Voelz v. BOARD OF ENGINEERING EXAMINERS, ETC.

586 P.2d 807 (1978) 37 Or.App. 113

James G. VOELZ, Petitioner,
v.
BOARD OF ENGINEERING EXAMINERS OF THE DEPARTMENT OF COMMERCE OF THE STATE OF OREGON, Respondent.

CA 10664.

Court of Appeals of Oregon.

Submitted on Record and Briefs September 25, 1978. Decided November 14, 1978.

David C. Silven and Banta, Silven & Young, Baker, filed brief for petitioner.

James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., and W. Benny Won, Asst. Atty. Gen., Salem, filed brief for respondent.

Before SCHWAB, C.J., and THORNTON, TANZER^[*] and BUTTLER, JJ.

THORNTON, Judge.

Petitioner Voelz appeals a determination by the Board of Engineering Examiners (Board) that certain practices evidenced by his surveys constitute "gross negligence" within the meaning of ORS 672.200(2).^[1] In a previous opinion on this matter we noted that the Board had preferred charges "alleged to arise under ORS 672.200(2) which authorizes the Board of Engineering Examiners to `suspend or revoke' a registration to practice engineering or land surveying based upon `gross negligence or incompetence in the practice of engineering or land surveying'." Voelz v. Bd. of Engineering Examiners, 30 Or. App. 889, 891, 568 P.2d 700, 701, rev. den. (1977). We held that although several of the charges were factually supported by substantial evidence, there was no indication whether the Board had found petitioner incompetent, grossly negligent, or both. Such a finding and a clear explication of the relevant considerations leading the Board to its conclusion was necessary, we held, in order that petitioner might properly argue mitigating circumstances in penalty assessments before the Board, and in order to allow argument before this court "whether the facts found support as a matter of law a conclusion of incompetence, gross negligence or both." Voelz v. Bd. of Engineering Examiners, supra at 896, 568 P.2d at 703.

Subsequent to the remand in this proceeding the Board issued its revised conclusions, determining that petitioner's practices constituted gross negligence. The Board reinstated its previous penalty of suspension for a period of two years.

Petitioner first assigns as error the Board's conclusion of gross negligence based upon his survey practices. We find the Board's rationale to be adequate for the conclusion. McCann v. OLCC, 27 Or. App. 487, 493-95, 556 P.2d 973 (1976), rev. den. (1977). An example follows:

"Procedures for the resurvey of Government-Surveyed Lands must follow the Bureau of Land Management Manual of Surveying Instructions according to the Oregon Statutes, (ORS 209.070(6)). All resurveys of lands surveyed under the original government surveys are governed by the same methods of retracement, and only by all surveyors using the same methods and procedures can corner monuments be placed in the same locations by all surveyors and thus eliminate conflicts between contiguous owners. Any resurvey of this parcel of land using proper procedures would place the lines and corners in different locations from those shown on Mr. Voelz's drawings. "This complete disregard for Oregon Revised Statutes and the BLM Manual of Surveying Instructions and the property rights of other individuals constitutes gross negligence."

Petitioner contends that the charge of gross negligence is so nebulous as to require specific rules regulating conduct, or, at the least, expert testimony, relying upon Corcoran v. Bd. of Examiners, 25 Or. App. 749, 550 P.2d 1391, rev. den. (1976). While we agree that it is difficult to draw clear lines between ordinary negligence and gross negligence. Turner, Adm'r.v. McCready et al., 190 Or. 28, 46, 222 P.2d 1010 (1950), we do not believe that either standard is impermissibly vague. We held in Stacey v. Board of Accountancy, 26 Or. App. 541, 544, 553 P.2d 1074, rev. den. (1976), that we give weight to the expertise of the Board in evaluating the quality of its licensees. We believe that opinion applicable in the instant circumstance. In the face of the reasoned opinion of the Board, we cannot say as a matter of law that the practices of petitioner do not amount to gross negligence.

Petitioner's second assignment is addressed to the severity of the penalty imposed by the Board. Petitioner recognizes that this court has previously held

"* * * If it is found that there is no prejudicial procedural defect in the proceedings, that the order and the rules of the commission are within its statutory authority and constitutional, and that the order is supported by substantial evidence, there is nothing more for this court to review. The choice by the commission whether to revoke, suspend, warn or to do nothing is neither a finding of fact nor a conclusion of law required by ORS 183.470. If a licensee violates either the statute or the agency rules, then by statute the choice of regulatory remedies is a matter for agency discretion and is not subject to judicial review absent possible constitutional questions. [Citing cases.] [footnote omitted]" Mary's Fine Food, Inc. v. OLCC, 30 Or. App. 435, 440, 567 P.2d 146, 149, rev. den. (1977).

Petitioner requests, however, that we change that rule in this case. We decline to do so.

Petitioner's final assignment of error contends that the Board violated his constitutional rights, first by singling him out for disciplinary action, and second by allowing one of its members to act in a prosecutorial capacity.

Petitioner argues that many of the practices relied upon by the Board as demonstrating gross negligence are common practice in the field.

Although petitioner has presented surveys by other surveyors which appear to have omissions similar to his own, it is not at all clear that the frequency of the omissions is similar to his own. The Board in several instances noted that a single omission would not constitute gross negligence, but the number found in petitioner's work impelled them to the conclusion of gross negligence:

"These charges are similar in nature — failure to list the minimum information required on each map or plat filed with the county surveyor. This information is necessary for another surveyor to follow the first surveyor and evaluate the evidence found and used. When a survey is based upon another document not readily accessible to the public, this information must be placed upon the drawing in written form.

"The Board realizes that failure to set forth the required information on one particular survey, under ordinary circumstance, would not constitute gross negligence. However, the failure to supply the required information on a number of surveys by the same surveyor, constitutes gross negligence.

"The Board finds that the failure of Mr. Voelz to properly set forth the required information in Charges Nos. 2, 7, 9, 13-B, 13-C, 14-B and 18 is gross negligence."

As to the Board's involvement in formulating, prosecuting and adjudicating the charges, we perceive no constitutional violation.^[2] We have previously held that due to the nature of the administrative bodies, they are required to perform the various functions to which petitioner objects. Fritz v. OSP, 30 Or. App. 1117, 1121, 569 P.2d 654 (1977); cf., Van Gordon v. Oregon State Bd. of Dental Exam., 34 Or. App. 607, 610-13, 579 P.2d 306 (1978).

The Board, having properly explained its rationale, having meted out a penalty within its statutory powers, and having violated no rights of petitioner in the particulars assigned as error, must be affirmed.

Affirmed.

NOTES

[*] Tanzer, J., did not participate in this decision.

[1] ORS 672.200(2) provides:

"The board may refuse to issue or renew, or may suspend or revoke a certificate or permit, or reprimand any person holding a certificate or permit:

"* * *

"(2) For gross negligence or incompetence in the practice of engineering or land surveying * * *."

[2] Only one member of the Board participated to any degree in the prosecutorial stage of the proceedings, and that member did not participate in the final vote on suspension.