CHAPTER 291

FORMERLY

SENATE BILL NO. 234

AS AMENDED BY

SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 24 OF THE DELAWARE CODE RELATING TO THE DELAWARE PROFESSIONAL ENGINEERS ACT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

Section 1. Amend § 2803 of Title 24 of the Delaware Code by deleting subsection (22) in its entirety and substituting in lieu thereof the following:

“(22) ‘Responsible charge’ means a professional engineer’s supervision of, control over, and possession of detailed professional knowledge of an engineering work. A professional engineer is only considered to be in responsible charge of an engineering work if the professional engineer makes independent professional decisions regarding the engineering work without requiring instruction or approval from another authority and maintains control over those decisions by the professional engineer’s physical presence at the location where the engineering work is performed or by electronic communication with the individual executing the engineering work.”.

Section 2. Amend § 2803 of Title 24 of the Delaware Code by re-designating subsections (15) through (23) as subsections (19) through (27), re-designating subsections (10) through (14) as subsections (12) through (16), and re-designating subsections (3) through (9) as subsections (4) through (10).

Section 3. Amend § 2803 of Title 24 of the Delaware Code by inserting a new subsection (3) to read as follows:

“(3) ‘Administrative Order’ means an order issued by an Investigating Committee, with the prior approval of the Council pursuant to § 2824(b)(1)(G)(i), which attempts to resolve a complaint of a violation under § 2823. 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.”.

Section 4. Amend § 2803 of Title 24 of the Delaware Code by inserting a new subsection (11) to read as

follows:

“(11) ‘Consent Order” means a voluntary agreement between parties attempting resolution of a complaint of a violation under § 2823 or a complaint of unlicensed practice under § 2825. To become a final order, a consent order must be approved by Council pursuant to § 2824(b)(1)(G)(ii).”.

Section 5. Amend § 2803 of Title 24 of the Delaware Code by inserting a new subsection (17) to read as follows:

“(17) ‘Hearing Committee’ means a committee of Council members to which the Council has delegated authority to adjudicate a complaint of a violation under § 2823 or allegations of unlicensed practice under § 2825.”

Section 6. Amend § 2803 of Title 24 of the Delaware Code by inserting a new subsection (18) as follows:

“(18) ‘Investigating Committee’ means a committee of the Council to which the Council has delegated authority to investigate a complaint of a violation under § 2823 or allegations of unlicensed practice under § 2825.”.

Section 7. Amend § 2806(f)(3) of Title 24 of the Delaware Code by deleting the word “title”, the last word in the second-to-last sentence, and inserting in lieu thereof the phrase “chapter or for a certificate of authorization pursuant to § 2821 of this chapter”.

Section 8. Amend § 2806(f)(4) of Title 24 of the Delaware Code by inserting 38 the words “for licensure” between the words “reapplying” and “pursuant” in the last sentence.

Section 9. Amend § 2806(f)(4) of Title 24 of the Delaware Code by deleting the word “title”, the last word in the last sentence, and inserting in lieu thereof the phrase “chapter or for a certificate of authorization pursuant to § 2821 of this chapter”.

Section 10. Amend § 2810 of Title 24 of the Delaware Code by inserting new subsections (e) and (f) as follows:

“(e) The Council may, in its sole discretion, delegate its authority to investigate allegations of licensee or applicant violations under § 2823 or allegations of unlicensed practice under § 2825 to an Investigating Committee.

(f) The Council may, in its sole discretion, delegate its authority to adjudicate allegations of licensee or applicant violations under § 2823 or allegations of unlicensed practice under § 2825 to a Hearing Committee in accordance with § 2824(b)(2).”.

Section 11. Amend § 2817(5) of Title 24 of the Delaware Code by adding the following at the end of the subsection:

“g. Applicants with four failures of the Principles and Practice of Engineering examination may only apply to retake the examination after completing the following:

(A) Present three new references to the Council, at least two of which must be registered or licensed professional engineers in this or any other state or territory or possession of the United States, the District of Columbia, or any province or territory of Canada, pursuant to § 2817(5)a.; and

(B) Submit documentation to the Council that demonstrates, to the Council’s satisfaction, that the applicant has acquired additional engineering education or experience, including a brief summary explaining how that education or experience has better prepared the applicant to pass the examination.”.

Section 12. Amend § 2823 of Title 24 of the Delaware Code by striking the phrase “Disciplinary action” in the section title and inserting in lieu thereof the phrase “Grounds for discipline”.

Section 13. Amend § 2823 of Title 24 of the Delaware Code by deleting subsection (a) in its entirety and substituting the following in lieu thereof:

“(a) Applicants, adjunct and affiliate members, and any person licensed under this chapter shall be subject to disciplinary penalties set forth in § 2824(c) of this title, if, after a hearing, the person is found to violate any of the following:

(1) The practice of any fraud or deceit in the attempt to obtain any authorization to practice engineering in this State;

(2) Any gross negligence, incompetence, or misconduct in the practice of engineering;

(3) Violation of the code of ethics promulgated by the Council;

(4) A crime that is substantially related to the practice of engineering;

(5) An activity resulting in discipline by another jurisdiction, territory, foreign country, the District of Columbia, the United States government, or any other governmental agency, if at least one of the grounds for discipline is the same or substantially equivalent to those contained in this section;

(6) Aiding or abetting another person in violating any provision of this Act; or

(7) Signing, affixing the licensee’s seal, or permitting the licensee’s seal or signature to be affixed to any specification, report, drawing, plan, plat, design information, construction document, or calculation, or revision thereof, that has not been prepared by the licensee or those under his responsible charge.”.

Section 14. Amend § 2824 of Title 24 of the Delaware Code by deleting subsections (a) through (f) in their entirety and by substituting the following in lieu thereof:

“(a) Whether prompted by receipt of a complaint or upon its own initiative, the Council or its Investigating Committee may review the actions and representations of applicants, adjunct and affiliate members, and any person licensed under this chapter for violations under § 2823.

(b) Complaint Investigation and Prosecution.

(1) Upon receipt of a written complaint, filed by an identified complainant, alleging a violation under § 2823 or alleging unlicensed practice under § 2825, the Council may assign the complaint to an Investigating Committee for investigation. The Council or its Investigating Committee may also internally initiate the investigative process based upon firsthand knowledge acquired by a member or upon a member’s information and belief. Investigating Committee members shall maintain strict confidentiality of the facts of the investigation and shall not discuss any issues of fact or law related to the investigation with anyone except other members of the Investigating Committee or the parties to the matter under investigation.

(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 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.

(B) If the Investigating Committee believes a complaint does state sufficient facts to support one 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 one 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 one or more allegations.

(G) The Investigating Committee shall resolve supported allegations in one of the following ways:

(i) 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 § 2824(b)(1)(G)(iii).

(ii) 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.

(iii) 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 three 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 one 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 or that no unlicensed practice under § 2825 has occurred, it shall issue an order dismissing the complaint.

(B) If the Hearing Committee determines that a violation under § 2823 or that no unlicensed practice under § 2825 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. By majority vote of the members present at a properly convened Council meeting, the Council shall approve or reject the Hearing Committee’s written order based only on the information contained in the 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) 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 two 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 218 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. 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, adjunct member, and permittee 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 or a violation under § 2825 must be afforded the protections of the Delaware Whistleblowers' Protection Act as codified in Chapter 17 of Title 19.”.

Section 15. Amend § 2824 of Title 24 of the Delaware Code by re-designating subsection (g) as subsection (e).

Section 16. Amend § 2825 of Title 24 of the Delaware Code by deleting the section title “Penalties.” and adding in lieu thereof the section title “Unlicensed practice.”.

Section 17. Amend § 2825 of Title 24 of the Delaware Code by deleting subsections (i) and (j) in their entirety.

Section 18. Amend § 2825 of Title 24 of the Delaware Code by re-designating subsections (b) and (k) as subsections (i) and (j), respectively.

Section 19. Amend § 2825 of Title 24 of the Delaware Code by inserting the following:

“(k) Whether prompted by receipt of a complaint or upon its own initiative, the Council or its Investigating Committee may review allegations of unlicensed practice of engineering.

(l) Complaints of unlicensed practice must be investigated and prosecuted in accordance with the administrative hearing procedures in § 2824(b), except that Administrative Orders are not available for cases of unlicensed practice.

(m) Unlicensed practice is punishable by a fine up to $5,000 and a cease and desist order that shall include a reasonable date certain for compliance.

(n) Cease and Desist Orders

(1) The Investigating Committee may submit a written recommendation to the Council that a cease and desist order be issued. The written recommendation must include a copy of the proposed order. The proposed order must recite verbatim all complaint allegations the Investigating Committee believes are supported by its findings, brief recitation of those findings, and include a reasonable date certain deadline for the accused to comply with the order. The order must also indicate that the accused may request a hearing in writing any time before passage of the compliance deadline, and that the order will become final and enforceable after passage of the compliance deadline.

(2) 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 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.

(3) Cease and desist orders become final after passage of the compliance deadline only with positive proof of service, such as a signed return receipt or an affidavit of personal service. If the accused requests a hearing in writing to the Investigating Committee, the Investigating Committee shall proceed in accordance with § 2824(b)(1)(G)(iii).

(o) Violations of a cease and desist orders must be investigated and prosecuted in accordance with the procedures in § 2824(b), except that Administrative Orders are not available. Violation of a cease and desist order is punishable by a fine up to $5,000 for each day a violation occurs.”.

Approved July 3, 2008