ARPFA Professional Workshop, Calgary Alberta, January 26, 2001

1. This workshop will focus on the following: How the new complaint process established by the Regulated Forestry Profession Act (the Act) ensures fairness for the investigated person (IP). Understanding and applying the revised code of ethics and standards of practice using hypothetical scenarios. Notice for Foresters in Training and their sponsoring foresters The May 2001 professional exam uses the existing Act, code of ethics and standards of practice, not the proposed ones used in this workshop Notice to Workshop Participants Not a comprehensive discussion of these topics Check things out yourself Thanks to Roxanne Delorme and Doug Krystofiak for their assistance ARPFA Professional Workshop, Calgary Alberta, January 26, 2001

2. ARPFA Professional Workshop, Calgary Alberta, January 26, 2001

3. The Regulated Forestry Profession Act replaces the Forestry Profession Act. The College of Alberta Professional Foresters replaces the Alberta Registered Professional Foresters Association. Qualified persons intending to practise forestry on public land as specified in the Act must register with the College as regulated members. Some exceptions. Regulated members must have a practice permit to practise forestry on public land. Permit displayed in their workplace or be available for inspection. Any restrictions must be displayed Continuing competence program will be implemented within 5 years. New complaint procedures provide additional protection for all parties, new avenues for complaint resolution and more serious consequences for unprofessional conduct including the cancellation of a regulated member’s practice permit and registration. {71(1)(f)} Public involvement in the College’s activities will increase through the requirement for more public members. Some Changes Under the New Act

4. Some things that will not change, or will change slightly for current RPFs are: Your membership status and membership records will be automatically transferred to the College upon proclamation of the Act. Similar titles are protected, such as RPF Fees remain the same unless changed by the members. You must continue to provide ethical and competent forestry services. Volunteer members are needed to support the College, its committees, council, tribunals, etc. 10% of members required ARPFA Professional Workshop, Calgary Alberta, January 26, 2001

5. Part 1 - Governance The College must carry out its activities and govern its regulated members in a manner that protects and serves the public interest, provide direction to and regulate the practice of the regulated profession by its regulated members, establish, maintain and enforce standards of practice, registration and continuing competence for the practice of the regulated profession, establish, maintain and enforce a code of ethics, and carry on the activities of the college and perform other duties and functions by the exercise of the powers conferred by this Act. Overview of the Regulated Forest Profession Act

6. Part 1 - Governance Council established –consists of voting and non-voting members. Voting members are made up of both regulated and public members; (25% of voting members must be public members). Council appoints a Registrar and President. A Registration Committee may be established by Council, with no fewer than 3 members of whom 2 must be regulated members. A Competence Committee may be established with no fewer than 3 members of which 2 must be regulated; appointed by Council. Overview of the Regulated Forest Profession Act

7. Part 1 - Governance A Complaints Director – is appointed by Council; duties can be delegated to the Registrar or a regulated member recruited. A Hearings Director - Council must provide for appointment and recruit a regulated member. Hearing Tribunals and Complaint Review Committees - as needed and appointed by the Hearings Director. Council must appoint no fewer than four regulated members to a “membership list” to be used by the Hearings Director to appoint members to both hearing tribunals and complaint review committees. The Hearing Tribunals and Complaint Review Committees must consist of two or more members (selected from the membership list) and at least 25% public member content. All above appointments must be made public and the Minister notified. Overview of the Regulated Forest Profession Act

8. There are three registration avenues: 1) by meeting the requirements in the regulations for education, experience, examinations or degrees, diplomas, etc. 2) by being registered with a profession in another jurisdiction recognized by the regulations as having substantially equivalent competence and practice requirements 3) by satisfying the registration committee of having, as determined in accordance with the regulations, a combination of education, experience, practice or other qualifications that demonstrates the competence required for registration as a regulated member. Registration is mandatory for qualified persons practising or supervising regulated members who are practising forestry on crown land and for those teaching forestry. Write professional examination Part 2 - Registration

9. Part 3 - Continuing competence Gives authority to establish Continuing Competence requirements within five years of Act coming into force. Part 4 - Professional conduct Outlines the complaint process, appeals (Council, Court of Appeal, etc.), alternative complaint resolution and other details including hearing tribunals, tribunal orders, written decisions, investigations, witnesses and records. Part 5 - Business arrangements Overview of conducting a practice. All regulated members are subject to the Act no matter how they are employed. Overview of the Regulated Forest Profession Act

10. Part 6 - Other matters Overview of rules governing suspensions, notices, information access, liability and Ombudsman’s role in hearing any complaints. Part 7 - Title protection Protects the College’s name and regulated member’s professional titles. Part 8 - Regulations, bylaws, code of ethics and standards of practice Gives the College authority to make such, but regulations must be approved by the Lieutenant Governor in Council. Overview of the Regulated Forest Profession Act

11. Part 9 - Consequential amendments, repeals and coming into force Ombudsman Act amended to recognize the forestry college and the Act. The new Act comes into force on Proclamation (i.e., regulations approved by Order in Council). Repeals the Forestry Profession Act. Part 10 - Profession specific provisions Schedule 1 applies to the College of Alberta Professional Foresters and establishes the orderly transition of the administration of the ARPFA to the College. It also protects titles and empowers specified existing positions or committees in the ARPFA to carry on under new titles in the case where a complaint is in process under the Forestry Profession Act at the time of proclamation of the Act. Establishes the College of Alberta Professional Forest Technologists. Overview of the Regulated Forest Profession Act

12. Profession is "a vocation requiring specialized training in a field of learning, art or science.” Licensing and self-regulation granted for public protection, not for the benefit of the members. Crown land ownership = third party risk Risks are economic, social and environmental Professions

13. Protect the public interest by: Setting standards for admission, Enforcing codes of ethics and standards of practice. Assessing and ensuring the ongoing competence of regulated members. Establishing a complaint resolution process that includes conducting discipline hearings when necessary. The foundation of all discipline hearings is peer review. The logic is that only members with similar training have the specialized knowledge needed to judge the actions and competence of their peers. Public involvement and scrutiny are also needed to avoid cover-ups, or the appearance of cover-ups and to ensure the fairness and openness of proceedings. Regulated professions

14. Public protection is the goal. Thus anyone can file a complaint against a regulated member. Calling a hearing is the only option under the Forestry Profession Act if a complaint is not dismissed as frivolous or vexatious. The new Act has more options for resolving a complaint besides a hearing. Procedural fairness for the Investigated Person (IP), complainant and College must be ensured. A complaint can be potentially damaging to the reputation, finances and practice of a regulated member. Thus it is essential for the complaint process to ensure fairness for the IP. The following slides will show how this is achieved. Consult the Act for ALL the details. Complaint Process Overview

15. Complaints can be filed against any regulated member alleging unprofessional conduct. Unprofessional conduct defined: means any or all of the following: (i) displaying a lack of knowledge of or lack of skill or judgment in the provision of professional services; (ii) contravention of this Act, a code of ethics or standards of practice; (iii) contravention of another enactment that applies to the profession; (iv) representing or holding out that a person was a regulated member and in good standing while the person's registration or practice permit was suspended or cancelled; Complaint Process Overview

16. (v) representing or holding out that a person's registration or practice permit is not subject to conditions when it is or misrepresenting the conditions; (vi) failure or refusal to comply with the requirements of a continuing competence program; (vii) failure or refusal (A) to comply with an agreement that is part of a ratified settlement, (B) to comply with a request of or co-operate with an investigator, or (C) to comply with a notice to attend or a notice to produce under Part 4; (viii) contravening an order under Part 4 or conditions imposed on a practice permit; (ix) carrying on the practice of the regulated profession with a person who is contravening an order under Part 4 or conditions imposed on a practice permit pursuant to Part 2 or Part 4; (x) conduct that harms the integrity of the regulated profession. {1(1)(gg)} Complaint Process Overview

17. Complainant – the person filing a complaint, either internally or externally. Complaints director" means the complaints director of a college. "Complaint review committee" means a complaint review committee established under Part 1. "Council" means the council of a college. "Hearing tribunal" means a hearing tribunal established under Part 1. "Hearings director" means the hearings director of a college. "Investigated person" means a person with respect to whom (i) a complaint has been made under Part 4, or (ii) information has been treated as a complaint in accordance with section 46, "Investigator" means the complaints director or other person who conducts an investigation under Part 4. The key players defined

18. A complaint must be in writing, signed by the complainant and delivered to the complaints director. An anonymous letter or phone call won’t do. Other information received through an internal investigation, a partial guilty plea, or failure of a regulated member to comply with an order may be treated as a complaint. Complaints can be filed against a former member within 2 years of leaving the College, but not after 2 years. Complaint received 44(1)

19. The complaints director (a) may encourage the complainant and the investigated person to communicate with each other and resolve the complaint, (b) may make a referral to an alternative complaint resolution process under Division 2, (c) may request an expert to assess and provide a written report on the subject-matter of the complaint, (d) may conduct, or appoint an investigator to conduct, an investigation, (e) if satisfied that the complaint is trivial or vexatious, may dismiss the complaint, and (f) if satisfied that there is insufficient or no evidence of unprofessional conduct, may dismiss the complaint. Acting on a complaint 45

20. The complaints director is likely to request an investigation or expert review of any serious allegation of unprofessional conduct, before deciding on a further course of action. If someone filed a series of complaints against a regulated member, that in the opinion of the complaints director were vexatious, the latter complaints could be dismissed quickly. “Fishing expeditions” can be quashed - vague complaints filed in the hope that an investigation will reveal wrongdoing are likely to be quashed quickly. The complainant can appeal. Acting on a complaint

21. The complaints director may encourage the complainant and the investigated person to communicate with each other and resolve the complaint. 45(2)(a) The complaints director may make a referral to an alternative complaint resolution process under Division 2. 45(2)(b) The complaints director may request an expert to assess and provide a written report on the subject-matter of the complaint. 45(2)(c) The expert does not have to be a regulated member although that is likely to be the case. The complaints director may conduct, or appoint an investigator to conduct, an investigation. 45(2)(d) Complaint resolution possible without a hearing

22. An "alternative complaint resolution process" means a process to help the complainant, the college and the investigated person settle a complaint. 1(1)(a) The rights of the IP are protected as follows: The IP must agree to the process 47(1) and any settlement 49(1). A regulated member must conduct or participate in the process 47(2) and act impartially. 47(3) An expert may be called to assess the subject matter of the complaint. 47(5) Most evidence, things said, admissions or communications made during the process are confidential and may not be used elsewhere, including a proceeding before a court. 48(3) The College may publish information about a settlement according to its bylaws, but the identity of the IP can only be revealed with the consent of the complainant. 49(6) Alternative complaint resolution

23. The complaints director or designate must conduct the investigation. The complaints director must, unless it would significantly harm the investigation, give the investigated person the name of the investigator and reasonable particulars of the complaint to be investigated. 50(1)(b) If the investigated person is not given the information referred to in subsection (1)(b) when an investigation is to be conducted, the complaints director must give the information to the investigated person (a) when there would be no significant harm to the investigation, or (b) before the investigation is completed, whichever is earlier. 50(2) Investigations

24. The investigator can require that any information or thing that is pertinent to the investigation be turned over for examination or copying. If needed, an application to the Court of Queen’s Bench can be made to get the above. {52} Conditions, including suspension, may be imposed on the practice permit of the IP while complaint proceedings are underway. These can be appealed by the IP to the Court of Queen’s Bench. 54(2) The complaints director has several options once the investigator’s report or investigation has been completed including: Do additional investigation or order a new investigation. Request a review of the subject-matter of the complaint by an expert. Dismiss the complaint. {55} If the matter is dismissed or referred for a hearing, the complaints director must notify the IP giving the reasons. {56} Investigations

25. The hearings director has 90 days to set a date for a hearing after the matter is referred for a hearing. This can be extended if the IP agrees. {58} The complaints director can dismiss the complaint before a hearing based on new information. The IP can admit to unprofessional conduct any time from the filing of a complaint to the start of a hearing, however the hearing tribunal must accept the plea. It is feasible that the IP may plead guilty to avoid a hearing, but the hearing tribunal reserves the right to make the final decision about whether or not unprofessional conduct has occurred, and the penalty. {59(3)(a)} A partial guilty plea does not excuse the IP from those parts of a complaint not covered by the guilty plea. Any person who has investigated, reviewed or made a decision on a complaint or matters related to a complaint may not subsequently sit as a member of a council, tribunal or committee while it is holding a hearing or a review with respect to that complaint. {60} Complaints leading to a hearing

26. The IP may be represented by counsel, but must appear at a hearing. {61(1)} Section {68(6)} seems to create an exception due to unspecified circumstances. The IP can call any necessary witnesses. All witnesses, including out-of-province witnesses can be compelled to attend or give testimony, although a Court order may be required. Any witness, including the IP must testify under oath and must answer all questions even if the answer is potentially incriminating or damaging. {65(1)} Complaints leading to a hearing

27. If an answer given under subsection (1) by a witness could (a) incriminate the witness, or (b) establish the witness's liability in a court proceeding or proceedings under any enactment, that answer may not be used or received against the witness in a civil proceeding, a prosecution under this Act or proceedings under any other Act, but that answer may be used or received against the witness in proceedings in respect of perjury or giving contradictory evidence under this Act. 65(2) Complaints leading to a hearing

28. The hearings director must give the IP a 30 day notice to attend the hearing and must indicate the subject-matter of the hearing. {66} Hearings are generally open to the public, but may be held in private if warranted. {67} If held in private the IP and counsel may attend. If the hearings tribunal finds that the IP is guilty of unprofessional conduct, then it may make one or more orders as explained in section 71. These include reprimands, fines and suspension, restrictions on, or cancellation of the IP’s practice permit. The complaints director and the IP have the right of appeal and may examine the record of the hearing. 75(1) Complaints leading to a hearing

29. The IP may request a stay of the orders from a hearing until an appeal is heard. If the College doesn’t stay the decision or fails to make a decision within 10 days of an appeal being submitted, the IP can appeal to the Court of Queen’s Bench for a stay. {75} The first appeal is to the College’s council. If the hearing orders severely restrict or suspend the practice of the IP, the appeal must be heard within 45 days of service of the notice of appeal. Otherwise, the appeal must take place within 90 days, unless the complaints director and IP agree to an extension. {77} The council on hearing the appeal can basically uphold, modify or dismiss the original orders or may issue its own orders. This must be done within 90 days from the conclusion of the appeal hearing. The IP may be ordered to pay the costs of an appeal. {78} Complaints leading to a hearing

30. The IP may appeal the council’s orders to the Court of Appeal within 30 days of receiving the decision of council. The Court of Appeal can do whatever it likes. {81} Finally, anyone can make a complaint based on procedural issues to the Ombudsman in accordance with the Ombudsman Act regarding anything in the Act. {96} Complaints leading to a hearing

31. The complaint process protects IPs by several means including: peer review, public member participation, complaint dismissal as trivial or vexatious, timely notifications, specific time lines, expedited processes, right to counsel, appeals, thorough investigation, compelling witnesses to appear, gathering pertinent documents, confidentiality, public or private hearing, expert assessment, bias prevention through varying the participants, remedies not involving a hearing and other steps. Complaint Process Summary

32. Professionalism is the "character, spirit and methods that distinguish a professional from an amateur." Professional and personal integrity are expected from regulated professionals. Ethics is the systematization of morals. Morals relate to our perceptions of the rightness or wrongness of behaviour. Professions codify agreed upon ethics and standards of practice to protect the consumers and providers of the service. Members are expected to uphold these. Code of ethics and standards of practice

33. First A.R.P.F.A. Code of Ethics approved in 1987. Established a member’s duties to the public, to a client or employer, to the profession and as a professional. Revised to add a Code of Conduct that expanded on the professional and personal conduct expected of members. Should the ARPFA deal with complaints re: personal conduct? Are there better remedies than the ARPFA complaint process? Too long and repetitious. Lead to revisions in 2000 Code of ethics and standards of practice

34. Screened current codes as follows: Standards of practice Presented as Regulated Members shall, or Regulated Members shall not. An infraction could directly or indirectly cause serious harm to the public interest. Was a previous ethic (try to retain the previous ethics). Deals mainly with matters of professional practice, not personal conduct. The College’s complaint process is an appropriate mechanism for dealing with an infraction. Proposed code of ethics and standards of practice (2000)

35. Screened current codes as follows: Guidelines Presented as – Regulated Members shall strive to: Statements about general professional practice common to most professions. The College is not likely to take, but is not prohibited from taking disciplinary action on a complaint, depending on the circumstances. There are better or other mechanisms for dealing with a complaint, than the College’s complaint process. Refer to matters of personal conduct, not professional practice. Stated as “strive to” in the previous Code of Conduct. Proposed code of ethics and standards of practice (2000)

36. Rewrite The intent of the standard or guideline is valid, but the wording must be improved. Drop No longer relevant. Covered in the Act or Regulation. Doesn’t fall under a standard of practice or broadly under an ethic such as integrity. Outside scope of forestry practice or general professional practice. Redundant or repetitive. Add Anything we missed. Proposed code of ethics and standards of practice (2000)

37. Regulated Members have a duty to: Retain the productivity of forestlands Provide competent forestry service Foster public safety, health and welfare Show professional and personal integrity Address conflicts of interest Improve public awareness about the practice of forestry Maintain confidentiality Proposed code of ethics (2000)

38. Code of conduct idea retained (not in Act) commentary, guidelines and scenarios Standard of practice presented under only one ethic - may apply elsewhere Don’t address every circumstance of professional practice Adequate for factual determination of unprofessional conduct??? Must be applied with discretion, reasonably and fairly. Pending public review and approval by the regulated members. Proposed standards of practice (2000)

39. The development of the content and the formats of the code of ethics and standards of practice are left up to the College, however a review process is established as follows: A council may make by-laws . . . respecting the development of or adoption of a code of ethics and standards of practice {101(n)}. 102(1) A council may, in accordance with procedures set out in the by-laws, develop or propose the adoption of a code of ethics and standards of practice for a regulated profession. (2) A college must provide, for review and comment, a copy of a proposed code of ethics and proposed standards of practice to (a) its regulated members, (b) the Minister, and (c) any other persons the council considers necessary. (3) A council may adopt a code of ethics and standards of practice after it has reviewed and considered the comments received from a review described in subsection (2). (4) The Regulations Act does not apply to codes of ethics and standards of practice approved under this section. (5) The college must ensure that copies of the code of ethics and other standards of practice adopted under subsection (3) are readily available to the public and regulated members, and the copies may be distributed in the manner directed by the council. Proposed code of ethics and standards of practice (2000)

40. The Act requires the College to: establish, maintain and enforce standards of practice, registration and continuing competence for the practice of the regulated profession, 3(1)(c) establish, maintain and enforce a code of ethics. 3(1)(d) Unprofessional conduct means (among other things) contravention of this Act, a code of ethics or standards of practice. One way to learn about the codes and standards of practice is to work through scenarios. Effective in small group settings. Differences of opinion expected PEER REVIEW Workshop Scenarios

41. Workshop participants will break into small groups of members to discuss several scenarios, one at a time. A facilitator will hand out the scenarios and a question sheet to each member. Members should individually take about 5-10 minutes to read the scenario and answer the questions posed. The group should then discuss and try to reach consensus on answers to the questions. These can be recorded on a worksheet or overhead. The workshop moderator will then call on one group to present their findings to the group as a whole. There are no correct answers. See appendix 1 for a sample scenario. Workshop Scenarios

42. An RPF employed by the Alberta Government provides advice and recommendations to the Minister of Environmental Protection on the feasibility of a new forestry proposal in a Timber Development Area. After several consultations with the RPF and with professionals from other disciplines, the Minister announces her decision, which is very controversial and much different from what the RPF recommended. Shortly after the announcement, the RPF is observing a public meeting when he is spotted by the media who ask him to explain what he recommended to the Minister. The RPF gets flustered and blurts out that the he totally disagrees with the Minister’s decision and that it went against his recommendations. The story is headlines the next day. Sample Scenario

43. What are the pertinent sections of the Code of Ethics and Standards of Practice? Ethic: Maintain confidentiality Standard of practice:Regulated Members shall not disclose confidential or proprietary information received from, or prepared for a previous or current employer or client without the consent of that employer or client. What is your interpretation of this scenario? The information and recommendation given to the Minister is confidential and should not be disclosed without the Minister’s approval. Sample Scenario

44. What could/should the RPF have done differently? The RPF should have anticipated such an eventuality and decided beforehand whether or not the information was confidential. He should have told the press that the information is confidential and that he can’t reveal it. A simple “no comment” would suffice. The RPF could also have suggested some options for the media. For example, he could have suggested that the press interview the Minister directly or request pertinent information under Freedom of Information and Protection of Privacy Act, as advice to officials. Could a complaint be filed against the RPF? Yes. Sample Scenario