By Tara Hoke
Situation
An ASCE member is appointed to serve as the municipal engineer for a township in the state of New York. His duties include reviewing proposed subdivision and site plans for compliance with zoning regulations before the applications are considered by the local planning board.
In addition to his employment as municipal engineer, the ASCE member is the owner of a private engineering and land surveying firm. While most of his firm's work is unrelated to his public duties, on several occasions he has been contacted by long-time clients concerning proposed subdivision plans. The member arranges to have the land surveying work performed by employees of his firm. The completed plans are forwarded to another licensed land surveyor, who has his own private practice and is a close friend of the ASCE member's. That surveyor looks over the materials and then places his own title block and signature on the documents. The plans are then submitted to the member, who reviews them in his capacity as municipal engineer and forwards his reviews to the planning board.
While members of the planning board are aware of the engineer's activities, they allow this practice to continue for nearly five years. However, a dispute with the engineer on an unrelated matter causes a member of the planning board to file a complaint with the state prosecutor's office. The state indicts the ASCE member on charges of violating the New York statute on official misconduct, which reads in part that "a public servant is guilty of official misconduct when, with intent to obtain a benefit...he commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized."
The ASCE member pleads guilty to two counts of official misconduct and in exchange is assessed a $25,000 fine and banned from future service in public office. Newspaper clippings relating to the case are forwarded to ASCE's Committee on Professional Conduct (CPC), which opens an investigation into the member's conduct.
Question
Did the engineer's actions in reviewing, in his capacity as municipal engineer, work that had been performed for a fee by employees of his private firm violate ASCE's Code of Ethics?
Decision
Canon 4 of the Code of Ethics reads as follows: "Engineers shall act in professional matters for each employer or client as faithful agents or trustees and shall avoid conflicts of interest." Category (d) in the guidelines to practice for this canon adds the following: "Engineers in public service as members, advisers, or employees of a governmental body or department shall not participate in considerations or actions with respect to services solicited or provided by them or their organization in private or public engineering practice."
In response to the CPC's inquiry, the ASCE member argued that his firm had performed these activities on only a handful of occasions and only when his firm already had information in its files that would enable it to provide low-cost services to a client. He stated that he had felt an obligation to provide assistance to his clients in these matters and that the total fees his firm had derived were too minor to serve as an incentive for misconduct. Furthermore, he noted that he did not see the plans developed by his firm until they arrived on his desk as municipal engineer, and he was confident that his firm's involvement did not prevent him from providing an objective and independent review of the documents.
The member also observed that his only function as municipal engineer was to review plans for compliance with zoning requirements and that in none of the transactions had there been any question as to the accuracy of his review. He emphasized that the planning board had full knowledge of his firm's activities, and he claimed that the subject of his potential conflict of interest had been discussed and dismissed by the board. Finally, he stated that he believed his friend's independent review had "washed" the transactions of any conflict, that he did not knowingly violate the law, and that he had pled guilty only because the state had agreed to drop all charges against his friend and other officers of his firm in exchange for that plea.
After reviewing the court transcripts and other material relating to the case, the CPC concluded that the member's actions represented a clear conflict of interest. It held that, by reviewing work in his public capacity for which he held a personal financial interest, the member had violated canon 4 of the Code of Ethics. Nevertheless, the committee was receptive to the member's claim of "good intentions" and acknowledged that a handful of transactions over a number of years did not amount to a substantial financial benefit to the member. The members of the CPC believed that the member had shown poor judgment, but they also felt that his criminal penalty was sufficient punishment for his conduct. They further observed that his ban from public service eliminated the potential for future misconduct of this nature. In view of the mitigating circumstances, the CPC voted to issue the member a letter of caution reminding him of his ethical obligations and advising him not to engage in similar conduct in the future.
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
© ASCE, ASCE News, March, 2010
