In re Gregory J. Bombardier

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2018 VT 11
No. 2017-014
In re Gregory J. Bombardier Supreme Court
On Appeal from
Office of Professional Regulation
September Term, 2017
Stephen A. Reynes, Appellate Officer
William L. Gagnon of Heilmann, Ekman, Cooley & Gagnon, Inc., Burlington, for Appellant.
Elizabeth A. St. James, Office of Professional Regulation, Montpelier, for Appellee.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
¶ 1. EATON, J. Respondent is a professional engineer licensed by the State of
Vermont. He challenges the Board of Professional Engineering’s decision, affirmed by an
administrative officer from the Office of Professional Regulation (OPR), that he engaged in
unprofessional conduct. We affirm.
¶ 2. In August 2015, OPR provided respondent with a Specification of Charges. It
included a statement of facts concerning respondent’s investigation of an insurance claim, detailed
below. It faulted respondent for the inspection itself as well as his failure to review or reconsider
his opinion after being provided with contrary opinions from a contractor and another engineer.
OPR alleged, among other things, that respondent committed unprofessional conduct in violation
of 3 V.S.A. § 129a(b)(1) and (2) because, on a single occasion, he failed to conform to the essential
standards of acceptable and prevailing practice.
¶ 3. Following a contested hearing, the Board made the following findings. In 2014,
respondent was hired by an insurance adjuster on behalf of an insurance company to investigate a
claim filed by Rand Larson against Atlas Plumbing & Heating, LLC. Mr. Larson alleged that
Atlas had notched a support beam while installing radiant heating in his home, causing his floor to
buckle. The notch, which was approximately 2.5 inches deep and 5.5 inches wide, was located at
the top of a double two-by-twelve-inch beam that ran under the proposed kitchen area of Mr.
Larson’s home. Respondent was asked to provide his opinion on the cause of the floor buckling.
Respondent conducted his investigation solely for Atlas’s insurance carrier. Mr. Larson did not
hire respondent and had no contractual relationship with him.
¶ 4. Mr. Larson had the flooring work done as part of a broader home renovation
project. As part of this project, Mr. Larson also had a building contractor install a skirt on the
north side of the house to conceal the foundation and cantilevered construction. Concrete
sonotubes were installed to attach and support the skirt. The sonotubes were not intended to
support the house itself, which had cantilevered over the concrete foundation walls since 1993.
After Mr. Larson discovered the notched beam, he also had the contractor perform remedial work
intended to shore up the north wall of the house from the exterior, including jacking and installing
additional vertical supports beneath the north wall.
¶ 5. Respondent inspected Mr. Larson’s home on June 20, 2014. At that time, the
remedial shoring work was in progress. Mr. Larson was not present, but his contractor was. The
skirting had been removed from a portion of the north wall; excavation was in progress; two
sonotubes could be seen under the rim joist; a third sonotube lay nearby on the ground; and a bottle
jack was visible beneath a wood beam and adjacent to what appeared to be a new wood post. The
sonotube at the east end of the exposed area was shimmed to the underside of the rim joist, and
appeared new compared to the weathered surface of the other two sonotubes.
¶ 6. Respondent also observed sandbags placed near the southeast corner of the house,
which he inferred were to divert stormwater. He saw that a sonotube placed in the general area of
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the settlement was out of plumb. Respondent assumed that the sonotubes were “foundational
elements” that had been installed to support the rimboard under the north wall.
¶ 7. Respondent then viewed the notched beam from above through a hole that had been
cut in the flooring. He observed that there was no cracking or splintering of the beam in the notch
area. He was unable to see the notched beam from below. Respondent concluded that the floor
settlement was not caused by the notched beam, but rather by settlement of the exterior sonotube
due to excessive stormwater runoff and the excessive freeze and thaw cycles of Vermont winters.
¶ 8. Following respondent’s inspection, Mr. Larson hired another engineer, James
Baker, to investigate the cause of the floor settlement. Mr. Baker believed that the notched beam
caused the floor to settle. After receiving Mr. Baker’s report, Mr. Larson contacted respondent
seeking a reinspection; respondent did not respond. The insurance company provided respondent
with a copy of the Baker report, asking whether there was anything in it that would cause
respondent to reinspect the property or question his own opinion. Respondent saw nothing in the
Baker report that caused him to question his own opinion. In August 2014, the insurer denied Mr.
Larson’s claim. Mr. Larson subsequently sent an email to respondent, threatening to sue him and
to file a professional complaint against him if he “continue[d] to fail to consider the irrefutable
proof that we hold that totally refutes your conclusions!” Mr. Larson then filed a professional
complaint against respondent.
¶ 9. As noted above, OPR alleged that respondent committed unprofessional conduct
by conducting a deficient investigation and by refusing to reconsider his conclusion after being
provided with evidence “that his findings were incorrect” from a contractor and engineer hired by
Mr. Larson. In its Specification of Charges, OPR asserted that “[a]fter receiving multiple
conclusions and opinions from other knowledgeable tradesmen or other professional engineers
 The exact location of the notched beam, and thus its purpose, were not established during
the hearing.
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that are contrary to one’s own, the essential standards of acceptable and prevailing practice require
a professional engineer to review or reconsider the professional opinion he or she rendered in light
of the contrary opinions.”
¶ 10. The Board did not find that respondent committed unprofessional conduct by
failing to review or reconsider his opinion. It agreed with respondent that there was no new
information in the Baker report that would cause respondent to question his own opinion. It noted
that respondent was not asked by his client, the insurance company, to reinspect the premises.
¶ 11. The Board did discipline respondent, however, based on the investigation that he
undertook to determine the cause of the floor buckling at the Larson home. Had respondent
undertaken only to rule out the work done by Atlas Heating and Plumbing as the cause of the
damage, this would be a different case. Respondent agreed to a much broader undertaking,
however, than ruling out a specific cause.
¶ 12. The Board concluded that on the single occasion of June 20, 2014—the date of the
home inspection—respondent failed to conform to the essential standards of acceptable and
prevailing practice. It found respondent’s inspection of the house deficient in numerous respects,
including that: respondent failed to ask Mr. Larson about the house’s history; he failed to ask the
on-site contractor about the prior renovations and ongoing remedial work; he had limited
observations of the framing; he drafted a minimally noted framing plan; he assumed that the
notched beam and north wall were supported by the sonotubes (and not cantilevered construction)
without verifying this through measurement or direct observation; he failed to fully inspect the
entire beam before concluding that the notched beam was sound; he failed to discover that the
house had been built to cantilever over the foundation wall and that the sonotubes were a more
recent addition and not intended to support the weight of the house; he failed to ask for assistance
in gaining improved access or recommending this to his client; he failed to perform any load or
strength calculations on the notched beam; and he submitted a report concluding that the notched
beam was not the cause of the settlement problem.
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¶ 13. Based on these and other findings, the Board concluded that on June 20, 2014,
respondent failed to conform to the essential standards of acceptable and prevailing practice by:
failing to conduct even a basic level of information gathering on the past history of the building,
which can often be relevant when investigating structural problems; doing a poor job of
documenting the layout and support conditions at the first floor framing in the area in question;
failing to perform a sufficiently detailed evaluation of the notched beam to rule out the notch as
the cause of the problem; failing to adequately consider other possible causes of the reported
settlements; and failing to identify or to address the limited access he had to conduct a sufficiently
thorough investigation of the causes of the settlement. The Board ordered that respondent be
reprimanded and it imposed an administrative penalty of $1000.
¶ 14. Respondent appealed from this decision to OPR and the case was assigned to an
administrative officer (AO). Respondent argued to the AO that: (1) the Specification of Charges
was fundamentally flawed and contrary to Vermont public policy; (2) the Board violated his right
to due process; and (3) the Board misconstrued the scope of his undertaking. See 3 V.S.A.
§ 130a(b)(1)-(7) (identifying grounds that party may raise on appeal to AO). After conducting an
on-the-record review, the AO affirmed the Board’s decision. We discuss the AO’s rationale below.
This appeal followed.
¶ 15. Like the AO, “[w]e will affirm the Board’s findings as long as they are supported
by substantial evidence, and its conclusions if rationally derived from the findings and based on a
correct interpretation of the law.” Braun v. Bd. of Dental Exam’rs, 167 Vt. 110, 114, 702 A.2d
124, 126 (1997); see also Devers-Scott v. Office of Prof’l Regulation, 2007 VT 4, ¶ 4, 181 Vt.
248, 918 A.2d 230 (“Where there is an intermediate level of appeal from an administrative body,
we review the case under the same standard as applied in the intermediate appeal.” (quotation
omitted)). “Additional deference is owed here because the action arose out of an administrative
proceeding in which a professional’s conduct was evaluated by a group of his peers.” Id.
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¶ 16. Respondent raises the same arguments on appeal that he raised to the AO. We
reject respondent’s arguments on grounds similar to those identified by the AO.
¶ 17. We begin with respondent’s complaint about the context in which the claim against
him arose. As he did below, respondent notes that his client was an insurance company, not Mr.
Larson, and that his client had no issues with his services or the conclusions in his report. He
asserts that Mr. Larson filed a complaint against him because he wanted money from the insurance
company. Respondent maintains that no charges were warranted because the disciplinary rules
serve to protect the public rather than to vindicate private rights and his behavior posed no threat
or danger to the public.
¶ 18. We emphasize at the outset that while Mr. Larson may have filed a complaint
against respondent, OPR conducted its own investigation and exercised its own discretion in
deciding whether to pursue charges against respondent. It is true, of course, that the purpose of
regulating certain professions or occupations, including professional engineers, is to protect the
public. See 26 V.S.A. § 3101(a) (“It is the policy of the state of Vermont that regulation be
imposed upon a profession or occupation solely for the purpose of protecting the public.”). To
this end, the Legislature has adopted specific laws that define “unprofessional conduct” for license
holders in specified occupations and professions and has provided that these license holders can
be disciplined for such conduct. See 3 V.S.A. § 129a (identifying specific conduct by licensee that
constitutes unprofessional conduct); 26 V.S.A. § 3181(a)-(b) (providing that “[i]t shall be
unprofessional conduct for a licensee . . . to engage in conduct prohibited by this section, or by 3
V.S.A. § 129a,” and defining “unprofessional conduct”). The term “unprofessional conduct” as
defined for these particular occupations and professions includes “[f]ailure to practice competently
by reason of any cause on a single occasion . . . whether actual injury to a client . . . or customer
has occurred.” 3 V.S.A. § 129a(b). “Failure to practice competently includes: . . . failure to
conform to the essential standards of acceptable and prevailing practice.” Id. § 129a(b)(2). One
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does not need to be a client, or to suffer actual harm, in order to file a complaint against a license
holder. See id. § 129(b).
¶ 19. Respondent takes an overly narrow view of what protection of the public means.
Enforcement of the laws governing unprofessional conduct protects the public. As the prosecutor,
OPR has broad discretion in deciding “whether to prosecute in any given case and what charge to
file.” Shaddy v. State Office of Prof’l Regulation, 2014 VT 111, ¶ 8, 197 Vt. 625, 112 A.3d 718
(quotation omitted). If OPR decides to file charges, it is then up to the Board, as factfinder, to
determine if unprofessional conduct has occurred. In this case, OPR did not file a complaint
because of any relationship that existed between Mr. Larson and respondent; there was none. Mr.
Larson’s satisfaction, or lack thereof, with anything done by respondent at the premises is
irrelevant to whether respondent engaged in unprofessional conduct.
¶ 20. The question of whether a professional engineer has engaged in unprofessional
conduct does not turn on whether a client is upset or has filed a complaint. The license holder and
the client may properly limit the scope of the work to be undertaken; nothing in this decision
should be construed to the contrary. Further, the scope of the undertaking impacts the applicable
professional standards. At the same time, the client may be quite happy with the results obtained.
The fact that a professional engineer may properly limit the scope of his or her work and that a
client is satisfied with that work are separate considerations from whether there has been
compliance with applicable professional standards in performing the particular work that the
professional engineer has agreed to undertake. Similarly, the fact that one might sue a professional
engineer for damages in superior court does not obviate the engineer’s independent duty to avoid
unprofessional conduct nor does it deprive the Board of its statutory authority to address such
conduct. See 3 V.S.A. § 129 (defining power of boards generally); 26 V.S.A. § 1172 (defining
powers and duties of Board of Professional Engineering).
¶ 21. While we agree with respondent that the rules should not be used to settle private
disputes, that is not what happened here. As set forth above, OPR decided in its discretion,
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following an investigation, that charges were warranted. The Board then concluded after a hearing
that respondent failed to conform to the essential standards of acceptable and prevailing practice
for five different reasons, and each of these reasons was supported by multiple points based on
specific facts found by the Board. These shortcomings were based upon respondent’s failure to
professionally perform the engineering work that he undertook in his relationship with the party
who hired him. There is no evidence that the email sent to respondent by Mr. Larson influenced
the Board’s consideration of the professional conduct complaint brought by OPR. Respondent did
not directly challenge any of the Board’s findings, and these findings support the Board’s
conclusion.
¶ 22. Respondent’s reliance on Tyson v. The Fla. Bar is misplaced. 826 So. 2d 265 (Fla.
2002) (per curiam). In that case, the court recognized that a dissatisfied client has no right to
demand that the state bar file disciplinary charges against a former attorney. Id. at 267-68. As
that court explained, “[t]he role of the complaining witness in a bar disciplinary proceeding . . . is
somewhat analogous to that of the victim in a criminal proceeding and, like crime victims,
complaining witnesses cannot demand that the prosecuting attorney file criminal charges against
a particular individual based on alleged criminal behavior.” Id. at 267. Like the petitioner in that
case, Mr. Larson had no right to force OPR to bring disciplinary charges against respondent, nor
was Mr. Larson a party to these proceedings. See Vermont Administrative Rules of the Office of
Professional Regulation, Rule 1.1(J) (defining “party” in “disciplinary hearing and appeal” as
“licensee and the State of Vermont”), https://www.sec.state.vt.us/media/477012/OPR-Rules-for-
Web-April-2014.htm [https://perma.cc/T4AU-9URQ]. He was, however, entitled by statute to file
a complaint against respondent. See 3 V.S.A. § 129(b). It was then for OPR to determine in the
first instance whether prosecution for unprofessional conduct, which inherently protects the public
interest, was appropriate. We reject respondent’s argument that the charges against him were
fundamentally flawed or contrary to public policy.
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¶ 23. Respondent next asserts that he was deprived of basic due process because the
OPR’s Specification of Charges did not allege that he failed to gather sufficient information during
his investigation or that he failed to sufficiently document aspects of his investigation. Respondent
maintains that he has been penalized for uncharged behavior. While he acknowledges that he
introduced evidence on these points, he argues that had he been on notice of such charges, he
would have put on additional evidence such as the nature of insurance investigations, the
expectations of insurance companies, and how his services must reflect his client’s needs and
designs. He adds that he would have offered evidence that his insurance clients have been satisfied
with his work, and he would have explained why he conducted his investigation the way that he
did. According to respondent, the charges against him turned on whether he should have
reconsidered his own opinion in the face of the Baker report and, once the Board rejected this
claim, the case should have been over.
¶ 24. We find no error. As we have explained, “notice in an administrative proceeding
need only be reasonable.” In re Hot Spot, Inc., 149 Vt. 538, 540, 546 A.2d 799, 801 (1988) (citing
1 K. Davis, Administrative Law Treatise § 8.04, at 523 (1958)). The notice requirement for
Vermont administrative proceedings is set forth in 3 V.S.A. § 809(b)(1)-(4), which requires that
“[t]he notice shall include . . . a short and plain statement of the matters at issue.” In re Hot Spot,
Inc., 149 Vt. at 540, 546 A.2d at 801 (quoting 3 V.S.A. § 809(b)(4)). The Specification of Charges
satisfied this requirement and provided respondent fair notice of the basis of OPR’s charges against
him. See In re Berk, 157 Vt. 524, 528, 602 A.2d 946, 948 (1991) (per curiam) (recognizing that
“basic procedural due process rights” include “right to fair notice of the charges”); see also 2 C.
Koch, et al., Admin. Law & Practice § 5:32 (3d ed.) (“It has long been established that due process
requires notice reasonably calculated, under all circumstances, to inform the private party of the
nature of the government action so as to allow an opportunity to challenge the action.”).
¶ 25. First, the Statement of Facts contains specific allegations about respondent’s
conduct during the June 20, 2014 inspection, stating that: he had inspected the floor settlement
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issue pursuant to an insurance claim; noted that the sonotube placed in the general area of the
settlement was out of plumb; and concluded that the floor settlement was caused by settlement of
the exterior sonotube due to excessive stormwater runoff and the excessive freeze and thaw cycles
of Vermont winters. The Statement of Facts further provided that, despite specific and identified
information provided or available to respondent, he nonetheless concluded that the notched beam
was not the cause of the floor settlement issue. OPR alleged that “[t]he act(s), omission(s), and/or
circumstance(s) described above constitute[d] grounds for discipline.”
¶ 26. As reflected above, this is not a case where OPR merely alleged that respondent
had violated a certain statutory section. Vt. Real Estate Comm’n v. Martin, 132 Vt. 309, 314, 318
A.2d 670, 674 (1974) (recognizing that “[n]otice of a statutory section without more is
insufficient”). Instead, it provided respondent sufficient factual background to put him on notice
that he was alleged to have committed unprofessional conduct during his June 20, 2014 inspection.
See In re Desautels Real Estate, Inc., 142 Vt. 326, 333, 457 A.2d 1361, 1364 (1982) (recognizing
sufficiency of notice issued by Vermont Real Estate Commission where notice quoted statute
allegedly violated and contained “narrative report of the alleged facts upon which the Commission
was basing its complaint”); see also In re Hot Spot, Inc., 149 Vt. at 540-41, 546 A.2d at 801
(finding notice sufficient where this standard was satisfied).
¶ 27. Additionally, as the AO pointed out, respondent was questioned extensively about
his report during the Board hearing. He did not object to a Board member’s characterization of
his report as the “heart” of the matter nor did he object to the extended inquiry regarding his
investigation and conclusion. He provided additional testimony about his inspection during the
presentation of his case. Respondent’s counsel devoted substantial time in his opening statement
at the hearing to a detailed description of the investigation undertaken by respondent, including
that he then “evaluated” what he learned after complete investigation. The complaint and the
hearing were not confined to the question of whether respondent committed unprofessional
conduct by failing to review or reconsider his conclusion in the face of contrary opinions. The
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record shows that respondent was provided “an adequate opportunity to prepare and respond to
the issues raised in the proceeding.” In re Petition of Green Mountain Power Corp., 131 Vt. 284,
293, 305 A.2d 571, 577 (1973) (stating in administrative regulation context that “question on
review is not the adequacy of the original notice or pleading but is the fairness of the whole
procedure,” and critical to determination of whether procedure was fair is whether parties “were
given an adequate opportunity to prepare and respond to the issues raised in the proceeding”)
(citing 1 K. Davis, Administrative Law Treatise § 8.04, at 525 (1958)). We agree with the AO
that respondent fails to show that the Board violated his due process rights or that “unlawful
procedure” under 3 V.S.A. § 130a(b)(3) occurred.
¶ 28. Finally, respondent argues that the Board misconstrued the scope of his
undertaking. He essentially asserts that the Board ascribed an overly broad interpretation of the
scope of his engagement, contrary to his contract with the insurance company. He maintains that
his client never asked him to inquire about the history of Mr. Larson’s home, to prepare detailed
documentation of the layout and support conditions, or to investigate other possible causes of the
settlement beyond the notched beam. Thus, according to respondent, the Board should not have
faulted him for failing to do so. He cites nondisciplinary cases in support of his position. See,
e.g., Howard v. Usiak, 172 Vt. 227, 234-35, 775 A.2d 909, 915-16 (2001) (explaining that
“[g]enerally, to prove architect malpractice in the design of a structure, the client must show that
the architect negligently breached a duty to the client” and “duty against which the . . . negligence
standard is applied generally arises from the contractual responsibilities the architect assumed”);
S. Burlington Sch. Dist. v. Calcagni-Frazier-Zajchowski Architects, 138 Vt. 33, 42, 410 A.2d
1359, 1363 (1980) (stating that for purposes of plaintiff’s negligent supervision claim, “duty owed
by [architecture firm] to the plaintiff was set out in their contract”); see also Goette v. Press Bar &
Cafe, Inc., 413 N.W.2d 854, 856 (Minn. Ct. App. 1987) (“The employment of an architect is a
matter of contract, and the architect is responsible for the duties enumerated in the contract.”). He
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contends that the Board essentially imposed duties on him contrary to the wishes of his client and
his agreement with that client.
¶ 29. We reject this argument. While the scope of a license holder’s duty may depend
on the terms of a contract, respondent here testified that he agreed to a very broad undertaking. At
the hearing, he stated on at least five occasions that he was hired to render a professional opinion
as to the “cause” of the damage to Mr. Larson’s home, and the Board so found. Respondent did
not provide any evidence to support his claim as to a limited scope of engagement with the
insurance company. His argument on appeal is thus contrary to an unchallenged Board finding
that was supported by respondent’s own testimony. Having undertaken to investigate and
determine the cause of the damage, respondent was required by his professional licensure to
competently perform the services he agreed to render. The Board’s findings support its conclusion
that respondent did not meet the essential standards of acceptable and prevailing practice in
carrying out the service that his client retained him to perform. We find no grounds to disturb the
Board’s decision.
Affirmed.
FOR THE COURT:
Associate Justice
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