By Tara Hoke
A recurring theme in this column is the complex interaction between ethical conduct and legal compliance, and nowhere is this complexity more obvious than in the area of professional licensure. While the case discussed this month involves a mechanical engineer and not an ASCE member, the ethical and legal issues discussed are applicable to civil engineers as well.
Situation
After two decades of practicing in the state of Maryland, a licensed mechanical engineer moves to Oregon to be closer to his adult children. He opens a small medical equipment design company in a commercial building that serves as both home and workplace, and he allows his professional engineer (P.E.) license to lapse.
Several years after his move, the engineer becomes embroiled in a dispute with the city engineering department in his new locality. The engineer believes that recent changes made by the city to prevent storm water from entering the city sewage system failed to provide an adequate alternative for storm-water drainage. As a result, when sewage pipes in the engineer's neighborhood were sealed, storm water found a new catch basin in the lowest location in the area: his large commercial basement.
While the city makes some effort to correct the problem by installing new pipes and drainage basins for storm water, the new system fails to stop water collecting in the engineer's basement. When the engineer pushes the city to take further action, the city's response is that mitigation efforts were a sufficient remedy for the problem and that any additional flooding issues the engineer was experiencing were his responsibility alone.
During the ensuing legal dispute between the engineer and the city, the engineer decides to petition the state licensing board to intervene in the matter. In a lengthy letter of complaint to the board, he includes a detailed statistical analysis of the drainage problem and describes two potential engineering solutions. He concludes the letter by signing his name followed by the designation "P.E."
The board responds by explaining that the issues raised by the engineer's letter are beyond the scope of its authority. Moreover, as the engineer was not licensed in the state of Oregon, the board finds that the combination of a technical engineering analysis with the use of the P.E. designation constitutes an unlicensed practice of engineering and issues a notice of intent to impose a civil penalty on the engineer for violating the state licensing statute.
Question
If this engineer had been an ASCE member, would his conduct in drafting and signing such a letter have violated ASCE's Code of Ethics?
Discussion
The misuse of professional credentials is typically addressed under category (d) in the guidelines to practice for canon 5. These guidelines read as follows: "Engineers shall not falsify or permit misrepresentation of their academic or professional qualifications or experience." It is important to recognize that this stricture is intended to supplement the broader purpose of canon 5: "Engineers shall build their professional reputation on the merit of their services and shall not compete unfairly with others." Typically, category (d) applies when a member has falsified his or her credentials as a means of gaining advancement or obtaining an unfair commercial advantage over a competitor.
Category (b) in the guidelines to practice for canon 3 also comes into play in this case, for it stipulates that engineers are to "include all relevant and pertinent information" in professional reports or statements. This could apply to cases in which an individual intentionally added false credentials to imply a level of expertise that he or she did not possess.
Accordingly, if the facts of this case were submitted to ASCE's Committee on Professional Conduct (CPC), it is likely that that body would first seek to understand the engineer's reasons for falsely designating himself a P.E. Indeed, in the engineer's response to the state board's action, his primary defense was the absence of improper motive. He claimed that his use of the P.E. designation reflected "force of habit" acquired over his 20 years of practice as a licensed engineer in Maryland. He also, somewhat contradictorily, claimed that he thought the state board might be more likely to investigate his complaint if it saw that the complainant had professional training and knowledge relevant to the issues at hand. In either event, the engineer said that he did not intend to deceive the board about his credentials or to fraudulently represent that he was licensed to practice engineering in the state of Oregon.
Any decision made by the CPC in a case such as this would reflect the committee's assessment of how the engineer's actions accorded with his motives. On the one hand, his use of the P.E. credential did not appear to be for the purpose of professional advancement or commercial gain. On the other, he could have easily and properly conveyed his technical expertise in his complaint by explaining his educational background and prior credentials. At a minimum, the CPC would probably conclude that the engineer acted unwisely in sending the letter and using the P.E. designation, and it would remind him of the importance of integrity, accuracy, and candor in all statements of a professional nature.
By way of contrast, the engineer's defense of having no malign intent had little or no effect on the decisions made in the legal arena. The engineer appealed the board's action all the way to the Oregon Court of Appeals, which upheld the board's finding that he had violated the state's licensing statute. Noting that the dictionary definition of "false" included the terms "not true," "erroneous," and "incorrect," the court found that there was no requirement within the law of intent to deceive.
The engineer offered two other defenses to the charge of unlicensed practice of engineering, citing exceptions in the statute for engineering work done by an individual on his or her own property and for engineering work that is not directly offered to the public. In both cases the court rejected the defense, finding that the proposed engineering solution affected not only the engineer's own property but also other properties, as well as the city drainage system, and that by proposing an engineering solution to a public agency he was "offering his engineering expertise directly to the public."
Although the facts of this case are somewhat unusual, two important lessons can be learned. First, while ethics and the law often reach the same conclusions, this is not always the case; therefore, it is essential for engineering professionals to be cognizant not only of their ethical obligations but also of all applicable legal mandates. Second, in this era of ever-expanding mobility in the engineering marketplace, engineers must be especially vigilant when offering professional advice or commentary to avoid any perception that they are misstating or misrepresenting their credentials. Not only does improper use of the P.E. designation constitute a potential ethical misstep; this case also demonstrates that state licensing boards can and do zealously regulate engineering activity within their jurisdictions.
REFERENCES
- Steve Duin, " St. Helens Man Finds Himself Butting Heads with the Bureaucracy ," The Oregonian, December 7, 2011
- Erica Ryberg, " City Storm Water Fixes Frustrate Some ," Portland Tribune, December 23, 2009
- Oregon State Board of Examiners for Engineering and Land Surveying, Minutes of meeting , July 13, 2010
- Topaz v. Board of Examiners for Engineering, 255 Or App 138 (2013)
-TARA HOKE
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
© ASCE, ASCE News, May, 2014
