December 05, 2013
Why a State PE Board Should Enter an Amicus Curiae Brief in a "Wrongful Discharge" Case
BY WALTER L. ELDEN, P.E. (RETIRED)
Wrongful Discharge for Upholding Code of Ethics
IEEE Ethical Support and Amicus Curiae Policies
In January 1975, the IEEE entered its first and only Amicus Curiae, in a "wrongful discharge" ethics matter, in the Bay Area Rapid Transit (BART) case. This involved 3 IEEE engineers, who brought suit against the BART District entity for their "wrongful discharge" for actions they took to "protect the public" in matters of engineering design of the automated train control system. Essentially, the IEEE legal brief made these statements of law to the court, in this case:
"In any charge to the jury herein, this court should instruct the jury that if it finds, based upon the evidence, that an engineer has been discharged solely or in substantial part because of his bona fide efforts to conform to recognized ethics of his profession involving his duty to protect the public safety, then such discharge was in breach of an implied term of his contract of employment."
The IEEE brief said that not only should this apply to Public employment bodies, but to private employers too. Recently, in 1997, the IEEE BoD voted to have its legal counsel communicate with a member's legal counsel for the purpose of IEEE entering an Amicus Curia. This involved a P.E. member of IEEE, who alleged to have been discharged for trying to correct a product design defect which could result in the death of infants and filed a "wrongful discharge" suit against his former employer.
What About National/State P.E. Licensing Boards?
The author recently conducted a survey of all State P.E. Boards in the USA which had E-Mail addresses listed for them, asking if they had ever had been requested to or actually did enter an Amicus Curiae in alleged "wrongful discharge" cases, involving licensed P.E.s. Many replies were received from these contacted P.E. Boards. Of those who responded, there was not one which had ever entered an Amicus Curiae in such cases. Several contacted their State Attorney General's office to have research done to find out the answer to this question.
One reply was found to be of particular interest to the author. This P.E. Board official who responded offered that in their opinion, "it was not the purpose of the State P.E. Board to protect the P.E. but rather to 'protect the public'," and therefore, it did not deem it appropriate for them to enter an Amicus Curiae in such cases brought by the P.E. licensed by their Board.
After giving this considerable thought, the author responded with the following argument: "The State P.E. Board licenses an engineer as a P.E. to "protect the public." The P.E. is held legally accountable to know the P.E. law, its Code of Professional Conduct, and to practice in accordance with such Code, to "protect the public." Further, if the P.E.'s actions happen to result in being in conflict with the P.E. law or its Code of Professional Conduct, the State may bring charges against the P.E. and discipline him/her. This is done for the sole purpose of "protecting the public" from the improper practice of engineering.
Now, when a circumstance occurs when a P.E. is terminated from employment (alleged "wrongful discharge") for practicing in accordance with his/her State P.E. law or Code of Professional Conduct, and brings suit against the former employer, why shouldn't the State P.E. Board enter an Amicus Curiae legal brief in this case, to advise the court that such actions of the P.E. as alleged, if provable, were done for the purpose of "protecting the public" and as such, the proper and ethical practice of engineering by a P.E. should be afforded the protection of the law, in order that the proper practice of engineering be enforced, to "protect the public." The reasoning here is the view that by protecting the proper practice of engineering by a licensed P.E., this action would result directly in the State P.E. Board and the court acting to "protecting the public." It is true, that by taking such protective actions, the court and the P.E. Board's actions may benefit the P.E. in a favorable outcome of his/her suit. But this would not be the primary reason for the P.E. Board or the court to take such action.
After this argument was conveyed to the State P.E. Board official, the author, as yet, has not received a reply to this argument.
Engineer's Rights-Practice Ethically and Defend Practice of Engineering
Walter L. Elden, P.E. (Retired), NIEE Board of Directors
(For members only)