By Tara Hoke
Scenario
In reviewing past bank statements for a large northwestern ASCE branch, the newly elected treasurer uncovers cause for concern about the actions of his immediate predecessor. The statements show that, over the course of his one-year term, the previous treasurer made more than $7,000 in unexplained purchases on the branch debit card.
While most of the charges were made at gas stations or restaurants — charges that could potentially have arisen from the treasurer’s duties — no correlating receipts or other documentation could be found to connect these charges to branch business. In other cases, the connection to official branch duties seemed even less clear, including several purchases from men’s clothing and accessory stores and what appeared to be a regular morning drink purchase at a local coffeehouse.
The statements also revealed that the past treasurer had written three large checks to the branch in the months before his term came to an end. While the payments seemed to reflect an effort to pay back the undocumented charges, the amounts did not completely add up; by the new treasurer’s estimate, some $700 in debits from the branch account remained unaccounted for.
When contacted by the treasurer about these discrepancies, the member is very apologetic. He admits he had improperly commingled his personal spending with the branch’s account and expresses shame that he had tried to “plug the gap” on his personal financial struggles with funds that were not rightfully his. He claims he believed he had made full restitution with the branch before leaving office but expresses willingness to pay his remaining debt, and he asks for a few weeks’ grace to make this final payment.
Unfortunately, weeks come and go with no payment from the former officer. When subsequent requests for payment go unanswered, the treasurer reports the matter to the branch president, who in turn reaches out to the member. This time, while still acknowledging his past errors, the former treasurer more firmly asserts his belief that he had repaid his debt in full. The member asks to review the list of charges and offers justification for two of the unpaid charges; the current officers agree to accept payment of the remaining amount, which is promptly made.
But the branch president’s misgivings are far from satisfied by this exchange. First, she questions the member’s candor in claiming his repayment encompassed all the unauthorized charges. She notes that the current treasurer had only flagged charges that were clearly inappropriate but that other questions about the member’s actions remain; for example, a handful of gift cards were purchased as branch awards, but there were no records to document when or to whom these cards were distributed.
Second, and even more significantly, she is troubled by the member’s apparent assumption that his repayment settled the matter in full, and she feels his actions showed a complete lack of understanding of the magnitude of his impropriety.
The branch president submits a complaint to ASCE’s Committee on Professional Conduct, which agrees to open an investigation. The member is contacted, and again he expresses remorse for his actions and a desire to cooperate with the CPC case. However, once again the member fails to follow through on his stated intentions, and he does not submit a written defense or respond to subsequent inquiries. Before long, the CPC receives word that the former officer’s membership has fallen into arrears.
Under ASCE rules, a member whose membership lapses while under an ethics investigation is deemed to have resigned “with prejudice,” meaning that the member cannot subsequently rejoin without an affirmative two-thirds vote from the Society’s Executive Committee. When the member remains unresponsive, the CPC has a choice to make: It can rush the case to completion without input from the member or take no action and accept the de facto resignation.
The CPC chooses the latter, and the member is dropped for nonpayment.
Nearly a dozen years later, the CPC receives surprising news: The former treasurer has petitioned the Executive Committee to restore his membership so that he can accept a nomination to run for branch office again. The Executive Committee asks the CPC to review the original case files and make a recommendation on whether to approve the petition.
Question
Does the member’s prior act of unprofessional conduct merit a permanent disqualification from holding Society membership or leadership?
Discussion
While ASCE’s Rules of Policy and Procedure sets the overall framework for how ASCE enforces its Code of Ethics, one area with little or no established protocol is the appropriate treatment for cases involving a passage of time. Unlike the legal arena, where a multitude of rules establish time limits after which a person can no longer be served with legal action, banned from an activity, or compelled to disclose harmful information, the CPC has no guideline other than its own moral compass to decide whether past misconduct still merits censure in the present day.
In such cases, the CPC bases its decisions on factors such as the degree of harm, the presence or absence of malicious intent, and the extent to which an engineer can demonstrate a willingness to learn from failure. The CPC is unlikely to judge an engineer’s entire professional life by an early lapse in judgment in cases where the harms were insubstantial, but a case involving conduct of an especially harmful or unscrupulous nature might raise serious questions about the engineer’s fitness even decades after the conduct occurred.
Likewise, an engineer whose intervening years show a commitment to professional growth is more likely to earn a second chance than one who remains at best on the margins of ethical conduct.
Here, the CPC felt that the member’s prior actions represented an intentional — if not intentionally harmful — violation of guidelines a and b under Fundamental Canon 6, which at the time directed engineers to “be scrupulously honest in their control and spending of monies” and “not knowingly engage in business or professional practices of a fraudulent, dishonest, or unethical nature.”
The CPC also believed his actions fell short of the obligations of Canon 4’s instruction to act “as faithful agents or trustees,” an obligation the CPC regularly applies not only to engineers acting on behalf of employers or clients but also to those serving as volunteer leaders for their professional societies.
When contacted by the CPC about his petition, the former member made no attempt to deny or downplay his past conduct. He said he had had many years to reflect on his conduct and deeply regretted breaching the trust of the branch members and his fellow leaders. He explained he regularly volunteered with another professional society, wanting to redeem himself and give back to his local community; it was in that capacity, he said, that he came to know the current ASCE branch leadership and to be offered a chance to fill their upcoming board vacancy.
He claimed that he disclosed the full circumstances of his prior service to the branch leaders and that they still supported his nomination, a claim he substantiated with a written letter signed by two branch officers and a section board member. He also noted that the branch position he wished to accept did not involve access to the branch bank account or other finances.
While the CPC believed the member’s remorse was genuine, it was split on whether this remorse justified a restoration not only of ASCE membership but also the opportunity to leap back into a position of trust and leadership. One member noted from the case file for the original CPC investigation that the committee was considering a three-year suspension, a term which was greatly exceeded by the member’s 12-year lapse in membership.
Another countered that the member’s conduct showed a tendency to avoid problems in hopes of making them go away and expressed concern that a decision to restore his membership might encourage similar behavior.
Ultimately, though, the support of the branch and section officers carried the day, as the CPC felt the local officers had better knowledge of the former member’s recent volunteer work and were willing to maintain oversight of his actions on the board.
The CPC forwarded a recommendation to ASCE’s Executive Committee to support the former member’s petition, and the Executive Committee concurred, although it attached a further instruction to the branch not to encourage the new officer to assume any role involving control of monies for a probationary period of at least three years.
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
This article first appeared in the November/December 2022 issue of Civil Engineering as “Is Prior Professional Impropriety a Blockade to Membership Reinstatement?”
