May/June 2019

Legal Beat
DUI, No Poaching

BY ARTHUR SCHWARTZ, DEPUTY EXECUTIVE DIRECTOR AND GENERAL COUNSEL

Question: I am a newly licensed PE in Tennessee. I recently applied for a license in Texas. Part of the application asked, “Have you ever been convicted of a felony or a misdemeanor?” I answered yes and provided details of a DUI arrest that occurred in 2008. I also knew of two other incidents that occurred more than 20 years ago: one was a misdemeanor DUI and the other misdemeanor assault. Looking forward in the application package, I was also asked to submit a criminal history form that includes the pertinent information surrounding the incident, the date of the incident, the date the case was deposed, the case number, plea, and court ruling. At the time I applied, I searched the municipalities’ court webpages in which the 20+ year old incidents occurred, as well as the county website. My search returned no results, and I omitted the incidents that happened in 1995 and 1996. The reasons for the omission was that I could not remember whether they happened when I was a juvenile, and I couldn’t substantiate the details of the incidents because I couldn’t find any records.

My application is still in its reception phase; it has been assigned a reviewer, and it has not had its initial review. I completed the other parts of the application, including fingerprinting and an ethics exam. Recently, I found another area of the county government website that contained archived records for the criminal courts. There I found records of the incidents I omitted from my application. I came into the office on Saturday and printed the information, and I wrote a letter to the Texas board reviewer explaining that the omissions were made in error, and not as part of an intent to make a deceptive or misleading application. I simply did not have the information available to make a full disclosure at the time of my application. I am awaiting her response. My questions are: What is the seriousness of the events that I described? Does this type of error occur frequently? What are my options if the board tries to draw the conclusion that I made a fraudulent application? (Texas)

Answer: I certainly cannot speak for the Texas Board of Professional Engineers but from what you described, there appears to be a reasonable and good faith explanation for your omission. Your effort to clarify the issue with the Texas board suggests that you are making a good faith effort to be transparent and forthcoming. While making false statements to a licensing board is serious, based on your explanation, it appears that there was some confusion on your part, and once you determined the accuracy of the information, you sought to clarify the matter.

Fraud involves a criminal state of mind as well as a criminal act, and nothing in the information you have provided to me suggests either was present. Instead, it appears that there was a mistake in fact on your part, which, after you learned of your mistake, you sought to correct.

Question: I recently had another engineering firm contact me because they were upset that we hired one of their professional engineer employees. The individual from the firm said that because of the close ongoing working relationship between our firms, we should meet and agree not to hire each other’s employees. They claimed this was the “fair and ethical” thing to do. (North Carolina)

Answer: It appears that the other firm may be proposing a “no-poaching” agreement, which is not only unethical but is also a violation of federal antitrust laws. I recommend your firm review the US Department of Justice Antitrust Division’s Antitrust Guidance for Human Resources Professionals.