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Professional Conduct Committee Decisions

ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

IN THE MATTER OF

RAYMOND OETGEN (050503J)

on
18 May 2011

Held at:
ARB
8 Weymouth Street
London, W1W 5BU

Present:

Chair: Mr Julian Weinberg
PCC Member: Mr Stephen Neale
PCC Member: Ms Judy Carr

Clerk to the Committee: Mr Stephen Battersby

Mr Iain Miller of Bevan Brittan appeared on behalf of the Board
Mr Oetgen did not attend and was not represented

DECISION

In this matter, the Board was represented by Mr Iain Miller. Mr Ray Oetgen did not attend and was not represented.

Mr Oetgen faces one charge of unacceptable professional conduct based on three allegations of fact.

  1. He wrote a letter to the complainants which stated that he would withhold the Architects Certificate unless he received a signed letter from the complainants which agreed to withdraw any claims and not make any future claims against him or his practice contrary to standard 1 and/or standard 12 of the Code of Conduct (2002). 
  2. He failed to disclose in writing to the complainants a possible financial or personal business interest the existence of which, if not so declared, might be likely to raise a conflict of interest and doubts about his integrity contrary to standard 1.2 of the code;
  3. He failed to provide the complainants with written terms of engagement as required by Standard 11.1 of the Code that properly provided for; 
    1. The allocation of responsibilities; and/or
    2. The limitation of responsibilities; and/or
    3. Any provisions for termination; and/or
    4. Any provisions for dispute resolution; and/or
    5. A written provision providing that the Respondent is subject to the disciplinary sanction of the Board in relation to complaints of unacceptable professional conduct or serious professional incompetence.

As a preliminary issue, we are asked to consider the question of service of documents and whether to proceed in the Respondent’s absence. We have heard from Mr Miller that the relevant Notice of Hearing and supporting documentation has been served on the Respondent at his registered address in accordance with Rules 6 and 10b of the Professional Conduct Committee Rules and Section 3 of the Architects Act 1997. We are satisfied that he has been properly served with the required notice of this hearing. We have therefore gone on to consider whether the case should proceed in his absence.

The Committee’s attention has been brought to the Acknowledgement of Notice of Hearing form dated 24 February 2011 received from Mr Oetgen which has been signed by him. In it, he confirms that he does not intend to appear at this hearing, that he does not intend to contest the proceedings and that he will not be legally represented. We have also been shown a copy of a letter from the Board dated 1 March 2011 to the Respondent which states that the Board notes that in the light of his response on the Acknowledgement of Service form that he is intending to plead guilty to the charge. No response has been received to that letter. We have exercised great care and caution in reaching our decision, and have carefully considered the overall fairness of the proceedings. Having done so, we are satisfied that the Respondent has been given an adequate opportunity to appear before the Committee to argue his case in person and that he chooses not to do so. As such, we have concluded that it is appropriate to hear the case in his absence.

The allegations in this case arise from an initial complaint made by Mr Almond against the Respondent who at the material time was an Architect at OCP Architects and Design Consultants. He was initially approached by a mutual acquaintance of both the Respondent and Complainant to see if he would be prepared to act as Architect and contract administrator for works to be carried out at the Complainant’s home following the granting of planning permission. Having met the Complainant, it was agreed that the Respondent would act in that role.

Discussions then followed regarding the cost of the contractors who had successfully tendered for the building works project, RN Wooler and Co Limited in the sum of £348,000 plus VAT. Following clarification of certain issues, their costs estimate was revised and increased so that it then significantly exceeded the amount quoted in their original tender. In view of the increased cost of the work, the Respondent asked the Complainant whether, if he was prepared to spend £350,000 on the works, he could source a contractor to carry out the works for that sum. The complainant said he would be. The Respondent informed the Complainant that the firm he had in mind was RSG Builders. However, it is alleged that the Respondent failed to inform the Complainant that the contractor was in fact the Respondent’s business partner’s father, Jim Cotterill. Following the agreement to this suggestion by the Complainant, a quote was subsequently obtained from RSG Builders and a contract was signed by the Complainant and JH Cotterill, backdated to 1 May 2007.

In summary, as the works progressed, a dispute arose between the Complainant and Mr Cotterill. This could not be resolved between the parties and in accordance with the terms of the contract between them, the dispute was referred to arbitration. The Respondent was not a party to that process. It was adjudicated upon by a Mr Denis Carling in September 2008 who was appointed by RIBA. This Committee does not concern itself with the details of his findings except insofar as they specifically impact on the allegations faced by the Respondent in these proceedings. Mr Almond also complained about the manner in which the Respondent carried out his role in the project.

In reaching our decisions, the Committee has carefully considered all the documentary evidence presented to it in the Report of the Board’s Solicitor and Mr Miller’s submissions made this morning. The bundle includes a statement from Mr Almond, the Respondent’s detailed written responses to the allegations together with an initial and revised report produced by Mr Hickey, a registered Architect and Board Inquirer appointed by the Board who spoke at length with both the Complainant and the Respondent about events leading up to the dispute between them. No witnesses have been called to give live evidence. We have had regard to both the burden on the Board to prove its case and the standard of proof, namely proof on the balance of probabilities.

Allegation 1:

The Committee finds the allegation proved. Our reasons are as follows:
On 19 September 2008, the Complainants wrote to the Respondent complaining as to the way in which he had carried out his role, particularly regarding:

At the conclusion of their letter, the Complainants sought to terminate their employment of the Respondent and reserved the right to take legal action for breach of contract and negligence. On 29 September, the Respondent replied seeking particulars of any complaint and enclosed a final fee invoice. On 6 October, the Complainant wrote to the Respondent requesting that he send him the Professional Consultant’s Certificate confirming the quality of the work and confirmation that it had been carried out in accordance with the specification. The Respondent replied to that letter on 21 October stating that he would be happy to provide the Architects Certificate but that it would not be sent to them “unless we receive prior letters from yourselves withdrawing all such claims and references, and further, a letter signed by both yourself and your wife that you will not make any future claim against me, my partner nor OPC Architects in respect of these works. Furthermore, we will only issue the certificate upon receipt of payment of our final fee invoice in full and final settlement. On receipt of such letters and fee payment, we shall require to carry out a final and full inspection of the works….to enable proper verification within the certificate.”

The Respondent by virtue of his responses given on the Acknowledgement of Notice of Hearing form does not contest the allegation. The Committee is satisfied that the Respondent made a written threat to withhold his final certificate pending the withdrawal of Mr Almond’s complaints. Such conduct is inconsistent with his professional obligations and we are satisfied that that this was an inappropriate way of dealing with Mr Almond’s complaint. Such conduct is discreditable to the profession. The Committee is therefore satisfied that the Respondent’s conduct breaches both Standard 1 and Standard 12 of the Code of Conduct.

Allegation 2:

The Committee finds this allegation proved. Our reasons are as follows:
Mr Almond has unequivocally stated that he received nothing in writing setting out the relationship between Mr Cotterill, the contractor, and the Respondent’s business partner. He states that he and his wife were only aware of the relationship when Sam Cotterill, the Respondent’s business partner visited the site and was introduced to them by his father. At that stage, the measuring out and groundwork had already begun. In contrast, the Respondent in his response to the allegations at page 293 of the bundle states that at the time of agreeing the price for the works by Mr Cotterill “I informed Almond of our position and the relationship, as Cotterill was my partner’s father”.At page 301 of the bundle, he states that “any perceived conflict of interest in connection with J and H Cotterill….was discussed with Almond at the outset as Mr J Cotterill was in fact my business partner’s father, and I believe that he fully understood and did not think putting it in writing was necessary”. In the absence of hearing from and being able to question live witnesses on this point, it is difficult to be satisfied as to which version of events is correct. However, whilst we have no reason to believe that the Complainant’s account on this issue is anything other than credible, we note that the Respondent has not produced any evidence to indicate that the relationship was confirmed in writing, which is the requirement of the Code. The Respondent acknowledges this failure and does not contest the allegation in any event. The Committee is satisfied that the relationship between the Respondent and Mr J Cotterill was one which should have been disclosed in writing and which, if not so declared, would or might be likely to raise a conflict of interest and doubts about his integrity. As such, the Committee is satisfied that the Respondent’s conduct breaches Standard 1.2 of the Code of Conduct.

Allegation 3:

The Committee finds this allegation proved. Our reasons are as follows:
The Respondent does not dispute this allegation. He has not provided any evidence that a written terms of contract was provided to the Complainants which complied with the requirements of Standard 11.1. The Committee is therefore satisfied that that the Respondent’s failure to provide such a document places him in breach of Standard 11.1.

In the light of our findings in respect of allegations 1, 2 and 3, the Committee finds Mr Oetgen guilty of unacceptable professional conduct.

Sanction

In reaching our decision, we have had regard to our obligations to protect the public and maintain the reputation of the profession. We have had regard to the fact that the Respondent has engaged with the Board in this process, he has not contested the allegations and that he has no prior adverse regulatory findings against him in a 43 year career. We note that on 3rd March 2009 the Respondent was cautioned for an unrelated matter, but given that that matter post-dated these matters, we do not take it into account in reaching our decision.

However we note that the Respondent has not attended this hearing and as such we have not heard any statement in mitigation from him. We note that no such statement is provided by him in his written submissions. In these circumstances, we are unable to assess his level of insight into his failings or what steps he has taken to ensure that such conduct will not be repeated. We have had regard to the fact that Mr Hickey in his report states that, so far as allegation 2 is concerned, he found no evidence of actual collusion or bias, even though the potential for it existed. In addition, the Committee is particularly concerned at the Respondent’s conduct, the subject of allegation 1, in that he has abused his position as a professional and sought to effectively hold the complainant to ransom. The Committee notes that the Respondent may well have avoided coming before the Board had he ensured that all necessary matters were confirmed in writing at the appropriate time to minimise the potential for dispute with his client and the importance of this cannot be overstated.

The Committee therefore first considered whether to impose no sanction but felt that, due to the gravity of these allegations, that this was not appropriate. We therefore next went on to consider whether to impose a reprimand. Having considered all those factors outlined above, we felt that the allegations, particularly in regard to the first allegation, was too serious for this sanction. We then considered whether to impose a financial penalty. Having taken into account all the mitigating and aggravating factors detailed above, we consider that this is the appropriate and proportionate sanction and impose a fine of £1500 which sum should be paid within 28 days.

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