Before turning to the substantive point of the case, we deal with a technicality which has been raised regarding the wording of Section 11(b). As written, it prohibits an improper "offer to pay . .." but does not specifically prohibit an improper payment. We believe that the intent is without doubt that an improper payment as well as an offer to pay is outlawed, and, in fact, it could be argued on technical grounds that a defined improper payment is covered in the present wording because a payment carries with it the offer. Be that technicality as it may, we will suggest that the code be amended to remove any doubt of the intent and have the operative words state: "He will not pay, or offer to pay…”

Coming to the substantive issues, this case is an opportunity to review a basic finding in point made over ten years ago in Case 62-12. Because of the importance of the issue before us, we believe it helpful to set out in considerable portion the reasoning in Case 62-12 which led then to the commentary in the discussion, now receiving considerable attention-that political contributions in excess of $100 should be given only with the understanding that the engineer ethically may be required to divest himself or his firm of contractual relations with the public agency which is controlled or substantially influenced by the candidate or party to whom the contribution was made. We recognized in 1962 that there might be justifiable exceptions to the suggestion, but in such cases the burden of proof should be on the engineer to show that his political contribution was not the basis for his receiving a contract. We recognized then, as we do now, that it is difficult for an engineer to prove that a contribution of more than a nominal amount did not have any influence on the receipt of a contract. In reaching our conclusion in the 1962 case we said:

"Here we must deal with motivation- what was in the mind of the contributor. It is beyond doubt that the engineer as a responsible citizen has and should have the same opportunity as others to hold political views and support the candidate of his choice for political office. Such interest and activity are to be encouraged.

"The implication of the facts, however, is that the political contributions were made to curry favor and place the engineer, and through him his firm, in a favorable position to secure contracts through the influence of the candidate elected to a public office which determines the award of such contracts.

"In essence, the question raised here is similar to that posed in Case 60-9, involving the giving of or receiving gifts. There we said, 'no blanket rule covering all situations has been discovered,' and further that'.. .we must apply a criterion which reasonable men might reasonably infer from the circumstances.. ..'

"The size of the contribution relative to the public office being sought is a material factor. A nominal donation would not imply that the contribution would result in favoritism, whereas a donation of several thousand dollars might well carry such a connotation. The nature of the office is another material factor-is it one which carries with it the power to determine whether a firm would be given a contract by the public body?"

"It is hardly possible to draw a precise line in dollar amounts for the purpose of defining when a political contribution becomes an improper incentive to secure contracts on the basis of favoritism. As in all ethical applications, the only sound rule is that when conduct may raise suspicion and doubt as to motive, it is the better part of wisdom to stay well within the line.

"The engineer has a right to give political contributions, but he has a duty under Canon 19 [now Section 4 of the code ] to avoid doing so in such a manner that the engineering profession will be exposed to misunderstanding and distrust on the part of the public. Furthermore, Rule 4 [now Section 11 (b) of the code ] specifically prohibits political contributions intended to influence the award of contracts.

"At the risk of being arbitrary, therefore, we would suggest that any political contribution in excess of $100 should be given only with the understanding that the engineer ethically may be required to divest himself or his firm of contractual relations with the public agency which is controlled or substantially influenced by the candidate or party to whom the contribution was made. There may well be exceptions, but we feel that the engineer must expect to carry the burden of proof that the award of a contract to him or his firm which it is charged was made on the basis of his political financial support was not, in fact, a result of his contribution beyond the suggested limit."

More than ten years have elapsed since the earlier case, and we are now asked if developments during that period warrant a change in approach or conclusion to the difficult question of political contributions.

After further analysis, we find no fundamental disagreement with what was said in the 1962 case in terms of basic principle. The basic problem has not changed-how the profession and the public may properly or improperly relate the amount of a political contribution to the later receipt of contracts from the recipient of the earlier contribution, directly or indirectly. Without some effective guideline for this purpose the profession and the public are left with the almost impossible task of proving a direct connection between the two events. The engineering profession owes a better answer to the public than to merely say that nothing improper has occurred unless the public, through its appointed officials, can prove a connection between the political contribution and the award of public contracts. The other side of the dilemma also remains-the right (and some would say duty) of engineers to actively participate in the political processes of their nation, state, and local community. We would point out at this juncture that to actively participate in the political process cannot be construed to mean solely the donation of money to the coffers of a candidate or party.

The 1962 decision recognized that the suggested limitation of $100 was arbitrary, but noted, as quoted above, what has become the "Caesar's wife" philosophy-that Caesar's wife must be above suspicion. So too the ethical engineer.

On that basis we reaffirm the principle, philosophy, and conclusion of the 1962 case with some refinements arising from the experience since that date. We would not be as arbitrary now in prescribing an exact figure of $100, or any other precise amount. Rather, we would suggest that the guideline for engineers wishing to make political contributions should be to hold the amount to a "nominal" sum. A contribution of $100 might be very generous for a candidate for a minor local office, whereas it would be nominal for a statewide office. A contribution of more than $100 might be justified as nominal under some circumstances. It was recognized in the 1962 case that it is not possible to draw a precise line in dollar amounts. On the basis of inflation since 1962, however, if $100 was nominal then, perhaps $200 would be a nominal limit now.

We would also add more emphasis to a point made only in passing in the 1962 case. The engineer who feels deeply for a particular candidate for political office has the option and right to contribute whatever amount his political devotion may call for, but in going beyond the nominal test he should be willing to recognize that his larger contribution ethically carries with it the duty to refrain from subsequent rewards from contracts, the awarding of which might be influenced by the persons he supported. Conversely, an engineer cannot ethically make contributions exceeding a nominal amount if he is working under or seeking to work under a contract, the award of which is controlled or substantially influenced by the recipient of his contribution.

Our dissertation and conclusion leave the profession with less than the clear, pragmatic, and definitive guideline which all might desire. But each situation must be resolved on its own facts and circumstances. We believe that the engineer who wants to be ethical in this context will find the answer in the nominal test which can satisfy his conscience and his desire to do his part in the political process. In each case the ethical engineer must apply the Caesar's wife test for himself and be willing thereafter to be judged by his professional peers. Our commentary and conclusion are limited to the ethical aspects of the problem and do not relate to possible legislative action and legal restraints now under discussion in some quarters which may be imposed on those seeking or holding contracts from public bodies.

While we believe the cited code references provide adequate justification for application of the nominal test as outlined, we believe that the code should be amended to provide specific reference to this test.

Note: The following Code sections no longer exist:

Code of Ethics Section 3-"The Engineer will avoid all conduct or practice likely to discredit or unfavorably reflect upon the dignity or honor of the profession."

Section 4-"The Engineer will endeavor to extend public knowledge and appreciation of engineering and its achievements and to protect the engineering profession from misrepresentation and misunderstanding."

Section 11(b)-"He will not offer to pay, either directly or indirectly, any commission, political contribution, or a gift, or other consideration in order to secure work, exclusive of securing salaried positions through employment agencies."