By Lois Krafsky-Perry
Citizen Review Online

4/17/2003

Local surveyor Dave Cummins

Sequim, WA - A few weeks ago, a local paper printed a news item stating that local land surveyor and last year's Clallam County Charter Review Commission chairman Dave Cummins, was not interested in throwing his hat in the ring for the DCD [Department of Community Development] position. I wondered why, so I called Dave, and asked for an interview.

Dave stated that there were several reasons why he was unwilling to seek public office at this time. First, he is 20 years into his business, and the heir apparent to run the business has not completed his license testing yet. Second, as Dave has aged, he has developed some health problems, mostly caused by the onset of adult diabetes that has cut down on his mobility. "I can still think and express myself, but I don't know if I can withstand the rigors of doorbelling," he said. To meet the people personally - "that's what campaigning is all about." Third, Dave said he is "perceived to have baggage." Even though the issue was settled almost seven years ago, Dave said statements still reach his ears, usually from adjacent landowners when boundary lines don't come out as expected, regarding his battle with the Washington State Board of Land Surveyors and his surveying license. He said he hears comments like "his surveys are always wrong,", "His license was suspended for a long time;" "How can you trust his work?". "When it's Cummins, I always get someone to check the work;" "Cummins, that's scraping the bottom of the barrel, isn't it? ""Call the State Board, he has dozens of complaints filed against him!"

Cummins says when it came to politics, the press and my opponents were quick to focus on the accusations and findings and conclusions of the State Board, rather than the final outcome of his "Superior Court" appeal and subsequent lawsuit against the competitor that directly or indirectly filed all the complaints against him.

I researched the headlines and statements made. Let's review some of them:

These stories ran from March 1993 to mid-September 1995. They ended with Cummins primary election loss to Martha Ireland on Sept. 16 in that year's county commissioner's race. Cummins appeal - final document from Superior Court Judge Karlyn Haberly, was signed four days after the primary on Sept. 20, 1995. I find little or nothing in print regarding her findings.

Judge Haberly found:

Cummins admits that the notes were not original but transcribed, making his certification 'false'.

For this action, there were consequences. The judge reduced the Board's suspension from one year to 30 days and gave credit for 7 days lost while Cummins was on suspension pending filing of his appeal and the grant of his appeal and grant of stay. Further, the judge required Cummins to undergo board testing, take an ethics course, and pay a fine.

Cummins completed the requirements and has been in good standing with the board for the past 6-1/2 years.

Interestingly, the story does not end there. Mr. Cummins filed a counter suit against his competitor, Robert Winters, for slander, libel, and for interference of business.

After years of working to clear his name - from 1990 when charges were initially filed, to 1995, Cummins finally turned the tables on land surveyor Robert Winters, the complainant against him - who also happened to be his main competitor - and charged him with defamation of character, and torturous interference of business. Four years later, arbitrators found there was libel and slander and torturous interference of business on the part of Winters. His insurance had to pay $50,000 to Cummins.

Again, this story could end, but I ran across an interesting report from a private investigation firm, Group Five Investigations, that was submitted to the State Attorney General, and found the following documentation.

State Board failed to fulfill their duties

In an example of an agency gone awry, a private investigator undertook the project of reviewing the hearing before the Board of Professional Engineers and Land Surveyors ("board"), only to learn that instead of a separation of functions as required by law, the investigator, prosecutor and judge- along with the expert witnesses for prosecution - were all friends of the Board members. It placed Cummins in the unfair position of trying to persuade the board to make decisions adverse to what was recommended by its own staff, its own members, and its own experts.

The investigator's report is filled with the recorded examples of abuse of the system that was supposed to offer a fair and impartial judgment. The investigation by the board, for example, failed to consider that the one and only complainant - Winters - was a chief competitor of Cummins, and may have had every reason to cause him problems. The board never questioned the veracity of the Winter's statements, but took them as conclusive proof with little investigation.

Of note is that Cummins had, by 1993, completed over 1,500 surveys with no complaints; the only complaints filed were by his competitor.

Of interest, too, is the fact that the board members are political appointees, made up of five engineers and one surveyor. As a result, it was difficult, if not impossible, for a truly impartial hearing.

And finally, the main "expert witness" was a friend of Winters for 20 years. He was also Winter's former employer and direct supervisor when Winters was employed at the WA State Department of Natural Resources (DNR). The "expert" was also a client of Winters, and had never in his 32-year career completed or recorded a survey of the type about which he was testifying. He also knew all the Board members and staff for years, had served on numerous Board committees and had written findings for Board committees that were accepted by the members before whom he was testifying.

The bad news is the State Attorney General appears to be unwilling to take any action to change this situation. The good news for Cummins was that the final judgment from the court appeal reflected that the Board had acted in an "arbitrary and capricious" manner.

Background: What appears to have really happened?

Dave Cummins has been engaged in surveying-related work since 1968, and was licensed as a professional land surveyor in 1984. Cummins' chief competitor in the Sequim area had long been Robert Winters, also a licensed professional land surveyor. Since Cummins got his license, and seemingly because Cummins' rates were lower than Winters', Winters began working to discredit him. Actions included critical and slanderous remarks to clients, and the constant critiquing of Cummins' work product.

Winters, through complaints to the board, had previously eliminated other competitors, including licensed surveyor Alan Carman, who practiced in Port Townsend. Winters obtained evidence against Carman from a Jim Harmon, an "insider" working for Carman, who provided Winters - at Winters' request - with incriminating information against Carman.

Harmon later went to work for Cummins. After a time, Cummins began to suspect that there was "inside" information being leaked to Winters, so he set a trap to learn if it might be Harmon. Cummins' suspicions were confirmed when information given only to Harmon arrived in the hands of Winters, who immediately used the information as a means to create problems for Cummins.

In a way, the "trap" backfired on Cummins, who, despite relating the information to one of the investigators later learned that the investigator had been working all along with Winters, without Cummins' knowledge.

From the court documents: "David Cummins suspected that employee Harmon was acting in concert with competitor Winters to take his license. He set a simple trap for Harmon, Harmon took the bait, and his disloyalty was proven conclusively. The mistake Cummins made was in not giving advance notice of this test to the contracting officers representative of the Forest Service, relying instead upon a contractual provision, which required that the USFS consult first with the surveyor about any detected or alleged errors in a survey. Even the Contracting Officer's Representative (C.O.R.) admitted that Cummins had the right to rely on being consulted first. The C.O.R. was directly asked if Cummins was ever notified. His answer: "No!"

"Had Cummins taken this simple precautionary step, all of these allegations, and all of these proceedings, would have been avoided. None of the alleged deficiencies in the other surveys is sufficient to bring charges of misconduct, or sufficient to justify discipline. It was the appearance of willful dishonesty that led to the investigation, and led to the charges, and for reasons which can only be explained by relationships or biases not disclosed during the hearings, the Board absolutely refused to accept the licensee's explanation, and ignored the requirement that the element of willfulness be established by clear, cogent and convincing evidence."

The Board charged Cummins with 16 separate violations, all of which originated with Winters as the complainant. None of the complaints came from clients.

Review of court records, testimony and other documents reveals that Cummins was "set up", and, in the end, he was cleared of all but a minor infraction - which involved the "trap" he had set.

Attempt to Discredit

Before any final determination was made by the board, the local newspapers were anonymously faxed copies of the "statement of charges" against Cummins. Further, Winters forwarded the unproven charges to a number of realtors, in his obvious attempt to run Cummins out of business. Winters didn't count on Cummins standing firm in his innocence, and appealing the decision of the board.

Collusion to Destroy?

A Port Angeles Realtor wrote a letter to the state board investigator informing him that he and several of Mr. Cummins' clients (all real estate brokers in Sequim and Port Angeles) had received letters from an anonymous sender. The letters contained copies of the "Statement of Charges" against Mr. Cummins.

Early on, Cummins became increasingly suspicious that the board investigator and Mr. Winters were working in concert to bring him down. These suspicions were caused by the fact Mr. Winters had knowledge of matters he could only have received from the board investigator - and there were numerous records of telephone calls between him and Winters.

Again, the judge found Cummins' work to be equal to or superior to the requirements set by state laws.

Tables Turned?

Once the appeal was final, Cummins turned to the daunting task of recovering some of the money he had spent in defending his good name, and brought charges against Winters. Beginning in 1994, Cummins pursued this matter through the courts until arbitration was arranged in 1998. The arbitrator found that there was libel and slander, as well as "torturous interference of business." Winters' insurance company paid off $50,000 to Cummins, far less than the amount spent (and lost) by Cummins.

Allegedly faced with what he thought would be a jury trial in open court, Winters closed his Sequim office and left town.

Cummins says his business is growing again. His clientele includes attorneys, prominent builders and developers, many real estate companies, friends and satisfied customers. Cummins has now filed over 3,000 surveys, without client complaint.

Cummins still believes any political career is questionable because "the rest of the story has never been told." Well, now it has been. What will public judgment be?