§ 2824 — Disciplinary action; procedure
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(a) Whether prompted by receipt of an accusation of wrongdoing by a third party or upon its own initiative, the Council may review the actions and representations of applicants, adjunct and affiliate members, and any person licensed as a professional engineer under this chapter for alleged violations of § 2823 of this title or for unlicensed practice pursuant to § 2825 of this title.
(b)Complaint investigation and prosecution. —(1) Upon receipt of a written accusation alleging a violation of § 2823 of this title or alleging the unlicensed practice of professional engineering in violation of § 2825 of this title, the Council may assign the matter to its investigating committee for possible prosecution. The investigating committee may also initiate the prosecution process based upon firsthand knowledge acquired by a member or upon a member’s information and belief whether the accusation of wrongdoing is written or oral. Members of the investigating committee shall maintain strict confidentiality of the facts of its investigations and shall not discuss any issues of fact or law relating to an investigation with anyone except other investigating committee members, potential witnesses, the target of the investigation, or the target’s legal representative.
a. If any allegations are not supported by the facts stated in the complaint, the investigating committee shall submit a written recommendation to the Council for dismissal of the unsupported allegations. The recommendation must recite the complaint allegations that are recommended for dismissal, indicating the investigating committee’s reasoning for recommending dismissal of each allegation. By majority vote of the members present at a properly convened Council meeting, the Council shall approve or reject the investigating committee’s written recommendation based only on the information contained in and included with the written recommendation. The Council shall reject the investigating committee’s recommendation only if it decides that the investigating committee’s recommendation is contrary to a specific state or federal law or regulation, is not supported by substantial evidence, or is arbitrary or capricious. If Council does not approve the investigating committee’s recommendation, the matter must be remanded to the investigating committee with the Council’s written reasons for withholding its approval. If all allegations in a complaint are dismissed by the Council, the complaint is dismissed.
b. If the investigating committee believes a complaint does state sufficient facts to support 1 or more allegations, the investigating committee shall investigate the allegations and send a copy of the complaint by certified mail with return receipt requested to the last address of record of the accused.
c. The accused is entitled to submit a written answer to the complaint to the investigating committee within 20 calendar days after receiving the complaint.
d. If, at any time before commencement of a hearing 1 or more allegations are found to be unsupported, the investigating committee shall submit a written recommendation to the Council for dismissal of the unsupported allegations. The recommendation must recite verbatim all complaint allegations that are recommended for dismissal, indicating the investigating committee’s reasoning for recommending dismissal of each allegation. By majority vote of the members present at a properly convened Council meeting, the Council shall approve or reject the investigating committee’s written recommendation based only on the information contained in and included with the written recommendation. The Council shall reject the investigating committee’s recommendation only if it decides that the investigating committee’s recommendation is contrary to a specific state or federal law or regulation, is not supported by substantial evidence, or is arbitrary or capricious. If Council does not approve the investigating committee’s recommendation, the matter must be remanded to the investigating committee with the Council’s written reasons for withholding its approval. If all allegations in a complaint are dismissed by the Council, the complaint is dismissed.
e. If, during the course of an investigation, the investigating committee finds evidence that there may have been violations in addition to those contained in the complaint or those which formed the basis for an internally-initiated investigation, the investigating committee may add additional allegations as appropriate.
f. The investigating committee shall issue a final written report at the conclusion of its investigation. The report must list the evidence reviewed and the witnesses interviewed, cite the law alleged to have been violated, and list all facts supporting 1 or more allegations.
g. The investigating committee shall resolve supported allegations in 1 of the following ways:
1. The investigating committee may submit a written recommendation to the Council that an administrative order be issued. The written recommendation must include a copy of the proposed order. The proposed order must recite all complaint allegations the investigating committee believes are supported by its findings, a brief recitation of those findings, and the proposed penalty or penalties. By majority vote of the members present at a properly convened Council meeting, the Council shall approve or reject the investigating committee’s written recommendation based only on the information contained in and included with the written recommendation. The Council shall reject the investigating committee’s recommendation only if it decides that the investigating committee’s recommendation is contrary to a specific state or federal law or regulation, is not supported by substantial evidence, or is arbitrary or capricious. If Council does not approve the investigating committee’s recommendation, the matter must be remanded to the investigating committee with the Council’s written reasons for withholding its approval. If the Council approves the recommendation, the order shall be served on the accused by certified mail with return receipt requested to the last address of record of the accused or by personal service. The order must indicate that it will become final unless the accused, within 14 days after receipt of the order, objects to the proposed order and requests a hearing. Administrative orders become final 14 days from the day the order is received by the accused but only if there is positive proof of service, such as a signed return receipt or an affidavit of personal service. Administrative orders are limited to imposing the following penalties, individually or in combination: warning, public reprimand, censure, or requiring completion of training or education courses. If the accused gives notice to the investigating committee that the allegations are contested, the investigating committee shall proceed in accordance with paragraph (b)(1)g.3. of this section.
2. The investigating committee is entitled to negotiate a consent order with the accused. Consent orders must be approved by Council before becoming final. By majority vote of the members present at a properly convened Council meeting, the Council shall approve or reject consent orders, after considering the investigating committee’s written recommendation regarding an order, based only on the information contained in and included with the consent order and written recommendation. The Council shall reject consent orders only if it decides that a consent order is contrary to a specific state or federal law or regulation, is not supported by substantial evidence, or is arbitrary or capricious. If the Council approves a consent order, the consent order must be served on the accused by certified mail with return receipt requested to the last address of record of the accused or by personal service. If the Council does not approve the consent order, the matter must be remanded to the investigating committee with the Council’s written reasons for withholding its approval.
3. The investigating committee, with the concurrence of the Department of Justice, is entitled to forward the complaint, along with its final investigative report, to the Council with a written recommendation to prosecute the complaint before a hearing committee. By majority vote of the members present at a properly convened Council meeting, the Council shall approve or reject the Investigating Committee’s written recommendation based only on the information contained in and included with the written recommendation. The Council shall reject the investigating committee’s recommendation only if it decides that the investigating committee’s recommendation is contrary to a specific state or federal law or regulation, is not supported by substantial evidence, or is arbitrary or capricious. If Council does not approve the investigating committee’s recommendation, the matter must be remanded to the investigating committee with the Council’s written reasons for withholding its approval. If the Council approves the recommendation, the Council shall convene a hearing committee if it has not already done so, and assign the matter to the hearing committee for further proceedings. The time and place for the hearing must be fixed by the hearing committee within 90 days of receipt of the formal complaint.
(2) At a properly convened Council meeting, the Council President shall nominate at least 3 Council members to serve on a hearing committee. Nominees must be approved by a majority vote of Council members present at a properly convened Council meeting. The Council President shall designate 1 member of a hearing committee to serve as the hearing committee chair. Hearing committees shall consist of Council members only. Members of the investigating committee may not be members of the hearing committee, but investigating committee members are entitled to assist in the prosecution of the complaint before a hearing committee.
(3) The hearing committee shall properly notice and conduct the hearing. The Delaware Rules of Evidence do not apply to the presentation or admissibility of evidence in hearings. A record must be kept of all public hearings, a transcript of which must be provided at cost upon a party’s request. Decisions of the hearing committee must be made by majority vote of the hearing committee’s members. Decisions must be based on the evidence presented at the hearing and must be supported by substantial evidence in the record. Decisions must not be based exclusively on hearsay.
a. If the hearing committee determines that no violation under § 2823 of this title or that no unlicensed practice under § 2825 of this title has occurred, it shall issue an order dismissing the complaint.
b. If the hearing committee determines that a violation under § 2823 of this title or that an unlicensed practice under § 2825 of this title has occurred, it shall issue an order stating its findings of fact, conclusions of law, and penalties.
c. If the accused fails or refuses to appear, the hearing committee may proceed to hear the charges and render a decision by default.
d. Orders issued by the hearing committee are not final until approved by Council. After a quorum has been established at a properly convened Council meeting, by majority vote of the members present who are not recused from the matter, the Council shall approve or reject the hearing committee’s written order based only on the information contained in that order. The Council shall overturn the decision of a hearing committee only if it decides that a hearing committee decision is contrary to a specific state or federal law or regulation, is not supported by substantial evidence, or is arbitrary or capricious. If Council does not approve the hearing committee’s order, the matter must be remanded to the hearing committee for further proceedings in accordance with the Council’s written reasons for withholding its approval. Final orders are appealable to Superior Court within 30 days of the date of mailing. Copies of orders must be served personally or by registered or certified mail to each party.
(c)Disciplinary penalties and guidelines. —(1) Disciplinary violations under § 2823(a) of this title are punishable by the following penalties, or any combination thereof: levy fines up to $5,000; require the successful completion of additional training or education courses; issue warnings, public reprimands, and censure; refuse or revoke licensure; impose probation with appropriate terms and conditions; impose suspension of license not to exceed 2 years; and refuse to renew any authorization issued to use the term “engineer” or practice engineering in Delaware. All fines must be paid to Council within 90 days of the date of mailing of an order. All fines collected by the Council must be deposited in the General Fund of the State through the Division of Revenue, provided that the Council may first deduct from the fines an amount equal to the administrative and other direct expenses incurred by the Council, its hearing committee, and its investigating committee, in the prosecution of the complaint.
(2) The Council shall prepare and publish a chart of Disciplinary Penalty Guidelines (“Guidelines”) indicating the minimum and maximum penalties available for each basis for discipline in § 2823 of this title. Penalties must be imposed according to the Guidelines after taking into consideration any aggravating or mitigating circumstances in each case. The Guidelines shall be provided to each Association member, associate member, affiliate member, and adjunct member and shall be available free of charge to the public. Copies of the Guidelines must also be made available to prospective applicants as a part of their application materials.
(d) Any person who files a complaint, provides information, or testifies as a witness in a matter alleging a violation under § 2823 of this title or a violation under § 2825 of this title must be afforded the protections of the Delaware Whistleblowers’ Protection Act as codified in Chapter 17 of Title 19.
(e) The Council may, upon petition of an adjunct member, affiliate member, individual licensee, engineering corporation, or partnership holding a certificate of authorization, reissue authorization to use the term “engineer,” a license or certificate of authorization; provided, however, that a majority of the seated members of the Council vote in favor of such issuance.
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