| Date of Hearing: March 5, 2004
Date of Decision: May 27, 2004
IN THE MATTER OF the Engineering, Geological and Geophysical
Professions Act
- and -
IN THE MATTER OF the conduct of J. Fred
Apon, P.Geol., regarding reports concerning a proposed RV
campground near Hinton,
Alberta.
DISCIPLINE COMMITTEE PANEL Larry Staples, P.Eng., Chair
Marty Klaassen, P.Eng.
Diana Purdy, P.Geol.
Panel Counsel Dwayne Chomyn, Neuman Thompson
PARTIES
APEGGA Investigative Committee represented by Barry Massing,
Hendrickson Gower Massing Olivieri
Member J. Fred Apon, P.Geol.
Member’s Counsel Brian J. Curial
Miller Thomson LLP
BACKGROUND
On July 25, 2003, the Discipline Committee received, from
the Investigative Committee, the referral for a discipline
hearing concerning Mr. J. Fred Apon, P.Geol. (the "Member").
After obtaining the availability of all necessary parties,
a hearing date of March 5, 2004 was set.
On September 26, 2003, the Discipline Committee issued a
formal notice of hearing and served copies on the Member’s
counsel and on the Investigative Committee (the "parties").
At the same time, the Discipline Committee, according to
its standard process for disclosure of documents, requested
that the parties provide, to the Panel and to each other,
copies of documents on which they intended to rely at the
hearing. All submissions were provided to the Panel on February
27, 2004.
THE HEARING
The hearing was held and concluded before the Panel at the
Association’s offices in Edmonton on March 5, 2004.
The Investigative Committee was represented by Mr. Massing.
The Member was represented by Mr. Curial.
CHARGES (ALLEGATIONS)
The matters to be decided, as brought forward by the Investigative
Committee, were:
1. "That J.F. Apon, P.Geol., authored a report of a
professional nature, dated July 23, 2001, which report was
not supported by adequate site testing and which report did
not state the limitations of the testing that had been undertaken,
which conduct constitutes unskilled practice of the profession,
or unprofessional conduct, or both, and which contravenes
the APEGGA Code of Ethics Rule of Conduct #1."
2. "That J.F. Apon, P.Geol., authored a report of a
professional nature, dated July 23, 2001, which report contained
conclusions based on inadequate testing performed by unskilled
and unsupervised personnel, which conduct constitutes unskilled
practice of the profession and contravenes APEGGA Code of
Ethics Rule of Conduct #2."
3. "That J.F. Apon, P.Geol., did not avail himself
the opportunity to review additional information prior to
presenting his opinions to the public in the report dated
July 23, 2001 and otherwise, which conduct constitutes unskilled
practice of the profession and contravenes APEGGA Code of
Ethics Rule of Conduct #2."
4. "That J.F. Apon, P.Geol., reviewed and commented
upon the engineering report prepared and submitted by Blaine
Newton, P.Eng., on behalf of EXH Engineering Services Ltd.,
but had not advised Blaine Newton, P.Eng., nor EXH Engineering
Services Ltd. of his intent to do so, which conduct constitutes
unprofessional conduct and contravenes APEGGA Code of Ethics
Rule of Conduct #10."
5. "That J.F. Apon, P.Geol., in his report of July
23, 2001, commented upon the report of Monica Caine, P.Eng.,
of Hydroconsult EN3 Services Ltd., dated June 13, 2001, but
did not advise Monica Caine, P.Eng., nor Hydroconsult EN3
Services Ltd., of his intent to do so, which conduct constitutes
unprofessional conduct and contravenes APEGGA Code of Ethics
Rule of Conduct #10."
6. "That J.F. Apon, P.Geol., did not apply his professional
seal to either the report dated July 26, 2000, nor the report
dated July 23, 2001, which conduct constitutes a breach of
Section 76(1)(b) of the Engineering, Geological and Geophysical
Professions Act, together with Regulation 54(1) of the Act,
and which thereby constitutes unprofessional conduct pursuant
to the Engineering, Geological and Geophysical Professions
Act."
BACKGROUND
From a macro perspective, this case is about the role played
by APEGGA members in informing and assisting public bodies
to make decisions regarding the competing rights of individuals
within society.
In a semi-rural area near Hinton, developers proposed to
construct a sizeable RV campground in what had been a ranch
field. The neighbours in nearby acreages opposed the proposal.
The Panel notes the strong feelings which marked the opposition,
and would not be surprised if the fundamental source of their
reluctance was the fear that the development would alter
the appearance, character and appeal of their neighbourhood.
In addition to these qualitative reasons, several tangible
objections were raised, such as traffic considerations and
the possible effects of sewage on groundwater plus the surface
water of an adjoining creek. The developers retained professional
engineers to design the RV campground and associated facilities
such as roadways and a sewage system. The neighbours formed
a society, raised funds, and retained a professional geologist
to assist them with identifying and presenting technical
objections relating to the groundwater.
As an aside, this illustrates the development process on
a human scale. The developers are not a mega corporation,
rather a family with a plan to realize value out of an investment
property which they had owned for a number of years. The
neighbours are not a large and sophisticated lobby group,
rather a handful of families concerned with their immediate
quality of life. The individuals sitting on the Yellowhead
Subdivision and Development Appeal Board (the “Appeal
Board“) are charged with sorting out the competing
interests of landowners and neighbours.
Involving experts in this public dialogue is an important
part of the process. Arguments on both sides of the debate
must be supported with facts and reasoned judgments. Professional
engineers, geologists and geophysicists owe a duty to their
individual clients to present the most compelling arguments
in the most convincing way. At the same time, they owe an
even higher duty to the public interest, i.e. to facilitating
an informed and fair decision by the public body. Because
boards such as the one in Yellowhead County are often made
up of non-technical people, professionals face the additional
challenge of presenting complex or judgmental information
in a way which can be understood as useful input for a decision.
With this background, we turn to the case at hand and the
particular issues that arise from a professional perspective.
FINDINGS
Because of the timing of the matters being considered, the “1990” Code
of Ethics is applicable, rather than the current Code which
was adopted in 2002.
At the outset of the hearing, counsel for the Investigative
Committee advised that, after consultation with the Hydroconsult
witness, he was not calling evidence with respect to charge
#5 and he asked the Panel to dismiss the charge. In this
light, the Panel hereby dismisses charge #5.
Charge 1
From the testimony of all parties, including the free admission
of Mr. Apon, it is clear that Mr. Apon authored the two letter
reports dated July, 2000 and July, 2001. Both reports contained
opinions based on Mr. Apon's professional knowledge. For
instance, his overall conclusion “It is my professional
opinion that this site is not suitable for development. This
is an environmentally sensitive area.” While the reports
list the limited number of tasks undertaken, they do not
plainly state the limited nature of the professional engagement
to put the reports in context for a lay reader. In particular,
the second report referred to information from water table
monitoring wells that confirmed water table studies done
by others, without mentioning the technical limitations of
the water monitoring wells that could affect the confidence
in interpretation of the information provided.
Mr. Apon knew his report would be used in a public forum,
i.e. the Appeal Board and other hearings, to present views
opposing the developer’s engineering consultants. In
the hearings, Mr. Apon was consistently referred to as his
client’s “expert”, and his testimony was
that he was comfortable with that role. It is the view of
the Panel that he did not properly qualify the scope of his
assignment and the limitations on at least some of the data
supporting his conclusions. This has particular importance
in public dialogue, so that the Appeal Board and others can
put appropriate weight on his reports, as they try to balance
them with opinions from other engineering consultants.
The Panel finds that the lack of appropriate qualification
on scope and data did unnecessarily obfuscate the public
process, and thus constitutes unprofessional conduct, in
contravention of Rule #1.
Charge 2
As noted above, the information from the water table monitoring
wells should have been appropriately qualified to assist
the understanding of readers of the report. However, Mr.
Apon's testimony illustrated that he understood the limitations
of the information, placed appropriate weight on the data,
and used it in the context of several other personal observations
plus information from previous reports.
The Panel believes, from the testimony of Mr. Apon, that
he formed professional opinions on the basis of a number
of factors, of which the water table monitoring wells was
one. The panel finds that this does not constitute unskilled
practice or unprofessional conduct.
Charge 3
The panel heard evidence regarding the telephone call on
the day before the July 2001 hearing of the Appeal Board.
Beyond noting the mutual inability of two professionals to
establish meaningful communication, the Panel did not place
high significance on either one of the very different perspectives
on this conversation.
It is clear that, as he prepared his second report, Mr.
Apon did not seek any updated information on the engineering
designs or other studies that might have been done during
the intervening year since his July 2000 report and presentation.
The Panel understood from his testimony that the client contacted
Mr. Apon in late June 2001, allowing approximately one month
to complete the (very limited!) scope of his second assignment.
There was also adequate time to contact the developer’s
engineers to seek updates or clarification of points that
Mr. Apon intended to address in his second report or in his
presentation to the Appeal Board.
Certainly Mr. Apon did not have to reconcile his opinions
with those of the developer’s engineers, nor justify
his position to them. However, in a public forum, such as
a hearing, it is incumbent upon professional engineers, geologists
and geophysicists to present their opposing opinions in a
respectful and informed way. Public bodies, such as the Appeal
Board, are frequently faced with adjudicating between differing
or even opposing opinions in order to make decisions for
the public good. It is important to present professional
opinions in a way that facilitates this sometimes difficult
process.
In the view of the Panel, Mr. Apon's approach to this project
was detached, even for a limited scope assignment. He failed
to seek a basic understanding of the facts and assumptions
behind the engineering design of the development upon which
he was commenting. This omission detracted from his ability
to present to the Appeal Board in a balanced and informed
way.
The Panel finds that this constitutes unprofessional conduct,
in contravention of Rule #2.
Charge 4
Mr. Apon made brief comments upon the report of EXH Engineering
Services, which had been publicly disclosed as part of the
development permit process. In the Panel’s view, the
comments in Mr. Apon's reports are cursory and aimed primarily
at identifying information gaps rather than a substantive
critique of the data, methodology or findings of the EXH
report. The intent of Rule #10, in terms of notifying other
professionals when reviewing their work, is to ensure that
critiques are based on facts rather than inferences, so that
the public is informed by enlightened debate.
The Panel finds that the brief comments made by Mr. Apon
on the publicly available reports did not strictly necessitate
notification of EXH Engineering Services, and thus did not
constitute unprofessional conduct.
Charge 6
Mr. Apon freely admitted that he authored the two reports,
although at the time he did not consider them “reports”.
It is clear that they did contain opinions based on his professional
knowledge. His authorship, P.Geol. credentials and professional
responsibility for the reports were clearly identified at
the signature line.
The Panel finds that the omission of Mr. Apon's seal does
breach Section 76(1) of the Act and Section 54(1) of the
General Regulation under the Act. The Panel notes that the
breach is mitigated by the clear acknowledgement of professional
authorship of the report.
The Panel was satisfied that Mr. Apon had adequate technical
expertise, and that he was trying to do the “best” possible
job for a low-budget client. His site visit was piggybacked
onto another project to keep costs down, and useful data
was contributed from previous reports in the company archives.
However, service to the client must be balanced with serving
the public good. Particularly in the case of reports and
testimony for public bodies, professional opinions must
be objective, balanced and clear to lay members of the
public body. This is as true of limited scope assignments
as it is of normal assignments.
Professionals, and particularly those acting as expert witnesses
before a public board on behalf of one of the parties, must
take the lead to outline an appropriate work scope. The next
step is to secure adequate compensation for the work to be
done, or to decide to provide some essential work without
charge either for personal reasons or pro bono publico. A
general lesson from this case is that a limited fee arrangement
must not be allowed to constrain the work scope below the
essential professional minimum to act as an expert witness
before a public body.
The Panel also noted Mr. Apon's casual approach to documenting
administrative details, discussions and decisions. The same
standard of record keeping applies for small projects as
for normal projects.
ORDERS
On April 1, 2004, the Discipline Committee Panel’s
written findings and reasons were issued to Mr. Apon through
his legal counsel and to the Investigative Committee. In
its letter, the Panel requested that the parties provide
their submissions in writing on the matter of the orders
to be made.
Both parties provided submissions in accordance with the
procedure outlined by the Panel in its letter. Mr. Massing,
on behalf of the Investigative Committee, forwarded a submission
dated April 7, 2004. On April 16, 2004, Mr. Curial submitted
his response on behalf of Mr. Apon. Mr. Massing submitted
a reply on April 22, 2004.
On May 3, 2004 the Panel requested that the Director of
Professional Practice (the Director) provide information
on the costs associated with the hearing. The Director wrote
to the parties on May 4, 2004, indicating the costs that
his office had determined and noting that he would provide
a copy of that letter to the Panel on May 11, 2004 along
with any comments either party wished to make. Neither party
submitted a response.
The Panel made findings of unprofessional conduct on three
of the six charges originally presented by the Investigative
Committee. Upon the recommendation of the Investigative Committee,
the Panel dismissed one of the original charges without hearing
any evidence. The other two charges, in the view of the Panel
after hearing the evidence, may have been in the gray zone
of professional performance but did not fall below the threshold
of unprofessional conduct or unskilled practice.
In formulating appropriate sanctions in these circumstances,
the Panel considered several factors. While public safety
per se was never at risk, the public interest (in the form
of a public decision-making process) was not well served
by Mr. Apon’s actions. However, it is clear that the
omissions which did lead to the findings of unprofessional
conduct were naive mistakes as Mr. Apon endeavored to serve
a low budget client. Once this matter entered the Investigative
and Discipline processes, Mr. Apon responded in a professional,
forthright and co-operative manner. Mr. Apon has never before
been involved in the disciplinary process, and, in the opinion
of the Panel, it is very unlikely that he will be involved
again.
This case serves as a reminder to the general membership
to keep in mind their duty to serve the public interest even
(or perhaps especially) when striving to serve clients within
limited scope assignments. Because it is the general policy
of APEGGA to publish, with names, all discipline cases where
there are findings against the Member, the Panel need make
no publication orders for the general educational facet of
this case to be achieved.
In some discipline cases, the Member under investigation
refuses a Stipulated Order and triggers a formal Hearing
which then arrives at essentially the same findings as the
Stipulated Order. In these circumstances, Panels often assess
a large proportion of the incremental cost of the hearing
on the premise that the general APEGGA membership should
not have to bear costs incurred by the unjustified reticence
of the Member. In the case of Mr. Apon, some of the charges
did not constitute unprofessional conduct or unskilled practice,
although the broad findings and sanctions following the formal
hearing did not materially change from those of the Stipulated
Order.
Considering all of the above, the Panel makes the following
orders:
1. Mr. Apon shall be reprimanded for unprofessional conduct.
2. Mr. Apon shall pay to APEGGA, within six months of this
decision being served on him, $2,300.00, being approximately
one quarter of the costs of the formal hearing.
3. Mr. Apon's registration as a professional geologist shall
be suspended if the amount in Order 2 is not paid within
six months of this decision being served on him, and the
suspension shall remain in effect until the amount is paid.
DATED this 27th day of May, 2004 at Edmonton, Alberta.
___________________________________
Larry Staples, P.Eng.
Chair, Discipline Hearing Panel
Although no publication order appears this
decision,
Council requires that The PEGG publish all discipline
committee decisions.
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