By Tara Hoke
Scenario
The newly elected supervisor of a populous suburban township is approached by a local real estate developer, who complains that he is being “muscled” by the township’s public works director into offering real estate to the director at below-market value in exchange for favorable treatment by the public works department. The report is particularly credible to the official because it aligns with the official’s growing suspicions about the public works director’s conduct.
Almost immediately upon assuming office, the supervisor had heard rumors about dubious dealings between the director and individuals doing business with the department. While the township supervisor had no direct evidence to support those rumors, a recent audit of the public works department had heightened his suspicions; questionable choices on matters such as the drawing of sewer lines in new developments seemed to suggest that a member of the department was intentionally working to increase the property value of certain tracts at the expense of others.
The supervisor reports his concerns to the FBI, which agrees to conduct an investigation. But it is not long before the investigators discover that the director is merely one player in a much larger corruption scheme that involves numerous high-level public officials in the township and its neighboring regions. When approached with evidence of his unlawful activities, the public works director agrees to cooperate with the FBI in its broader investigation.
Over the next nine months, the public works director is instrumental in helping federal agents collect evidence to indict a half-dozen officials and more than 30 contractors on charges including conspiracy, bribery, mail fraud, and money laundering.
Among the indicted contractors is the owner of a local engineering firm, who is accused of providing cash and in-kind payments to the public works director in an effort to influence his decision on a lucrative contract. On a recorded call produced by the FBI, the public works director contacts the engineer to advise that the department is looking to seek competing proposals on an annual million-dollar contract that is serviced by a competing firm.
The engineer promises to “take good care” of the director if his firm is tapped to take over the engineering contract, and he invites the director to work his “magic” on the proposal so that both of them “can make some money.”
In subsequent exchanges, the engineer provides payments of several thousand dollars in cash and expresses willingness to offer the director a secret interest in land the engineer was seeking to develop. He also invites the public works director to join him on a weekend trip to a nearby resort casino, during which he covers all expenses for the stay and provides an extra $1,000 for the director to use to gamble.
In response to the criminal indictment, the engineer accuses federal investigators of entrapment. He asserts that he had never before made any unlawful payments to secure work and that he had done so in this case only under extreme pressure. He claims that, in conversations that were not recorded by investigators, the public works director had threatened to cancel his existing projects with the township if he did not pay the bribes — and it was that threat which had compelled him to offer the bribes.
The engineer’s defense proves unsuccessful at trial, and his conviction results in an eight-year prison sentence.
Putting a somewhat absurd cap on this chain of events, at the same time as this owner is wooing the director with expensive trips and covert land deals, a principal of the firm whose contract was due to expire is also funneling payments to the director in hopes of landing a renewed agreement. These dealings also occur under the watchful eyes of federal agents, and this principal is likewise convicted of bribery and sentenced to jail.
In the aftermath of the trial, with the two engineering companies both facing criminal sanctions and public scandal, the public works contract at the center of these bribery indictments is quietly awarded to another firm.
Question
If this case had involved ASCE members, what would the ASCE Code of Ethics have said about their actions?
Discussion
It has often been noted that the global engineering and construction industry is uniquely susceptible to corruption. Factors including the vast sums of money flowing into the industry, the size and complexity of projects, the degree of political involvement in decisions, and the extent of market competition have the effect of making it tempting and often lucrative for individuals to abuse positions of trust for personal gain.
This susceptibility also explains why corrupt conduct — e.g., bribery, kickbacks, unlawful political contributions, and other acts of contract or procurement misconduct — has been by far the most common ethics complaint reviewed by ASCE’s Committee on Professional Conduct over its centurylong history.
If the case described here illustrates the type of conduct most frequently examined by the CPC, it also represents the most common defense raised by members accused of this conduct, that is, a claim of inducement. Like one of the competitors referenced in this case, ASCE members accused of making unlawful payments often seek to reframe themselves as victims of corrupt schemes rather than willing participants.
Such members commonly claim they had no other choice, that the success or survival of their practices depended on securing particular contracts, and that someone in a position of power exploited that pressure to make unlawful demands.
While the legal arena may make concessions for individuals who are coerced into corrupt conduct, it is important to note that ASCE’s ethical standards are not so forgiving. Section 1d of the ASCE Code of Ethics states, “Engineers have zero tolerance for bribery, fraud, and corruption in all forms, and report violations to the proper authorities.”
This maxim imposes a strict ethical obligation on engineers to take action in the face of corruption — not to accept corruption or even allow it to endure because of feared reprisals, perceived lack of power, or a desire to avoid trouble or disclaim personal responsibility.
In this case, it is clear the engineers did not demonstrate zero tolerance for corruption, and so the CPC would likely deem their actions violated Section 1d of the ASCE code. The CPC is also likely to have felt that the payment of bribes violated Section 3d’s mandate to “reject practices of unfair competition” and that overall the engineers’ conduct failed to meet Section 3a’s obligation to “uphold the honor, integrity, and dignity of the profession.”
While the focus of this column is on the engineers involved in this case, it is worth observing that there was at least one individual whose actions likely did show zero tolerance for corruption: the township supervisor. When confronted with credible concerns about the integrity of an agency employee, the supervisor brought those concerns to the attention of authorities with the power to investigate and take action. If the supervisor had been an ASCE member, his actions would likely have been applauded as a demonstration of his commitment to zero tolerance and to ASCE’s ethical principles in general.
Note: This column is in memory of Bill Henry, P.E., D.WRE(Ret.), F.ASCE, Pres.05.ASCE, who sponsored the adoption of ASCE’s zero-tolerance language as president of ASCE and who modeled the way for the Society and the profession with his commitment to promoting rigorous anticorruption policies and practices across the industry.
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
This article first appeared in the March/April 2023 issue of Civil Engineering.
