Case Study No. 1Clean-Air Standards and a Government Engineer

(adapted from NSPE Case No.92-4)

Hilary is an environmental engineer employed by the state environmental protection division.

Pat, her supervisor, asks her to draw up a construction permit for a power plant at a

manufacturing facility. Hilary is told by her supervisor to move quickly on the permit and "avoid

any hang-ups" with respect to technical issues.

Hilary believes that the existing plans are inadequate to meet regulation requirements for air

pollution standards (1990 Clean Air Act). As is, the facility would emit sulphur dioxide and

outside scrubbers are needed to reduce those emissions.

Knowing that suspension or revocation of her engineering license is a possibility if she prepares

a permit that violates environmental regulations, Hilary tells Pat that she believes the plans

would violate regulations and will not draw up a permit. Pat vehemently disagrees. He claims

that mixing limestone with coal in a fluidized boiler process would remove 90% of the dioxide--

thus meeting the regulatory requirements.

The debate between Hilary and Pat was left unresolved. But one week later, Hilary learned that

the department authorized the issuance of the permit.

What, if anything, should Hilary do now?

CASE 1 Solution

DESCRIPTIONHilary is positive that the plant is very bad for the environment. She wants to report this so it cannot be made, but her boss wants her to move quickly. She doesn't write a permit, but she also doesn't report it. A week later, since she didn't report it, it does get a permit.

STANDARDS:1. Clean Air Act: Protects people by setting standards to limit emission of certain pollutants2. EPA set a limit on SO2 emissions for a day period to reduce pollution for human safety.3. EPA set a limit on SO2 emissions for an annual average to protect public welfare4. EPA set a limit on SO2 emissions for a one hour period to prevent small but large

emissions5. NAAQS Section 110(a)(2)(K) states that any prediction of the effects on the air quality

by any of the 6 pollutants, SO2 in this case, must be submitted to EPA upon request.

ETHICAL DECISION STEPS:1. Moral Clarity

Identify the relevant moral values. Here, the moral values are whether things should be complicated to make sure everything is safe for human health. Also, whether one should report unsafe actions despite the difficulties that may follow.

2. Conceptual clarity - Clarify key concepts. Pollution can lead to global warming and harm the lives of people all over the planet. Also, if somebody lets something illegal slide knowingly, they must also be held accountable.

3. Just the facts - Obtain all relevant information. Hilary must issue a permit for a power plant without any issues. She knows that the sulfur dioxide emissions are too dangerous. If she issues a permit, she may be penalized for allowing the unsafe power plant to be created. Hilary does not report that the power plant is unsafe. The power plants ends up getting permits either way.

4. Informed about options - Consider all genuine options and alternative solutions. One option is that Hilary can report Pat for his unsafe power plant. Another option is that she could listen to her boss and simply give out the permits just to make things easier. She could also propose a way that the problem of the sulfur dioxide emissions can be solved, so she can issue permits after a solution is found.

5. Well-reasoned - Make a reasonable decision. After trying to reason with Pat and seeing that he will not fix his power plant, Hilary should simply report it to somebody so it needs to be fixed. This was, it would not get the permits that it gets a week later. This would protect the health of the people affected by the SO2 emissions, and ultimately help the planet.

CONCLUSIONHilary should report the problem with Pat's power plant to the EPA. They can determine whether his power plant should or should not get permits. Based on the NAAQS standard mentioned above, the EPA wants to know whether certain plans for projects are bad for air quality. Also, based on a concept mentioned above, if she lets Pat build his power plant while she knows it is unsafe for the environment, she should and will be penalized as well. On a bigger scale than just her job though, Hilary should report it to help the environment. It is a fact that SO2 emissions are bad for the environment, and it can be seen in all the standards that the EPA sets on SO2 emissions. By not reporting it, somebody else is careless enough to give Pat the permits, so his plant gets to hurt the environment even though she denied him permits. This is why she should report it, because if she just denies him permits, he will find somebody else to give him some. She has to take into account her job and the environment, despite the pressure her boss puts on her.

Case Study No. 2

Suspected Hazardous Waste

(adapted from NSPE Case No. 92-6)

Alex is an engineering student employed for the summer by Environmental Engineering, a

consulting firm. RJ, the engineer who supervises Alex, directs Alex to sample the contents of

drums located on the property of a client. From the look and smell of the drums, Alex believes

that analysis of the sample will show hazardous waste in the drums. Alex knows that if the

material contains hazardous waste, there are legal requirements for the transport and disposal of

the drums, and that federal and state authorities must be notified.

Alex informs RJ of the likely contents of the samples and asks what to do next. RJ instructs him

to report only that samples have been taken, and not to do the analysis. Since the client is a major

one for Environmental Engineering, RJ proposes to report to the client only where the drums are

located and that they contain questionable material, and to suggest that they be removed.

Note that it is much more expensive to dispose of hazardous waste than conventional waste.

Many states have laws requiring environmental engineers to report any evidence of a "release" of

hazardous materials. (Any presence of hazardous material in other than its intended placement

for use and storage counts as "release".)

Does RJ fulfill an engineer's professional responsibilities by informing the client only of the

presence of the drums and withholding more specific information on their contents?

What can and should Alex, a student and a summer hire, do in this situation?

Case 2 solution

STANDARDS

The government must be notified of Hazardous waste disposal The government must inspect facilities that seem to have hazardous materials Many states have laws requiring environmental engineers to report any evidence of a

"release" of hazardous materials.

Hazardous material must be disposed in a proper disposal facility Hazardous components in a sample must be determined before a company can disregard

it

ETHICAL DECISION STEPS:1-Moral ClarityThe problem with leaving hazardous material undisposed is that if anyone comes in contact with it can be harmful and also it is against the law.

2-Conceptual ClarityThere is standards that need to be reached when working with hazardous materials.

3-Just the facts It is illegal to not inform the authorities of hazardous waste. Hazardous waste must be contained in a proper facility. RJ is committing a crime by keeping the hazardous waste a secret.

4-Alex can complain to the authorities that RJ has not informed the police about hazardous waste material.

5-I believe that Alex should complain to the authorities about Alex not complaining to the authorities about the hazardous waste material.

CONCLUSION

Alex is not doing what is morally right if he keeps the non-disposal of hazardous materials a secret, he should report to the authorities that RJ is not disposing of Hazardous material safely and humanely. If someone is injured and hurt due to the incorrect disposal of the hazardous waste the company would be in even more trouble, so it is better if the company disposes of the material correctly and safely.

Case Study No. 3

Whistleblowing City Engineer

(adapted from NSPE Case No. 88-6)

Mario, the City Engineer/Director of Public Works for a medium-sized city, is the only licensed

professional engineer in a position of responsibility within the city government. This city has

several large food-processing plants that discharge large amounts of waste into the sanitary

system during canning season. Mario is responsible for the disposal plant and reports to James

about its operation.

Mario tells James that the plant is not capable of handling potential overflow during the rainy

season and offers several possible solutions. James replies that they will face the problem when it

happens.

Mario privately notifies other city officials about the plant problem, but James removes the

responsibility for the sanitation system from Mario and gives it to Chris, a technician who is

normally under Mario's supervision. James instructs Chris to report directly to him and confirms

this arrangement with a memo, which is copied to Mario. Mario is also placed on probation. He

is warned that if he discusses the matter further, he will be terminated.

Mario continues to work for the government as City Engineer/Director of Public Works; he

assumes no responsibility for the disposal plant, but continues to advise Chris without James's

knowledge. During the winter, heavy storms occur in the city. It becomes clear to those involved

that if the plant's waste water is not released into the local river, the ponds will overflow and

dump all of the waste into the river. Under state law, this condition must be reported to the State

Water Pollution Control Authority.

How would you respond to this situation? How do you assess Mario's actions? What about

James's actions? What about Chris? What are Mario's obligations to either James or the Public

Works Department? What are Mario's responsibilities for the environmental health of city

residents? How might these responsibilities be fulfilled simultaneously? Which takes precedence

in case of conflict? What additional information would you likefconfli to have, and what

difference would it make to your assessment?

Case 3 Solution

STANDARDS

1. ATSM D5358 STANDARD PRACTICE FOR SAMPLING WITH A DIPPER IN POND WATER This standard talks about the methods someone needs to use when testing pond water with a dipper.

2. ATSM D5681 STANDARD TERMINOLGY FOR WASTE AND WASTE MANAGEMENT. This standard is about the terminology needed to be used when talking about waste.

3. ATSM E776 STANDARD TEST METHOD FOR FORMS OF CHLORINE IN REFUSE-DERIVED FUEL. This standard is used for testing the different kinds of chlorine in the water.

4. ATSM D4978 STANDARD TEST METHOD FOR SCREENING OF REACTIVE SULFIDES IN WASTE. This standard is for the protection of the people from all of the hazardous sulfide in the waste.

ETHICAL DECISION STEPS:1. Moral Clarity - Figure out the related moral values.

Mario didn't listen and follow the codes and standards at the food processing plant, and because of that the plant now has high risk of overflowing. Did Mario make any bad decisions?

2. Conceptual clarity - Clarify key concepts. If the plant overflows then it will force the people working to dump all of the hazardous waste in the river.

3. Just the facts - Obtain all relevant information. If the waste is dumped in the river, then the water system will be damaged and the environment will be getting hurt from all of the chemicals from the food plant.

4. Informed about options - Consider all genuine options and alternative solutions. Should Mario have to pay for what he has done to the plant?

5. Well-reasoned - Make a reasonable decision.

CONCLUSIONMy decision for a situation like this would be to fire Mario and find someone who will take the job more seriously. Mario did so many things wrong. One example of something he did wrong was how Mario never followed the standards. Because of his actions he put the environment and the people in danger because food plant will be pumping the water with hazardous things into the river when it overflows. Even after James removed Mario from his act of duty on this case, Mario still told Chris what he should be doing. After all this, Mario went back to working like nothing ever happened and didn’t follow the standards of his job.

Case Study No. 4

Safety Considerations and Request for Additional

Engineering Personnel

(adapted from NSPE Case No. 84-5)

Engineer A is the owner of ABC Engineering in State P. Engineer X is the owner of XYZ

Engineering in State Q. Engineer X is retained to provide engineering services for Client L

located in State P for a project in State P. Client L is a former client of Engineer A’s firm.

Engineer A learns that XYZ Engineering does not have a current certificate of authority to

practice engineering in State P.

Question:

What are Engineer A’s ethical obligations under these facts?

CASE 4 Solution

STANDARDSSection I.4. - NSPE Code of Ethics: Engineers, in the fulfillment of their professional duties, shall act for each employer or client as faithful agents or trustees. Section II.1.f. - NSPE Code of Ethics: Engineers having knowledge of any alleged violation of this Code shall report thereon to appropriate professional bodies and, when relevant, also to public authorities, and cooperate with the proper authorities in furnishing such information or assistance as may be required. Section III.7. - NSPE Code of Ethics: Engineers shall not attempt to injure, maliciously or falsely, directly or indirectly, the professional reputation, prospects, practice, or employment of other engineers. Engineers who believe others are guilty of unethical or illegal practice shall present such information to the proper authority for action. Section III.8.a. - NSPE Code of Ethics: Engineers shall conform to state registration laws in the practice of engineering. DISCUSSIONWhile engineering is a profession, the practice of engineering, as with all professional pursuits, is also a business. As a business pursuit, engineers compete with one another for clients in order to maximize individual and firm profits. The Board decided that if Review Engineer A determined that Engineer B’s work is, or may be, in violation of state and local safety requirements and endangers public health, safety, and

welfare, the appropriate action would be for Review Engineer A to immediately discuss these issues with Engineer B in an effort to seek clarification and early resolution of the issues. If they were unable to resolve the issue, Review Engineer A would have an obligation to inform Engineer B that as a professional engineer, Review Engineer A’s only alternative is to notify and inform the proper authorities as indicated above (the Board also disposed of the confidentiality issue, noting that if in fact there was truly a violation that posed a serious danger to the public health and safety, the confidentiality issue would become a secondary matter). While it is true that most state engineering licensure boards impose an obligation upon engineers to report violations of state engineering licensure laws or regulations to the state board, this duty does not require the engineer to do so immediately (unless there is an imminent public danger) or to refrain from taking steps to resolve what might otherwise be an oversight or misunderstanding by a professional colleague. As illustrated in BER Case 96-8, when an engineer becomes aware of a violation of the state engineering licensure law, the engineer’s first ethical obligation may be to refrain from jumping to conclusions. Instead, a more prudent approach—both from an ethical and a collegial perspective—would be to communicate with the potentially offending engineer to obtain clarification regarding the matter in question. Said the Board in Case 96-8, “assuming from the facts that Review Engineer A determined that Engineer B’s work may be in violation of state and local safety code requirements and could endanger public health and welfare, a more appropriate action would be for Review Engineer A to expeditiously discuss these issues with Engineer B in an effort to seek clarification and early resolution of this issue.” The Board also went on to say that if Review Engineer A and Engineer B were unable to resolve the issue, Review Engineer A must inform Engineer B that as a professional engineer, Engineer A’s only alternative would be to cooperate with the proper authorities as indicated above.

In the present case, part of the discussion between Engineer A and Engineer X would presumably include an explanation by Engineer A of the reasons for the certificate of authority requirement (e.g., identifying the professional engineers present in the state and their licensure status, office location(s), engineers in responsible charge) and that the failure by Engineer X to obtain the certificate of authority would impair Engineer X and his firm in their efforts to seek redress in the courts of State P, and might result in XYZ’s inability to enforce its contracts and obtain payment for engineering services. Assuming Engineer X is a reasonable and prudent individual, we believe Engineer A’s counsel to Engineer X would be all that would be necessary to convince Engineer X to take all appropriate steps to obtain the certificate of authority. Inadvertent and unintentional violations of laws and regulations are not uncommon, and potential violators should first be advised of the potential violation especially when a professional colleague, albeit a competitor, becomes aware of the potential infraction. At some point down the road of professional practice, Engineer A may find himself in a similar circumstance and one can only suspect that Engineer A would value and appreciate a professional colleague steering him in the right direction. CONCLUSIONEngineer A should communicate with Engineer X to obtain clarification regarding the matter in

question. If Engineer A is not sufficiently satisfied with Engineer X’s explanation, Engineer A

may be required to report this matter to the state engineering licensure board.

Case Study No. 5

Duty to Report Observations to Higher

Management

Engineer A, a young professional engineer with expertise in software engineering, works for a

hospital information technology department. He is assigned to work with the people in the

intensive care unit (ICU). A computer user group, headed by the lead physician in the ICU, is

forced to facilitate interface between a piece of commercial data processing software and various

units in the ICU, including real-time patient monitoring devices.

From the manager on down, the computer user group is not technically up to the mark in

experience or in education. The computer user group was falling significantly behind schedule.

Engineer A learns that the group is seriously considering cutting back on testing in order to close

the schedule gap. Appalled at this idea, Engineer A argues strongly against it with the corporate

user group. In this case, Engineer A’s arguments has some effect, but Engineer A is nevertheless

given the clear impression that his long-term employment prospects with this organization are

now significantly impaired.

Apparently, part of the problem had to do with a reluctance on the part of hospital administration

to clash with the physician who heads the computer user group. Engineer A feels that the basic

problem is incompetence of the computer user group and he does not see how he could be

effective on his own in combating it.

Question:

What are Engineer A’s obligations under the circumstances?

CASE 5 Solution

STANDARDSSection II.1. - NSPE Code of Ethics: Engineers shall hold paramount the safety, health, and welfare of the public. Section II.1.a. - NSPE Code of Ethics: If engineers’ judgment is overruled under circumstances that endanger life or property, they shall notify their employer or client and such other authority as may be appropriate.

Section II.1.c. - NSPE Code of Ethics: Engineers shall not reveal facts, data, or information without the prior consent of the client or employer except as authorized or required by law or this Code. Section II.3. - NSPE Code of Ethics: Engineers shall issue public statements only in an objective and truthful manner. Section II 3.b. - NSPE Code of Ethics: Engineers may express publicly technical opinions that are founded upon knowledge of the facts and competence in the subject matter. Section II.4. - NSPE Code of Ethics: Engineers shall act for each employer or client as faithful agents or trustees.

DISCUSSIONThe obligation of engineers to report observations to higher authorities has been a critical issue considered by the Board on earlier occasions. The conflict between an engineer’s obligation to loyally serve an employer or client must be balanced with the duty of the engineer to protect the public health, safety, and welfare. One example of a case considered by the Board in this area is BER Case 89-7. In that case, an engineer was retained to investigate the structural integrity of a 60-year-old occupied apartment building which his client was planning to sell. Under the terms of the agreement with the client, the structural report written by this engineer was to remain confidential. In addition, the client made clear that the building was being sold "as is," and the client was not planning to take any remedial action to repair or renovate any system within the building prior to its sale. The hired engineer performed several structural tests on the building and determined that the building was structurally sound. However, during the course of providing services, the client confided in and informed the engineer that the building contained deficiencies in the electrical and mechanical systems which violated applicable codes and standards. While this engineer was not an electrical or a mechanical engineer, he did realize those deficiencies could cause injury to the occupants of the building and so informed the client? In his report, he made a brief mention of his conversation with the client concerning the deficiencies; however, in view of the terms of the agreement, the engineer did not report the safety violations to any third party. In deciding that it was unethical not to report the safety violations to the appropriate public authorities, the Board noted that the facts presented in the case raised a conflict between two basic ethical obligations of an engineer: The obligation of the engineer to be faithful to the client and not to disclose confidential information concerning the business affairs of a client without that client's consent, and the obligation of the engineer to hold paramount the public health and safety. Following careful analysis, the Board noted that the engineer had an obligation to go further than he had, under the facts. Said the Board, “matters” of public health and safety must take precedence. The Code of Ethics is clear on this point. Section I.1. employs the word "paramount" to describe the obligation of the engineer with respect to the public health and safety.” The Board concluded that the hired engineer could have taken other steps to address the situation, not the least of which was his paramount professional obligation to notify the appropriate authority if his

professional judgment is overruled under circumstances where the safety of the public is endangered. Instead, he "went along" and proceeded with the work on behalf of the client.

As the Board has stated on numerous occasions, no section of the Code should be read in a vacuum or independent of the other provisions of the Code. Section II.1.c. provides additional guidance in this case, making it clear that the hired engineer has an ethical obligation to refrain from disclosing information which he acquires during the course of providing professional services to the client unless first obtaining the client's consent to disclose. Importantly, however, this section also includes a relevant exception, which allows the engineer to disclose information acquired during the course of providing professional services to the client if such disclosure is authorized or required by law or by the Code. In other words, if the engineer has a legal or ethical responsibility to disclose the information in question, the engineer is released from the obligation to maintain confidentiality. Turning to the facts in the present case, the Board believes that the facts establish a sufficient basis for Engineer A to continue his efforts to attempt to educate higher management about the risks associated with not correcting the engineering and management issues. While Engineer A is an employee and as such owes some duty of loyalty and duty of confidentiality to the employer, that duty does not extend to situations in which the public health and safety is being compromised and put at significant risk. Engineer A’s failure to press ahead with his concerns could place the ICU patients at grave risk and also put the hospital, its board of directors, and employees at risk of liability. Depending upon the facts and circumstances, Engineer A may be required to exhaust all appropriate and available internal mechanisms and procedures to get hospital administration to focus on this critical issue. If unsuccessful, Engineer A may be required to take steps to report the issues to an appropriate authority as necessary.

CONCLUSIONEngineer A has an ethical responsibility to attempt to educate the computer user group on the risks and consequences of inadequate testing of the system. If he is not successful, he should continue to make his case to hospital administration. If that fails, he should exhaust all appropriate and available internal mechanisms and procedures up to the body responsible for hospital administration. If Engineer A is still unsuccessful, they may be required to take steps to report the issue to an appropriate authority as necessary.

Case Study No. 6

Duty to Report Impaired Colleague

Engineer A and Engineer B are partners in the ABC Engineering Company. Recently, Engineer A

has learned that Engineer B has missed certain deadlines in connection with the preparation and

the filing of client documents before public authorities. This is not the first time Engineer B has

missed deadlines. These failures have resulted in both inconvenience and cost to the clients.

Engineer B was perceived to be impaired by alcohol during work on several occasions, a matter

which Engineer A discussed with Engineer B in the past. Engineer B has responded that there is

no alcohol problem and that he will correct the missed deadlines in the future. However,

Engineer B continues to miss deadlines.

Question:

Does Engineer A have any ethical obligations under the circumstances?

Case 6 Solution

STANDARDS Section I.1. - NSPE Code of Ethics: Engineers, in the fulfillment of their professional duties, shall hold paramount the safety, health, and welfare of the public. Section I.6. - NSPE Code of Ethics: Engineers, in the fulfillment of their professional duties, shall conduct themselves honorably, responsibly, ethically, and lawfully so as to enhance the honor, reputation, and usefulness of the profession. Section II.1.f. - NSPE Code of Ethics: Engineers having knowledge of any alleged violation of this Code shall report thereon to appropriate professional bodies and, when relevant, also to public authorities, and cooperate with the proper authorities in furnishing such information or assistance as may be required.

Section II.2. - NSPE Code of Ethics: Engineers shall perform services only in the areas of their competence. Section III.7. - NSPE Code of Ethics: Engineers shall not attempt to injure, maliciously or falsely, directly or indirectly, the professional reputation, prospects, practice, or employment of other engineers. Engineers who believe others are guilty of unethical or illegal practice shall present such information to the proper authority for action. Section III.8.a. - NSPE Code of Ethics: Engineers shall conform with state registration laws in the practice of engineering. DISCUSSIONThe line between personal and professional conduct is at times a difficult line to draw in the area of engineering ethics. In many respects, one’s personal and professional conduct, while separate, are interwoven at times. The Board has considered a limited number of cases involving the line between personal and professional conduct, but the facts of this case raise an issue never before considered by the Board.

For example, in BER Case 97-11, which involved the line between one client and what an engineer perceived to be an unrelated matter, an engineer was retained by Client B to perform design services and provide a Critical Path Method schedule for a manufacturing facility. The engineer prepared the plans, specifications, and the CPM schedule. During the rendering of services to Client B on this project, the state board of professional engineers contacted the engineer regarding an ethics complaint filed against him by Client C, relating to services provided that are similar to the services performed for Client B. Client C alleged that the engineer lacked the competence to perform the services in question. The engineer did not believe it was necessary to notify Client B of the pending complaint. Later, through another party, Client B learned of the ethics complaint and told the engineer that he was upset by the allegations and that he should have brought the matter to Client B’s attention. In deciding that it was ethical for the engineer not to report to Client B the ethics complaint filed by Client C, the Board was of the opinion that while an engineer clearly has an ethical obligation to act as a faithful agent and trustee for the benefit of a client, avoid deceptive acts, be objective and truthful, avoid conflicts, and so on, such obligations do not compel an engineer to automatically disclose that a complaint had been filed against the engineer with the state engineering licensure board. As noted by the Board, a complaint is a mere allegation and does not amount to a finding of fact or conclusion of law. Said the Board, “No engineer should be compelled to disclose potentially damaging allegations about his professional practice—allegations that could be false, baseless, and motivated by some malicious intent. Instead, the engineer should weigh all factors and, depending upon the nature and seriousness of the charges, take prudent action, which might include providing Client B with appropriate background information.” While the facts in Case 97-11 are somewhat different than the facts in the present case, Case 97-11 is instructive. Clearly in sensitive matters involving an engineer’s personal and professional integrity, great lengths must be taken by all engineers to protect the professional reputation, prospects of another professional colleague, and to avoid exposing the colleague to unjust criticism and ridicule.

Having said that, it must also be acknowledged that where an engineer is perceived to be impaired, either through alcohol or substance abuse, and the engineer’s conduct is interfering with their own and the employer’s ability to effectively serve the interests of the client and the public, other engineers who observe this conduct must take appropriate steps to intercede. Performing professional services in an impaired state is a violation of state laws and state engineering licensure board rules in some jurisdictions. For an engineer to knowingly ignore the observed impairment out of a sense of loyalty, or to protect a professional colleague, endangers the client and the public. This could result in disciplinary action against both the impaired engineer and the engineer who, after observing the violation, failed to take appropriate action.

Today, many groups provide special outreach to professionals with alcohol and substance abuse issues. As with all professionals, engineers are not immune to these issues and should pursue constructive solutions to address these issues.

CONCLUSIONEngineer A should contact an appropriate alcohol or substance abuse counseling group for professionals to assist in developing an outreach effort for Engineer B.

Case Study No. 7

Making Changes to the Work of another Engineer

Two professional engineers with similar backgrounds and expertise in electrical engineering are

assigned to the same project because of time constraints and other factors, but are given

responsibility for different parts of the project. Engineer A prepares, designs, and stamps the

design documents for which he is responsible, and Engineer B prepares, designs, and stamps the

design documents for which he is responsible. The project and design documents are released for

construction. A change in project scope requires revision to a subset of the design documents.

Both Engineer A and Engineer B make their respective changes and revise the design documents

for which they are responsible.

It is the practice of the company that the engineers’ work requires a professional engineer to

manually "initial" the revision block of the document being revised, identifying the responsible

engineer. Engineer A delays release of his revisions which causes completed revisions by

Engineer B also to be held until all design documents are ready to be released. Management

strongly encourages Engineer A to complete his work so that all design documents can be

released. Engineer A completes his work at a point in time when neither Engineer B nor

immediate management is available. In completing his work at the behest of management,

Engineer A makes minor changes to design documents prepared and revised by Engineer B

without consulting Engineer B. It is understood that Engineer A was technically competent to

make the revisions of Engineer B’s work.

Question:

Was it unethical for Engineer A to makes minor changes to design documents prepared and

revised by Engineer B without consulting?

Case 7 SolutionSTANDARDS

Section I.5. - NSPE Code of Ethics: Engineers, in the fulfillment of their professional duties, shall avoid deceptive acts. Section II.1.b. - NSPE Code of Ethics: Engineers shall approve only those engineering documents that are in conformity with applicable standards. Section II..2.a. - NSPE Code of Ethics: Engineers shall undertake assignments only when qualified by education or experience in the specific technical fields involved. Section II.2.b. - NSPE Code of Ethics: Engineers shall not affix their signatures to any plans or documents dealing with subject matter in which they lack competence, nor to any plan or document not prepared under their direction and control.

Section II.2.c. - NSPE Code of Ethics: Engineers may accept assignments and assume responsibility for coordination of an entire project and sign and seal the engineering documents for the entire project, provided that each technical segment is signed and sealed only by the qualified engineers who prepared the segment. Section III.1.b. - NSPE Code of Ethics: Engineers shall advise their clients or employers when they believe a project will not be successful. DISCUSSIONThe facts in this case raise some of the central issues involved in the practice of engineering—the signing and sealing of engineering work and the professional engineer’s duties and responsibilities in connection with the signing and sealing of engineering documents. As a starting point, NSPE Code of Ethics Sections II.2.a., II.2.b., and II.2.c. address many of the issues related to the facts of this case. Section II.2.a. seeks to admonish the engineer to accept work only in those areas of practice in which the engineer possesses the proper qualifications so as to competently perform the tasks to which he is assigned. Section II.2.b. examines the issue of ethical responsibility and states that an engineer must sign and seal documents and assume legal responsibility only for that which he possesses understanding and cognizance. Finally, Section II.2.c. establishes a hierarchy of responsibility by which engineers may coordinate and assume responsibility for entire projects, as long as those individuals under the engineer’s responsible control are identified as having prepared each technical segment of the work. The rationale behind those rules lies in the recognition that while the signature and seal of the engineer has consequences which go beyond the issue of ethics, the conduct of the engineer in the preparation of the plans and design documents involves the professional judgment and discretion of the engineer; judgment and discretion which are shaped by a variety of ethical concerns. For example, in the BER Case 85-3, an engineer with experience and background solely in the field of chemical engineering accepted a position as a county surveyor. We noted that while the duties of the position included oversight of surveying reports and highway improvement but no actual preparation of engineering and surveying documents, nevertheless the engineer was unethical in accepting the position. As the Board noted: "It could be stated that the engineer’s responsibilities did not include actual preparation or approval of engineering or surveying documents, that instead such documents would be prepared or approved by qualified individuals; his role would be to oversee those documents and reports. We are convinced that neither is this

the intent of the NSPE Code provisions nor is this what is commonly understood to be the proper oversight role of a county surveyor." Clearly, in BER Case 85-3, the Board was faced with a situation in which an engineer was seeking to fulfill a role for which he possessed neither the qualifications nor the experience to perform in a competent manner. In Case 86-2, the Chief Engineer within a large engineering firm affixed his seal to some of the plans prepared by registered engineers working under his general direction who did not affix their seals to the plans. At times, Chief Engineer also seals plans prepared by nonregistered, graduate engineers working under his general supervision. Because of the size of the organization and the large number of projects being designed at any one time, Chief Engineer found it impossible to give a detailed review of the design. He believed he is ethically and legally correct in not doing so because of his confidence in the ability of those he has hired and who are working under his general direction and supervision. By general direction and supervision, Chief Engineer meant that he is involved in helping to establish the concept, the design requirements, and review elements of the design or project status as the design progresses. Chief Engineer is consulted about technical questions and he provided answers and direction in these matters. In finding that it was unethical for Chief Engineer to seal plans that have not been prepared by him, or which he has not checked and reviewed in detail, the Board noted that the role of the chief engineer in an engineering firm may be that of a "manager who provides guidance, direction, and counsel to those within his responsible charge." Indeed, in a large engineering firm, this role is crucial to the successful operation of the firm. The Chief Engineer should be involved at the outset of the project in the establishment of the design concept and the design requirements, as well as in the review of the various elements of the design or project status as the project develops. In addition, the Chief Engineer should be available to consult on technical questions relating to the project design. To this end, we reiterated the language contained in Code Section II.2.c., noting that "each technical segment [shall be] signed and sealed only by the qualified engineers who prepared the segment," and that the firm and its professional engineers have an ethical obligation that this work be performed under the direct control and personal supervision of licensed engineers who would seal the document. NSPE Code Sections II.2.a, II.2.b, and II.2.c. are mutually dependent Code provisions that must be read together in order for them to have meaning. In the context of the Case 86-2, one of the most important aspects of the language of those provisions is the reference to "direction and control" found in Section II.2.b. We think a carefully crafted definition of that provision will assist us in a resolution of the facts in this case.

The term "direction" is generally defined by Webster’s New Collegiate Dictionary (1981 ed.) as "guidance or supervision of action or conduct; management; a channel or direct course of thought or action." The word "control" is generally defined as "the authority to guide or manage; direction, regulation, and coordination of business activities." It is clear that "direction" and "control" have a meaning which, when combined, would suggest that an engineer be required to oversee engineering related to the preparation of the drawings, plans, and specifications in order to ethically affix his seal. More pertinent to the engineering profession, however, is the National Council of Examiners for Engineering and Surveying Model Law, which is endorsed by this Board, and reads as follows: responsible charge—the term "responsible charge" as used in this act shall mean "direct control and personal supervision of engineering work."

Unlike the earlier cases discussed, the present case does not involve a situation whereby an engineer is engaging in areas of professional practice that are alien to his experience up until that point of being assigned the task (as was the circumstance in Case 85-3), or is seeking to exercise management authority over the entire engineering design process (as was the circumstance in Case 86-2). Instead, this case appears to involve an engineer under considerable pressure to deliver a set of engineering design documents in order for construction to proceed but, due to the unavailability of another engineer in responsible charge for certain aspects of the work, takes it upon himself to make minor changes in the other engineer’s work in order to be done. While it may be argued that Engineer A’s actions are explainable under the circumstances, for a number of reasons, the Board finds it difficult to square Engineer A’s actions with the language of the NSPE Code of Ethics. For example, even if Engineer A had some involvement in the work of Engineer B, it is not clear whether Engineer A possessed the competence in the field involved in order to sign and seal Engineer B’s work. In addition, under the facts, Engineer A clearly did not exercise responsible charge (direct control or personal supervision) over the work in question, work which was either prepared or supervised by Engineer B. Further, there is no indication that Engineer A took any steps to identify and document the actual changes he made to Engineer B’s work. Engineer A’s failure to first discuss the situation with Engineer B prior to making the changes to the work is unacceptable. While the Board understands the frequent pressures that engineers sometimes experience due to time, financial, and other constraints, a professional engineer must act ethically, resist such demands, and act in a manner consistent with the NSPE Code of Ethics.

CONCLUSIONIt was not ethical for Engineer A to make minor changes to design documents prepared and

revised by Engineer B without conferring and gaining the approval of Engineer B.

Case Study No. 8Duty to Report Improper Conduct by Management

Engineer A, an electrical engineer, worked for Dicers, a company that purchased wafers for

microprocessor chips from another company and then reprocessed, packaged, and resold them.

Engineer A was assigned the task of testing the wafers. After a while, Engineer A was instructed

by his supervisor to alter the testing process, to which both parties had contractually agreed. The

testing process was altered, over Engineer A’s objections, in such a manner that the quality of the

purchased wafers was made to seem lower, when in reality there is no reduction in the quality.

This lowered the price paid by Dicers to the other company. Engineer A objected to this practice

and refused to go along, and as a consequence, was discharged.

Question:

What are Engineer A’s obligations under the circumstances?

Case 8 Solution

STANDARDSSection I.1 - NSPE Code of Ethics: Engineers, in the fulfillment of their professional duties, shall hold paramount the safety, health, and welfare of the public. Section I.5 - NSPE Code of Ethics: Engineers, in the fulfillment of their professional duties, shall avoid deceptive acts. Section II.1.b. - NSPE Code of Ethics: Engineers shall approve only those engineering documents that are in conformity with applicable standards. Section II.1.c. - NSPE Code of Ethics: Engineers shall not reveal facts, data, or information without the prior consent of the client or employer except as authorized or required by law or this Code.

Section II.1.d. - NSPE Code of Ethics: Engineers shall not permit the use of their name or associate in business ventures with any person or firm that they believe is engaged in fraudulent or dishonest enterprise. Section II.1.f. - NSPE Code of Ethics: Engineers having knowledge of any alleged violation of this Code shall report thereon to appropriate professional bodies and, when relevant, also to public authorities, and cooperate with the proper authorities in furnishing such information or assistance as may be required. DISCUSSION Engineers have a professional and ethical obligation to perform their services in a manner consistent with the highest standards of honesty and integrity. Accordingly, the services provided by engineers require honesty, impartiality, fairness, and equity, and must be dedicated to the protection of the public health, safety, and welfare. This basic principle is clearly stated and is also implicit in various provisions of the NSPE Code of Ethics. When an employer or client imposes strictures that interfere with an engineer’s ability to perform in this manner, the engineer must take actions that defend and strengthen the credibility of the profession. One example of this issue was addressed under precisely the same facts in two previous decisions, BER Case Nos. 97-12 and 99-13. In those two cases, an engineer was employed by SPQ Engineering, an engineering firm in private practice involved in the design of bridges and other structures. As part of its services, SPQ Engineering used a CAD software design product under a licensing agreement with a vendor. Under the terms of the licensing agreement, SPQ Engineering was not permitted to use the software at more than one workstation without paying a higher licensing fee. SPQ Engineering ignored this restriction and used the software at a number of employee workstations. The hired engineer became aware of this practice and called a “hotline” publicized in a technical publication and reported his employer’s activities. When this case was originally decided in 1997 (see BER Case No. 97-12), it was determined that it was not ethical for the engineer to report his employer’s apparent violation of the licensing agreement on the “hotline” without first discussing his concerns with his employer. Citing earlier NSPE Board of Ethical decisions, the Board determined that the facts and circumstances were not of a character that involve any danger—direct or indirect—to the public health and safety. Instead, the facts and circumstances related to matters of a legal nature and did not relate to engineering judgment or expertise. The Board noted that NSPE Code Section II.4. placed a basic obligation on engineers to be faithful agents and trustees in professional matters with their employers. The Board also noted under the facts that it was troubled that the engineer did not consider other, less adversarial and surreptitious, alternatives. For example, the engineer could have first discussed this matter with his employer, pointing out the possible damages that the violation posed to SPQ Engineering, and suggesting that SPQ Engineering confer with its legal counsel before continuing its current actions. Instead, he took a course of action that could cause significant damage to SPQ Engineering and ultimately to himself. The Board was inclined to wonder about the motivation for his actions, without his first exploring less adversarial and surreptitious alternatives—in view of the lack of any direct danger to the public health and safety. While, in the context of the facts of this case, the Board could not conclude that this provision compelled the engineer to ignore an apparent violation of the law and the NSPE Code (See NSPE Code Section III.9.), the Board concluded that he could have easily exercised far greater judgment and professional discretion before taking action. Therefore, it was the Board’s opinion that his action in reporting his employer’s apparent violation, without

first pursuing alternative actions open to him, was in conflict with the Code of Ethics. The Board determined that he had an obligation to actively pursue this matter with SPQ Engineering, and if a satisfactory ethical resolution cannot be reached, he was obligated to report the violation to the vendor. In addition, the engineer was advised to reconsider (under Code Section II.1.d.) his further association with a firm which has shown itself engaged in fraudulent and dishonest enterprise. Following issuance of its ruling in BER Case 97-12, in BER Case 99-13, the Board of Ethical Review had cause to review its decision in BER Case 97-12. Among the causes for review included concern that the opinion could be read to suggest that engineers may ethically tolerate unlawful actions by their employers or their clients. Another concern was that BER Case No. 97-12 could suggest that an engineer who brings unlawful actions to the appropriate authorities would be acting unethically. Additional comments noted that the opinion did not recognize the possibility of retribution by the employer against the engineer and that the opinion failed to condemn or criticize the employer for its improper actions and bad conduct. As a result, in BER Case 99-13, the Board clarified its intent in rendering its opinion under the facts. The Board expressed that its intent was to recognize the right and the obligation of the engineer to report such violations as appropriate. At the same time, the Board continued to maintain that as a professional, an engineer should always exercise judgment and discretion when confronting a situation. Depending upon all of the facts and circumstances, an engineer should take reasonable steps to exhaust all appropriate alternatives before taking an extreme action, such as reporting an employer or a client for their actions, particularly where such actions do not appear to result in physical harm or danger to the public health or safety. At the same time, engineering supervisors acting for an employer who knowingly act in an unlawful manner or who take retaliatory actions against another engineer who brings such matters to their attention are ignoring the basic principles contained in the NSPE Code of Ethics and are acting unethically. Turning to the present case, it is prudent to consider whether the facts and circumstance involve a danger to the public health and safety. In today’s world, computer chips are used in virtually every sector of the economy, including consumer goods, medical equipment, energy facilities, building and plant operations, and a multitude of other areas. Therefore, it is reasonable to assume that in the present case, the chips did or very likely could have entered the stream of commerce where it could have a direct and potentially significant impact on the public health and safety.

However, since the effect of the altered testing was to bias the assessed quality of the wafer downwards, Dicers was reselling chips that were presumably of higher quality than was represented by the test results. It is therefore not clear without further information whether or not there may be unintended consequences of Dicer’s actions that present a danger to the public. More significantly, the downgrading of the perceived quality of the purchased wafers due to the altered testing process enabled Dicer to deceptively make lower payments for the wafers to the manufacturer, and thus increase its profits at the manufacturer’s expense. Engineer A may have reasoned that substituting an alternate testing process without the consent or knowledge of the manufacturer was injurious to that party, as well as deceptive, and hence constituted an unethical action.

Given the fraudulent nature of the supervisor’s directive, it is the Board’s view that Engineer A fulfilled his ethical obligation in his steadfast yet unsuccessful attempt to convince his supervisor to adhere to the contractually agreed testing procedures. The Board believes that had the company officers and directors been aware of the supervisor’s improper directive, the company officers and directors would have taken immediate action, including but not limited to disciplinary action against the supervisor. For that reason, it is the Board’s view that under the facts, it would be appropriate and ethical for Engineer A to immediately contact the Dicers officers and directors and advise them of the supervisor’s improper conduct. If, following disclosure to the company, the company does not take appropriate action, it would be appropriate and ethical for Engineer A to advise the other company of the practice by Dicers. CONCLUSIONIt would be appropriate and ethical for Engineer A to immediately contact the Dicers officers and

directors and advise them of the supervisor’s improper conduct. If, following disclosure, the

company does not take appropriate action, it would be appropriate and ethical for Engineer A to

advise the other company of the practice by Dicers.

Case Study No. 9An Engineer's Agreement with Two Firms

Competing for the Same Contract(adapted from NSPE Case No. 80-4)

Arena, a partner in an engineering firm, submitted a statement of qualifications for a project to a

government agency, on behalf of his company. Arena was notified that although his firm was on

the "short list" for consideration along with several others, it did not appear to have qualifications

in some specialized area of the job's requirements. Arena was also informed that it might be

advisable to consider a joint venture with another firm that has such capabilities. Arena then

contacted Blunt, a partner in a firm with the qualifications in the specialized areas, and invited

the Blunt firm to participate in a joint-venture if Arena was awarded the job. Blunt agreed.

Soon after, Chou, a principal in a firm that was also on the short list, contacted Blunt and also

asked if the Blunt firm would be willing to engage in a joint venture to supply the specialized

services if the Chou firm was selected.

How should Blunt respond to this second request to form a joint venture?

If Blunt agrees, should he notify Arena or Chou of the agreement with the other firm?

Some considerations relevant to this scenario are: Is it a conflict of interest for Engineer Blunt to

agree to participate in a joint-venture arrangement with more than one of the several potential

partners without making a full disclosure to all of the firms? If Blunt does this, is he being

deceptive?

Case 9 solution

DESCRIPTIONEngineer Able, on behalf of the firm of which he is a principal, submitted a statement of qualifications to a governmental agency for a project. In due course he was notified that his firm was on the "short list" for consideration along with several other firms, but it was indicated to him that his firm did not appear to have qualifications in some specialized aspects of the requirements, and that it might be advisable for the firm to consider a joint venture with another firm with such capabilities. Engineer Able thereupon contacted Engineer Baker, a principal of a firm with the background required for the specialized requirements, and inquired if the Baker firm would be interested in a joint venture if Able was awarded the job. The Baker firm responded in the affirmative.

Thereafter, Engineer Carlson, a principal in a firm which was also on the "short list," contacted Engineer Baker and indicated the same requirement for a joint venture for specialized services, and also asked if the Baker firm would be willing to engage in a joint venture if the Carlson firm was selected for the assignment. Baker also responded in the affirmative to Carlson but did not notify Able of his response to Carlson.

STANDARDS

Code of Ethics - Section 1 - "The Engineer will be guided in all his professional relations by the highest standards of integrity, and will act in professional matters for each client or employer as a faithful agent or trustee."

Section 8 - "The Engineer shall disclose all known or potential conflicts of interest to his employer or client by promptly informing them of any business connections, interests, or other circumstances which could influence his judgment or the quality of his services, or which might reasonably be construed by others as constituting a conflict of interest."

DISCUSSION As is often the case in a particularized set of facts, the code does not specifically address the question, but we have the latitude to read related sections of the code to apply within reasonable limits. On that basis, we believe that Section 8 on conflicts of interest and Section 1 on professional integrity are stated broadly enough to provide a basis for an opinion.

The thrust of Section 8 is to require full and complete disclosure of known or potential conflicts of interest, but it does not necessarily rule out such conflicts if they exist. If there was objection by any party, the ethical question would have to be determined under the pertinent facts of that case.

We do not have to reach that question in this case, however, because there is not a conflict of interest under the facts before us. The code does not define "conflict of interest," nor do our previous cases provide a definitive statement of its intent or meaning. At the very least, however, as stated in Case 67-1, it means that "a professional person may not take action or make decisions which would divide his loyalties or interests from those of his employer or client."

In this case there is no potential or actual division of loyalty as to either the Able or Carlson firm on the part of Baker. Assuming that Baker is willing to work out a joint venture agreement with either firm which might secure the contract his loyalty would be centered only with the one selected firm. As a joint venture, in fact, he would be a party to a single legal entity (the joint venture) for the one contract.

Technically, the disclosure requirement of Section 8 would not mandate that Baker advice Able of the contact from Carlson or advise Carlson that he had talked to Able because at this point Baker does not have a "client," as such.

However, the requirement of Section 1 for highest standards of integrity makes it ethically necessary for Baker to contact both of the firms and advise each that he had indicated his willingness to participate in a joint venture with either. In this connection we consider the agreement of Baker to work with Able constitutes a relationship of trust which should not be diluted by establishing a similar and possibly competitive relationship with Carlson unless disclosure is made to all concerned.

CONCLUSION 

It is unethical for Engineer Baker to agree to participate in a joint venture agreement with more than one of several firms being considered for an engineering engagement since he did not make a disclosure to all of the firms. 

Case Study No. 10Professional Competence – Environmental Issues

Engineer A, a civil and structural engineer, is engaged by Prospective Owner to do a structural

inspection of a residence. The original Home Inspector B was not satisfied that the building was

structurally sound, and so he recommended that Prospective Owner, who had made an offer to

purchase the house contingent on a satisfactory inspection, retain Engineer A to inspect the

foundation of the house. Upon visual inspection, Engineer A determines that the house was in

average structural condition for its age and construction type, was not in imminent danger of

collapse, but that some upgrades could have been made in connection with earlier renovations to

the property.

However, Engineer A observes that the moisture levels in the basement were excessive, there is

evidence of mold and mildew, and recent repairs exhibiting drainage and damp-proof problems

need to be addressed. Prospective Owner, Realtor, and Home Inspector B were present at the

time of Engineer A’s site visit. Engineer A presents several options for remedying the moisture

issue, which in Engineer A’s opinion would have a positive impact on the structure. However,

the discussion shifts away from the structural conditions and toward health issues related to the

home (e.g., respiratory issues, black mold, asthma).

Question:

What are Engineer A’s obligations under the circumstances?

Case 10 Solution

STANDARDSSection I.1. - NSPE Code of Ethics: Engineers, in the fulfillment of their professional duties, shall hold paramount the safety, health, and welfare of the public. Section II.2. - NSPE Code of Ethics: Engineers shall perform services only in the areas of their competence. Section II.3.a. - NSPE Code of Ethics: Engineers shall be objective and truthful in professional reports, statements, or testimony. They shall include all relevant and pertinent information in such reports, statements, or testimony, which should bear the date indicating when it was current. Section III.2.d - NSPE Code of Ethics: Engineers are encouraged to adhere to the principles of sustainable development in order to protect the environment for future generations. Footnote 1: “Sustainable development” is the challenge of meeting human needs for natural resources, industrial products, energy, food, transportation, shelter, and effective waste management while conserving and protecting environmental quality and the natural resource base essential for future development.

DISCUSSIONToday, professional engineers are increasingly relied upon by clients and the public to address environmental and ecological issues. Many professional engineers have the education, qualifications, and experience to offer important direction and assistance as their public and private clients endeavor to address these extremely complex issues affecting the public health and safety.

In recent years, the NSPE Code of Ethics for Engineers was revised to include a new section III.2.d. (cited above), which encourages engineers to adhere to the principles of sustainable development in order to protect the environment for future generations. This provision is intended to promote careful and prudent decision-making in matters affecting the environment. However, this provision was designed to be a general statement which should be understood in the context of the entire NSPE Code of Ethics. One recent example of the NSPE Board of Ethical Review’s interpretation of this provision is BER Case 07-6. In that case, Examining Engineer A was a principal in an environmental engineering firm and was requested by a developer client to prepare an analysis of a piece of property adjacent to a wetlands area for potential development as a residential condominium. During the firm’s analysis, one of the engineering firm’s biologists reported to Examining Engineer A that in his opinion, the condominium project could threaten a bird species that inhabited the adjacent protected wetlands area. The bird species was not an “endangered species,” but it is considered a “threatened species” by federal and state environmental regulators. In subsequent discussions with the developer client, Examining Engineer A verbally mentioned the concern, but he did not include the information in a written report that would be submitted to a public authority that is considering the developer’s proposal. In its decision, the Board at that time decided that it was unethical for the engineer to not include the information about the threat

to the bird species in a written report that will be submitted to a public authority that is considering the developer’s proposal, and that Examining Engineer A should have included it in the written report and advised the client of its inclusion. The Board noted, among other things, that as an environmental engineer with consultation by an apparently qualified biologist, Examining Engineer A had technical competence concerning the matters in question. Moreover, said the Board, under NSPE Code Section II.3.a., engineers have an obligation to be objective and truthful in professional reports, statements, or testimony, and include all relevant and pertinent information in such reports. It would be reasonable to assume that the public authority approving the development would be interested in this information. There does not appear to be any indication of an effort on the part of the client to treat the information as confidential. Examining Engineer A, therefore, had an obligation to include it in the written report and advise the client of its inclusion. While the facts and circumstances in BER Case 07-6 are somewhat different from the immediate case at hand, there are important parallels between the two cases. Among these parallels include the importance of having competent individuals working as part of the team to determine the most appropriate course of action. In Case 07-6, Examining Engineer A was assisted in the work by an apparently qualified biologist. In the present case, Engineer A was brought into the process by a home inspector who clearly understood that the issue before him (structural soundness of the house) was beyond his area of competence. Another parallel is the importance of providing objective and truthful information to assist a client or the public on matters of concern (e.g., structural soundness, environmental issues). On the question of professional competence, much like the decision by the Home Inspector to bring in a licensed professional engineer to assist in addressing structural design issues, it is the Board’s view that Engineer A had a similar obligation under the facts to recommend that Prospective Owner seek the services of a competent person (e.g., industrial hygienist, biologist, environmental scientist, physician) to address the potential health issues raised by the inspection of the basement. Giving direction or determining matters relating to black mold, asthma, respiratory issues, and so on, are beyond the competence of most professional engineers; therefore, encouraging clients to seek the advice of competent and experienced experts in these areas would be the appropriate course of action to be taken by Engineer A. CONCLUSIONEngineer A has an obligation under the facts to recommend that Prospective Owner seek the

services of competent and experienced experts (e.g., industrial hygienist, biologist,

environmental scientist, physician) to address the potential health issues raised by the inspection

of the basement.

Case Study No. 11Associating with a Firm not Authorized to Practice

Facts:Engineer A is employed by Firm Y in State X. Engineer B, the President of Firm Y, passes away in July 2000. His widow, Widow C, a non-engineer, was the only other named corporate officer in Firm Y. At the time of Engineer B’s death, Engineer A is the only other professional engineer in Firm Y. Following discussions with Widow C, Engineer A tries to purchase Firm Y from Widow C. However, negotiations break down and Engineer A decides to start his own firm in October 2000.

Following a period of time, Widow C decides to run the engineering firm, Firm Y. As an “interim measure,” Engineer D, a personal friend of the deceased Engineer B, with a separate full-time practice, agrees to advise and help Widow C through a “transition period.” A year passes and there is still no professional engineer within the structure of Firm Y who is in responsible charge of engineering work. Firm Y continues to perform engineering services and take on new clients and new work through the limited advice of Engineer D and two graduate engineer employees. Under the laws of State X, a professional engineer employee must be in responsible charge of engineering work performed by an engineering company.

Questions:Question 1. What are Engineer A and Engineer D’s ethical obligations under the described

facts?

Question 2. Was it ethical for Engineer D to assist Widow C through an undefined “transition period” and thereafter provide advice to Widow C to permit Firm Y to continue to perform engineering services?

References:Section I.1. -

Code of Ethics: Hold paramount the safety, health and welfare of the public.

Section II.1.d. -

Code of Ethics:

Engineers shall not permit the use of their name or associate in business ventures with any personor firm that they believe are engaged in fraudulent or dishonest enterprise.

Section II.1.e. -

Code of Ethics:

Engineers having knowledge of any alleged violation of this Code shall report thereon toappropriate professional bodies and, when relevant, also to public authorities, and cooperatewith the proper authorities in furnishing such information or assistance as may be required.

Section II.2.b. -

Code of Ethics:

Engineers shall not affix their signatures to any plans or documents dealing with subject matterin which they lack competence, nor to any plan or document not prepared under their directionand control.

Section II.2.c. -

Code of Ethics:

Engineers may accept assignments and assume responsibility for coordination of an entireproject and sign and seal the engineering documents for the entire project, provided that eachtechnical segment is signed and sealed only by the qualified engineers who prepared the segment.

Section II.5.a. - Code of Ethics: Engineers shall not falsify their qualifications or permit misrepresentation of their or their

associates’ qualifications. They shall not misrepresent or exaggerate their responsibility in or forthe subject matter of prior assignments. Brochures or other presentations incident to thesolicitation of employment shall not misrepresent pertinent facts concerning employers,employees, associates, joint venturers, or past accomplishments.

Section III.8.a. - Code of Ethics: Engineers shall conform with state registration laws in the practice of engineering.

Discussion:Ethical issues relating to the transition of engineering firms at the time of the death or disability of key individuals associated with the firm have not heretofore been an issue considered by the NSPE Board of Ethical Review, and therefore this is a case of first impression for the Board. The issues raised in such cases are often sensitive and require good judgment and discretion regarding the appropriate manner in which to conduct the affairs of the firm during such transitions. Little guidance exists in this area and engineers and engineering firms must carefully navigate the issues and questions that are raised

during this period.

Among the key questions for engineers who find themselves involved in such situations include an examination of (1) whether such firms continue to meet all legal and regulatory requirements to continue to lawfully practice; (2) whether the continued engineering activities by the firm is misleading to current or potential clients of the firm, other engineers, as well as to the public; (3) whether an engineer’s association with the firm aids or abets in an improper engineering activity; and (4) whether the public health and safety is being protected.

In one of the earliest cases decided by the Board, BER Case No. 61-4, two individuals, Businessman A and Businessman B, neither of whom was a licensed professional engineer, were in the process of forming a firm (partnership) to engage in engineering work (consulting, surveying, and estimating). One of these men, Businessman A, was a graduate engineer who had been in the construction field for many years. Businessman A and Businessman B obtained a job and engaged the services of a licensed engineer, Engineer X, to perform and certify certain phases of the work connected with this particular job. Engineer X was a full-time staff member of a state university and engaged in outside work of this nature only on a spare time basis. Businessman A and Businessman B explained their situation to Engineer X and told Engineer X that as soon as the firm was established, another licensed engineer, Engineer Z, was to be employed on a full -time basis and that Engineer X’s services would be required only until that time. During this interim period, Businessman A and Businessman B completed the legal requirements for the formulation of their partnership, the firm was established, an office was rented, and cards were printed to advertise the firm as engaging in civil engineering, surveying, and estimating work. Engineer Z, for some reason, did not go to work for the newly formed company and Engineer X was the only licensed engineer connected with the firm. His employment, however, was still on a part-time basis and because he lived and worked in a city some distance from the firm’s place of business, he could exercise no immediate control or direction over the practices and work done by the other members of the new engineering company. Engineer X learned of Engineer Z’s decision not to join the new company, but he continued his association with it anyway. According to the applicable state law, if a firm engages in the practice of professional engineering in the state, at least one member or employee of the firm must be a licensed professional engineer and all work done by the firm shall be carried on under his immediate responsible direction. In deciding that Engineer X was not ethical to continue his association with the new company after learning that Engineer Z would not be accepting employment, the Board noted that Engineer X was associated with a venture that is of questionable legality and, therefore, he ran afoul of the NSPE Code of Ethics in continuing any type of affiliation or connection with the firm.

The BER also noted that Engineer X may be charged with a violation of the NSPE Code if the firm performed engineering services that endangered the public safety. This violates the Code even though it is not associated with the particular project, inasmuch as there is an implied threat to the public safety in the performance of engineering services by unqualified individuals. The Board said, “It becomes the duty of Engineer X to notify proper authorities that the firm might perform engineering services without the direction of a licensed engineer. Under these conditions the engineering profession is exposed to

misrepresentation and misunderstanding and Engineer X must take appropriate action to protect the profession from these conditions.” The Board concluded by noting that the NSPE Code requires that licensed engineers avoid any form of association with engineers who do not conform to ethical practices. The Board said, “There is more than sufficient evidence in the facts known to Engineer X to raise a substantial question as to the ethical standards of the firm, to say nothing of its apparent illegal operation.”

Some of the fundamental principles discussed in BER Case No. 61-4 are applicable to those in the current case. The Board first acknowledges the need to provide an appropriate transition period to permit a firm to make appropriate changes to its operations and personnel adjustments in order to permit the firm to continue its existence following the death of the firm’s principal. However, once a reasonable period of time passes (this period should be measured in days or possibly weeks), the firm must comply with applicable state regulatory and legal requirements which, as noted in BER Case No. 61-4, are in place to help assure that the public health and safety are protected. While some flexibility may be appropriate depending upon the facts and circumstances and applicable state laws, legal and regulatory requirements must be followed as expeditiously as possible. Engineer A was well aware of the background concerning the operation of Firm Y and, therefore, was in a unique position to assist Firm Y in better understanding the issues at stake. In this connection, the Board believes it would have been appropriate for Engineer A to advise Widow C that Firm Y may not be in full compliance with the laws of State X and suggest that Firm Y self-report this fact to the state engineering licensure board. If Widow C refuses to take this action, Engineer A would have an obligation to personally bring this matter to the appropriate authorities (e.g., state engineering licensure board).

The Board clearly has reason to be troubled by the manner in which Firm Y continued to operate, and in particular the manner in which Engineer D’s actions permitted a subterfuge under the facts. While at first glance, Engineer D’s actions may be viewed as well-meaning and compassionate assistance by a friend to a family in crisis, in actual fact, Engineer D’s actions took on heightened significance in light of the continued improper activities of Firm Y. Those continued activities had serious implications and possible consequences for Firm Y and its clients, Widow C, the two graduate engineers as well as Engineer D. Engineer D’s actions may have placed other parties, as well as the general public, at risk.

The Board would note that, in both cases, BER Cases No. 61-4 and the present case, the facts indicate that the engineers involved permitted other parties to take advantage of and misrepresent what appears to be an initial understanding between the parties and the engineer. Engineers must always be mindful of the importance of protecting their professional reputations, must take all appropriate steps to maintain and control their professional relationships from the outset, must guard against the misuse or manipulation by other parties for gain or profit, and must seek full compliance with applicable state laws and regulations.

Furthermore, the Board observes that state law on the subject of business association practices varies significantly. Most states (58 percent) require business associations that provide professional engineering services to first obtain certificates of authority from the

engineering licensure board, and over two-thirds of these jurisdictions (71 percent) require that at least one officer of the business association be a licensed P.E.1 Thus, it is imperative that engineers know their state’s law in this regard. This case also highlights the practical wisdom and necessity for engineers to develop and provide plans for succession in ownership of their firms. Engineer B, the deceased engineer, was in the best position to plan for his Firm’s succession. A succession plan not only would have enhanced the likelihood of the firms’ operating within the law, but could provide attractive career opportunities for the younger engineers in the firm, and might have averted much pain and difficulty for all parties concerned.

Conclusions:Question 1. Engineer A and Engineer D are ethically obligated to advise Widow C that

Firm Y may not be in full compliance with the laws of State X and suggest that Firm Y self- report this fact to the state engineering licensure board. If Widow C refuses to take this action, it would appear that Engineer A and Engineer D would have an obligation to personally bring this matter to the appropriate authorities (e.g., state engineering licensure board).

Question 2. It was ethical for Engineer D to assist Widow C through a limited transition period and provide advice to Widow C, provided it is permissible under state laws and regulations.

Case Study No. 12

Safety StandardsFacts:Engineer A provides forensic engineering services related to the design and manufacture of industrial equipment. Engineer A is retained by an injured industrial employee in connection with litigation involving the failure of a manufacturer to incorporate a safety guard into the design of an industrial tool. Under US law and design standards, the incorporation of the safety guard is not required. However, such a device is required under European safety standards. During preliminary trial motions, the trial court grants the defense's motion to suppress Engineer A's proposed testimony concerning European safety standards. At trial, Engineer A is called as an expert witness and despite the court's ruling, Engineer A offers testimony concerning the European safety standards. The court holds Engineer A in contempt of court.

Question:

Was it ethical for Engineer A to offer testimony concerning the European safety standards contrary to the court's ruling that the testimony be suppressed?

References:Preamble - Engineering is an important and learned profession.

The members of the profession recognize that theirwork has a direct and vital impact on the quality oflife for all people. Accordingly, the services providedby engineers require honesty, impartiality, fairnessand equity, and must be dedicated to the protection ofthe public health, safety and welfare. In the practiceof their profession, engineers must perform under astandard of professional behavior which requiresadherence to the highest principles of ethical conducton behalf of the public, clients, employers and theprofession.

Section II.1.a. - Engineers shall at all times recognize that their primaryobligation is to protect the safety, health, property andwelfare of the public. If their professional judgmentis overruled under circumstances where the safety,health, property or welfare of the public areendangered, they shall notify their employer or clientand such other authority as may be appropriate.

Section III.3. - Engineers shall avoid all conduct or practice which islikely to discredit the profession or deceive the public.

Discussion:

The Preamble requires that "...engineers must perform under a standard of professional behavior which requires adherence to the highest principles of ethical conduct." The Board does not believe that Engineer A's direct violation of the ruling of the court can be considered ethical conduct.

Further, the Board believes that Engineer A was also unethical under Section III.3. in his deliberate defiance of the court which constituted "conduct...likely to discredit the profession...".

Code of Ethics Section II.1.a. states ``Engineers shall at all times recognize that their primary obligation is to protect the safety, health, property, and welfare of the public. If their professional judgment is overruled under circumstances where the safety, health, property, or welfare of the public are endangered, they shall notify their employer or client and such other authority as may be appropriate. "

In BER Case 65-12, the Board dealt with a situation in which a group of engineers believed that

a product was unsafe, and determined that so long as the engineers held to that view they were ethically justified in refusing to participate in the processing or production of the product in question. Earlier, in BER Case 61-10 we distinguished a situation in which engineers had objected to the redesign of a commercial product, but which did not entail any question of public health or safety. On that basis we concluded that this was a business decision for management and did not entitle the engineers to question the decision on ethical grounds.

Here the Engineer A has fully notified the proper authorities (the court) of his testimony in connection with the safety standards in question and the court has made an official determination that the Engineer A's testimony should not be admitted. That being the ruling of the court, a proper authority, Engineer A has fulfilled his ethical and professional obligation and should abide by the judgment of the court. To ignore the court's substantive determination and to violate the court's procedure would both jeopardize the fairness of the proceedings and place the engineering profession in a bad light.

In this type of situation, we feel that the ethical duty or right of the engineer becomes a matter of personal conscience, but we are not willing to make a blanket statement that there is an ethical duty in these kinds of situations for the engineer to continue his campaign, and make the issue one for public discussion. If an engineer feels strongly about a particular issue such as the one raised by this case, there are numerous other forums for the engineer to raise his concerns (within his professional society, in professional journals, etc.). However, a courtroom in which a legal proceeding is being held is not among the appropriate forums.

Conclusion:

It would be unethical for Engineer A to offer testimony concerning the European safety standards contrary to the court's ruling that the testimony should be suppressed.

Case Study No. 13

Duty To Report Safety Violations

Facts:

Engineer A is retained to investigate the structural integrity of a 60-year old occupied apartment building which his client is planning to sell. Under the terms of the agreement with the client, the structural report written by Engineer A is to remain confidential. In addition, the client makes clear to Engineer A that the building is being sold "as is" and he is not planning to take any remedial action to repair or renovate any system within the building prior to its sale.

Engineer A performs several structural tests on the building and determines that the building is structurally sound. However, during the course of providing services, the client confides in Engineer A and informs him that the building contains deficiencies in the electrical and mechanical systems which violate applicable codes and standards. While Engineer A is not an electrical nor mechanical engineer, he does realize those deficiencies could cause injury to the occupants of the building and so informs the client.

In his report, Engineer A makes a brief mention of his conversation with the client

concerning the deficiencies; however, in view of the terms of the agreement, Engineer A

does not report the safety violations to any third party.

Question:

Was it ethical for Engineer A not to report the safety violations to the appropriate public authorities?

References:

Section I.1. - Engineers, in the fulfillment of their professional duties, shall hold paramount the

safety, health and welfare of the public in the performance of their professional duties.

Section II.1.a. -Engineers shall at all times recognize that their primary obligation is to protect the safety,

health, property and welfare of the public. If their professional judgment is overruled under circumstances wherethe safety, health, property or welfare of the public are endangered, they shall notify their employer or client andsuch other authority as may be appropriate.

Section II.1.c. -Engineers shall not reveal facts, data or information obtained in a professional capacity

without the prior consent of the client or employer except as authorized or required by law or this Code.

Section II.1.e. -Engineers having knowledge of any alleged violation of this Code shall cooperate with the

proper authorities in furnishing such information or assistance as may be required.

Section II.4.- Engineers shall act in professional matters for each employer or client as faithful

agents or trustees.

Section III.4.- Engineers shall not disclose confidential information concerning the business affairs or

technical processes of any present or former client or employer without his consent.

Discussion:

The facts presented in this case raise a conflict between two basic ethical obligations of an engineer: The obligation of the engineer to be faithful to the client and not to disclose confidential information concerning the business affairs of a client without that client's consent, and the obligation of the engineer to hold paramount the public health and safety.

Section III.4 can be clearly understood to mean that an engineer has an ethical obligation not to disclose confidential information concerning the business affairs of any present client without the consent of that client. That provision makes no specific exception to the language. For example, the drafters of the Code could have provided exceptional circumstances where such confidential information could be disclosed by the

engineer; however no such provisions have been included.

There are various rationale for the non-disclosure language contained in the Code. Engineers, in the performance of their professional services, act as "agents" or "trustees" to their clients. They are privy to a great deal of information and background concerning the business affairs of their client. The disclosure of confidential information could be quite detrimental to the interests of their client and therefore engineers as "agents" or "trustees" of such information are expected to maintain the confidential nature of the information revealed to them in the course of rendering their professional services.

On numerous occasions, this Board has interpreted the language contained in Sections II.4. and III.4. particularly in the context of the obligations of employed engineers to maintain the confidences of their employer particularly with regard to certain confidential information which might be made available to the engineer during the course of employment as in Case 61-8. However, more recently, the Board has interpreted this language in the context of the relationships owed by the engineer in private practice to the client.

For example, in Case 82-2, an engineering consultant performed home inspection services for a prospective purchaser of a residence and thereafter disclosed the contents of the report to the real estate firm handling the sale of the residence. The Board reaffirmed the principle of the right of confidentiality on behalf of the client. There we noted that this was not a case of an engineer allegedly violating the mandate of Section III.4. not to disclose information concerning the business affairs of the client. We said that Section III.4. necessarily relates to confidential information given the engineer by the client in the course of providing services to the client. In Case 82-2, there was no transmission of confidential information by the client to the engineer.

However, under the facts of the present case, there was a transmission of confidential information by the client to Engineer A. Therefore, it would appear that Section III.4. should be involved in our consideration of this case.

While we noted earlier that the Code makes no direct exception to the language contained in Section III.4., as we have stated on numerous occasions, no section of the Code should be read in a vacuum or independent of the other provisions of the Code. Section II.1.c. provides additional guidance in this case making it clear that the Engineer A has an ethical obligation to refrain from disclosing information which he acquires during the course of providing professional services to the client unless first obtaining the client's consent to disclose. Importantly, however, this section also includes a relevant exception which allows the engineer to disclose information acquired during the course of providing professional services to the client if such disclosure is authorized or required by law or by the Code. In other words if the engineerhas a legal or ethical responsibility to disclose the information in question, the engineer is released from the obligation to maintain confidentiality.

The Board has interpreted Section II.1.c. on three different occasions (Cases 82-2, 85-4, 87-2) but in none of those cases has the Board outlined the scope of the Code section. Based upon previous BER cases, it is not clear which provisions of the law would

have to be involved before an engineer is released from the obligation of non-disclosure. Similarly and more importantly, from a review of these cases for our purposes, it is unclear which provisions of the Code of Ethics would apply before an engineer is released from the obligation of non-disclosure.

However, we believe we can draw from another case involving somewhat different facts to illustrate an approach which might be applicable to the case at hand. Case 84-5 involved a client who planned a project and hired an engineer to furnish complete engineering services for the project. Because of the potentially dangerous nature of implementing the design during the construction phase, the engineer recommended that a full-time, on-site project representative be hired for the project. After reviewing the complete project plans and costs, the client indicated to the engineer that the project would be too costly if such a representative were hired. They found it was unethical for the engineer to proceed with his work on the project knowing that the client would not agree to hire a full-time project representative. The Board noted that the engineer acceded to the client's wishes and proceeded with the work despite the fact that the engineer believed that to proceed without an on-site project representative would be potentially dangerous. The engineer did not force the issue or insist that a project representative be hired. Instead, the engineer "went along" without dissent or comment. If the engineer's ethical concerns were real, the engineer should have insisted that the client hire the on-site project representative or refuse to continue to work on the project.

We believe much of the same reasoning applies in the present case. Under the reasoning of Case 84-5, the engineer had an obligation to go further. We believe under the facts, Section II.1.c. should be read in conjunction with Section II.1.a. The latter section refers to the primary obligation of the engineer to protect the safety, health, property and welfare of the public. The obligation of the engineer to refrain from revealing confidential information, data, facts concerning the business affairs of the client without consent of the client is a significant ethical obligation. We further believe that matters of public health and safety must take precedence. The Code of Ethics is clear on this point. Section I.1. employs the word "paramount" to describe the obligation of the engineer with respect to the public health and safety.

We believe Engineer A could have taken other steps to address the situation, not the least of which was his paramount professional obligation to notify the appropriate authority if his professional judgment is overruled under circumstances where the safety of the public is endangered. Instead, Engineer A, like the engineer in Case 84-5, "went along" and proceeded with the work on behalf of the client. His conduct cannot be condoned under the Code.

Conclusion:

It was unethical for Engineer A not to report the safety violations to the appropriate public authorities.

Case Study No. 14Duty of Engineer Regarding Inspection of Client’s

Work Involved in Inspection and ReanalysisFacts:Engineer A was hired to be the managing agent and to be in responsible charge of engineering for ABC Engineering, a professional design firm (civil), that is owned by Individual X and Individual Y. Individual X was a partner with Engineer B in a land development company that was dissolved. The land development company was not a professional design firm. Engineer B, as a separate entity, had prepared all engineering plans for the land development company. When the land development company dissolved, there were several unfinished projects. ABC Engineering does not want to become involved in finishing the design work that Engineer B had started. Pending business issues remain between Individual X and Engineer B, and Engineer B has indicated that he would not finish the design work until these issues are resolved. Engineer B has threatened to bring litigation against anyone who tries to complete his work.

There is a residential subdivision that was constructed by the dissolved land development company which was designed by Engineer B and owned by an independent party. All approvals of the design and construction have been received except for one pending approval. One of the governing agencies is a sanitary district.The sanitary district has approved the design and has inspected the work. However, before the sanitary sewer can be put into service, the district requires a final inspection. The request for the final inspection has to be made by an inspection engineer by filling out a form and signing it. On the original district permit, Engineer B was designated as the inspection engineer. Engineer B has refused to act on the request for final inspection due to

the unresolved business issues with Individual X, even though Engineer B, acting through the separate entity at the time, has been paid. The sanitary district has stated they will accept another inspection engineer making the request for final inspection other than the one listed on the original permit.

During the time this subdivision was under construction, Engineer A worked for an engineering firm that was hired as a consultant by the municipality in which this subdivision was built to inspect the construction of the subdivision. At that time,Engineer A personally inspected and tested the sewer in accordance with the district's standards.

On a different residential subdivision, Engineer B prepared a Floodplain/FloodwayAnalysis for the re-mapping of a FEMA flood map. The analysis is typically submitted to the first review agency. After the first review agency approves the analysis, it is submitted to FEMA for its review. The first review agency issues a review of the analysis and requests that some changes be made. Engineer B has stated he will not make these changes and continue the re-mapping process until the unresolved issues with Individual X are resolved. Engineer B has been paid for the work Engineer B performed on the analysis, and the client has agreed to pay Engineer B to move the process forward and make the requested changes. Engineer A agrees to resubmit the changes, referencing Engineer B’s analysis.

Questions:Question 1: Would it be ethical for Engineer A to perform the final inspection as required by the

sanitary district?

Question 2: Would it be ethical for Engineer A to resubmit the analysis with the requested changes if he references Engineer B’s analysis?

Question 3: Is it ethical for Engineer B to refuse to perform the final inspection?

Question 4: Is it ethical for Engineer A to perform the remapping services in view of the fact that Engineer B has already been paid?

References:Section: II.2.b. - Code of Ethics: Engineers shall not affix their signatures to any plans or documents dealing with subject

matter in which they lack competence, nor to any plan or document not prepared undertheir direction and control.

Section II.2.c. - Code of Ethics: Engineers may accept assignments and assume responsibility

entire project and sign and seal the engineering documentsprovided that each technical segment is signed and sealedengineers who prepared the segment.for coordination of an for the entire project, only by the qualfied

Section II.4. - Code of Ethics: Engineers shall act for each employer or client as faithful

agents or trustees.

Discussion:A professional engineer renders services through a variety of business associations, be it a sole proprietorship, partnership, business corporation, professional corporation, or other entity. How such a company is structured and how it represents itself may raise ethical issues for professional engineers.

The Board has had occasion to review situations involving innovative business structures and the ethical issues involved in rendering services in this manner. In BER Case No. 86-1, Part 1, Engineer A had the opportunity to join a business consortium consisting of his engineering firm, an architectural firm, a construction firm, and a financial firm. The general purpose of the consortium was to improve general marketing and business development. To defray consortium expenses for promotion, publicity, overhead, etc., each firm was required to pay to the consortium an entrance fee plus a percentage of income derived from business successfully generated from referrals by other consortium members. In BER Case No. 86-1 Part 2, Engineer B had the opportunity to join a business consortium consisting of his engineering firm, an architectural firm, a construction firm, and a financial firm. The general purpose of the consortium was to improve general marketing and business development. To defray consortium expenses for promotion, publicity, overhead, etc., each firm was required to pay the consortium an entrance fee. In addition, Engineer B was required to pay a referral fee directly to the consortium firm member that "found" the new business client for Engineer B. If Engineer B "found" a new business client for a member of the consortium, Engineer B would receive a finder’s fee. In discussing these situations, and whether it would be ethical for the engineers involved to participate in these arrangements, the Board noted that A "consortium" is generally defined as a business combination established for the benefit of its members. The general structure of such entities varies, of course, depending upon the nature of the venture, size, and a whole host of factors. However, what is common to almost all such entities is the fact that the members of the entity generally conduct business primarily for the benefit of its members. The Board noted that the key issue in the case was whether an individual engineer may ethically join together with other business and professional groups in an arrangement which would offer incentives to its members for referrals to one another.The Board noted that engineering firms must balance a number of factors before seeking association with other firms or business and whether such an entity may exist within the bounds of the NSPE Code must be determined by a close and careful analysis of the NSPE Code and cases interpreting the applicable NSPE Code provisions.

In BER Case No. 86-1, the Board focused attention on the fact that engineers act for the benefit of their clients in rendering their services. Their technical knowledge and experience are heavily relied upon by their clients. Engineers are called upon to render judgments in a variety of areas including recommendations, referrals, and the like. A client should be entitled to expect the best judgment the engineer has to offer. In this regard, the engineer should not be guided by personal gain or private concerns. Like all professionals, the engineer should be free to make the best, most informed, and impartial judgment he is capable of making. In concluding that Engineer A’s actions were ethical and Engineer B’s were not, the Board noted that both consortiums are being formed primarily for marketing purposes and represent, in effect, a "pooling" of individual firm marketing capabilities, but that in one case, Engineer B was receiving a “finder’s fee” and, therefore, Engineer B’s professional judgment could be

compromised or at least appear to be compromised.

We think the general ethical principles of BER Case No. 86-1 bear upon the present case. The lessons drawn from BER Case No. 86-1 relate to the great importance of the engineer focusing upon the best interests of the client and the need for the engineer to avoid actions that could compromise or appear to compromise judgment. In this connection, under the facts in the present case, the Board is of the view that, assuming from the facts that all of the design and construction work has been paid for by the Owner and there are no remaining or outstanding payment issues in connection withEngineer B’s professional services provided to the client, the NSPE Code dictates that the Owner should not be left in the middle of a conflict between the two former partners.The facts do not suggest and, therefore, one can only speculate on whether there was a written agreement between the original land development firm and the Owner. In this connection, such an agreement may have addressed the issue of ownership and reuse of the documents, drawings, plans, specifications, etc. Most well-drafted agreements provide the owner with the right to use the documents on a particular project, particularly, as here, where the engineer has been paid in full for professional services.

Engineer B’s actions were clearly a violation of the NSPE Code of Ethics. At the same time, since Engineer A is an employee of one of the former partners of the land development company, by offering to perform the work, Engineer A could potentially inject himself into this dispute which might exacerbate this situation. On balance, the Board is of the view that Engineer A could ethically perform the services described in Questions 1, 2, and 4. However, whether such an action would best serve the interests of the Owner is another issue Engineer A and his employer would be advised to seriously consider. While an alternative that could avoid potentially injecting Engineer A into this dispute is for the Owner (possibly with the ABC Engineering Company’s assistance) to find an independent third-party professional engineer who could perform the final inspection on behalf of the owner. This approach would serve the interests of the Owner by providing the Owner with the required approvals and also avoid havingEngineer A or Engineer A’s employer, ABC Company, being viewed as exacerbating this conflict.

Conclusions:Question 1: It would be ethical for Engineer A to perform the final inspection as required

by the sanitary district, but consideration should be given to theOwner seeking the services of an independent professional engineer to perform those services.

Question 2: It would be ethical for Engineer A to resubmit the analysis with the requested changes if he references Engineer B’s analysis but consideration should be given to the Owner seeking the services of an independent professional engineer to perform those services.

Question 3: It was not ethical for Engineer B to refuse to perform the final inspection.

Question 4: It was ethical for Engineer A to perform the remapping services in view of the fact that Engineer B has already been paid.

Case Study No. 15Public Welfare Hazardous Waste

Facts:

Technician A is a field technician employed by an consulting environmental engineering firm. At the direction of his supervisor Engineer B, Technician A samples the contents of drums located on the property of a client. Based on Technician A's past experience, it is his opinion that analysis of the sample would most likely determine that the drum contents would be classified as hazardous waste. If the material is hazardous waste, Technician A knows that certain steps would legally have to be taken to transport and properly dispose of the drum including notifying the proper federal and state authorities.

Technician A asks his supervisor Engineer B what to do with the samples. Engineer B tells Technician A only to document the existence of the samples. Technician A is then told by Engineer B that since the client does other business with the firm, Engineer B will tell the client where the drums are located but do nothing else. Thereafter, Engineer B informs the client of the presence of drums containing "questionable material" and suggests that they be removed. The client contacts another firm and has the material removed.

Questions:

1. Was it ethical for Engineer B to merely inform the client of the presence of the drums and suggest that they be removed?

2. Did Engineer B have an ethical obligation to take further action?

Preamble -Engineering is an important and learned

profession. Themembers of the profession recognize that their work has a direct and vital impact on the quality of life for all people. Accordingly, the services provided by engineers require honesty, impartiality, fairness and equity, and must be dedicated to the protection of the public health, safety and welfare. In the practice of their profession, engineers must perform under a standard of professional behavior which requires adherence to the highest principles of ethical conduct on behalf of the public, clients, employers and the profession.

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Section I.1. -Hold paramount the safety, health and welfare of thepublic in the performance of their professional duties.

Section II.1. -Engineers shall hold paramount the safety, health andwelfare of the public in the performance of theirprofessional duties.

Section II.1.a. -Engineers shall at all times recognize that their primaryobligation is to protect the safety, health, property andwelfare of the public. If their professional judgment isoverruled under circumstances where the safety,health, property or welfare of the public areendangered, they shall notify their employer or clientand such other authority as may be appropriate.

Section II.1.c. -Engineers shall not reveal facts, data or informationobtained in a professional capacity without the priorconsent of the client or employer except as authorizedor required by law or this Code.

Section II.3.a. -Engineers shall be objective and truthful in professionalreports, statements or testimony. They shall include allrelevant and pertinent information in such reports,statements or testimony.

Section III.1. -Engineers shall be guided in all their professionalrelations by the highest standards of integrity.

Section III.3. -Engineers shall avoid all conduct or practice which islikely to discredit the profession or deceive the public.

Section III.3.a. -Engineers shall avoid the use of statements containing amaterial misrepresentation of fact or omitting amaterial fact necessary to keep statements from beingmisleading or intended or likely to create an unjustifiedexpectation; statements containing prediction of futuresuccess; statements containing an opinion as to thequality of the Engineers' services; or statementsintended or likely to attract clients by the use ofshowmanship, puffery, or self-laudation, including theuse of slogans, jingles, or sensational language orformat.

Section III.4. -Engineers shall not disclose confidential information

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concerning the business affairs or technical processesof any present or former client or employer without hisconsent.

Discussion:

The extent to which an engineer has an obligation to hold paramount the public health and welfare in the performance of professional duties (Section I.1.) has been widely discussed by the Board of Ethical Review over the years. In many of these cases this basic duty has frequently intersected with the duty of engineers not to disclose confidential information concerning the business affairs, etc., of clients (Section III.4.)

For example, in BER Case 89-7 an engineer was retained to investigate the structural integrity of a 60 year old occupied apartment building which his client was planning to sell. Under the terms of the agreement with the client, the structural report written by the engineer was to remain confidential. In addition, the client made it clear to the engineer that the building was being sold "as is" and the client was not planning to take any remedial action to repair or renovate any system within the building. The engineer performed several structural tests on the building and determined that the building was structurally sound. However, during the course of providing services, the client confided in the engineer that the building contained deficiencies in the electrical and mechanical systems which violated applicable codes and standards. While the engineer was not an electrical nor mechanical engineer, he did realize that those deficiencies could cause injury to the occupants of the building and so informed the client. In his report, the engineer made a brief mention of his conversation with the client concerning the deficiencies; however, in view of the terms of the agreement, the engineer did not report the safety violations to any third parties. In determining that it was unethical for the engineer not to report the safety violations to appropriate public authorities, the Board, citing cases decided earlier, noted that the engineer "did not force the issue but instead went along without dissent or comment. If the engineer's ethical concerns were real, the engineer should have insisted that the client take appropriate action or refuse to continue work on the project." The Board concluded that the engineer had an obligation to go further particularly because the Code uses the term "paramount" to describe the engineer's obligation to protect the public safety health and welfare.

More recently, in BER Case 90-5, the Board reaffirmed the basic principle articulated in BER Case 89-7. There, tenants of an apartment building sued its owner to force him to repair many of the building's defects. The owner's attorney hired an engineer to inspect the building and give expert testimony in support of the owner. The engineer discovered serious structural defects in the building which he believed constituted an immediate threat to the safety of the tenants. The tenants' suit had not mentioned these safety related defects. Upon reporting the findings to the attorney, the engineer was told he

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must maintain this information as confidential as it is part of the lawsuit. The engineer complies with the request. In deciding it was unethical for the engineer to conceal his knowledge of the safety-related defect, the Board discounted the attorney's statement that the engineer was legally bound to maintain confidentiality, noting that any such duty was superseded by the immediate and imminent danger to the building's tenants. While the Board recognized that there may be circumstances where the natural tension between the engineer's public welfare responsibility and the duty of non-disclosure may be resolved in a different manner, the Board concluded that this clearly was not the case under the facts.

Turning to the facts in this case, we believe the basic principles enunciated in BER Cases 89-7 and 90-5 are applicable here as well except in a different context. Unlike the facts in the earlier cases, Engineer B made no oral or written promise to maintain the client's confidentiality. Instead, Engineer B consciously and affirmatively took actions that could cause serious environmental danger to workers and the public, and also a violation of various environmental laws and regulations. Under the facts, it appears that Engineer B's primary concern was not so much maintaining the client's confidentiality as it was in maintaining good business relations with a client. In addition, it appears that as in all cases which involve potential violations of the law, Engineer B's actions may have had the effect of seriously damaging the long-term interests and reputation of the client. In this regard, we would also note that under the facts it appears that the manner in which Engineer B communicated the presence of the drums on the property must have suggested to the client that there was a high likelihood that the drums contained hazardous materials. We believe that this subterfuge is wholly inconsistent with the spirit and intent of the Code of Ethics because it makes the engineer an accomplice to what may amount to an unlawful action.

Clearly, Engineer B's responsibility under the facts was to bring the matter of the drums possibly containing hazardous material to the attention of the client with a recommendation that the material be analyzed. To do less would be unethical. If analysis demonstrates that the material is indeed hazardous, the client would have the obligation of disposing of the material in accordance with applicable federal state and local laws.

Conclusions:It was unethical for Engineer B to fail to advise his client that he suspected hazardous material

and provide a recommendation concerning removal and disposal in accordance with federal,

state and local laws.

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