An unlicensed architect worked as an architectural designer for an engineering firm for eight years. Another individual worked an engineering draftsman for the firm for almost 20 years. He had a civil engineering degree but never passes the professional engineering test to become a licensed engineer. His work for the firm therefore had to be overseen by a licensed engineer. He became so proficient at his job that he earned the title “Project Engineer” and was allowed to bring in his own clients to the firm. At some point these two individuals began moonlighting – in this case bringing in clients, performing engineering services and stamping the plans with seal of the engineer that owned the firm. They did about 20 projects that way and eventually were found out, prosecuted, convicted and sentenced to serve time in jail and pay restitution. People v. Rodriquez, 71 Cal. App. 5th 921 (2021).
One defendant was convicted of 238 counts and the other was convicted of 193 counts for forgery and identify theft that occurred over a six year period. At trial it was determined that the firm’s employer never gave permission to the individuals to use his engineering stamp. It as also determined that the employer didn’t discover the crime until so late that the defendants argued the four year statute of limitations period had run out and the case must be dismissed.
The trail court and appellate court concluded that the statute of limitations had no expired. This is because of the “discovery rule.” The employer (victim) did not discover the crime until late, and through reasonable diligence he had no reason to have discovered it earlier. The courts concluded that the Limitations period was not triggered until the actual discovery of the crime in 2014 and the defendants were properly charged with the crimes.
The defendants argued that instead of being charged with a separate crime for each and every page of plans that they stamped over the years, they should have been charged with at most only 20 counts because that was the total number of projects involved. They argued that an entire set of plans even though stamped on each page was only a single document for which they could be charged. The courts rejected that argument and held that each individual page of the plans constituted a separate “document” which under the state statute could be charged with a separate count of forgery and identity theft.
Risk Management Comment:
Moonlighting can create significant potentially uninsurable risk for a company. All employees should be advised against engaging in such practice, even if the individuals are license professionals and have their own engineering stamps.
About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk Report, Vol. 24, No. 4 (May 2022).
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