# Boughan v. Board of Engineering Examiners > Court of Appeals of Oregon · May 27, 1980 · 46 Or. App. 287 URL: https://www.frixlaw.com/law-library/cases/9530280 ## Case - **Full name:** BOUGHAN, Petitioner, v. BOARD OF ENGINEERING EXAMINERS, Respondent - **Court:** Court of Appeals of Oregon - **Decided:** May 27, 1980 - **Citations:** 46 Or. App. 287; 611 P.2d 670; 1980 Ore. App. LEXIS 2745 - **Precedential status:** Published - **Opinion:** Dissent by Schwab - **Judges:** Schwab, Thornton, Campbell - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9530280 ## Opinion text SCHWAB, C. J., dissenting. I do not believe that petitioner submitted sufficient fácts on the record to support the majority’s conclusion that the Board erred in denying petitioner’s motion for the disqualification of Mr. Merrifield. Petitioner was retained to do engineering work on the "Mercier project.” "Mercier” is the name of a family that owns a single-family residence. Their "project” was the construction of a retaining wall in their yard. Petitioner prepared plans for a retaining wall and submitted them to the city for issuance of a building permit. The permit was issued in reliance on the plans. Later, before work began on the retaining wall, city officials did an on-site inspection. This lead them to the conclusion that the plans were inadequate, and they canceled the building permit. Merrifield, the member of the Board whose participation is here challenged, had some contact with the Merciers after the building permit was canceled. However, contrary to the majority, I find almost no information in the record about the nature of that contact — and what information there is makes that contact seem inconsequential to me. Merrifield had no contact with the Merciers until after they had dismissed petitioner. Merrifield so stated. 1 The Board so found. 2 Petitioner does not challenge Merrifield’s statement or the Board’s finding; *295 When petitioner challenged Merrifield’s participation, he was asked to state his understanding of Merrifield’s role in the Mercier project. Petitioner responded: "The point I want to make is that several weeks ago, Paul Christerson informed me that John Merrifield would be eliminated from the Board due to a conflict of interest. Well the condition hasn’t changed. I have a memory like an elephant, and this is what I heard in phone conversation and I made a note of it and I know why, because of the background. I have appeared in court, usually against John. He’s a fine engineer, but he is a human being subjecting himself to too much stress. I wouldn’t want to be subjected to that much stress. To be involved in one of the projects and to be judging it on the other hand. It is not a true test of the human individual.” Petitioner was invited to '"show how or that Merrifield has in some way derived a puninary [sic] gain’” from the Mercier project. 3 Petitioner responded: "Yes, he was in it early in the game. Actually, this permit was revoked. It is the first time I ever had a permit revoked. There was some people at City Hall who went out and hired some people, and eventually they gave some referrals and his firm Merrifield and Bonney, ended up redesigning the thing. Honestly, . think that that the people in City Hall had designed it by the seat of the britches and were trying to find someone that way. I think he was pretty well involved in it. Also City Hall knows what his role is.” This is all of the possibly relevant information that was before the Board when the presiding officer ruled: "The Board is not going to accept the challenge at this time. ” (Emphasis supplied.) The majority apparently relies upon subsequently offered testimony in many respects: "The evidence indicates that after Merrifield assumed the responsibility for the Mercier project he *296 contacted some of the persons who were involved and made certain changes in work previously approved by petitioner.” 46 Or App at 290. "[Merrifield] succeeded petitioner as project engineer, participated in investigating the project and recommended the taking of corrective action.” 46 Or App at 293-94. Either I misunderstand the majority, or I submit that most of these statements are not supported by the record. 4 But even assuming the factual accuracy of the majority’s observations, I submit it is unfair to the Board of Engineering Examiners and to Merrifield for the majority to rely on information developed in the record after the Board had rejected the objection to Merrifield’s participation "at this time” without any showing that petitioner later renewed his objection. Furthermore, and still assuming the majority accurately reports the facts, I fail to see — and the majority certainly does not precisely identify — the legal necessity for Merrifield’s disqualification in the context of the charges against petitioner. The essence of the charges involving the Mercier project is that petitioner’s plans were defective, not his execution of the project. See, n 4, supra. The Board found, for example, that petitioner’s "plan shows an eighteen foot elevation difference from the top of the proposed H-pile wall to the top of *297 the bank of Tyron Creek. Actual measurement of this difference was 34 to 38 feet.” Even if one of the factfinders were biased, how could that possibly influence a decision on something that can be objectively measured? The burden to show disqualification is on the side that asserts disqualification. The only fair thing that can be said about this record is that petitioner showed that the Merciers, after they had discharged petitioner, retained Merrifield in some unknown capacity. I would hold that is insufficient to require Merrifield’s disqualification, and therefore respectfully dissent. "[Question:] Mr. Merrifield, did you have anything to do with Mr. Boughan being relieved as the consulting engineer for the Merciers? "MR. MERRIFIELD: None whatsoever.” The Board found: "Neither Merrifield nor [his] firm were involved with Boughan’s client [i.e., the Merciers] until the client dismissed Boughan.” There are numerous typographical errors in the transcript. In context, I understand the question about "puninary gain” to have really meant "pecuniary gain.” I find no basis in the record for the assertion that Mr. Merrifield made "changes in work previously approved by petitioner” or "recommended the taking of correction action.” The Board found: "Construction of the [Merciers’ retaining] wall [according to petitioner’s plans] was never commenced” (Emphasis supplied.) So what “work previously approved by petitioner” or "recommended * * * corrective action” does the majority have in mind? There is some implication in the record that Mr. Merrifield prepared new and different plans for a retaining wall for the Merciers. However, given both the city’s conclusion, when it revoked the building permit issued in reliance on petitioner’s plans, and the Board’s implicit conclusion that the retaining wall designed by petitioner would not have performed its intended function, it is hardly fair to characterize completely new and different plans as "certain changes” in petitioner’s work or recommended "corrective action.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9530280. Public record. Not legal advice.