By Tara Hoke
In the February issue of Civil Engineering this column featured a discussion of the case American Society of Mechanical Engineers v. Hydrolevel, which arose when members of an American Society of Mechanical Engineers (ASME) standards committee dealing with boiler safety valves issued a letter of interpretation tailored to provide one manufacturer an unfair competitive advantage over a new manufacturer in the marketplace. While that discussion focused on the ethics issues raised by the conduct of the ASME members, it also noted that the U.S. Supreme Court ultimately found the ASME to be responsible for its committee members' violations of federal antitrust law. The decision was based on the idea that an organization is liable for the actions of agents clearly operating under its authority. In response to the February column, one reader provided some information about the contributions of an ASCE member in the Supreme Court case.
In his March 17 letter to ASCE, John W. Forster, P.E., F.ASCE, writes as follows:
I would like to extend the explanation past the point [at which], as you stated, "the case ultimately reached the Supreme Court."
An ASME member submitted an amicus curiae brief to the Supreme Court in this case, arguing that the ASME should indeed be held responsible for the actions of its agents, even though volunteers. Among several briefs, some submitted by the founder societies or their supporters, I believe his was the only one taking this position. Of course, he became a "black sheep" in the ASME, having taken a position against his own society. His name was Adolph J. Ackerman, and it is interesting to note that he was also an active member of ASCE. The judges' decision followed Ackerman's line of thinking, despite his being in the minority.
It was only some time later that the president of the ASME advised Ackerman...that, as a result of his case, the ASME had revised its standards and procedures, so that it seemed that a breath of fresh air was blowing through the organization. However, I have never seen any written recognition of Ackerman's insight, initiative, and high level of professional ethics in submitting this compelling brief.
Discussion
An amicus curiae (friend of the court) brief is a legal document filed to provide information to those hearing the case. Although not a litigant in the case, the person or group filing the brief has an interest that may be affected by the court's ruling and thus offers the brief in the hope of persuading the court to adopt a ruling favorable to that interest. ASCE has filed amicus curiae briefs in a number of cases in which it saw the verdicts as possibly affecting the practice of engineering, and we appreciate the opportunity to recognize a member whose thoughtful arguments on a matter of engineering ethics were very much in keeping with a lifelong commitment to professional responsibility. A consulting engineer with degrees in electrical and civil engineering, the late Adolph J. Ackerman was a prolific author and speaker in the engineering community and had numerous articles, letters, and papers published by ASCE and other societies to his credit. Many of his works dealt with engineering ethics and decried what he saw as a pattern of "retreat from personalized professional responsibility in engineering."
Ackerman believed that professional engineers had increasingly allowed government regulations to define what was "safe" in engineering practice and had forgotten their own ethical commitment to ensure public safety. Furthermore, he felt that engineers had failed to step forward and assume leadership roles in developing such government regulations, leaving it to individuals who lacked engineers' technical understanding of issues and their firm commitment to disregard such considerations as profit or expediency in ensuring the welfare of the public. As a result, Ackerman believed that engineers who used administrative guidelines rather than their independent engineering judgment in matters of safety might allow projects to proceed without the same factor of safety they would have imposed acting on their own. Such a course of action would violate the engineer's ethical obligation to protect the public. Indeed, canon 1 of ASCE's Code of Ethics obliges engineers to "hold paramount the safety, health, and welfare of the public."
As a member of the National Policy Committee on Atomic Energy in the late 1950s, Ackerman focused on safety standards relating to the use of nuclear power. He felt the engineering community had allowed administrators and policy makers to draft regulations lacking adequate measures to protect the public in the event of a catastrophic accident. Ackerman filed his first amicus curiae brief in a 1960 Supreme Court case concerning the Atomic Energy Commission's decision to locate an experimental nuclear power plant within 30 mi of Detroit. In it, he argued that "if the location of the project had been established within the normal disciplines and responsibilities of the engineering profession, the present site could not have been approved."
With regard to American Society of Mechanical Engineers v. Hydrolevel, while Ackerman hailed the ASME's decision to develop boiler safety standards as an "aggressive initiative in defense of public safety," he claimed that it was at odds with the society's attempt to free itself of accountability for the committee members charged with administering the standards. Ackerman observed that, in view of the fact that engineering societies had committed themselves to protecting the public from faulty or unsafe products, "it is difficult to visualize the chaotic consequences to the entire engineering profession if the societies and their committees were to be relieved of their internal disciplines" in honoring that commitment. He also noted that an engineer's first responsibility is to public safety and that engineers honored with the distinction of serving as society officers have an even greater obligation to ensure compliance with the profession's ethical standards in seeking to realize their societies' missions.
At oral argument before the Supreme Court, counsel for Hydrolevel Corporation drew the court's attention to Ackerman's brief and echoed its central message that "those that assume a great responsibility shall have a corresponding great duty." In holding the ASME responsible for the actions of its volunteer committee members, the Supreme Court also echoed Ackerman's sentiments about duty and responsibility, stating, "When ASME's agents act in its name, they are able to affect the lives of large numbers of people and the competitive fortunes of businesses throughout the country. By holding ASME liable under the antitrust laws for the antitrust violations of its agents committed with apparent authority, we recognize the important role of ASME and its agents in the economy, and we help to ensure that standard-setting organizations will act with care when they permit their agents to speak for them."
Ackerman's contributions to the profession were recognized in the obituary published in the November 1991 issue of Civil Engineering, which described him as "undaunted" in his quest for higher safety standards and his commitment to engineering responsibility.
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
© ASCE, ASCE News, June, 2011
