BY ARTHUR E. SCHWARTZ, NSPE GENERAL COUNSEL
Engineer A is requested to review and sign a seal a set of drawings prepared by another design professional not under the engineer's direct personal supervision. Should he sign and seal the drawings? Engineer B is requested to serve as an expert witness during litigation involving a project which his firm performed services for another party involved in the same litigation. Is this acceptable conduct? Engineer C learns that his employer is violating environmental regulations relating to acceptable toxicity levels of waste materials being released by the employer's industrial facility. Does he report this fact to the public authorities or the media? Engineer D, pursuing her Ph.D., deliberately omits certain information from her doctoral thesis because it might raise doubts concerning certain conclusions in her theory. Can she ethically do this? These are just the "tip of the iceberg" of the many ethical issues constantly confronting engineers on a daily basis.
Why Codes of Ethics?
As with law, medicine, etc., engineering is a learned profession. As a profession, engineering constantly involves the exercise of expert judgment and discretion in the performance of services. Engineers are expected to use their education, training and experience in a manner that comports with the public health and safety. But where do engineers look to for guidance in determining the most appropriate course of action to follow in the earlier cited cases? One possible source is the law. Statutes, regulations, court decisions, etc. certainly provide a basis to make certain decisions concerning conduct and behavior. However, the law does not address many issues concerning appropriate professional conduct. Another possible resource might be colleagues, family members or friends. While sometimes these sources might be extremely valuable as a sounding board, in some cases, they might lack the necessary education and training to provide useful feedback or the feedback might be biased or prejudiced by some fact or circumstance. For that reason, professional organizations such as the National Society of Professional Engineers (NSPE), develop codes of ethics to assist engineers in making decisions in their every day practice and employment. Professional codes of ethics reflect basic "norms" of conduct that exist within a particular professional and provide general guidance relating to a variety of issues.
Except in the most basic circumstances, codes of ethics do not provide "answers" or "solutions" as such to ethical dilemmas faced by engineers, but they do provide guideposts, that can be helpful in assisting engineers in evaluating the circumstances they are encountering and providing possible approaches that may be taken in addressing the ethical issues involved.
Opinions of the NSPE Board of Ethical Review
While a code of ethics is an essential part of any profession's efforts to assist practitioners in matters of ethics, it alone is generally not sufficient to provide precise guidance on specific questions that arise. Most if not all professions have some deliberative body that considers ethical questions. For example most law and medical associations render opinions on ethics questions presented to them. NSPE's Board of Ethical Review serves the same function. Since its founding, the NSPE Board of Ethical Review has rendered nearly four hundred formally published ethics opinions and thousands of informal opinions interpreting the NSPE Code of Ethics in cases involving actual factual situations that have been submitted by individual members, government officials and members of the public.
History of the NSPE Board of Ethical Review
At the time the NSPE Code of Ethics was developed, there were continuous requests from individuals as well as from state societies and local chapters for interpretations of the Code in specific circumstances. NSPE saw this need as an opportunity for service to the profession, and created in 1954 a Board of Ethical Review. Composed of seven individuals representing various areas of employment, and serving three year terms, the Board was not charged with evaluating specific violations, but with taking actual circumstances, and hypothetical situations, and analyzing the ethics involved. These decisions were to be published in order to achieve widespread dissemination of the Board's deliberations. For final review, a decision of the Board was presented to the NSPE Board of Directors who then decided whether or not the decision would be published. In 1963, the governing bylaw was changed to give the Board of Ethical Review final authority on its decisions. Many of the decisions were not unanimous, and in each case a minority commentary was provided in addition to the majority view.
Board of Ethical Review cases are now available in seven published volumes with an eighth volume to be published later in 1999. In addition, electronic versions of the cases are available on the NSPE website and the website of the National Institute for Engineering Ethics (www.niee.org).
Recent Opinions of the NSPE Board of Ethical Review
Over the past several years, the NSPE Board of Ethical Review has decided numerous cases dealing with a variety of issues ranging from professional competency, duty to protect the public health and safety, obligations to employees and employers, signing and sealing drawings and many other factual situations. A good example of a recent case relates to the issue of the obligations between employees and employers in connection with employment. In one recent case, the Board was faced with the question of whether an employment agreement prepared by an engineer who was hiring another engineer was ethical because it contained restrictive provisions that made it virtually impossible for the employee to be re-employed in the event he left the employer's service. In another case, the Board confronted a situation where an engineering firm principal denied the right of a licensed engineer to use the title "engineer" because the individual did not possess what the principal deemed was an appropriate engineering degree prior to becoming licensed. The Board has also been faced with a situation involving an engineering expert that was retained by an attorney to serve as an expert for one party in litigation and then later sought to represent an adversary party in the same litigation. While some of these issues are fairly straight-forward and simple, other issues are more complex, requiring careful study and analysis.
Changes in the Code of Ethics
The NSPE Code of Ethics has always been viewed and dynamic document reflecting changes in engineering practice. While some of the modifications to the Code have come easily, reflecting a general consensus of opinion within the profession other changes have come as a result of conflict. Some examples quickly come to mind. For example in the mid-1980s during the liability insurance crisis, many engineer who had been performing professional services in connection with hazardous waste, pollution and other related services saw their professional liability insurance policies exclude these areas of practice from policy coverage. Professional liability insurance to protect against claims relating to these risks became impossible to obtain. In response, many engineers sought to protect their personal and professional resources by employing indemnification provisions in their contracts with clients, whereby clients would agree to "hold the engineer harmless" for the ordinary negligence by the engineer. This approach was in direct conflict with then Section III.9. of the Code which stated:
"Engineers shall accept personal responsibility for their professional activities."
After careful review and deliberation and in response to the growing need for adequate procedures to safeguard engineers against untoward professional liability exposure, the NSPE Board of Directors agreed to modify Code section III.9. to state:
Engineers shall accept personal responsibility for their professional activities; provided, however, that Engineers may seek indemnification from professional services arising out of their practice for other than gross negligence, where the Engineer's interests cannot otherwise be protected."
This change reflects the fact that the Code is not a static document but a living document reflecting alternations in circumstances and practice. A Code must adapt with the times; otherwise it risks loses its legitimacy and acceptance.
Another recent example of a case where the NSPE Code was modified to reflect changing practice relates to the issue of conflicts of interest and Section II.4.d. That section admonishes engineers in public services not to participate in decisions with respect to professional services solicited or provided by them or their organizations in public or private engineering practice. Because of instances in which the Code was held not to apply to certain conflicts of interests involving engineers serving on "quasi-governmental" bodies, Section II.4.d. was broadened in the late 1980s to add "quasi-governmental" bodies as areas of public service where engineers should avoid conflicts of interest.
On the other side of the coin, there have been issues that have been addressed by the NSPE Code where NSPE was required as a matter of law to modify the Code to comply with the law. During the 1970s, the codes of ethics of several professions were challenged by the federal government as constituting an "agreement in restraint of trade" and therefore violative of the Sherman Antitrust Act. Following litigation national architectural and engineering groups including NSPE, the NSPE Code as well as the codes of other groups were modified to remove provisions (1) prohibiting competitive bidding for engineering services and (2) supplanting of one engineer by another. In addition, NSPE agreed with federal antitrust officials to eliminate provisions from the NSPE Code that made it unethical to engage in certain types of promotional advertising.
Clearly, engineering ethics is a issue that goes to the heart of engineering practice. It reflects the customs, habits, and values of engineering as a profession and reflects the time-tested experience, seasoning and training of practicing engineers. In some senses, a code is a "timeline" for the profession because it mirrors the conventions, routines and patterns of the profession but shifts as those conventions, routines and patterns change.
As the profession of engineering grows in stature within our society, the engineering and engineers will be increasingly examined and scrutinized by the public, the media, the government and the profession itself on moral and ethical questions. Having a thoughtfully developed code of ethics along with members that adhere to that code will be vitally useful in that process.