By Tara Hoke
Situation
Notice that a number of ASCE members have been advanced to the grade of fellow appears in a Society publication. Shortly after publication, an ASCE member sends a letter to the Society claiming that one of the new fellows was guilty of unethical conduct and did not deserve his new membership grade.
The complainant states that the new fellow had been an employee at his firm several years earlier. At the time of his employment, the complainant's firm had a long-running contractual arrangement to perform sewer construction for a local township, and it was in the process of negotiating a contract with the township for a major recreation project. The employee was the firm's primary point of contact with the township and had been heavily involved in negotiations for the recreation project. However, during these negotiations, he abruptly resigned without giving notice and set up his own practice.
Immediately after the employee's resignation, the township announced that it would be giving the recreation contract to the former employee at his new practice. A handful of the firm's other clients also indicated their intent to follow the employee to his new practice.
The complainant states that he contacted all of the departing clients about their decisions, and their responses indicated that the person in question had solicited their business while still an employee at the complainant's firm. Although he did not file a complaint with ASCE at the time, the complainant notes that he reported his former employee to the ethics committee of a local business association and that that association reprimanded the employee for what it deemed unprofessional conduct.
The complainant concludes his letter by urging the Society to reconsider its decision regarding the member's elevation to the grade of fellow. He includes a list of business colleagues who, he claims, would verify his statements about his former employee's conduct.
The complainant's letter is forwarded to ASCE's Committee on Professional Conduct (CPC) for consideration.
Question
Did the member's conduct in departing from his place of employment violate ASCE's Code of Ethics?
Discussion
In the ever-competitive marketplace for professional services, perhaps no situation is as fraught with ethical challenges as that which arises when a professional moves from one place of employment to another or from employment to self-employment. Canon 4 of ASCE's code 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." This obligation of faithfulness means that a professional must put an employer's interests above his or her own.
Though seemingly simple in wording, this ethical maxim becomes complicated when considering a departing employee's obligations to his or her employer. At what point does the employee's obligation to his or her employer end? Is a departing employee prohibited from engaging in any personal business while still drawing a paycheck or is some activity acceptable if it does not involve the use of the employer's time and resources? And what ethical questions come into play when an engineer competes for a former employer's clients?
At a minimum, the CPC has consistently held that canon 4 prohibits an engineer from soliciting an employer's clients prior to terminating employment. If the accused in this case did indeed approach his employer's clients before resigning, then it is likely that his actions breached his obligation to serve as a "faithful agent or trustee."
What is more, if the engineer used his knowledge of confidential contractual details to gain an edge in his negotiations for the recreation contract, his actions may also have violated canon 5: "Engineers shall build their professional reputation on the merit of their services and shall not compete unfairly with others." Such behavior would also fall afoul of category (f) in the guidelines to practice for canon 4: "Engineers shall not use confidential information coming to them in the course of their assignments as a means of making personal profit if such action is adverse to the interests of their clients, employers, or the public."
When contacted by the CPC, the accused member replies that the complainant's allegations are "categorically false." He contends that he joined the complainant's firm based on promises of advancement and compensation, promises the employer failed to fulfill. When confronted about those broken promises, the employer's consistent response was, "If you don't like it, then you can just quit." While conceding that he perhaps should not have allowed his employer's intransigence to goad him into quitting without giving notice, the employee claims he had been "careful to not even hint to any potential clients" that he was setting up a private practice until after he had terminated his employment.
He further avers that the complainant seemed to believe he "had a divine right to his piece of the cake" and that he had a pattern of harassing employees who left to work for themselves or with competitors. He offers the names of several clients and colleagues who, he claims, would support his version of the facts.
Upon further investigation, the members of the CPC quickly realized that they were mired in an intractable case involving one person's word against another's. While both the complainant and the accused had provided multiple witnesses, the CPC found its interviews and correspondence with witnesses to be singularly unenlightening, the friends and colleagues of the complainant flatly alleging that the former employee had behaved unethically and those of the accused just as firmly attesting that the employee's behavior was in no way improper.
An official affiliated with the township whose contract had featured so prominently in the complaint stated that the township still maintained good working relationships with both parties, and he opined that in this "family feud" a clash of personalities had "clouded the circumstances" under which the two had parted company.
The CPC contacted the chair of the ethics committee of the local business association that had originally investigated the complaint, and it found that her take on the employee's actions had been far less censorious than the complainant suggested. She noted that although the members of her committee had struggled to reach a consensus on whether the employee's conduct violated the association's ethical code, the complainant had been "vocal to the point of being obnoxious" in demanding action. While privately feeling that neither party had used good judgment in the matter, the members of the association's ethics committee had decided to send a mildly cautionary letter to the employee noting that his "overzealous pursuit" of former clients "was not completely in keeping" with the association's code of conduct.
Ultimately, the CPC concluded there was simply not enough evidence to sustain a charge that the employee's conduct had violated ASCE's Code of Ethics. While noting that the employee's conduct seemed "far from laudable," the committee members felt that this concern had been adequately addressed in the letter from the local association's ethics committee. Based on the CPC's recommendation, ASCE's membership committee declined to reconsider the accused's advancement to the grade of fellow.
While it may not always be possible to avoid conflict at the end of an employment relationship, this case demonstrates the value of working to minimize unpleasantness even in difficult cases. Consideration of an employer's best interests is not only an important ethical obligation; it is also a wise choice, as it may help to minimize the possibility of lingering resentment that could undermine career opportunities or tarnish one's reputation.
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
© ASCE, ASCE News, April, 2017
