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Date, Location and Attendees
MEETING MINUTES
Thursday, March 11, 2004
Conference Room, Sunset Center South
Salem, Oregon
 
Board Members Present:
Charles Hester, CPA, Public Member
Vicki McConnell, PhD, RG, State Geologist
David Michael, RG, CEG, Board Chair
William Orr, PhD, RG
Gary Peterson, RG, CEG
Eileen Webb, RG
 
Staff Present:
Susanna Knight, Administrator
 
Guests Present:
Nicholas Coffey, RG
Tom Michalek, RG
Al Morris
Mark Reed
Karen Reed
Susan Tweedy

Opening Statement
The Board meeting was preceded by a Work Session. All Board Members were present. In addition, the following persons were present: Christine Chute, AAG; Nicholas Coffey, RG; Al Morris; Mark Reed; Karen Reed; John Rehm, RG; Susan Tweedy. The Work Session began at 9:15 AM.
 
Hester distributed an updated Compliance Case summary. He stated that a letter was received from the respondent for CC#03-03-002 on February 4, 2004, requesting a second postponement of the discussion of his case. The letter also requested that the Board combine two complaints filed against the respondent [CC#03-09-006 and CC#03-03-002]. Chute stated that there is no problem combining the two cases. Orr stated that the same project, Spring Lakes Estate, is involved in both complaints. Chute stated that the front page of today’s Statesman has a large article about groundwater in the South Salem Area. Hester stated that action on the respondent’s two requests would require a motion and vote during the meeting. Knight stated that the respondent had previously requested a postponement of the case discussion from the December meeting to the March meeting because the December meeting was not held in Salem. The Board honored that first postponement request. Should the Board honor this request, this case would be discussed at the next Board meeting to be held in Baker City. The respondent may again request a postponement because of travel issues.
 
Michael asked to diverge the discussion momentarily to ask AAG Chute if the Board uses the LETTER OF CONCERN too much. The Board was reminded that such a letter is non-disciplinary. The Board agreed that it is used as an educational tool. Chute stated that the Board should discipline according to what is reasonable in each case. The statute allows the Board to suspend, revoke, refuse to renew a registrant’s license; issue civil penalty; or reprimand a registrant.
 
Legislative concepts are due by 4/15/2004. The Board discussed the education concept pursued last session (2003). Michael stated that he does not deem a degree in geology as a requirement for licensing, although this was the Board position during the 2003 session. It was agreed by the Board to seek changes in 672.555(3) and (2)(b) and (c) during the 2005 Legislative session.
 
Michael then announced, “The Board will now meet in executive session for the purpose of discussing records that are exempt from public disclosure, pursuant to ORS 192.660(1)(f), which allows the board to meet in executive session for that purpose. Representatives of the news media and the Board’s Administrator shall be allowed to attend the executive session. All other members of the audience are asked to leave the room. Representatives of the news media are specifically directed not to report on any of the deliberations during executive session, except to state the general subject of the session as previously announced. No decision may be made in executive session. At the end of the executive session, we will return to open session and invite the audience back into the room. Thank you for your patience.”

 
Upon returning from Executive Session, Chair Michael stated that the Board discussed public testimony and how to address this issue in rule. The Board discussed defining the term “public proceeding” in rule. The statute would then define what happens with public testimony. Michael stated there could be danger of omission if the Board were prescriptive in defining public testimony. He stated that the purpose of the work is what determines if it is the public practice of geology. The Board also discussed the AAG’s suggestions regarding compliance cases currently under review. Action on both of these topics will occur during the Board meeting.

I. APPROVAL OF AGENDA
Webb requested that VI.B. DEQ Updates be added to the agenda. Knight indicated that the agenda contained an additional correspondence item that was not on the agenda issued earlier to Board members. Webb moved to approve the amended agenda. Seconded and passed unanimously.

II. APPROVAL OF MINUTES
Knight inquired as to the completeness of the Work Session notes from 12/10/2003. Hester moved to approve the 12/10/2003 meeting minutes as presented. Seconded and passed unanimously.

III. ANNOUNCEMENTS
  1. Michael announced that the Board’s Public Member Hester is in his last moments as he is moving out of state. Hester stated that, “It has truly been an honor to work with all of you. You are more than colleagues, you are friends.” A standing ovation was offered in appreciation to Hester for his five years of service to the Board. Hester submitted his resignation to the Governor’s office in mid-February 2004.
  2. McConnell stated that the Governor’s office is interested in finding members for vacant Board positions. The appointment’s office would like the Board to locate three or four possible candidates and offer their names for current or future Board positions. She stated that Lance Clark is the new member of the Governor’s Natural Resource staff. Perhaps the Chair should contact him and discuss the vacant position.
  3. McConnell stated that she reviewed a letter to the Governor from a citizen that the Board had dealt with in a compliance case. The letter included allegations against the Board, but never submitted to the Board, and demanded action. McConnell had researched and offered suggestions to the Governor regarding the citizen’s issues and the Board’s compliance case review processes.

IV. CORRESPONDENCE
  1. AC 04 02 051: The Board reviewed the letter from an RG, expressing his frustration with practice parameters, and the letter response prepared by the Administrator. It was noted that registrants’ work must fall within the statute definition of their registration. No further correspondence is necessary.
  2. AC 04 03 084: Peterson volunteered to meet and chat with the attorney who responded to the letter issued by the Board regarding the Astoria Landslide. A Professional Engineer designed the project. The Board concurred that the legal system will handle this situation.

V. REPORTS
  1. Office Report
    1. AR2004-01: Knight distributed the Summary of Staff Activities since 12/10/2003. She stated that she continues to track the registration renewals. Because renewals are issued monthly, a 9% non-renewal rate could drop to 2% the following month if a few late renewals were submitted. More accurate numbers can be reported at the end of the first year of the biennium. Examinations were held Friday, March 5, 2004, at Chemeketa Community College, Salem, Oregon. Two candidates did not show for the ASBOG fundamental due to a car breakdown. One candidate did not show for the Oregon Geology examination. Knight requested articles from the Board for the April newsletter. Knight shared that the Certified Water Right Examiners examination procedure was discussed at a recent meeting of the Engineering Board’s (OSBEELS) Examination and Qualification Committee. Representatives from the Water Resources Department (WRD) were present to share about the history of the examination as it relates to being housed at OSBEELS. Knight then summarized a document recently released by the Governor titled, "Making Government Work for Oregonians: A Plan for Achieving Results-Based Government." She pointed out that the citizen committee made 17 recommendations and identified seven as high priority. One of those seven is to review the relationship of Boards and Commissions to their core functions with the potential outcome of elimination, consolidation, and/or alternative structures. Knight will keep the Board posted on this review. She stated that s lobbyist may be hired by the semi-independent Boards (SIBA) to track semi-independent government issues. Knight requested direction from the Board in responding to the SIBA group’s request to participate in funding the lobbyist. Hester moved to decline the offer of SIBA to hire a lobbyist to follow legislative issues on semi-independence and lobby for a financing mechanism for building ownership by semi-independent government bodies. Seconded and passed unanimously.
    2. Budget Status for 2003-2005: Knight distributed the REVENUE AND EXPENSE REPORT from July 1, 2003, through February 29, 2004. She indicated that our expenditures for the Attorney General’s office are under budget for this period, but due to the reviews prepared for this meeting and the compliance case scheduled with the Hearings office, we will see a substantial increase in billings.
  2. Committee Reports
    1. CEG Examination: Michael reported that the examination site was comfortable but dimly lit. He suggested purchasing a couple floor lights for future exams to help in Room 101 with the lack of appropriate lighting. The Council of Examiners (COE) will convene when the CEG examinations have been scored.
    2. OR-Specific Exam: Orr reported that the exam was generated from a battery of questions. He stated that he has been evaluating how the questions could become multiple choice, per the Board’s prior discussions on this issue. He stated that 13 candidates were scheduled for the March 5, 2004, examination and 12 were present. The examinations are currently being scored.
    3. CEG Report Guideline Committee: Peterson/Michael stated updating the CEG Report Guidelines is a work in progress. A draft revision is under review. Two volunteers are currently working on this project. Peterson wants seismic hazards and coastal hazards to be added to this revised report.
    4. Hydrogeology Guideline Committee: Webb reported that she recently communicated with her committee requesting written information by the end of March 2004 as the draft outline has been completed for quite some time. She has a large group ready to read and offer changes to the draft document. She hopes to have a draft document to present to the Board by the June 2004 meeting.
    5. MOU Joint Committee: Peterson reported that the MOU Joint Committee met February 24, 2004. The Board’s committee members questioned why OSBEELS had dismissed CC#99-01-002 (PE practicing hydrogeology deficiently) with a “no action” decision. Michael stated that OSBEELS recognized it as a mistake but they did not intend to reopen the case. Peterson had stated to the committee “do not let it continue.” The Board stated that CC#01-07-006 (PE practicing hydrogeology in southern Oregon) is not ready for closure. Hester stated that OSBEELS would evaluate more thoroughly the knowledge, skills, and ability of its registrant to do this type of work. Peterson stated that OSBEELS brought two new cases to the Joint Committee. He requested that our Board assign compliance case numbers and that a meeting be scheduled for one case with the registrant. Details of the other complaint must be analyzed before further action. Knight requested that the committee review the MOU process when the current reviews are complete in order to make revisions that reflect how the process really works.
    6. Outreach Committee: Orr reported that by default, an annual presentation by the Board about the regulation of the practice of geology is occurring at OSU. There is not currently a similar venue at either PSU or U of O. It has come to the attention of the committee that two separate State Agencies, Department of Environmental Quality (DEQ) and WRD, are not holding work accountable to an RG stamp or are not holding the RG accountable for quality work.
    7. Rules & Regulations Committee: Webb reported that there is need for minor rule change on OAR 809-001-0000 and 0005 to allow for Temporary Rules to become effective immediately upon filing and to adopt current Model Rules of Procedure. She also recommended that Confidentiality Rules be added so that mediation or other alternative dispute resolution processes can be used in compliance cases.
      1. Webb moved for a rule modification in OAR 809-001-0000 to insert the word “permanent” before the word “rule” in the following text: “Before adoption, amendment, or repeal of any rule, the State Board of Geologist Examiners shall give notice of the intended action:” Seconded and unanimously passed.
      2. Webb moved for rule modification in OAR 809-001-0005 to update the date by striking “December 1, 1999,” and replacing it with “January 1, 2004.” Seconded and passed unanimously.
      3. Webb moved to prepare Temporary and Permanent Confidentiality Rules. Seconded and passed unanimously.
      4. No recommendations were presented for OAR 809-030-0015(f), evaluation of teaching and research as eligible experience for eligibility to the examination.
    8. Professional Practice Committee: Michael stated that he had nothing to report but went on to distribute a draft of THE WHITE PAPER with additional information. He stated that a Professional Practice Committee needs to be set up.
    9. Compliance Committee: Hester reported that 12 cases have been opened in the last 2-year period. Three cases were closed since the December 2003 Board meeting. Two cases are under review via the MOU Joint Committee.
      1. CC #02-05-003: A pre-hearing phone conference was held on March 2, 2004. The hearing date is scheduled for May 19, 2004, in Salem. This case involves a Washington company advertising and practicing geology in Oregon without a Registered Geologist.
      2. CC #03-08-004, CC#03-08-005 and CC#03-10-007 are three cases related to CC#02-05-003. The May 19, 2004, hearing may affect how these are processed.
      3. CC#03-03-002: Respondent had requested to combine this case with CC#03-09-006, also filed against him. Respondent also requested a 2-month delay in acting on the combined cases. Hester moved to accept the request to combine CC#03-03-002 and CC#03-09-006. Seconded and passed unanimously. Hester moved to consider request to postpone action on the combined cases to the June meeting. Seconded. Motion failed to pass unanimously. Webb requested to be recused from any discussion of the combined cases.
      4. CC#03-12-008: Hester stated that this complaint is under review by the technical member as the respondent had just submitted information. An informal meeting will probably be scheduled with the respondent CEG in this case.
      5. CC#04-01-001: Hester stated that the complaint alleged that a company in Oregon is advertising geology in the yellow pages and advertising its Oregon location on its website. The respondent stated that the company does not practice in Oregon. The case is still under review.
      6. CC#03-03-001: Hester stated that this case was closed September 19, 2003, with a LETTER OF CONCERN. The respondent indicated during the investigation that he was not aware of the regulation of geology. Since closing the case, information has been received at the Board office revealing that the respondent had been informed of the geology regulation in 1997, in a letter issued by DEQ. Hester moved to issue a follow-up letter putting the respondent on notice that the Board is aware that he did know of the regulation when he completed the 2003 report; to copy the letter to the DEQ office; and to place a copy of the letter in the compliance file. Seconded and passed unanimously.
    10. Legislative Issues:
      1. Education Bill: Knight reported that information was recently distributed to all Board members as requested at the last Board meeting confirming that the education bill of last session indeed included the requirement for a degree in geology. It was discussed on three separate occasions prior to creation of the proposed legislation. Discussion continued about whether a geology degree should be required for eligibility to the examination. Peterson moved to modify OAR 672.555(2)(a) to clarify that the official transcript with a completed geology degree must have a minimum of 45 geology hours of which 36 must be upper division, the same requirement as those who apply and are “leading to a major in geology.” Seconded and unanimously approved.
      2. Housekeeping: Webb moved to prepare legislative concepts on numerous housekeeping statute changes per AAG Chute’s recommendation. Seconded. Discussion followed. Webb indicated that the term “seal” should be removed and the word “stamp” should only be used. The term hydrogeology is the correct term used to discuss the practice of groundwater geology. Any wording in statute referencing the grandfather period should be removed. As an ex-officio member of the Board, the State Geologist is a non-voting member. Unanimously passed

VI. OLD BUSINESS
  1. Public Testimony: Following a discussion of the statute change to ORS 672.525 (9) and implications for rulemaking, Hester moved to define “public proceeding” in the Administrative Rules per AAG Chute’s recommendation. Seconded and passed. [Note: See additional discussion under the Work Session summary at the beginning of the minutes.]
  2. DEQ Communication: Webb stated that her comments would relate to compliance cases CC#04-01-001 and CC#03-03-001. A DEQ employee told a practitioner that the Voluntary Cleanup Program (VCP) does not require an RG stamp on geologic work if such work is receiving oversight through VCP. Webb explained that site regulatory closure can be obtained through an agreement with VCP, and if followed, can result in a “no further action” by DEQ on clean-up sites. Each step of the way, DEQ approves and allows the work to continue. Oversight of the project comes from DEQ’s VCP. Webb stated that the DEQ process of having a DEQ employee direct cleanup work does not exempt the work from review by and stamping by an RG. Webb stated that there is a need to schedule a meeting with DEQ to discuss the fact that just because a site may receive DEQ oversight does not exempt the geologic work performed at the site from review and stamping by an RG. The meeting would be presented as an educational outreach opportunity for the Board. Members concurred that the meeting should be scheduled with Stephanie Hallock, agency head for DEQ. Peterson will handle the arrangements; Webb volunteered to attend with him.

VII. ITEMS FOR BOARD ACTION
  1. Hester stated that the Board earlier denied the request of the respondent in CC#03-03-002 to postpone action on this case but did agree to combine CC#03-03-002 and CC#03-09-006. Webb recused herself from the discussion and vote surrounding these cases. Orr moved to issue a Notice of Intent to the respondent to discipline his license as follows: 1) for being late in responding to the Board’s inquiry, a Letter of Reprimand, and a $1,000.00 civil penalty; 2) for misrepresentation to the Board, a 1-month suspension of his license and a $1,000.00 civil penalty; 3) for negligence in preparing geologic reports, two years probation and a civil penalty of $1,000.00 per report; and 4) for violation of ethical standards, a Letter of Reprimand and a $1,000.00 civil penalty. Hester seconded the motion. Discussion followed. Peterson stated that both of the complaint cases cover the same issues. Hester stated that two different registrants had prepared technical and peer reviews and that the consensus of the reviewers was that the reports did not meet the standard of practice. He stated that a LETTER OF CONCERN has been previously issued to the respondent. Hester stated that he had believed that the position of the Board would have hopefully brought about a higher standard of work from the respondent. Peterson commented that from listening to two different peer reviewers of the respondent’s work, it appears that disciplinary action may be appropriate. Hester stated that he looks to professionals to have an upright, forthright discussion when asked to explain allegations of a complaint. When a respondent claims that a “revised report” had been issued, and later tells the compliance committee that no such report was ever issued, this is not being forthright. Board staff should not have to request the same information twice. Alleged misrepresentation had already delayed timely action in this case. This caused an affront to the entire complaint review process. Orr stated that negligence of groundwater reports involving households could have serious consequences when no water supply is available for those households. The respondent apparently changed his mind on reports previously prepared. Being sloppy and careless in geologic work causes severe problems for people. Hester stated that the LETTER OF CONCERN issued to the respondent may not have worked to improve his standard of work. Technical questions were raised regarding the second complaint. Technical competence is a serious issue. The Board cannot tolerate incompetent work and do its job or maintain credibility with the public. Peterson stated that the appearance of negligence was a persistent theme in the peer reviews. Information may have been selectively used in report preparation. The information appears to have gone beyond the realm of professional judgment into advocating for a customer. If proven, the process of selective inclusion and selective exclusion of relevant data is not acceptable. Orr called the question. Hester stated that every benefit of the doubt has been given to the respondent. Chair Michael requested a roll call vote: Peterson, yes; Orr, yes; Hester, yes; Michael, yes; Webb, recused; McConnell, non-voting member. Motion passed to issue a NOTICE OF INTENT. The respondent was present during the delivery and discussion of this motion.
  2. Hester moved to approve the check log from #1936 to #1974. Seconded and approved.

VIII. PUBLIC COMMENT
Hester commented on the 3-year (July 2000 through June 2003) financial audit of the Board released by the Secretary of State’s office. He was concerned that the same template was used in writing the reports, as similar information was in another semi-independent Board audit.
 
Tom Michalek, RG, CWRE, raised the issue of potentially transferring authority of the CWRE license and examination to the Board, as it currently is managed by OSBEELS. Mr. Michalek suggested that the Board “not touch the CWRE exam with a 10-foot pole!” He commented on geology work done for state agencies as well as work completed and produced by state agencies but not signed and stamped by an agency RG. He stated that the Groundwater Section of the WRD regularly completes reports for the Water Resources Commission. He expressed that many WRD reports were substandard, and that if he had submitted the same such report it would have been rejected by the agency. A recent WRD report that he reviewed did not meet the standard expected of his own reports. This is a concern to Mr. Michalek.
 
Comments about published articles versus prepared reports and stamping was raised, but not discussed.
The meeting was adjourned at 3:55 PM by Chair Michael.
 
Respectfully submitted,
 
Susanna Knight
Administrator
 
(Minutes were approved at the June 6, 2004, Board Meeting)