when potential illness was raised by the member. At all times the member appeared, to the lay person, to be aware of his surroundings and mentally competent. He was able to ask complex questions of witnesses. On more than one occasion, the member made a sarcastic reference to statements made by witnesses or counsel for the Investigative Committee. The member was aware enough of the fact that the P. Eng. designation was not on his name card, which he then cited as an example of apparent bias on the part of APEGGA. The panel determined that there was no issue that prevented the hearing from continuing. On the last day, when the member was advised that the hearing would continue, he said he was leaving the hearing and left immediately prior to the point when he was to be cross-examined.
The member was advised that, in accordance with the Notice to Attend which had been served on him, attendance and participation were required, that it was not an option and that the member could be sanctioned for not appearing at the hearing. The member was advised numerous times by the panel chair that remaining in the hearing was his best course of action.
Investigative Committee counsel would have the panel disregard the member’s evidence on the basis that it has not stood the test of cross-examination, or, alternatively, urges the panel to give it little weight. The panel, rather than rejecting the member’s testimony out of hand, chose to allow it to stand, giving the member the opportunity to have his evidence considered and assigned the appropriate weight when the panel evaluates the charges.
The number of charges is significant. However, many of the charges relate to a specific action or aspect of the project or to arrangements that developed for the purpose of conducting the project. Therefore, the panel considered such related charges together rather than focusing on each charge individually, if that was appropriate.
Charges 1, 2, 3, 4, and 5 — Upheld
The charges are all centered on the proposal that the member prepared for Quad-M Engineering Ltd. The proposal was submitted to SPERD in October 2000. Quad-M Engineering Ltd. claimed a body of experience and specifically cited Vista Communications Technologies and Highlight Construction as being part of an enterprise to supply and install a wireless local area network. Subsequent evidence introduced in the hearing and the testimony of witnesses confirmed that there was, in fact, no arrangement made with either Vista Communications Technologies or Highlight Construction at the time of submission of the proposal. The member either could not, or chose not to, introduce evidence of a partnership or memorandum of understanding or anything else that would substantiate any form of partnership. The reference to these companies was more than mere oversight. The panel believes the inclusion of these firms, who have long-standing reputations in the radio business, was deliberately intended to lend credibility to the proposal and, as such, was unfair to the firms listed. The member’s and permit holder’s performances on the project were significantly less than promised, such that their claims of experience were proven to be vastly overstated and, hence, misleading to the client.
Charge 6 — Upheld
There was a significant amount of testimony regarding the existence of a Lloyds of London professional liability insurance policy. The member definitively stated in the proposal, “Thirdly, we have a Lloyds of London insurance policy for Acts of God & Errors and Omissions ...”. It is hard to imagine how this could be a misinterpretation. The member, in his interview with the Investigative Committee, acknowledged three times that he did not have the Lloyd’s of London coverage. The member then testified before this Discipline Committee panel that he had such a certificate, but that it was at his office. Many opportunities were provided for the member to provide the certificate of insurance. Its production was part of an order that the panel made when granting an adjournment of these proceedings earlier. Given the member’s own conflicting testimony and the absence of any proof to the contrary, we conclude that the policy did not exist and that the member deliberately misrepresented its existence in his proposal to SPERD for the purposes of impressing the potential client. The member had the opportunity to clarify any misunderstanding when he resubmitted the proposal months later, but did not.
Charge 7, 21, 23, 24, 33 and 35 — Upheld
These charges all relate to the communications towers that were supplied and installed as part of the project. In the original proposal, the member definitively states, “Towers will be of all-Welded type — 150’ high”. In the proposal update on December 4, 2000 the member again definitively states “Our towers are CSA approved and are free-standing, so they don’t require any guide wires.” Yet, the towers that were installed were substantially lower and definitely not CSA approved.
Much time was spent at the hearing on issues related to the towers and whether or not they met the specifications provided by SPERD. What is evident is that very little attention was paid to how the towers that were supplied were to be used. There was no evidence presented that any form of load calculation or design work was done to identify the attached load, the height of the attached load, the design wind speed and design ice loading on the tower, or the appliances. That the towers have not suffered some form of failure is not evidence of satisfactory design, but of good fortune. It was clear from the evidence presented that the towers that were installed did not meet the customer’s requirement for CSA approval. It was also clear there was a lack of any form of engineering involvement to ensure that they met the installation requirements for a highly public location such as a school yard. The tower choice appears to have been motivated by the desire to reduce costs, as the reduced tower height was later found to have created challenges in the final path alignment and signal quality. The member’s certification of the towers without any form of load assessment or design constitutes unskilled practice. It has the potential to endanger the public, mislead the customer and constitutes unprofessional conduct.
Charges 8, 9, 10, 11, 12 and 13 — Upheld
The submission of the proposal update repeated the assurances that Vista Communications Technologies, Highlight Construction Ltd., and Williams Wireless Technologies were key team players when, in fact, at that time, they were unaware that their names were being put forward as key players. This was misrepresentation for the purposes of influencing SPERD that the member and permit holder had the necessary competence to complete the project. In addition, it was unfair to use the names and reputations of the firms for the betterment the member and the permit holder.
Charges 14, 15, 16 , 17, 28, 29,
30 and 34 — Upheld
These charges all relate to the design of the communications to support the wide area network, most notably, the path studies. A significant amount of evidence was presented that indicated the member used a path study that was, at best, preliminary, for the final design. The panel heard several witnesses identify to what extent a designer should go in order to identify and finalize an ultimate path for the microwave transmission signals. The member chose to take the results of the preliminary path studies and take engineering responsibility for the subsequent designs by signing off on the preliminary as final. When the project ran into difficulties with the paths that were chosen, difficulties, as it turned out, that would have been discovered if a proper path study had been conducted, the member attempted to blame the supplier, Williams Wireless, for the errors.
There was much evidence from the member about the accuracy of GPS (global positioning system) and derogatory remarks about the competence of Williams Wireless for not doing various things. Fundamentally, the member shouldered all of the engineering responsibilities for the path studies the moment that he accepted the assignment. It is up to the member to ensure that the correct methods and procedures are used to develop data and generate reports or, in this case, select paths prior to accepting responsibility. Having taken on that responsibility as part of his services to the client, the member cannot then turn around and blame Williams Wireless. In addition, the member inappropriately attempted to mislead his client and blame Williams Wireless in an unprofessional and derogatory assault on their reputation for matters that the member himself caused by using the results from the preliminary path study inappropriately. The designs that were based upon the insufficient path studies were doomed to produce unsatisfactory results.
In addition, the ultimate configuration of the wide area network, which required additional towers and repeaters, was unable to meet the performance specifications due to the latency effect caused by too many repeaters.
Charge 18 — Upheld
The project manager, whose qualifications prior to this project were related to real estate and courier enterprises, could not possibly deal with the issues that were developing. He had no background from previous projects to draw upon. It appears that the project manager’s primary asset was that he was a person prepared to assist the member for no pay with promises to share in the profits. Delegation of authority is part of a successful project. No engineer can do everything himself, but the engineer must carefully delegate responsibilities to people who have the ability, by virtue of training and experience, to carry out those responsibilities properly. The engineer must continually evaluate the performance of that person because, ultimately, it is the engineer who is responsible and who will be held accountable for the work whether he did it personally or delegated it. To delegate irresponsibly is to fail your client; it does not live up to the responsibility placed upon the engineer.
Charges 19 and 20 — Upheld
The member’s performance in communicating with his client and customer left a great deal to be desired. On many occasions, the member arbitrarily ignored informing the client of significant route changes for the fibre optic cable. By doing so, the member prevented the client from selling excess capacity to local businesses. On other occasions, the member did not inform the client of change orders because the member felt that the change order process would delay things, and time was of the essence. The client has a right to request information and an absolute right to be informed of the progress of the project and to be informed of issues as they arise so that the client can make reasoned decisions and take appropriate actions. The engineer is, after all, working for the best interests of the client. To do otherwise is unprofessional conduct.
Charge 22 — Dismissed
The charge that the member undertook to do the work of a land agent was not substantiated. There was no evidence submitted that indicated that the actions of the member resulted in any loss or harm to the client. In any event, determining whether or not the member undertook to do work that required a land agent’s license is not the responsibility of this panel, although there may be other bodies that might hold the member accountable for this.
Charges 25 and 32 — Dismissed
The panel was unconvinced that the client suffered any hardship or loss because locally fabricated cables were substituted for manufacturer supplied cables. The damage alleged here is that, by his actions, the member may have voided the warranty on the radio products that the member himself was providing under the terms of the contract. There is no indication that the warranty, was, in fact, voided or that damage to the radios occurred or that the client was deprived of anything. There was no evidence submitted that indicated that substituting cables caused a safety hazard.
Charge 26 — Dismissed
The panel heard evidence that, while at Glentel’s station at Moose Mountain, the member tampered with or touched radio equipment that was part of the IDEN radios that operated the EMS system back to the Strathcona 911 centre and caused a brief signal outage. Evidence was heard that the member had to be advised three times to not touch equipment. However, it is uncertain as to whether the member deliberately touched equipment or what he did.
The evidence from the witnesses was uncertain and conflicting as to what transpired, only that something happened. Mr Clark indicates, “He was touching radios, and I guess he must have turned a knob and shut the radio off or rebooted it or something, because the radio came back up it, beeped like they do when you turn them on.” Mr. Dorosh testified, “… upon entering the shed, he (the member) began to tamper or, I guess, clink on various switches for the radio equipment that was present within the shed.” A witness referred to an unspoken rule that you don’t touch other peoples’ equipment. The panel considered this and would reinforce that it is more than an unspoken rule. Rather, it is an essential rule of conduct for all people working in and around operating equipment that has a public safety function. It should not have been necessary to make this aware to the member. However, the evidence as to what actually happened is insufficient and contradictory. One witness guesses that he must have turned a knob and the other witness guesses that he clinked on various switches. There is a lack of agreement and certainty as to whether the member tampered with switches or with knobs and the manner in which it was done. To substantiate this charge it would have been necessary for the witnesses to have been able to state categorically and in agreement what the member did as opposed to “guessing” that the member may have turned a knob or clinked a switch. It is not doubted that something happened and that it involved the member, but there is insufficient evidence that the member deliberately tampered with the equipment.
Charge 27 — Upheld
That the member threatened Mr. Dorosh is not in question; it is a matter of public record in the transcript of Her Majesty the Queen vs. Michael Jan Mozdzenski.
In summary, the panel finds that the member’s conduct constitutes unskilled practice, unprofessional conduct or a contravention of the APEGGA Code of Ethics Rules 1, 2, 4, 9, and 10 as noted in the specific charges which have been upheld.
Furthermore, at the beginning of cross-examination of the member by counsel for the Investigative Committee, the member indicated he would not participate any further in the hearing. After the panel chair had repeatedly warned him to remain, the member walked out of the hearing room. Consequently, the panel finds the member’s refusal to answer the Investigative Committee’s questions, as directed by the panel, to be unprofessional conduct, in accordance with Section 61(2) of the Act.
A cornerstone of a self-regulating profession is the ability to require members to testify in matters of importance regarding the practice of the profession. A professional regulatory body relies on the cooperation of its members in administering the legislation in the public interest. Attendance is required even of those charged with violations of the Act, the Regulations or the Code of Ethics.
In refusing to be cross-examined, the member is expressing contempt for the regulator of the profession and the procedures established under statute that govern the practice of engineering in the Province of Alberta. The panel, as mentioned earlier, does not believe the member’s claim about being too ill to understand the proceedings. At all times the panel found the member to be coherent, able to form counter-arguments and hypotheses to explain his actions. He was paying close enough attention to what was being said to the point that, on many occasions, he made sarcastic comments about statements made by counsel for the Investigative Committee. Rather, the panel believes that the member, after failing to have the hearing postponed or deferred any further and being aware that the next stage of the hearing was cross-examination of his evidence under oath, opted to avoid having to explain his actions and evidence.
Orders
On November 3, 2006, the Discipline panel’s written findings and reasons were issued to the Investigative Committee and the member. In its letter, the panel requested the parties to provide written submissions regarding the nature of the orders to be made. The Investigative Committee provided its submission on Nov-ember 20, 2006. On December 8, 2006, Mr. Mozdzenski’s request for additional time to submit his response was received. The Investigative Committee concurred, and Mr. Mozdzenski was granted until January 3, 2007 to file his submission. The Investigative Committee’s reply was received on January 15, 2007 at which time all submissions were provided to the panel.
In its submission, the Investigative Committee suggested that all costs of the hearing be imposed against Mr. Mozdzenski. On February 5, 2007, the panel requested the Director of Professional Practice to provide information on the costs associated with the hearing. The director wrote to the parties indicating the costs that his office had determined and noting that he would provide a copy of that letter to the panel on February 16, 2007 along with any comments either party wished to make. Neither party responded.
The determination of the findings on the specific charges was made without knowledge or reference to any previous history that the member has had with APEGGA and the Discipline Committee. In its submission on orders, the Investigative Committee cited two previous Discipline Committee decisions concerning Mr. Mozdzenski. The panel believes that the member’s previous history is relevant for purposes of determining sanctions.
In its June 15, 1998 decision, the Discipline Committee panel made the following orders:
1. That Mr. Mozdzenski be reprimanded for unprofessional conduct.
2. Additionally, that Mr. Mozdzenski pay one-half of the costs of the hearing in the amount of $2,379.52, within a period of six months from the date of these orders being served on him.
• The panel notes that Mr. Mozdzenski placed his professional seal on drawings long after his registration had expired. If he did not know it had expired, he ought to have known. The panel views this as unprofessional conduct. As his actions were not deemed to be deliberate, the panel finds that only one-half the cost of the hearing should be borne by Mr. Mozdzenski.
3. That Mr. Mozdzenski’s registration as a professional engineer be suspended, without further notice, if order 2 is not fully satisfied, until the order is fully satisfied.
In its November 3, 2000 decision on a different matter, another Discipline Committee panel made the following orders:
1. That Mr. Mozdzenski be reprimanded for unprofessional conduct.
2. That a memorandum be permanently placed in Mr. Mozdzenski’s member file, referencing findings of unprofessional conduct on two occasions (the Decision dated June 15, 1998 and this Decision) and giving a recommendation from this Panel to future panels (should similar conduct reoccur) that significantly more rigorous sanctions be imposed if there is a continued pattern of unprofessional conduct.
3. That Mr. Mozdzenski pay to the Association the amount of $1,427.09, being one-half of the costs of the hearing.
4. That Mr. Mozdzenski, at his own expense, retain a senior practitioner in his field to conduct a practice review comprising at least three visits to Mr. Mozdzenski’s office, with a letter report jointly by the reviewer and Mr. Mozdzenski summarizing the reviewer’s observations and suggestions plus Mr. Mozdzenski’s implementation actions. The choice of practitioner, the scope of review and the letter report shall all be satisfactory to APEGGA’s Director of Professional Practice.
5. That Mr. Mozdzenski’s registration be suspended if orders 3 and 4 are not satisfied within six months of this decision being served on him.
While the above reprimand stems from a straightforward instance of unprofessional conduct, the Panel is concerned by the evident lack of understanding by Mr. Mozdzenski of his professional responsibilities. This was apparent at the hearing, where Mr. Mozdzenski stated that the purpose of his certification was to facilitate payment to the contractor, and in his submission, where Mr. Mozdzenski notes that it is not he who is unprofessional — rather “the whole commercial electrical consultant industry”. Of additional concern to the Panel is the appearance that Mr. Mozdzenski has a continuing cavalier attitude toward his chosen profession and the “details” of the drawings or certifications he is signing.
In determining a suitable sanction for the unprofessional conduct in the case before us, the panel gave considerable thought to the purposes of discipline and what it means to be a professional.
Disciplinary action provides an opportunity for remediation, for the member to improve his behaviour or practice. Secondly, it serves as a prohibition to prevent re-occurrence and protects the public by preventing the member from continuing or repeating unprofessional conduct or unskilled practice. Thirdly, it serves as a deterrence to members and as a commitment to the public that APEGGA will not condone unprofessional conduct or unskilled practice by its members.
Clearly, Mr. Mozdzenski continues to exhibit behaviour that twice before has warranted reprimands by the Discipline Committee and the recommendation of a previous discipline panel that Mr. Mozdzenski be dealt with more harshly should there be a repeat of the unprofessional conduct. This panel finds that Mr. Mozdzenski continues to display unprofessional conduct despite being reprimanded previously by two separate discipline panels.
The member’s conduct indicates either a lack of understanding of what it means to be a professional and to be accountable to APEGGA and to the public or, worse, that he understands but chooses not to comply. The member has attempted to prevaricate and to blame others for negative events that were within his control and often the direct result of his own actions. The panel believes that the member has been provided ample opportunities to improve his practice yet he continues to demonstrate no concept of the responsibilities and obligations of professional practice, responsibility and accountability.
The panel believes that it is necessary to protect the public from future reoccurrences of unprofessional conduct by Mr. Mozdzenski and to maintain public confidence in the engineering profession.
1. Mr. Mozdzenski’s registration as a professional engineer shall be cancelled effective immediately. Notwithstanding an appeal, this order shall remain in effect until the Appeal Board or the Court of Appeal, as the case may be, makes its decision on the appeal.
The Investigative Committee has suggested that the member pay the full costs of the hearing because, “The conduct of the member was abusive to the process and throughout the proceedings, he showed no concern for the imposition on witnesses, volunteers of APEGGA, and the inflated costs arising in these proceedings.” The panel chooses instead to order that the member pay one-half of the total costs of the hearing. It needs to be recognized that the member was found not guilty on several of the counts and, therefore, is not responsible for costs associated with those charges.
Also, the panel is of the opinion that APEGGA has an obligation to bear a reasonable portion of the costs of mounting a complaint and is in control of the number of charges presented and the amount of time taken to present the charges which will all require a defence by the member. Both APEGGA and the member have obligations to proceed with dispatch. However, due to the member’s relative unfamiliarity with the legal aspects of discipline hearings, he must be allowed some leeway in how long the process takes. The member is allowed to engage legal counsel to represent him. However, if the member chooses not to engage counsel for whatever reason, in order to allow the member due process, the member must be provided with assistance in the process primarily with the allowance of time to present a defence. It should also be noted that ultimately the discipline panel is itself in charge of the amount of time that the hearing will take, and in this case, the adjournments were all either agreed to by the panel or ordered by the panel.
In the case before us, the member was the cause of the complaints. This was not a situation where a single infraction was considered; rather, there are a significant number of separate instances of unprofessional conduct as outlined in the findings. This was also not the member’s first appearance before the Discipline Committee. It was the third. The member’s own actions led to the complaints which led to the hearing and, therefore, the member must bear a significant portion of the costs of the hearing.
2. Mr. Mozdzenski shall pay to the Association, within six months of the date of this decision, $24,844.92 being one-half of the costs of the hearing.
It is important that other professional members know the consequences of serious instances of unprofessional conduct. It is also important that the public be advised that an individual has lost his right to practice.
3. This decision shall be published with names in The PEGG, and a legal notice shall be placed in the Edmonton Journal stating to the effect that Mr. Mozdzenski’s registration has been cancelled.
Dated at the City of Edmonton, Alberta this 26th day of February, 2007.