College of Engineering & Computer Science. Professional Development Seminars Making Good Choices: Ethics For STEM Professionals

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1 1 College of Engineering & Computer Science Professional Development Seminars 2018 Making Good Choices: Ethics For STEM Professionals Ethics Materials: Principles of Ethics Ethical Fact Situations John F. Gisla February 9,

2 2 ETHICS FOR PROFESSIONALS BASIC PRINCIPLES OF ETHICS 1. Fundamental Underlying Principles of Ethics. a. The concept of integrity underlies each of the principles of ethics. b. Integrity must be a "seamless garment". We must be men and women of integrity, both in our professional lives and in our personal lives. c. The loss of integrity often comes slowly, and without our awareness. It starts with little compromises of integrity, and over the years grows into major compromises. We may not even be aware that we have lost our integrity. d. Compromising our integrity is a slippery slope. e. Also underlying the concept of integrity is a sense of fair play and evenhandedness. 2. The canons of ethics are based on principles that protect the public, and protect the client. a. Work Only in Areas of Competency b. Full Disclosure c. Avoid Deceptive Acts d. Avoid Conflicts of Interest 3. Lastly, integrity requires the personal courage to do the right thing. 2

3 3 ETHICAL FACT SITUATIONS 1. Hold Paramount the Safety of the Public Engineer A is a mechanical engineer employed by Hydraulic Systems, Inc.. Hydraulic Systems, Inc. designs, manufactures and sells hydraulic landing systems to aircraft manufacturing companies such as The Jet Corporation that makes private jets. Hydraulic Systems, Inc. entered into a contract with The Jet Corporation to deliver 50 hydraulic landing systems by June 1st. It will take Hydraulic Systems, Inc. three months to assemble the 50 hydraulic landing systems. On February 1st, four months before the contract delivery date, Engineer A is conducting final tests on one of the hydraulic landing system prototypes, and discovers that one of the main hydraulic seals shows signs of leaking. He estimates that a re-design of the seal will take a minimum of 60 days, necessitating at least a 30-day delay in production and delivery of the 50 landing systems to The Jet Corporation. In Engineer A=s professional judgment, there is a 1% chance that the leaking seal could result in the total failure of the hydraulic landing system, possibly causing the aircraft to crash on landing. He informs the Project Manager of his findings and opinion. The Project Manager reviews Engineer A=s analysis, and tells Engineer A that his analysis is flawed, and that in his opinion, the leaking seal is "highly unlikely" to cause a failure of the hydraulic landing system. The Project Manager tells Engineer A that delivery of the first 50 units is extremely important to the future business relationship between Hydraulic Systems, Inc. and The Jet Corporation, and that Hydraulic Systems, Inc. will fix the leaking seal problem in future deliveries. The Production Manager then instructs Engineer A to certify and sign off on the design so that the production of the 50 units can immediately begin. What should Engineer A do? The first fundamental Canon of Ethics promulgated by the National Society of Professional Engineers (NSPE) provides that engineers "shall hold paramount the safety, health and welfare of the public." Included within this Canon of Ethics are the following Rules of Practice: (a) "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"; (b) "Engineers shall approve only those engineering documents that are in conformity with applicable standards"; and (c) "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 3

4 proper authority in furnishing such information or assistance as may be required." In Engineer A=s professional judgment, the design of the hydraulic seal has a 1% chance of endangering public safety. Engineer A therefore has an ethical responsibility to withhold his approval and certification of the design. He also has the ethical responsibility to notify the highest level of management of Hydraulic Systems, Inc. of the problem. If Hydraulic Systems, Inc.=s management overrules Engineer A=s professional judgment, he has the additional ethical responsibility to report the problem to the appropriate public authorities, such as the Federal Aviation Administration (FAA) since the problem involves air safety. Taking this course of action involves substantial risk that Engineer A will be disciplined by Hydraulic Systems, Inc. for "whistle blowing". Even if Engineer A is not retaliated against for whistle blowing, he will cause significant financial loss to Hydraulic Systems, Inc. if his professional judgment regarding the danger to public safety is wrong. Engineer A should therefore take reasonable measures to make sure that he is not making an error of professional judgment. He would do this by carefully considering the professional judgment of the Project Manager who has more professional experience than he does; or he could consult with other professionals employed by Hydraulic Systems, Inc.. Engineer A might also confidentially consult with reputable design professionals within the academic community who can objectively evaluate the risk of danger to public safety. If, after carefully considering the professional opinions of all available design professionals, Engineer A still is of the opinion that the leaking hydraulic seal poses a risk to public safety, and if Hydraulic Systems Inc. overrules his judgment, Engineer A has an ethical obligation to report the matter to the appropriate authorities. Doing the "right thing" often involves the risk of professional and personal cost. But acting ethically is also a matter of personal and professional integrity. It is submitted that, in the long run, personal and professional integrity will bring greater professional success and fulfillment than any particular job. 2. Doing The Right Thing Two real-life examples illustrate the importance of doing the right thing when a defective design endangers public safety. The first example illustrates the tragedy of not doing the right thing. In 1974, a DC-10 jet crashed over the suburbs of Paris shortly after takeoff, killing all 346 passengers. A cargo door blew open, resulting in decompression of the cargo compartment, collapse of the cabin floor, and destruction of control system that was routed through the cabin floor. In 1972, Dan Applegate, a senior engineer who directed the design of the fuselage, wrote a memo to management stating: "It seems to me inevitable that, in the twenty years ahead of us, DC-10 cargo doors will come open, and I would expect this to usually result in the loss of the airplane." Top management did not dispute Applegate's technical analysis, but 4 4

5 chose to do nothing because of financial issues. Applegate did not pursue his warnings outside the company. How do you think he feels today? The second example involves the design and construction of the Citicorp Center in New York in The 59-story building was designed with the supporting columns in the middle of each side, rather than at the corners of the building. This was done to accommodate a small church on the corner of the lot. The structural design was done by William Le Messurier (pronounced "Le Measure"), a leading world-renowned structural engineer. The design was both unique and complex. Six years after the building was occupied, an engineering student contacted Le Messurier and said that according to his design professor the structural design was flawed because the columns should be at the corners. After Le Messurier explained his design, he decided to re-examine his design. To his surprise and shock, he found that the realistic wind forces on the sides of the building caused a 40% increased strain in the wind braces. This would not have been a problem, except that the wind braces were bolted instead of welded as originally designed, and the braces were much weaker than anticipated. Le Messurier then discovered to his horror that the building was in danger of collapsing if a 16-year quartering wind hit the building. Le Messurier had two options: keep silent and hope for the best; or blow the whistle - on himself. Le Messurier decided to do the right thing. Working with the owner, architect, disaster prevention teams, insurance agents and construction firms, all of the wind braces were welded from the inside. About that time, hurricane Ella, a 200-year storm, decided to head towards New York City, and would have destroyed the Citicorp Center building and other buildings had it not veered off to the sea at the last moment. Everyone in this story came out winners, including Le Messurier who, instead of disgrace and financial ruin, earned respect and admiration not only for his technical skill, but also for his courage and integrity. 3. Duty To Client For Mistakes That Cause Loss to Client: Engineer A and Engineer B, two registered professional engineers, form an environmental consulting firm that they name Environmental Consulting, Inc. (ECI). ECI is awarded a contract to handle the environmental cleanup of Consolidated Chemical=s California plant. Midway through the contract, Engineer A discovers that he failed to file with the California Environmental Protection Agency an application for an important exemption. Without the exemption, Consolidated Chemical will be required to install very expensive monitoring equipment all around the perimeter of Consolidated Chemical=s plant. Engineer A and Engineer B decide not to tell Consolidated Chemical about the exemption, reasoning that Consolidated Chemical might not be eligible for the exemption anyway because of the seriousness of the environmental problem. Have Engineer A Engineer B violated any ethical standards? 5 5

6 The fifth Canon of Ethics of the NSPE Code of Ethics For Engineers is: "Engineers shall avoid deceptive acts." This canon not only prohibits deception by misrepresentation, but deception by omission. The NSPE Code of Ethics For Engineers lists a number of Professional Obligations. One such Professional Obligation provides: "Engineers shall be guided in all their relations by the highest standards of honesty and integrity." This Professional Obligation requires that: "Engineers shall acknowledge their errors and shall not distort or alter the facts." Engineer A and Engineer B have a duty to fully disclose to Consolidated Chemical their failure to file for the exemption. Consolidated Chemical can then decide whether the chances of obtaining the exemption justify the cost to pursue the exemption. Engineer A and Engineer B should also inform their professional malpractice insurance company of their mistake. This is required by most malpractice insurance policies, and gives the malpractice insurance company an opportunity to investigate and mitigate the damages. Engineer A and Engineer B may lose their malpractice insurance coverage if they fail to advise their malpractice insurance company. 4. Duty To Clients Concerning Billing Engineer A is a design engineer for Firm X, an architect-engineering (A-E) firm. Firm X has a contract with Real Estate Development, Inc. to do all the design work for the renovation of a 20-story commercial building. Firm X bills Real Estate Development, Inc. at the hourly rate of $150 per hour for all design work performed. Engineer A is working on the design of the communication system for the building, which includes the high-speed communication data transfer system. After spending 100 hours on the system, Engineer A discovers that Real Estate Development, Inc. has a 3- year contract with Telephone Company to provide all telecommunications services to the building. Telephone Company=s telecommunications systems are not compatible with the telecommunications system being designed by Engineer A. Engineer A therefore has to completely re-do all of his design work to date. Engineer A reads the contract between Firm X and Real Estate Development Company, and finds that the contract includes a provision relating to the telecommunications requirements of Telephone Company. Engineer A was not aware of the requirements of Telephone Company because he neglected to read the contract. Engineer A explains the situation to his supervisor, and asks his supervisor what he should do about the 100 hours of design work he performed that must now be redone. Engineer A=s supervisor tells him he will "take care of it", and "not to worry about it." Engineer A suspects that his supervisor is going to bill Real Estate Development, Inc. for the 100 hours. What should Engineer A do? 6 6

7 7 The fourth fundamental canon of the NSPE Code of Ethics For Engineers states that "Engineers shall act for each employer or client as faithful agents or trustees". The fifth fundamental canon provides that "Engineers shall avoid deceptive acts". The sixth canon states that "Engineers shall conduct themselves honorably, responsibly, ethically, and lawfully so as to enhance the honor, reputation, and usefulness of the profession." Each of these fundamental canons of ethics prohibits Firm X from billing Real Estate Development Company for the 100 hours of design work that Engineer A did based on Engineer A=s failure to know the contract provision relating to Telephone Company=s system requirement. The 100 hours had no value to Real Estate Development Company, and this was Engineer A=s fault. Engineer A suspects that his supervisor is going to bill Real Estate Development Company for the 100 hours of design work. Engineer A cannot "turn a blind eye" to this suspicion by relying entirely on his supervisor=s statement "not to worry about it", and he will "take care of it". Engineer A should clearly ask his supervisor if he is going to bill Real Estate Development for the 100 hours, and Engineer A should clearly communicate to his supervisor that it would be wrong to do so. If Engineer A=s supervisor does not unequivocally state that he agrees with Engineer A, and that he does not intend to bill Real Estate Development Company, Engineer A should discuss the issue with his secondline supervisor, and continue up the chain of management until he is reasonably convinced that Real Estate Development Company will not be billed for the 100 hours. This course of action by Engineer A will probably disturb Engineer A=s supervisor. Engineer A will run the risk of retaliatory action by his supervisor, such as poor performance evaluations, or undesirable assignments. Engineer A, however, would fail in his ethical responsibilities, and lose personal and professional integrity, if he turned a blind eye to the issue. In the long run, Engineer A=s reputation for integrity, as well as his sense of self respect, should be more important than a good performance appraisal or better job assignments. In addition, Engineer A should not want to continue working for a firm that does not act ethically with its clients. On the other hand, a recently graduated engineer is not as efficient as an experienced engineer, and will spend more time on a design than an experienced engineer. The recently graduated engineer is ethically permitted to bill for time expended learning about the design because a client should reasonably expect to pay an inexperienced engineer for a reasonable time it takes to learn how to do the design. This is fair for the client because the hourly billing rate for a recently graduated engineer is usually less than for an experienced engineer. 7

8 8 5. Avoid Deceptive Acts - Job Applications Question: On a job application, and in a job interview, when does Engineer A cross the line between presenting himself in the best possible light, and misrepresenting his qualifications and achievements? Answer: The fifth fundamental Canon of Ethics of the NSPE Code of Ethics For Engineers states that: "Engineers shall avoid deceptive acts." This means that engineers shall not misrepresent important or significant facts or information in order to deceive or mislead someone. On a job application, or in a job interview, the line between Engineer A presenting himself in the best possible light, and misrepresenting his qualifications and achievements, can become blurred. Some "puffing" is acceptable and expected; but lying clearly is not. The following is not acceptable: a. Deleting prior employment where Engineer A was unsuccessful or disciplined; or omitting periods of unemployment. b. Overstating Engineer A=s education, training, experience, responsibilities, or the number of employees he/she supervised or managed. c. Inflating Engineer A=s prior salary in order to negotiate a more lucrative offer. d. Exaggerating Engineer A=s education, qualifications, accomplishments, time in a particular job or position, or responsibilities. e. Lying about prior drug use, criminal behavior, and employment discipline or misconduct. For example, if you are asked on an employment application whether you have ever smoked marijuana, you are ethically required to answer honestly, even if you smoked it only in high school, and never smoked it after you graduated from high school. f. Misrepresenting or exaggerating the qualifications of an associate or other employer. 8

9 9 We can deceive or mislead someone by what we say, and by what we do not say. We have an ethical responsibility to fully and accurately disclose all important and relevant information to the people with whom we are dealing. Integrity requires this. 6. Duty of Full Disclosure To Clients Engineer A is retained by Client B to design a manufacturing facility. Engineer A does not tell Client B that another client, Client C, filed a complaint against Engineer A with the State Engineers Licensing Board alleging that Engineer A was incompetent and unethical while designing a similar manufacturing facility for Client C. Engineer A believes that Client C filed the complaint out of malice in order to justify Client C's refusal to pay Engineer A. Does Engineer A have an ethical duty to tell Client B about the complaint filed against him by Client C? One of the Rules of Practice under the third fundamental canon of the NSPE Canons of Ethics For Engineers states: "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." One of the Rules of Practice under the fourth fundamental canon of the NSPE Canons of Ethics For Engineers states: "Engineers shall disclose all known or potential conflicts of interest that could influence or appear to influence their judgment or quality of their services." One of the Rules of Practice under the fifth fundamental canon of the NSPE Canons of Ethics For Engineers states: "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 for the subject matter of prior assignments. Brochures or other presentations incident to the solicitation of employment shall not misrepresent pertinent facts concerning employers, employees, associates, joint ventures, or past accomplishment." It is clear that Engineer A has an ethical obligation to act as a faithful agent and trustee for the benefit of Client B, avoid deceptive acts, be objective and truthful, avoid conflicts of interest, etc. These ethical obligations do not, however, require Engineer A to voluntarily disclose to Client B the complaint filed by Client C. A complaint is a mere allegation, and does not amount to a finding of fact or conclusion of law. Mere allegations can be false, baseless, and motivated by some malicious intent; and they can be very damaging to Engineer A's professional practice. Engineer A should weigh all factors, such as the nature and seriousness of Client C's complaint, and the legitimate interest of Client B to know about such potential problems. 9

10 10 In this case, Engineer A does not have an ethical duty to voluntarily tell Client B about Client C's complaint to the State Engineering Licensing board. The most prudent course of action, however, is for Engineer A to provide Client B with an objective and nonprejudicial explanation of the complaint. By so doing, Engineer A will enable Client B to avoid surprise, and to respond to comments or questions by third parties. It will certainly be better for Client B to hear about the complaint from Engineer A than from a third party. Engineer A will also demonstrate to Client B that Engineer A is acting in a professional and responsible manner, and has nothing to hide or fear concerning the complaint. On the other hand, if Client B specifically asks Engineer A if he has any complaints filed against him with the State Engineering Licensing board, Engineer A does have an ethical duty to tell Client B about the complaint Client C filed against him. 7. Perform Services In Areas of Competence Engineer A, a registered professional engineer, is employed by Commercial Development Enterprises (CDE) to oversee the technical design of CDE=s multi-million dollar real estate development projects. As part of his compensation, Engineer A is entitled to buy 100 shares of CDE stock each year at $10 per share. The stock is worth $100 per share on the market. For the prior five years, Engineer A has exercised his stock purchase option, and has purchased 100 shares per year at $10 per share. CDE also employs a number of design engineers who are not licensed or registered. These engineers design the different phases of CDE=s real estate development projects. Engineer A does not have either the time or the technical expertise to technically review the project segments that are designed by the other engineers. Engineer A, however, certifies and signs off on each of CDE=s project developments. In addition to his responsibilities to oversee the technical design of each project, Engineer A is a member of CDE=s Sales Team that makes sales presentations to potential investors and potential buyers of CDE=s real estate developments. Although Engineer A has no expertise in reviewing the financial and economic report of a real estate development, as part of the Sales Team, Engineer A assures potential customers and investors that each project is economically sound. What ethical issues does Engineer A face? The second fundamental canon of the NSPE Code of Ethics For Engineers provides that: "Engineers shall perform services only in the areas of their competence." The Code of 10

11 11 Ethics lists the following rules of practice: a. Engineers shall undertake assignments only when qualified by education or experience in the specific technical fields involved. b. 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. c. 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. This fundamental Canon of Ethics is closely related to the fifth Canon of Ethics which directs the engineer to "avoid deceptive acts" that mislead others. Under the NSPE Code of Ethics, in order to certify the technical design of an entire project, Engineer A must be technically qualified and licensed in each phase of the project that is designed by other non-registered engineers, and Engineer A must personally direct and control each phase. In California, however, a licensed engineer can certify an entire project when he/she is not qualified in some phases, as long as the phases are designed by non-registered engineers who are fully competent and qualified in each phase. Engineer A=s ownership of stock in CDE creates a risk that Engineer A will act for his own self-interest, and not for the interest of CDE=s investors or customers. Particularly when Engineer A participates as a member of the Sales Team, he runs the risk of misleading investors and customers into thinking that he is professionally certifying the financial and economic viability of the project. This he cannot do since he has no professional expertise or competence in the field of finances and economics. And if Engineer A becomes aware that other members of the Sales Team are misleading investors or customers, he has an ethical responsibility to bring this to the attention of the Sales Team, to upper management of CDE, and ultimately to the customers and investors. Because this course of action will have serious financial impact to CDE, and because Engineer A may suffer serious retaliation for whistle blowing, Engineer A should first consult other objective and knowledgeable professionals to be sure that he is correct in his assessment of the misrepresentations of the Sales Team. If he still believes in his best judgment that CDE=s customers and investors are being deceived or misled, Engineer A must act with integrity and courage to do the right thing, even at risk of great cost to his own financial and professional interests. In the long run, Engineer A's professional reputation for integrity, and his own self-respect and personal fulfillment, will lead to his professional success. 11

12 12 8. Conflicts of Interest - Financial Compensation From Third Party Engineer A designs manufacturing facilities for Clients. Engineer A also serves as a Sales Representative for a Heating and Cooling Equipment Company, and receives a 15% commission for all equipment purchased by Clients on the projects designed by Engineer A. Engineer A is absolutely convinced that the equipment sold by Heating and Cooling Equipment Company is the best and most economical on the market. Engineer A thus always specifies in her designs of Client X=s projects the equipment made by Heating and Cooling Equipment Company. Is Engineer A violating any ethical rules? The fourth Canon of Ethics of the NSPE Code of Ethics For Engineers states: "Engineers shall act for each employer or client as faithful agents or trustees." One of the Rules of Practice under this canon states: "Engineers shall disclose all known or potential conflicts of interest that could influence or appear to influence their judgment or the quality of their services." Another Rule of Practice under this canon states: "Engineers shall not solicit or accept financial or other valuable consideration, directly or indirectly, from outside agents in connection with the work for which they are responsible." Engineer A implicitly represents to her Clients that she is an independent consulting engineer who will serve as an agent to represent the best interests of her clients. Engineer A=s receipt of a 15% commission from Heating and Cooling Equipment Company, however, clearly raises the undeniable fact of a "quid pro quo" for specifying the equipment sold by Heating and Cooling Equipment Company. This dual role clearly causes a conflict of interest because Engineer A is motivated to specify the equipment for Client=s facility based on the commission she will receive, and not based on what is best for Client. This is directly contrary to Engineer A=s role as an independent professional and agent to Client. If Engineer A fully discloses to Client her financial relationship to Heating and Cooling Equipment Company, Client is able to make an independent decision and agree to Engineer A's conflict of interest. Thus, if Engineer A fully discloses the conflict to Client, then ethically and legally Engineer A is allowed to receive the 15% commission from Heating and Cooling Equipment Company. Having said that, however, Engineer A should voluntarily terminate her business relationship with Heating and Cooling Equipment Company because this arrangement has the appearance of a conflict of interest, and Engineer A should avoid the appearance of a conflict of interest. 12

13 13 9. Conflicts of Interest - Fee Sharing Engineer A receives the following letter from Contractor X: Dear Engineer A: I am a medium-sized general contractor with 20 years experience. I would like to associate my company with a design engineer that I can refer clients to and receive clients from. I understand that you must maintain an ethical distance between yourself and the contractors who build your clients' projects. I seek only to be included on a list of contractors that you refer to your clients. I ask only for the opportunity for my company's proposal to be included in the client's decision-making process. As an incentive, I am prepared to offer 3% of the total contract price as a referral fee/commission for every contract I sign as a result of your referral. I look forward to a lasting and mutually beneficial professional relationship with you. Can Engineer A ethically enter into this business relationship with Contractor X? Two of the Rules of Practice under the fourth fundamental canon of the NSPE Canons of Ethics For Engineers state: "Engineers shall disclose all known or potential conflicts of interest that could influence or appear to influence their judgment or quality of their services"; and "Engineers shall not solicit or accept financial or other valuable consideration, directly or indirectly, from outside agents in connection with the work for which they are responsible." One of the Rules of Practice under the fifth fundamental canon of the NSPE Canons of Ethics For Engineers states: "Engineers shall not offer, give, solicit or receive, either directly or indirectly, any contribution to influence the award of a contract by public authority, or which may be reasonably construed by the public as having the effect or intent to influencing the awarding of a contract. They shall not offer any gift or other valuable consideration in order to secure work. They shall not pay commission, percentage, or brokerage fee in order to secure work, except to a bona fide employee or bona fide established commercial or marketing agencies retained by them." In order for Engineer A to objectively and effectively look after the interests of her clients, she must maintain an "arms length" relationship with contractors and vendors who have contractual relationships with her clients. If Engineer A enters into the business relationship with Contractor X, Engineer A will be tempted to influence her 13

14 14 clients to hire Contractor X, not because Contractor X will do the best job for the best price, but because of the 3% commission Engineer A will receive. Even if Engineer A fully discloses to her clients her business relationship with Contractor X, the appearance of a conflict will always exist, and Engineer A should avoid even the appearance of a conflict of interest. Moreover, if Contractor X does a bad job, Engineer A's client may be inclined to blame Engineer A, thinking that Engineer A acted for her own interest in recommending Contractor X, rather than for the client's interest. 10. Avoid Conflicts of Interest - Close Relationships With Client Engineer A and Engineer B, two registered professional engineers, form an environmental consulting firm that they name Environmental Consulting, Inc. (ECI). They negotiate with Consolidated Chemical Company to handle the environmental clean up of Consolidated Chemical=s California plant. Consolidated Chemical=s California plant has been in operation for the past 50 years, and has serious ground pollution/contamination problems. Engineer A and Engineer B make a sales presentation to Consolidated Chemical=s Board of Directors in which they exaggerate their training and expertise in environmental cleanup. Engineer A and Engineer B also do not disclose to Consolidated Chemical=s Board that Engineer A=s father-in-law is on Consolidated Chemical=s Board. Engineer A=s father-in-law votes on the Board to hire ECI to handle the environmental cleanup. Have Engineer A and Engineer B violated any rules of ethics? The second fundamental Canon of Ethics of the NSPE Code of Ethics For Engineers provides that: "Engineers shall perform services only in areas of their competence." This canon further provides that: "Engineers shall undertake assignments only when qualified by education or experience in the specific technical field involved." Engineer A and Engineer B have very little education and experience in the cleanup of chemical ground contamination. It is very questionable whether they are qualified to undertake such a technical and specialized job. The fifth fundamental Canon of Ethics of the NSPE Code of Ethics For Engineers provides that: "Engineers shall avoid deceptive acts. This canon further provides that: "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 for the subject matter of prior assignments. Brochures or other presentations incident to the solicitation of employment shall not misrepresent pertinent facts concerning employers, employees, associates, joint venturers, or past accomplishments." 14

15 15 In their sales presentation to the Consolidated Chemical Board, Engineer A and Engineer B improperly exaggerated their education and experience in the field of chemical ground contamination cleanup. Instead, they should have fully and accurately disclosed to Consolidated Chemical=s Board their limited education, training and experience. The fourth Canon of Ethics of the NSPE Code of Ethics For Engineers provides: "Engineers shall act for each employer or client as faithful agents or trustees." The Rules of Practice for this canon provides that: "Engineers shall disclose all known or potential conflicts of interest that could influence or appear to influence their judgment or the qualify of their services." Engineer A and Engineer B have a duty to disclose to Consolidated Chemical=s Board that Engineer A=s father-in-law is on the Board, and should recuse himself from any involvement in the selection of the environmental consulting firm that will handle the environmental cleanup of Consolidated Chemical=s plant. 11. Avoid Conflicts of Interest While Holding Public Office Engineer A volunteered to serve on the City Council of City M where Engineer A lives and works. Engineer A receives no pay for the time he spends on City Council matters, and wants only to contribute to the welfare of his community. The City Council votes to construct a Community Center. One of the other members of the City Council tells Engineer A that because Engineer A is recognized as one of the most competent and reputable engineers in the community, she would like Engineer A to submit a contract proposal to do the design for the Community Center. The City Council member tells Engineer A that he can avoid any conflict of interest by recusing himself from the selection process and decision relating to the design contract. Can Engineer A ethically submit a proposal to do the design work? The fourth fundamental canon of the NSPE Code of Ethics For Engineers states: "Engineers shall act for each employer or client as faithful agents or trustees." Two of the Rules of Practice of this canon state: a) "Engineers in public service as members, advisors, or employees of a governmental or quasi-governmental body or department shall not participate in decisions with respect to services solicited or provided by them or their organizations in private or public engineering practice." and b) "Engineers shall not solicit or accept a contract from a governmental body on which a principal or officer of their organization serves as a member." According to the NSPE Code of Ethics, Engineer A cannot accept a contract with City M to design the Community Center. This is because Engineer A is on the City Council of a 15

16 public entity, and the rule to avoid conflicts of interest is stronger for engineers in public service than for engineers is private practice. Thus, even if Engineer A avoids participation in the decision regarding selection of the engineer to design the Community Center, Engineer A cannot be awarded the design contract by City M Avoid Conflicts of Interest-Expert Witnesses Engineer A is hired as an expert witness by an attorney to provide an engineering and safety analysis report in support of a plaintiff in a personal injury law suit. After his review and analysis, Engineer A concludes that the plaintiff was at fault in causing the accident. The plaintiff=s attorney then pays Engineer A his fees, and tells him he has no further need of his professional services. A few months later, the attorney who represents the defendant in the same law suit contacts Engineer A and offers to hire Engineer A as an expert witness to testify on behalf of the defendant in the case. Since Engineer A no longer works for the plaintiff=s attorney, can Engineer A now work for the defendant=s attorney? The first Rule of Practice of the NSPE Code of Ethics For Engineers states that: "Engineers shall hold paramount the safety, health, and welfare of the public." One of the Rules of Practice under this canon is: "Engineers shall not reveal facts, data or information without the prior consent of the client or employer except as authorized or require by law or this Code." The fourth Canon of Ethics states: "Engineers shall act for each employer or client as faithful agents or trustees." A Rule of Practice under this canon states: "Engineers shall not accept compensation, financial or otherwise, from more than one party for services on the same project, or for services pertaining to the same project, unless the circumstances are fully disclosed and agreed to by all interested parties." In performing his review and analysis for the plaintiff=s attorney, Engineer A was given information that he considered in forming his expert opinion that the plaintiff was at fault in causing the accident. In serving as an expert witness for the defendant=s attorney, Engineer A cannot avoid using this same information in his testimony for the defendant. This will violate the Rule of Practice for the first canon. Furthermore, in order to accept compensation from both the plaintiff=s attorney and from the defendant=s attorney, Engineer A must fully disclose his prior employment for the plaintiff=s attorney, and obtain the consent of the plaintiff=s attorney. It is very unlikely that the plaintiff=s attorney will give her consent. Thus, the Rule of Practice under the fourth Canon of Ethics will preclude Engineer from acting as an expert witness on behalf of the defendant. 16

17 Payments to Foreign Officials Engineer A is a consulting engineer who does work in the United States and in Indonesia. Engineer A has a large design contract with City M in Indonesia. Engineer A retains Engineer B, an engineer licensed in Indonesian, to handle the "business arrangements" and "customs" imposed by the local officials in City M. The Tax Official of City M imposes a $75,000 "foreign business tax" on Engineer A. Engineer B explains to Engineer A that it is a "custom" that U.S. companies pay this tax, and that the Tax Official will completely shut down the project if the tax is not paid. Engineer B also explains that the tax is nothing more than a bribe to the Tax Official. Can Engineer A pay the $75,000 tax? In 1977, Congress passed the U.S. Foreign Corrupt Practices Act (FCPA, 15 U.S.C. ' 78dd-1) to stop bribery of foreign officials by domestic companies. The FCPA contains exceptions for "expediting payments to facilitate a routine governmental action", and payments of "reasonable expenditures" such as travel expenses, and payments that are "lawful under the written laws of the country". Payment by Engineer A of the $75,000 "foreign business tax" is lawful if it is a valid tax under Indonesian law. Engineer A should retain an Indonesian attorney to research this issue, and provide Engineer A with a written opinion. If Engineer B is correct, however, that the tax is really a bribe, then Engineer A cannot pay it, even if this makes Engineer A completely unable to compete with Indonesian design engineers. Engineer A can be criminally prosecuted in the United States for violating the FCPA in Indonesia. 17