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Mr Kevin Mark Fitzpatrick

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mr Kevin Mark Fitzpatrick (086646F)

Held on 12 and 13 November 2019

At

Holiday Inn Edinburgh Zoo
132 Corstorphine Road
Edinburgh
EH12 6UA

———-

Present

Emma Boothroyd (Chair)
Roger Wilson (PCC Architect Member)
Martin Pike (PCC Lay Member)

———–

 

In this case, the ARB was represented by Ms Catriona Watt of Anderson Strathern LLP.

Mr Fitzpatrick attended the hearing and was legally represented by Mr Brent Haywood from Lindsays.

The Professional Conduct Committee (“PCC”) found Mr Fitzpatrick guilty of Unacceptable Professional Conduct in that he:

1.       failed to act with integrity by knowingly copying onto his personal electronic storage device sensitive business information from the business systems of;
a. his employer AIM Design Limited
b.former employer Nicoll Russell Studios

2.         failed to adequately manage and safeguard client records by downloading on to his personal electronic storage system designs and information relating to work for former clients of Nicoll Russell Studios.

The PCC found Mr Fitzpatrick had acted in breach of Standards 1.1 and 4.3 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).

The sanction imposed is a reprimand.

 

  1. Mr Fitzpatrick (“the Respondent”) faces a charge of unacceptable professional conduct (“UPC”) based on two allegations as follows:

1. Failed to act with integrity by knowingly copying onto his personal electronic storage device sensitive business information from the business systems of;
a. his employer AIM Design Limited
b. former employer Nicoll Russell Studios

2. Failed to adequately manage and safeguard client records by downloading on to his personal electronic storage system designs and information relating to work for former clients of Nicoll Russell Studios.

In doing so, it is alleged that the Respondent acted in breach of Standards 1.1 and 4.3 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).

 

Background

  1. This case arises following a self-referral made by the Respondent in February 2019. The Respondent explained that he had been dismissed from his employment with AIM Design (“AIM”) on 19 February 2019 for gross misconduct. The Respondent was alleged to have downloaded company sensitive information to his personal storage device without the authorisation or permission of AIM in breach of the company IT policy and data protection legislation.
  1. On the evening of Tuesday 12 February 2019 a personal storage device belonging to the Respondent was discovered attached to his work computer. It was mistakenly thought that the device contained archive material. It was accessed by the Respondent’s employer and sensitive company information was discovered that related to both AIM and Nicoll Russell Studios (NRS). A large file containing company sensitive information about running construction projects was downloaded on the device together with project specific files relating to work undertaken by NRS.
  1. AIM was concerned that there was no legitimate reason for these files to be downloaded on to a personal storage device. The Respondent was emailed a letter on Friday 15 February 2019 inviting him to a disciplinary meeting on Monday 18 February 2019. The outcome of the disciplinary meeting was the dismissal of the Respondent for gross misconduct which was confirmed on appeal.
  1. At the outset of the hearing the Respondent admitted the allegations.
  1. In reaching its decisions, the Committee has carefully considered the submissions made by Ms Watt and Mr Haywood and the oral and documentary evidence presented to it which comprises:
    I. the Report of the ARB’s Solicitor;
    II. the 110 pages of documents exhibited to it;
    III. the oral evidence of the Respondent;
    IV. the testimonials and diagnostic assessment submitted on behalf of the Respondent.
  1. The Committee has accepted the legal advice given by the Chair. It has had regard to the fact that the burden of proving the facts is on the ARB and that the civil standard applies, namely the balance of probabilities. Whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgement to which no burden or standard of proof applies irrespective of the Respondent’s admission.  

 

Findings on facts

The Committee makes the following findings of fact.

 

Allegations 1 a and b and 2

  1. On the basis of all the evidence and taking into account the admissions made by the Respondent, the Committee finds the facts of all allegations proved. The Committee has seen a screenshot of the files contained on the personal storage device and has noted the Respondent’s admissions that he did not have permission to download these files. The Committee notes that the files belonging to NRS were accessed by AIM.
  1. The Committee considers that the Respondents actions breached both Standard 1.1 and Standard 4.3 of the Code.
  1. Standard 1.1 of the Code states: 

You are expected at all times to act with honesty and integrity and to avoid any actions or situations which are inconsistent with your professional obligations. This standard underpins the Code and will be taken to be required in any consideration of your conduct under any of the other standards.

  1. Standard 4.3 of the Code states:

You should ensure that adequate security is in place to safeguard both paper and electronic records for your clients, taking full account of data protection legislation, and that clients’ confidential information is safeguarded.

  1. By reason of the facts found proved, the Committee finds that the Respondent failed to act with integrity and downloaded confidential and commercially sensitive files without permission. In downloading these files to his personal storage device, he failed to protect clients’ confidentiality and failed to comply with the relevant legislation and guidance.

 

Finding in relation to UPC

  1. Having found the allegations proved, the Committee went on to consider whether the Respondent’s conduct found proved amounts to UPC. UPC is defined as conduct which falls short of the standard required of a registered person.
  1. In reaching its findings, the Committee has carefully considered all the evidence presented to it, all submissions made and has accepted the advice from the Chair. The Committee recognises that not every shortcoming on the part of an Architect, nor failure to comply with the provisions of the Code, will necessarily result in a finding of UPC. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be taken into account should it be necessary to examine the conduct or competence of an Architect.
  1. The Committee has considered the authority of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin). It has borne in mind in reaching its decision that for a finding of UPC to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” was required. Any failing should be serious. The Committee accepts that “mere negligence does not constitute misconduct” and that

“a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions….a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance”.

  1. It was admitted by the Respondent in his response to the allegations and repeated in his oral evidence that his actions amounted to UPC. Failing to ask for permission from NRS and AIM to download the files was, in the Committee’s view, conduct which lacked integrity. The Respondent recognised that he had breached data protection legislation and that his actions breached confidentiality. In using a personal storage device, he had failed to keep the information relating to NRS safe and it had been accessed by AIM. The Committee considered that the Respondent’s failings both individually and collectively amounted to a serious falling short of the standards expected of a Registered Architect and amount to UPC.

 

Sanction

  1. Mr Haywood addressed the Committee in mitigation and set out a number of mitigating factors to which the Committee should have regard. Mr Haywood also referred the Committee to an earlier decision of the ARB which he submitted was analogous to this case in which a reprimand was considered the appropriate sanction. Ms Watt on behalf of the ARB set out the legal framework and reminded the Committee that previous decisions are not binding, and the Committee must consider this case on its merits.
  1. The Committee had regard to the authorities of Wingate, Evans and Malins v SRA (2018) EWCA Civ 366 and Adetoye v SRA [2019] EWHC 707. It considered the ARB’s Indicative Sanctions Guidance and accepted the advice of the Chair.
  1. The Committee then considered whether to impose a sanction, and if so, which one. The Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and the ARB and to declare and uphold proper standards of conduct, behaviour and competence. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the Respondent’s interests, the Indicative Sanctions Guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case. The Committee has exercised its own independent judgement.
  1. Having considered all the matters before it, the Committee has identified the following mitigating factors:
    I. that the Respondent has no adverse regulatory history in his career.
    II. he has fully engaged in the regulatory process and made prompt disclosure of the matter to ARB;
    III. he has been open with NRS about what happened and informed them immediately;
    IV. he has taken steps to remediate his failings by attending courses on GDPR and developing a compliant process for portfolio work;
    V. he has not benefitted financially from the conduct and has suffered financially as a result of losing his job;
    VI. there was no loss to clients or either employer;
    VII. he has provided a number of positive testimonials attesting to his character and professionalism;
    VIII. he has expressed genuine regret and remorse for his conduct and has apologised;
    IX. the Committee considers the risk of repetition to be very low in view of the insight demonstrated by the Respondent into his failures and the steps taken to avoid these issues in the future.
  1. The Committee has identified the following aggravating factor:
    I. the Respondent downloaded business sensitive information in relation to two employers.
  1. The Committee notes that the matters found proved are serious to the extent that the Respondent’s failings diminish both his reputation, and that of the profession generally. The Committee therefore concluded that the Respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.
  1. The Committee first considered whether to impose a reprimand. The Committee considered that the Respondent demonstrated factors that would make this sanction appropriate including insight, a genuine expression of regret, previous good disciplinary history and corrective steps taken. The Committee had in mind the seriousness of the UPC found proved, and in particular reminded itself that although the Respondent had acted without integrity it was at the lower end of the scale of seriousness. There was no disclosure of the data to the wider public and there was no loss to clients or the employers. The Committee accepted the Respondent’s explanation that there was no malice in his actions and there was never any attempt to conceal what he had done.
  1. The Committee considered that a reprimand was the necessary and appropriate sanction and that this was sufficient to protect the public. This sanction together with its findings in relation to UPC would be sufficient to mark the conduct as unacceptable and uphold the reputation of the profession.
  1. In deciding that a reprimand was appropriate and necessary the Committee did consider whether a penalty order would be proportionate. The Committee does not consider the Respondent’s failings require a penalty order and considered his remorse and insight and the lack of financial benefit would make this sanction disproportionate in the circumstances. The Committee also took account of the fact that the Respondent had taken the decision not to look for employment as an architect whilst this process was ongoing and had suffered financial hardship as a result.
  1. The Committee therefore imposes a reprimand which will remain on the Respondent’s record and will be published for one year.
  1. That concludes this determination.

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