Appeals from the District Court of Burleigh County, South
Central Judicial District, the Honorable David E. Reich,
W. Kirmis (argued), Bismarck, ND, for appellants and
G. Hoy (argued) and Andrew D. Cook (on brief), West Fargo,
ND, for appellee and cross-appellant Michael Berg. Michael J.
Geiermann (argued), Bismarck, ND, for appellee Apex
Engineering Group, Inc. and appellee Scott Olson. Kasey D.
McNary (argued) and Ronald H. McLean (appeared), Fargo, ND,
for appellee and cross-appellant Dain L. Miller and appellee
Timothy Paustian. Ronald H. McLean (argued) and Kasey D.
McNary (appeared), Fargo, ND, for appellee and
cross-appellant Thomas Welle.
1] The North Dakota State Board of Registration for
Professional Engineers and Land Surveyors ("Board")
appeals from district court judgments affirming in part,
reversing in part, and remanding to the Board its
disciplinary decisions against Michael Berg, Apex Engineering
Group, Inc., Scott Olson, Dain Miller, Thomas Welle, and
Timothy Paustian. We conclude a preponderance of the evidence
supports the Board's disciplinary decisions. We affirm in
part and reverse in part.
2] Berg, Olson, Miller, Welle and Paustian
("Respondents") are former employees of Ulteig
Engineers, Inc. Olson was terminated from Ulteig in 2009. On
November 2, 2010, Berg, Miller, Welle, and Paustian resigned
from Ulteig and, along with Olson, started a competing
3] In the months before leaving Ulteig, the Respondents
engaged in the formation of Apex and their discussions
included acknowledging that Apex would be competing with
Ulteig. Olson sent emails suggesting Apex might be taking
over some of Ulteig's work because Ulteig would not be
able to complete the work after the Respondents left. The
emails also mentioned how the Respondents were required to
keep Ulteig's best interests in mind while employed by
Ulteig. The final version of the Apex business plan stated
"[i]t is also our intention to offer to complete current
contracts that Ulteig holds but will not be able to complete
now that key individuals are no longer with the
4] Following the Respondents' departure from Ulteig,
Ulteig sued Apex and filed an ethics complaint with the
Board, alleging Berg, Olson, Miller, Welle and Paustian
violated the Professional Engineers' Code of Ethics by
disclosing Ulteig's confidential information and failing
to disclose a potential conflict of interest by not informing
Ulteig of their decision to form Apex. Ulteig also alleged
the Respondents knowingly participated in a plan to seek
employment for Apex on projects that Ulteig had been
contracted to perform before the Respondents' departure
5] Following a December 2014 hearing, the Board found that
each of the Respondents had violated one or more of the
provisions of the code of ethics. The Board found Miller,
Welle, and Paustian had improperly disclosed Ulteig's
confidential information. The Board found Welle disclosed to
Olson Ulteig's confidential salary information and a 2008
Ulteig business plan. The Board also found Welle had an
adverse interest relating to a water/wastewater services
contract from the city of Fargo while employed by Ulteig, and
after leaving Ulteig, represented Apex in the same project.
The Board found Miller disclosed to Olson Ulteig's
confidential information relating to its transportation
sector. The Board found Paustian downloaded the contents of
his Ulteig laptop hard drive onto an external hard drive
before leaving Ulteig and accessed the external hard drive
from his Apex laptop.
6] The Board found Welle, Berg, and Miller failed to disclose
a potential conflict of interest. The Board found their
judgment or quality of services could have been influenced
because they failed to disclose their participation in the
planning and formation of Apex.
7] The Board also found Berg, Olson, and Welle knowingly
participated in a plan to seek employment for Apex on
projects Ulteig had been contracted to perform prior to their
departure from Ulteig. The Board's order discussed a
Ulteig contract in Jamestown that Apex knew about and became
involved in after Apex was formed. The Board suspended Berg,
Olson, and Miller from the practice of engineering for 60
days and suspended Welle for six months. The Board issued
Paustian and Apex letters of reprimand.
8] The Respondents appealed the Board's disciplinary
decisions to the district court. The court affirmed the
Board's decision that Welle, Berg, and Miller failed to
disclose a potential conflict of interest. The court reversed
the determination that Miller, Welle, and Paustian had
improperly disclosed confidential information. The court also
reversed the decision that Berg, Olson, and Welle knowingly
participated in a plan to seek employment for Apex on
projects Ulteig had been contracted to perform before their
departure from Ulteig. The court remanded to the Board for
reconsideration the discipline imposed on Berg, Olson,
Miller, Welle, and Paustian in light of the court's
reversal of the disciplinary decisions. The court also
awarded attorney fees to Berg, Welle, Apex, Olson, Miller,
9] On appeal to this Court, the Board argues the district
court wrongfully reversed the Board's disciplinary
decisions because the decisions were supported by a
preponderance of the evidence. The Board also argues the
district court erroneously awarded attorney fees to the
Respondents. On cross-appeal, Berg, Miller, and Welle argue
they did not have a conflict of interest after deciding to
10] Chapter 43-19.1, N.D.C.C., governs the licensing of
engineers and land surveyors, and authorizes the Board to
regulate the practice of engineering and surveying, including
the adoption of a code of ethics. See N.D.C.C.
§§ 43-19.1-01 and 08. The Board is "an
administrative agency within the purview of chapter
28-32," the Administrative Agencies Practice Act.
N.D.C.C. § 43-19.1-01.
11] Under N.D.C.C. § 28-32-46, we must affirm the
Board's disciplinary decision unless:
1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of
3. The provisions of this chapter have not been complied with
in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the
appellant a fair hearing.
5. The findings of fact made by the agency are not supported
by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not
supported by its findings of fact.
7. The findings of fact made by the agency do not
sufficiently address the evidence presented to the agency by
8. The conclusions of law and order of the agency do not
sufficiently explain the agency's rationale for not
adopting any contrary recommendations by a hearing officer or
an administrative law judge.
12] Under N.D.C.C. § 28-32-49, we review an
administrative appeal from a district court judgment in the
same manner as the district court reviews the agency's
decision under N.D.C.C. § 28-32-46. Crawford v.
Dir., N.D. Dep't of Transp., 2017 ND 103, ¶ 3,
893 N.W.2d 770. This Court has also noted the following with
regard to our review of an agency decision:
In reviewing an agency's findings of fact, we do not make
independent findings of fact or substitute our judgment for
that of the agency; rather, we determine only whether a
reasoning mind reasonably could have concluded the
agency's findings were supported by the weight of the
evidence from the entire record. Power Fuels, Inc. v.
Elkin, 283 N.W.2d 214, 220 (N.D. 1979). We defer to the
agency's opportunity to judge witnesses' credibility.
Koehly [v. Levi], 2016 ND 202, ¶ 16, 886 N.W.2d
689. Once the facts are established, their ...