NOTE: The scenario presented in this article is an abridged summary of a case published by the National Institute for Engineering Ethics (NIEE) for use in its Applied Ethics in Professional Practice Program. ASCE wishes to extend its thanks to NIEE for permission to reuse this case study. Readers interested in reviewing other NIEE cases may visit www.depts.ttu.edu/murdoughcenter/products/cases.php.
By Tara Hoke
Situation
A midsized New England town had once drawn much of its local income from a large shoe factory complex located along a river that runs through the center of the town. The most notable architectural feature of this factory is a 15-story clock tower constructed on the complex. Its four immense clock faces served as the local reference point for some 35 years after operations had ceased.
The town sees an increase in demand for commercial buildings, and a large computer software company expresses interest in purchasing the site of the old shoe mill. However, since the premises have not been maintained in the years since the factory complex closed, the company explains that it will be necessary to demolish and replace the old buildings. The company proposes a new complex designed to complement the colonial flavor of the surrounding buildings, and the town's local planning committee approves the plan on the condition that the old clock tower be retained as a symbol of its historical importance and its value to residents.
The company agrees, and it enters into a contract with a structural engineer to design a plan for protecting the old clock tower during demolition of the other structures. Because of the site's proximity to the river, the soils on the premises were primarily loose or moderately compressible, meaning that deep foundations were necessary for heavier structures. Finding that the clock tower was supported on a 48 sq ft mat at a depth of 18 ft and that this mat was in turn supported on wooden piles driven well below the water table for extra support, the structural engineer proposes a shallow retaining system to support the sides where excavation is to occur.
During the demolition excavation, however, the project's construction crew soon notices that the clock tower is leaning. While initially this is dismissed as a function of the tower's age, as the excavation work moves closer to the tower, it becomes evident the tower's tilt is increasing at an alarming rate--and in a direction that imperils the workers on the excavation site.
The contractor immediately stops work on the project and contacts a local subcontractor specializing in ground modification for assistance. Recognizing the gravity of the problem, the subcontractor in turn reaches out to a Midwest-based engineering consultant with whom the subcontractor has worked previously and knows to have a particular expertise in developing successful and cost-effective solutions even to difficult ground-modification problems.
The consultant agrees to assist on the project and immediately flies out to assess the site and devise a plan of action. He shares his proposed plans not only with the contractor, but also with the new owner's representatives, the project design professionals, and local government officials--all of whom agree with the consultant's strategy. He further proposes a variety of safety measures to protect the construction crew in the event that his proposed ground-modification plan cannot be implemented in time to prevent the clock tower's collapse.
The plan proves to be a resounding success, and the clock tower is saved, but it is not until several weeks after the remediation work begins that the consultant realizes he had performed these services without first securing a license to practice in the state. He quickly contacts the state board to request a temporary license, but upon finding out that the state does not offer temporary licenses he instead applies for and later receives licensure by comity.
Unfortunately, the consultant's belated actions are not successful in staving off the threat of disciplinary action. Some months later the consultant receives notice that the state board has received a complaint about his unlicensed practice of engineering from the structural engineer who designed the original plan for preserving the tower. The board fines the consultant $500, and the consultant is obliged to provide notice to the 17 jurisdictions in which he is registered of the disciplinary action taken in the New England state.
Question
If the consultant had been an ASCE member, would his actions in providing services in a state where he was not licensed violate the ASCE Code of Ethics?
Discussion
Many past cases in this column have discussed the complex interrelation between ethics and the law as applied to the practice of engineering. Yet, though it may often be said that professional ethics impose a higher level of obligation than that established by the legal system, it does not appear to be the case here. While there is little question the out-of-state engineer violated the state's legal requirements concerning licensure, whether that same violation carries ethical culpability is considerably less clear.
Fundamental canon 2, guideline a, requires that engineers "undertake to perform engineering assignments only when qualified by education or experience in the technical field of engineering involved," but it says nothing about meeting a jurisdiction's legal requirements to perform engineering work. Indeed, perhaps surprisingly--and unlike in the ethical codes of some other engineering organizations, such as the Society of Petroleum Engineers and Engineers Without Borders-USA--there is not even an express statement in ASCE's Code that imposes a general ethical obligation on engineers to comply with all applicable laws.
While most legal violations are nonetheless likely to be captured under one of ASCE's ethics provisions, such as the canon 1 obligation to "hold paramount the safety, health, and welfare of the public," or the canon 6 requirement to "uphold and enhance the honor, integrity, and dignity of the engineering profession," it is difficult to see how those provisions could have been breached here, as it appears the engineer rendered competent services that alleviated a potentially imminent safety hazard.
In fact, when this case study was originally published for comment by NIEE, some 64 percent of respondents believed that the engineer had behaved completely within the bounds of ethical conduct, placing protection of the public over the legal technicalities of state registration.
Conversely, the remaining respondents felt that the engineer had a professional and ethical obligation to recognize the licensure issue from the start and thus should either have declined to take on the work or structured the arrangement so that he was serving merely as an adviser to the project engineer or in some other manner that complied with the state's licensing requirements. Regardless of which of these positions gives a fairer assessment of the engineer's conduct in this case, it is clearly an unfortunate result when a community's need for timely and competent engineering services to address a public hazard is hindered by the same laws designed to protect that community. Nowhere is that issue more critical than in the case of a significant natural or manmade disaster when the pace and extent of an area's recovery can be greatly impacted by the availability of engineering experts from outside the region to aid in assessment and recovery efforts.
Recently, the Texas Board of Professional Engineers passed a board rule providing for the issuance of emergency temporary licenses that allow engineers licensed in other jurisdictions to practice engineering for up to 90 days in the Texas counties affected by Hurricane Harvey. As we continue to see greater population densities in disaster-prone parts of the United States, it is likely that state boards will continue to grapple with the issue of out-of-state engineers in times of declared emergency, aiming to offer better avenues for professionals seeking to fulfill their ethical obligation to serve the public interest without running afoul of licensure laws.
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
© ASCE, ASCE News, November, 2017
