By Tara Hoke
Scenario
Following publication of a news article announcing the Society’s newest class of distinguished members, a letter is sent to ASCE’s presidential officers, objecting to one of the inductees. Bearing no return address and signed with the improbable name of Bruce Banner, Ph.D., the letter accuses one of the newest honorees of “corruption” in connection with his recent change of employment.
The letter states that the member, a tenured professor at a large state university, took a one-year sabbatical from the university, ostensibly for the purposes of research and professional development. But unknown to the member’s employer, according to the letter, the professor had in fact taken the sabbatical in order to accept a full-time faculty position at an acclaimed international university.
For the next 10 months, claims the letter writer, the professor continued to draw salaries from both universities, without either being aware of his overlapping employment. At the same time, the professor published no less than three research papers in which he listed the state university as his affiliation, a choice, the letter writer claims, that was a deliberate “ruse” to further the illusion that he was on a research sabbatical. Ultimately, however, the letter claims that the state university uncovered the truth of his second position, and his employment at the state university was terminated.
In support of these allegations, the letter writer provides copies of departmental communications from both universities over the time of alleged overlap, one listing the professor as on sabbatical and the other naming him as a new hire. He also provides copies of the professor’s research papers published during the months in question, along with a sternly (if indirectly) worded memorandum from the state university dated shortly after the professor’s departure, reminding all members of faculty that teaching while on sabbatical is prohibited without prior approval from the dean.
A copy of the letter is forwarded to ASCE’s Committee on Professional Conduct, which opens an investigation into the allegations.
Question
Did the member’s actions in taking a full-time position while on paid sabbatical from another university violate the ASCE Code of Ethics?
Discussion
At the time this case was considered by the CPC, Fundamental Canon 4 of the ASCE Code of Ethics read, “Engineers shall act in professional matters for each employer or client as faithful agents or trustees, and shall avoid conflicts of interest.” In today’s code, this language is largely unchanged, with section 4a requiring engineers to “act as faithful agents of their clients and employers with integrity and professionalism.”
While this principle is often described as an instruction for engineers to place service to clients and employers above their own personal interests, in fact some attention to engineers’ personal benefit is not only allowed but also assumed. Few would argue that the duty of “faithful” service precludes an engineer from making a profit on a contractual agreement or from seeking better pay or more benefits from an engineering employer. In fact, section 4a might be better understood to mean simply that an engineer may not use illegitimate or deceptive methods to benefit at an employer’s or client’s expense.
Put another way, in the case presented here, the CPC would likely not find ethical fault with an engineer simply for finding a better career opportunity, even if his departure caused some degree of loss or harm to his employer. If, however, this harm was caused or magnified by a bad act from the engineer, then the CPC might well find the engineer had violated his ethical obligation to serve as a faithful agent.
When contacted by the CPC, the member flatly denies that he has done anything unethical with respect to his change of employer. According to the member, while he had been delighted to receive an offer from a prestigious international university, he was concerned that a move abroad might not be so welcome by his spouse and school-age children. The member agreed to accept the position on a one-year trial basis, which he felt would afford him time to evaluate the family’s new living arrangements and his overall satisfaction with the position.
The member submits to the CPC a copy of the state university’s sabbatical policy and notes that the policy did not preclude professors from taking other compensated work while on sabbatical. Instead, employees were required only to report such income at the conclusion of the sabbatical and, if the reported income exceeded a particular threshold, to make restitution to the state university for sabbatical pay.
The member says he met both his reporting and financial obligations prior to leaving the state university, and he denies the suggestion that his employment was terminated by the university for a breach of this policy; as evidence, he provides a letter from a university official accepting his resignation and affirming that there were no outstanding matters relating to his employment.
With respect to his published papers, the member claims that the research reported had all been conducted while he was employed by the state university and that the convention in cases of researchers who change employers is to give credit to the institution where the work was conducted.
In short, the member states that there was no intent to deceive or disadvantage his former employer, and he expresses confidence that he met “both the letter and the spirit” of the university’s sabbatical policy. He adds that he still has a good relationship with his former department and is still collaborating with members of faculty there on research projects.
Upon review of the case, the CPC was unconvinced that the member’s actions honored the letter and spirit of the university’s sabbatical policy. While true that it contained no express ban on outside employment, the stated intent of the sabbatical policy was to “promote intensive scholarly activity through a sustained period of concentrated research” — a purpose the CPC members felt was incompatible with full-time employment at another institution.
In addition, the policy noted that faculty who took sabbatical leave were required to return to active employment for a period of no less than the duration of their leave — a commitment the accused member had clearly not met.
Overall, the CPC was troubled by what it felt was the member’s lack of candor regarding the purpose of his sabbatical leave. While the CPC members believed his actions showed no intent to harm his employer, they nevertheless felt his use of sabbatical leave as a safety net from which to test a new employer was contrary to his employer’s objectives in approving the leave.
At the same time, in view of the financial restitution made by the member and what appeared to be adequate notice of his resignation, the CPC did not have any direct evidence to conclude that the professor’s actions had harmed the state university.
Ultimately, the CPC felt that if the member and his former employer had satisfied any questions about his departure, then no further inquiry by the committee was needed. The CPC voted to close the case without formal action, but it did provide a note of caution to the member about the importance of faithful service even when contemplating a change of employer.
Though sabbatical leave is not typically found outside academia, it is not at all uncommon for engineering employers of all types to offer benefits premised on continued employment, whether directly through reimbursement for educational expenses or exam preparation or indirectly by assignments to important long-term projects.
In any case, employees who are contemplating departure may find themselves in tricky ethical quagmires. On the one hand, it is at best questionable to accept a large benefit from an employer that is conditioned on an expectation you have no intention of fulfilling. On the other hand, in the absence of complete certainty about a prospective change of jobs, it is reasonable to avoid making a disclosure that could damage your standing at your current place of employment.
While the most ethical course of action depends on the specific facts of each case, in general engineers should be mindful that faithful agents must make a careful balance of the interests at stake and seek solutions that exercise their right to define their own career paths while avoiding undue harm or disruption to their employers.
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
This article first appeared in the July/August 2022 issue of Civil Engineering.
