22 MRZ 2010
Mr Denis Bartels [ 1118618 ], Utrecht, Netherlands
Friday 19 March 2010
RICS, Surveyor Court, Coventry, UK
Mr Barry Picken
Ms Sarah Baalham (Lay)
Mr Barrie Vincent FRICS
The formal charge(s) are:
1. You failed to submit to RICS in a timely manner information reasonably requested by RICS, namely:
Contrary to Rule 8 of the Rules of Conduct for Members 2007
2. You have failed to co-operate fully with RICS staff by not providing the information requested in charge 1 above Contrary to Rule 9 of the Rules of Conduct for Members 2007.
Findings of Fact
Mr Bartels has not attended today’s hearing and at the beginning of the hearing the Panel had to determine whether to proceed in his absence.
Rule 30 of the Disciplinary, Registration and Appeal Panel Rules 2009 provides that the Panel may proceed if it is satisfied the notification has been properly given in compliance with Rule 23. Therefore the Panel first had to determine whether it was satisfied that the Notice of Hearing sent on 17 February 2010 had been served in compliance with the relevant Rules. The Panel is satisfied that the Notice had been properly served and provided Mr Bartels with the information he required about the date and place of the hearing and the nature of the charges against him.
The Notice was sent to Mr Bartels by email to a personal email address, it does not appear to be a shared or business address. The Panel is satisfied that this was a method of delivery by which delivery can be confirmed and it notes that a read receipt for the email has been provided as part of the evidence.
The email address used was the same address used consistently in recent correspondence with Mr Bartels and is an address from which he had previously replied on more than one occasion. The Panel has concluded that the method of communication appears to be the preferred method of communication for Mr Bartels who has never opted to respond in any other way, for example by post. At no stage had Mr Bartels suggested he was not prepared to communicate by email.
The Panel has borne in mind the factors outlined by its legal adviser in relation to the exercise of its discretion to proceed. Of particular significance to the Panel is its conclusion that not proceeding today is unlikely to achieve anything. There is nothing to suggest that Mr Bartels might attend on another occasion.
The Panel has balanced the various factors but has concluded that it is in the public interest to proceed with today’s hearing.
In relation to the charges the Panel has found both charges proved. The documentary evidence shows the repeated requests made by the RICS asking for information from Mr Bartels. These requests span the period 6 November to 16 December 2009.
The Panel notes that the RICS was seeking information about Mr Bartels’ appeal against the decision of the Dutch Lawyers Disciplinary Board, details about any other charges or cases against him and a summary of why Mr Bartels’ firm, Bartels Advocaten BV had entered into insolvency proceedings. The RICS is a not a statutory body and has no alternative means to obtain information about its members other than to request information from them to enable RICS to properly regulate.
The Panel is satisfied that the information requested was entirely reasonable for RICS to request to monitor or investigate compliance with the Rules of Conduct for Members. Rule 8 of the Rules of Conduct for Members requires Members to submit in a timely manner such information as the Regulatory Board may reasonably require. The Panel is satisfied that Mr Bartels’ conduct has been contrary to Rule 8.
Rule 9 of the Rules of Conduct for Members requires full co-operation with RICS. Although from time to time Mr Bartels has responded to the RICS, his responses have failed to provide the information requested. The Panel does not accept Mr Bartels’ assertion that what was required was unclear, and in any event finds that the RICS clarified and explained its requests. Mr Bartels’ email responses were largely holding responses and, when he did provide a document about his appeal, this did not provide the information required. His mere communication does not constitute co-operation. The Panel therefore finds Mr Bartels has also failed to comply with Rule 9.
Membership of the RICS affords a number of privileges but imposes a number of obligations including compliance with the Rules of Conduct. The Panel has concluded that the breaches of the Rules of Conduct give rise to liability to disciplinary action in this case.
The Panel has determined that Mr Bartels should be expelled from membership of the RICS.
The Panel noted that Mr Bartels has no previous disciplinary history with the RICS. It identified a number of aggravating factors in relation to the breach of Rule 8. In particular the Panel believes that the information that was requested by the RICS would have been in Mr Bartels’ possession and would have been relatively easy for him to provide. The information requested was of high importance since it included requests about any charges or court cases against Mr Bartels and information about his firm’s apparent insolvency.
Although there were some responses from Mr Bartels, and he did provide details of his appeal to the Dutch Lawyers Disciplinary Board, he failed to provide supplementary information requested about this, such as confirmation of the appeal hearing date and any outcome.
The charge sets out the repeated requests made by the RICS including 8 requests for details of any charges or court cases, 3 requests about his firm’s insolvency and a request for more information about his appeal in the Dutch Lawyers Disciplinary Board case. These were not complex or onerous requests for information. Mr Bartels gave no, or no meaningful, response. The failures identified in this case were persistent and over 4 months has elapsed since the date of the first request. The evidence clearly shows that Mr Bartels was in receipt of the requests for information. The Panel has not been provided with any evidence of personal mitigation on Mr Bartels’ behalf.
The Panel was mindful of the need to be proportionate in its approach to sanction and first considered whether to impose no penalty. It concluded that this is not a case for no penalty given the serious breaches of two of the Rules of Conduct. This was not a case where Mr Bartels acted through inexperience nor is it a minor breach and the conduct has been repeated. These factors led the Panel to conclude that a caution would also not be appropriate.
The Sanctions Policy suggests that a reprimand may be appropriate where there has been a risk of public harm. The Panel was concerned about the risk of public harm caused by Mr Bartels’ failure to co-operate and provide information. However, when considering a reprimand the Panel concluded that this was not, on its own, a sufficient penalty to mark the seriousness of the case.
The Panel discussed and considered both undertakings and conditions but could not see that these would serve any useful purpose, given that the concerns in this case were very clearly matters covered in the Rules of Conduct for Members. Members are expected to comply with these Rules as a condition of membership. The Panel did not think it was appropriate to afford Mr Bartels yet another opportunity to provide this information. He had repeatedly failed to provide it, despite being made aware of the possible disciplinary sanctions.
Whilst a fine might have been appropriate to mark the seriousness of the breaches of Rules, again the Panel concluded this was insufficient on its own to address the concerns in this case.
The Panel decided that the only proportionate sanction in this case was expulsion and it could find no extenuating circumstances to deviate from this conclusion. The Panel considered the conduct of Mr Bartels to be a gross, persistent and wilful failure to comply with two of the RICS Rules of Conduct. It was of the view that Mr Bartels’ responses also demonstrated a lack of integrity. The conduct found proved represented a serious and persistent failure to co-operate with the RICS.
The Panel considered that nothing less than expulsion would address the seriousness of this case. The sanction will send a clear message to Mr Bartels, the profession and the public about the way in which such conduct is addressed. The penalty serves the public interest in maintaining confidence in the RICS and it makes clear the standards expected of its members.
The Penalty is to take immediate effect.
The Panel directs that there should be publication of this decision in accordance with Supplement 3 of the RICS sanctions policy. This decision is to be published in RICS Business, on the RICS website and in newspapers local to where Mr Bartels is based.
The Panel directs that Mr Bartels should pay the RICS costs of this disciplinary in the sum of €5,940.05
Finally, the Panel reminds Mr Bartels that he has a right of appeal within 28 days of service of notification of the decision under Rule 59 of the Disciplinary Registration and Appeal Panel Rules 2009.