By Tara Hoke
Situation
A resident in the state of Oregon becomes interested in the timing of traffic lights after his spouse receives a ticket from a red-light photo enforcement camera. Though the resident is not a licensed engineer, he has a degree in electrical engineering from his birth country of Sweden and has decades of experience designing and repairing audio equipment.
The resident conducts an analysis of the standard method for calculating the length of yellow lights and identifies what he believes to be an important flaw in the mathematical formula, which bases yellow-light duration on the posted speed of the road and is designed to provide motorists with adequate time to stop. This formula performs well for motorists who are going straight through an intersection, but it fails to provide an additional allowance for motorists who are slowing to make a turn. The resident feels his assessment is confirmed by the fact that a disproportionate number of red-light tickets in his city are given to motorists making turns, and he believes the result is unfair to motorists and potentially a safety concern.
When his efforts to solicit action from the city are unsuccessful, the resident sends his analysis to the Oregon State Board of Examiners for Engineering and Land Surveying, hoping to gain its support of his analysis. The board responds by noting that traffic signal timing is not within its jurisdiction, and it cautions the resident that his activities might be deemed as the unlicensed practice of engineering.
Undaunted by this response, the resident continues to pursue a forum for his ideas, reaching out to various public agencies, news outlets, and engineering groups. In these communications he describes himself as "an excellent engineer" and notes that he has "invented and publicly released" a new method for calculating yellow-light duration.
As the resident shows no sign of heeding the Oregon board's warning, it decides to take further action. Following a lengthy investigation, it concludes that the resident's use of the title "engineer" and his public promotion of his formula signifies the resident is holding himself out as authorized to practice engineering. The board finds that the resident has thus violated Oregon's statutes concerning the unlicensed practice of engineering and fines him $500.
The resident responds by filing suit in federal court, alleging that the state board's application of its licensing statute has infringed upon his First Amendment right of free speech. This case, Jarlstrom v. Aldridge et al., becomes a minor media sensation, with news organizations across the country publishing articles about the "man fined for doing math."
On December 28, 2018, the U.S. District Court for the District of Oregon issues an opinion in this case that largely upholds the resident's claim. The court states that the board's application of its practice laws in this matter is unconstitutional because the resident is "not providing a professional service," distinguishing his self-advocacy from cases in which an unlicensed individual is providing engineering analysis or advice to an employer or client.
With respect to the resident's claim to being an engineer, the court states that there is no reason to believe the public at large would assume that someone using the term engineer is necessarily a licensed professional engineer. Citing the proliferation of job titles that use the term "even though they do not require any professional engineering expertise or licensure," the court opines that the word engineer has "no fixed meaning," much like the term specialist. Moreover, it says, even if an unlicensed person's use of the term could potentially be misleading, the court nonetheless finds that Oregon's complete ban on such uses is "more burdensome than necessary to protect the public from the unlicensed practice of engineering."
Ultimately, the court declares that the Oregon statute imposes an undue restriction on protected speech. It issues a permanent injunction against the state board, ordering that the resident may continue to communicate his ideas as long as it is done "outside the context of an employment or contractual relationship relating to the timing of traffic lights," and that he "may describe himself publicly and privately using the word 'engineer.'"
Question
What are the ethical implications of the resident's conduct and of the decision rendered by Oregon's district court?
Discussion
The right to restrict the use of the term engineer has for many years been the subject of fierce debate. One side of this debate includes those who view engineer as synonymous with the professional practice of engineering and oppose any attempt to apply the term to practitioners who do not possess the requisite level of engineering education and experience. On the other side is a broad grouping of individuals who see engineer as a generic descriptor, suitable to describe any individual with special knowledge or experience in the use or maintenance of technology, machinery, or structures.
While the Oregon district court's opinion clearly tips the scales of legal precedent in favor of the latter group of individuals, this ruling does not put an end to the ethical question. Guidelined under Fundamental Canon 5 of the ASCE Code of Ethics reads: "Engineers shall not falsify or permit misrepresentation of their academic or professional qualifications or experience." (It is perhaps ironic in the context of this discussion to note that while nearly all eight ASCE canons and their supplemental guidelines begin with the phrase "Engineers shall," ASCE deems its code of ethics to apply to all Court Weighs in on Use of Word "Engineer" members of the Society, regardless of the applicability of the term engineer.)
As this guideline operates under Canon 5's exhortation for members to "build their professional reputation on the merit of their services," it could be argued that this guideline has limits that are similar to the Oregon court's reading of the law; i.e., it applies only in connection with employment or contractual relationships. Yet professional reputations are shaped not only by interactions with employers or clients but also by all interactions within a person's professional sphere. And as nearly every individual has at least the potential to be a client, colleague, vendor, or other professional affiliate, a closer reading of guideline d suggests it is not ethically acceptable in any setting to seek acceptance, acclaim, or other reputational benefit by claiming qualifications one does not actually possess.
If a case such as this were brought before ASCE's Committee on Professional Conduct (CPC), it is likely the CPC would agree with the court that the resident had not engaged in the unlawful practice of engineering merely by having ideas on an engineering matter and seeking attention from those with the authority to implement those ideas. But the CPC would also be keenly sensitive to the fact the resident had described himself as an engineer, not as a generic descriptor, but for the purpose of gaining the respect and credibility afforded to engineering professionals on a matter within their scope of expertise. If the CPC believed the resident's education and experience did not justify his claim to that title, the CPC might well find that the individual had misrepresented his professional qualifications in violation of Canon 5.
Though this case relates specifically to the use of the term engineer , its lessons can easily be applied to other descriptors--and even licensed professionals can be tempted to embellish or overstate their qualifications in an effort to impress. This is true in a job setting, and it may be even more true in a social setting or other forum, when there may be no one with the knowledge to correct a false claim of expertise.
Of course, in cases not involving the rendering of professional services, it may be said that there is a negligible risk of harm to persons who are misled by such claims. Certainly, it was the Oregon court's opinion that such risk is outweighed by the public benefit of encouraging a free exchange of ideas. But from an ethical standpoint, the act of seeking prestige or influence on the basis of misleading credentials is itself a public harm, regardless of whether this misrepresentation causes a tangible detriment to others. To avert this harm and honor the dictates of Canon 5, engineers should pay as much attention to accuracy in describing their professional credentials as they do in preparing any other professional statement.
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
© ASCE, ASCE News, February, 2019
