Alaska Employment Law

When a state licensing board sought to discipline an architect for misconduct as an expert witness in an arbitration, the architect claimed testimonial immunity.  [The architect issued a report that failed to include all known relevant and pertinent information on a boundary dispute, as required by 12 AAC 36.210(a)(4). ]

The State of Alaska Board of Registration for Architects, Engineers and Land Surveyors rejected the architect’s defense, and imposed a fine and reprimand, concluding:

Mr. Baker is not immune from disciplinary action. Irrespective of whether witness immunity might protect him from civil suit for the testimony he gave at the arbitration, it does not prohibit the board from considering disciplinary action against him in an executive branch adjudication based on allegations of gross negligence, incompetence or misconduct arising from the survey work he performed.

The division met its burden of proof as to the allegation of misconduct but not as to gross negligence or incompetence. Mr. Baker’s misconduct took the form of failure to satisfy the requirement of 12 AA C 36.210(a)(4) to include in his report all relevant and pertinent information known to him. Under the particular circumstances of this case, the appropriate sanction for this violation is a combination of a reprimand and a civil fine.

The Board relied on Gilbert v. Sperbeck, 126 P.3d 1057 (Alaska 2005), on the issue of testimonial immunity.

In the Matter of Clifford Baker, OAH No. 08-0025-AEL (Nov. 6, 2008).  The ALJ was Terry Thurbon.