Complaints to the Board?

[MFORD]

If a complaint is filed with the Board against a PLS and is upheld the guilty PLS is obligated to reimburse the Board for the cost of the investigation. Is there a provision for the complaining party to reimburse the Board for filing a meritless complaint?

In the past couple of years I have heard of complaints filed against PLSs that the Board has, after the investigation, deemed the complaint meritless and dismissed the complaint. However, during the investigation process the subject PLS had to expend several thousand dollars in time and in some cases attorney fees to defend himself/herself. Am I missing something in the BPLESG complaint process that says the complaining party is responsible for the Board’s expenses if the complaint is denied?

[dmi]

No, making folks have to bare the costs of unproven claims will muzzle potential claims.

[Jim Frame]

As Dane indicated, good public policy requires that claims against a licensee filed in good faith not carry a threat of financial damage to the claimant in the event that the claim is not upheld. However, I think a licensee would have a good chance of winning a judgment for damages against a bad-faith claimant if he can prove same. The venue wouldn't be BPELSG, but rather a court.

Even if the costs of defending the claim were to exceed the Small Claims Court limit ($7500 for individuals, $5000 for businesses, as I recall), the low cost of pursuing a Small Claims judgment, and the relatively relaxed rules of evidence, might make it the best way to go.

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[Dave Karoly, PLS]

15 years ago an engineer I worked for sued a client for non-payment. The client retaliated by filing a complaint with the board. The board found the complaint had no merit. The Judge came down hard on that client when he eventually lost and made him pay for the frivolous complaint plus the invoice plus interest.

[MFORD]

A consumer filing a complaint against professionals for malpractice, errors, omissions, etc. is understandable and encouraged. The larger issue in my mind is professionals filing meritless complaints against other professionals for punitive purposes. Consumers by and large don’t know or understand they can file claims and, more often than not, don’t want to spend the time and energy to pursue a complaint. They just want to move on and put the whole affair behind them. Professionals on the other hand know well the problems and financial cost they can incur on another professional by filing a complaint, even an anonymous complaint.

I’m not suggesting the profession shouldn’t be self policing. Incompetent, unscrupulous practitioners need to be held accountable. The situation in my area I am seeing and hearing about more and more often are professionals filing complaints against other professionals for the sole purpose of harming that individual or company for personal reasons.

The Board doesn’t differentiate, as far as I know, the merits of the complaints by category. My understanding is the complaint is reviewed on the merits without consideration to who filed it. IMO maybe consideration should given be to the relationship of the complainant to the person being filed against. If it’s a consumer who felt harmed, the status quo would prevail. However, if the complaint was filed by a professional it should be treated differently, at least in the beginning. Maybe a nominal filing fee should be required that would be refunded if the complaint is upheld. If the complaint isn’t upheld the fee is surrendered. If a`fee was required, even a small fee, it would discourage frivolous, meritless complaints for punitive reasons.

[land butcher]

I received a certified ($7 postage) letter from the JPPC telling me one of my monuments was found without any record on file.

There had been for many years a RS on file. It was not found because the followup surveyor (tying out mons for street rehab) relied on the county web site to bring up ALL record maps in the area. Whether the County Surveyor even looked I have no idea but in my opinion both were negligent in "Due diligence".
I sent the recordation B&P to the JPPC and NEVER heard another word. When in my opinion I should have received a letter of apology from the JAPC and the County Surveyor and a copy of a letter of discipline sent to the lazy surveyor who did not do proper research.
A simple phone call could have saved the JPPC $7.

Yea, I am still PO'd about this.

[Jim Frame]

Yea, I am still PO'd about this.

I'd say the process worked pretty well. The complaint went to a JPPC, not the board, so it was your peers reviewing the complaint and not BPELSG. It would have been *nice* to get an apology from the complainant -- it would have been the courteous thing for him to do -- but at least you didn't have to respond to a formal complaint from a body with the power to sanction your license. I think I'd have been pretty happy under the circumstances to resolve the matter with nothing more than providing a map reference to the JPPC.

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[Stephen Johnson]

15 years ago an engineer I worked for sued a client for non-payment. The client retaliated by filing a complaint with the board. The board found the complaint had no merit. The Judge came down hard on that client when he eventually lost and made him pay for the frivolous complaint plus the invoice plus interest.

That was a good judge.

[dmi]

476. Code of Professional Conduct – Professional Land Surveying
(c) Representations:
(10) A licensee shall not falsely or maliciously injure or attempt to injure the reputation or business of others.

I do not wish to fine anyone because they want to raise an issue with the board. If you have evidence that a licensee falsely or maliciously was attempting or did in fact injure the business or reputation of others, then you have a cause of action.

[Ric7308]

If a complaint is filed with the Board against a PLS and is upheld the guilty PLS is obligated to reimburse the Board for the cost of the investigation. Is there a provision for the complaining party to reimburse the Board for filing a meritless complaint?

Mike, typically the Board only seeks reimbursement for the cost of the investigation if the result is proceeding to formal disciplinary action against a license. And even then it is at the discretion of the Board.

Personally I do not believe it would be appropriate for a public agency to seek reimbursement in this situation, primarily for the reasons that Dane and Jim bring up.

In the past couple of years I have heard of complaints filed against PLSs that the Board has, after the investigation, deemed the complaint meritless and dismissed the complaint. However, during the investigation process the subject PLS had to expend several thousand dollars in time and in some cases attorney fees to defend himself/herself. Am I missing something in the BPLESG complaint process that says the complaining party is responsible for the Board’s expenses if the complaint is denied?

It is true that sometimes complaints / investigations lead to a dismissal. And this could be for serveral different reasons. Just because an individual files a complaint, licensee or otherwise, doesn't make it "meritless" in their own mind. Experience reveals that many individuals, again licensed or otherwise, are unclear on exactly what the Board's authority is or whether a claim is really a violation of the laws. And the licensee subject to the complaint may be just as unclear on the laws.

A consumer filing a complaint against professionals for malpractice, errors, omissions, etc. is understandable and encouraged. The larger issue in my mind is professionals filing meritless complaints against other professionals for punitive purposes. Consumers by and large don’t know or understand they can file claims and, more often than not, don’t want to spend the time and energy to pursue a complaint. They just want to move on and put the whole affair behind them. Professionals on the other hand know well the problems and financial cost they can incur on another professional by filing a complaint, even an anonymous complaint.

How does the typical consumer know whether an action by a licensee is malpractice? Or an error or omission? If a consumer hires a land surveyor that disagrees with what the consumer believes they own, is the land surveyor committing malpractice? The consumer has options...one of which is seeking assistance from the licensing board. Another might be to seek civil action. It has been my experience that the typical consumer is much more savvy in understanding their rights as a consumer than you can imagine. Very rarely do consumers want to "move on and put the whole affair behind them." and most have invested a great deal of personal time, energy, money, etc. into their belief when it comes to their land.

I’m not suggesting the profession shouldn’t be self policing. Incompetent, unscrupulous practitioners need to be held accountable. The situation in my area I am seeing and hearing about more and more often are professionals filing complaints against other professionals for the sole purpose of harming that individual or company for personal reasons.

I can completely agree with your second sentance in this statement. It is a black mark on all licensees if another licensee is simply seeking to harm someone for personal reasons.

The Board doesn’t differentiate, as far as I know, the merits of the complaints by category. My understanding is the complaint is reviewed on the merits without consideration to who filed it. IMO maybe consideration should given be to the relationship of the complainant to the person being filed against. If it’s a consumer who felt harmed, the status quo would prevail. However, if the complaint was filed by a professional it should be treated differently, at least in the beginning. Maybe a nominal filing fee should be required that would be refunded if the complaint is upheld. If the complaint isn’t upheld the fee is surrendered. If a`fee was required, even a small fee, it would discourage frivolous, meritless complaints for punitive reasons.

Your understanding is based on incorrect assumptions. All complaints are fully reviewed and believe me, Board staff are usually very much aware of relationships that may not be obvious. Professional attitude and ethics should discourage frivolous and meritless complaints.

[Ric7308]

In the upcoming issue of California Surveyor, Nancy Eissler, Enforcement Program Manager wrote an article related to enforcement which includes some statistics related to the source of complaints, which disciplines, etc. that everyone shoudl find interesting...

[land butcher]

I'd say the process worked pretty well. The complaint went to a JPPC, not the board, so it was your peers reviewing the complaint and not BPELSG. It would have been *nice* to get an apology from the complainant -- it would have been the courteous thing for him to do -- but at least you didn't have to respond to a formal complaint from a body with the power to sanction your license. I think I'd have been pretty happy under the circumstances to resolve the matter with nothing more than providing a map reference to the JPPC.

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Whoever would have contacted me would have received the same info - Bk and page and that's all they needed.
Was the lazy surveyor contacted - NO. The county surveyor corrected her CR.
Did the County ever fix their web site? 18 months later they still hadn't.
Was the RS on their, now defunct then still in use, wall maps? YES.
The JPPC did nothing but send me a letter after the CS contacted them. The JPPC "Properly responded to a CS letter per SOP", or words to that effect.

IMO I am the only one who did his job here.

[rpost]

Whoever would have contacted me would have received the same info - Bk and page and that's all they needed.
Was the lazy surveyor contacted - NO. The county surveyor corrected her CR.
Did the County ever fix their web site? 18 months later they still hadn't.
Was the RS on their, now defunct then still in use, wall maps? YES.
The JPPC did nothing but send me a letter after the CS contacted them. The JPPC "Properly responded to a CS letter per SOP", or words to that effect.

IMO I am the only one who did his job here.

It's getting harder and harder to be confident in the online research. I sometimes find myself doubting that I have ALL of the records. This concerns me. This is why all available maps should be scrutinized for additional calls, and ALL surveyors should make every attempt to contact every surveyor whose monument he thinks is not of record. This just happened to me recently, and the gentlemen emailed me his recorded CR within the hour.

However, if upon making contact with the surveyor, he does not intend to file……… turn him in.

[StanBrunk]

Ric,

Thank you for the article you've suggested. I still don't believe it has answered a portion of the post I seem to not understand?


Originally Posted by*MFORD*
The situation in my area I am seeing and hearing about more and more often are professionals filing complaints against other professionals for the sole purpose of harming that individual or company for personal reasons.



I also believe this is a problem. Complaints from professionals against other professionals go to the BPLESG about minor technical issues that don’t impact the public. The BPLESG investigates and finds no merit or something minor that can easily be corrected. In an era of diminishing government funding, it’s a colossal waste of resources and a major aggravation for the professional against whom the complaint is made.



A posting to this forum by DWooley on 9/20/11 states:

“Anytime a reporting surveyor contacts an offending surveyor before contacting the Board, the offending surveyor owes the reporting surveyor a debt of gratitude for bringing the work product to the offending surveyor’s attention (ideally resulting in a discrete filing of a public record). The surveyor that does not contact the offending surveyor or subsequently neglects reporting to the local JPPC and/or the Board is damaging the profession and moreover, damaging the public.”



So why is this not happening? It shouldn’t be too difficult to require professionals to bring complaints to the JPPC first. Let’s utilize the collective talents of the JPPC members to resolve complaints whenever possible before the BPLESG has to get involved.

[RAM]

So what do you do if you live/work in an area that does not have a JPPC and the offending surveyor is not willing to discuss? I do agree matters should be handled at the local or personal level if possible, but there are exceptions.

[land butcher]

So what do you do if you live/work in an area that does not have a JPPC and the offending surveyor is not willing to discuss? I do agree matters should be handled at the local or personal level if possible, but there are exceptions.

In that case you have no choice but to contact the board.

[MFORD]

Mr. Wolley,

The person who is the subject of the latest complaint has requested anonymity until a decision is handed down by the Board. That person did, however, asked me to review the ROS that was the basis of the complaint and offer my opinion if the map was worthy of a violation, which I did. The ROS was filed more than 6 years ago. After my review the surveyor explained his resolution and how he arrived at his results. The map was short on detail on how he arrived at his solution. I offered that in the future he may want to go to greater lengths to explain his resolution. I didn’t see anything on the map that was a blatant violation of the PLS Act anything that would harm the public if another surveyor came to a different conclusion.

The problem, as I see it, is that the complainant didn’t bother to go through the local chapter PPC before contacting the Board nor did he contact the offending surveyor directly. My information was that the complainant was another surveyor. This isn’t an isolated incident in my area. I’ve had two other surveyors contact me in the recent past with similar stories of being turned into the Board without so much as phone call from the complainant.

[StanBrunk]

MFORD,

Thank you, exactly my point!

[dmi]

One has to know better in order to be able to engage in negligent practice. A practice based in ignorance is incompetent.

[LA Stevens]

According to a case I recently read, the term "incompetence" generally indicates "an absence of qualification, ability or fitness to perform a prescribed duty or function." (Pollack v. Kinder (1978) 85 Cal.App.3d 833, 837.)

If the respondent has passed the LS Exam, doesn’t that prove he is minimally competent to practice?

[bruce hall]

"'If the respondent has passed the LS Exam, doesn’t that prove he is minimally competent to practice?"

That was then, this is now. Just cause I was able (competent) to perform my work in 1978, Am I able (competent) to perform it now?

[Dhanrion]

I have found that most surveyors are very open to assisting other surveyors. I have found rare instances to the contrary.

A while back, we (Forest Service) contacted a surveyor of a prior PM which had resulted in the restoration of lost junior corners on a township line. A thorough dependent resurvey of the area discovered that the prior restoration appeared to have been in error. The record surveyor was contacted to determine what evidence he had relied upon (the PM was older with little detail as to what was actually found). We provided copies of the evidence of the dependent resurvey. After his review, he was grateful for the additional information, and promptly amended his PM. We subsequently completed and filed our survey.

One could argue that perhaps our representing a Federal agency prompts better reactions, but I doubt that is truly the case. However, during my 26+ year career in land surveying, I have found that most surveyors' (also people) reactions are directly proportional to the method and attitude used in seeking information, or bringing potential errors to light.

Just my humble 2 cents.

[dmi]

Thanks for the citation Larry.
"an absence of qualification, ability or fitness to perform a prescribed duty or function."

[MFORD]

Mr. Wooly,
I agree with all that you said with the exception that a phone call or a letter from the PPC has worked in my area. Two recent examples in particular where the local chapter PPC successfully resolved problems without involving the Board. The PPC acted as a peer review group and offered a solution that was accepted by the perceived offending surveyor. The surveyor may not have enjoyed having to file an amending map but it was preferable to and less of a problem than dealing with a complaint form the Board.

My original post had to do with malicious complaints from competing surveyors who use the Board as a way of punishing their competitors for grievances because their proposals (bids) are rejected in favor of another surveyor. Generally, when reviewing a map recognizing incompetence and negligence is fairly easy and straight forward. I don’t have an issue with anyone being brought to task for less than professional conduct. The situations I’m addressing are surveyors who cherry pick maps by specific individuals while ignoring the maps of others with more egregious, blatant violations.

[PLS7393]

As I have been contracted in the past by the Board to review complaints, they (The Board) clearly understand the difference between a surveyor acting negligent vs. incompetent. Negligent is easily provable, but acting incompetent is not an easy task to prove.