By Tara Hoke
Situation
Newspaper articles reporting on an indictment of an engineering firm and its officers are forwarded to the Committee on Professional Conduct (CPC) by members of the local ASCE section. The indictment alleges that the firm has been overcharging its client, a local public agency, for the design work it was performing. Although none of the firm's principal officers are members of ASCE, an ASCE member working for the firm as an engineer also is indicted for lying to the grand jury during its investigation. This indictment is dropped in exchange for the member's testimony against the firm's officers, and the member is named as an unindicted coconspirator in the suit against the firm's president.
In his testimony at trial, the ASCE member admits to inflating the hours reported on his time sheets at the direction of his supervisor, who himself claimed to be acting on the orders of the firm's president. The firm and its president are convicted of falsifying records in order to overcharge the client, and a state court imposes fines and a suspended jail sentence on the guilty parties. After the trial and sentencing, the CPC advises the ASCE member of the ethics complaint filed against him and invites the engineer to discuss his involvement in the case before members of the CPC.
Question
Did the engineer's actions in inflating the amounts reported on his time sheets as time spent on a public project violate ASCE's Code of Ethics?
Decision
While this case was considered under a previous version of the ASCE Code of Ethics, the canons involved are substantially the same as in the current code. Therefore, for the purposes of this article the numbering and language of the current version will be used.
Although the ASCE member's original indictment alleged false testimony before a grand jury, suggesting a violation of canon 3's mandate to "issue public statements only in an objective and truthful manner," the CPC felt that the swift dismissal of the indictment and the member's subsequent assistance to the grand jury made it difficult to support a violation of that canon. Instead, the committee focused on the member's confession that, at his supervisor's direction, he had falsified his time sheets to inflate the hours reported as time spent on the public project.
Canon 4 of the code says that "engineers shall act in professional matters for each employer or client as faithful agents or trustees," and canon 6 holds that "engineers shall act in such a manner as to uphold and enhance the honor, integrity, and dignity of the engineering profession and shall act with zero tolerance for bribery, fraud, and corruption." The CPC believed that an engineer's obligation to serve his or her client faithfully and to be vigilant in eschewing fraud and dishonesty created a clear ethical obligation for the engineer in this case to report with strict accuracy the time spent on his client's project.
The engineer claimed that he had initially questioned the order to falsify his time sheets but said that his supervisor had given what, at the time, appeared to be plausible explanations of why the overbilling was neither dishonest nor unethical. The engineer said that he respected his employers and had high regard for their integrity, but he expressed remorse that he had failed to place greater reliance on his initial qualms.
While the CPC believed the engineer's claim that he had trusted his supervisor's explanation for the suspicious practice, its members nevertheless felt that his actions had violated the Code of Ethics. At the same time, the CPC took into consideration the member's youth and inexperience and felt that he had already been punished by the loss of his job and the substantial legal fees he incurred during the investigation. The CPC believed that in light of these mitigating factors and the ASCE member's apparent remorse for his action, the member deserved a less severe penalty than the committee might otherwise have recommended.
The CPC found that the ASCE member had violated canons 4 and 6 of the code and recommended that he receive a letter of admonition, but it also recommended that no publication of the case appear in an ASCE publication. The Board of Direction agreed with the CPC's findings, and a letter of admonition was issued to the member.
Because overbilling of public agencies for services is fraud not only against the government but also against the taxpayers whose contributions are being misused, penalties for persons found to have engaged in such conduct are harsh. The federal False Claims Act, enacted in 1863, imposes civil penalties of up to triple the amount fraudulently billed and criminal sentences of up to five years for any person found to have knowingly submitted a false claim to a federal agency. Moreover, many states have passed similar acts to cover false claims submitted to state and local agencies. To further combat fraud, the federal government and some states have enacted legislation allowing private citizens with knowledge of false claims to initiate a suit on behalf of the government and to receive a percentage of the proceeds of the action. Such laws are powerful incentives for those with knowledge of false claims to blow the whistle. For more information about the False Claims Act, visit www.taf.org/ .
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
© ASCE, ASCE News, May, 2008
