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Board’s “professional disagreement” no basis for discipline of licensee

Too much of a board's discipline decision was based on disagreements between the board's professional members and the disciplined geologist , the Supreme Judicial Court of Maine found March 11. The court reversed a discipline decision imposed by the state's geologist and soil engineer board,

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(Lippitt v. Board of Certification for Geologists and Soil Engineers).

The discipline at the center of the case stemmed from geologist Clifford Lippitt’s analysis of possible groundwater contamination from a landfill. After reviewing Lippitt’s report on the results of groundwater tests which concluded that the landfills were not contaminating local groundwater wells, Richard Behr, a geologist with Maine’s Department of Environmental Protection, filed a complaint with the state’s geologist’s board, claiming that Lippitt’s conclusions were “fundamentally flawed.”

During hearings held by the board, Lippitt explained his conclusions, stating his belief that further tests were forthcoming and that he based some of his statements denying contamination on the minimum acceptable levels found in state environmental regulations.

Following the hearings, the board determined that Lippitt had not provided false information in his report or had acted negligently. But it did find that his conclusions were not justified by the available data and that he had improperly furnished a conclusion without being sufficiently informed.

Both the board and an independent expert determined that the data in the case reasonably supported a conclusion that the landfill had caused groundwater contamination. The board issued a warning and assessed the geologist $3,000 in legal costs. Lippitt appealed.

On appeal, a state superior court invalidated Lippitt’s discipline, ruling that the board had failed to make required findings regarding the professional standards it believed Lippitt had violated, and returned the case to the board. On remand, the board elaborated on its conclusions but its discipline decision remained the same. Lippitt appealed again, and the case made its way to the state’s high court.

The court, in an opinion written by Justice Ellen Gorman, overturned the board’s decision, noting that the basis of the discipline had been the opposing conclusions reached by Lippitt and the board based on the information included in his report.

“The Board’s disagreement with a geologist’s opinion, without a concurrent determination that the opinion is false, is based on false data, or reflects the geologist’s incompetence,” wrote Justice Gorman, “cannot be the basis for a determination that the opinion constitutes a violation of . . . the geologists’ Code of Ethics.”

“The language of [the Code of Ethics] does not allow for the determination of an ethical breach when the Board’s conclusion is simply that the geologist’s opinion is not ‘reasonable’ in light of the underlying data.” The court remanded the case to the board to vacate the discipline.