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April 2011

The Responsibility to Report Wrongdoing

Introduction

In matters of professional conduct, it is generally understood by engineers that they have an obligation to report illegal or unethical acts to the proper authorities. Canon 1 of ASCE’s Code of Ethics underlines the engineer’s paramount obligation to safeguard the health, safety, and welfare of the public, and category (d) in the guidelines to practice for this canon requires engineers with “knowledge or reason to believe that another person or firm may be in violation of any of the provisions of Canon 1...[to] present such information to the proper authority in writing and ...cooperate with the proper authority in furnishing such further information or assistance as may be required.” And the rules in this area formulated by the National Council of Examiners for Engineering and Surveying, which serve as models for many state licensure rules and regulations, require that “licensees having knowledge of possible violations of any of these Rules of Professional Conduct shall provide the board with the information and assistance necessary to make the final determination of such violation.”

While most engineers are familiar with the requirement to aid government authorities in uncovering or investigating misconduct, many are far less knowledgeable about their reporting obligations to such voluntary professional societies as ASCE. So even though state licensing jurisdictions may issue dozens of disciplinary actions each year, many cases involving ASCE members never reach the attention of ASCE’s Committee on Professional Conduct (CPC). The CPC reviews on average 10 ethics complaints per year, and only half of them are ultimately found to merit some type of disciplinary action.

Question

What is the basis of ASCE’s complaint-based ethics enforcement procedures and what obligations do ASCE members have in reporting potential ethics violations to the Society?

Discussion

Although much of our current Code of Ethics originated in the 1970s and the code as a whole was first adopted in 1914, the idea that ASCE’s members should have the authority to police their fellow members dates back to the earliest days of the Society. Article XXVIII of ASCE’s 1882 constitution provided that “upon the written request of 10 or more Members that, for cause therein set forth, a person belonging to the Society be expelled, the Board of Direction shall consider the matter, and if there is sufficient reason, shall advise the accused that his resignation shall be accepted.”

The basis of this practice was the view that Society membership meant that a member was associated with a group of educated, honorable, and respected professionals. The inclusion of persons lacking these characteristics was a reflection not only on the Society but also on its members. The complaint process was intended to allow a member who felt he had been tarnished by association with a person failing to comply with the Society’s ethical guidelines to petition for disciplinary action. In accordance with due process and with the accused of course given a right to defend himself, the complaining member would receive a judgment from the Society as to the merits of his complaint.

While the moral lapses for which a member may be expelled have since been codified in the Code of Ethics and while the process followed in investigating complaints and rendering judgments has changed considerably in the past 100 years, the Society still follows a complaint-based process for instituting disciplinary action. Section 3.0 of ASCE’s rules of policy and procedure describes the Society’s process for conducting ethics investigations and disciplinary hearings, and last year the Society approved amendments to these rules setting forth in greater detail the procedures for initiating an ethics complaint.

Subsection 3.0.1.1 of the rules states that complaints must be submitted in writing to the Society secretary or his or her designee. The secretary’s present designee is ASCE’s legal department, which provides staff liaison to the CPC. The preferred means of submission is the ASCE ethics complaint form, which is available on the ASCE Web site (click on “Ethics” under “Leadership & Management” at www.asce.org). However, at its discretion, the CPC may accept written complaints in another format.

As explained in subsection 3.0.1.1.2 of the rules of policy and procedure, ASCE sections have the authority to appoint a section professional conduct committee or office to review local matters and serve as an intermediary with the CPC. Although sections themselves have no authority to impose disciplinary sanctions, a section representative may receive complaints and conduct the initial stages of an investigation of alleged misconduct. If the representative believes that a violation may have occurred, he or she must then report the violation to the CPC for further investigation in accordance with the CPC’s procedures.

The CPC has occasionally discussed the possibility of moving from this complaint-based process to one based more on investigations. Here CPC members would actively monitor reports of criminal convictions, disciplinary actions, and other sanctions in search of potential violations of ASCE strictures. Unfortunately, with some 144,000 members in 154 countries and with 56 licensing jurisdictions in the United States alone, CPC members would face significant challenges with respect to resources and time if they were to avail themselves of all potential sources of information. Accordingly, the CPC has chosen to limit its activities to cases initiated by complaints, relying on the Society’s members and the public at large to forward reports of ethics violations involving members.

While the focus of the preceding discussion is the rationale for ASCE’s complaint-based ethics process, it is important to note that membership in the Society may, in many cases, make the complaint process not only a right but also an obligation. Subsection 3.0.1 of ASCE’s bylaws reads as follows: “It is the duty of every Society member to report promptly to the Committee on Professional Conduct any observed violation of the Society’s Code of Ethics.” This provision is also included as a footnote in the official print and online versions of the Code of Ethics. While ASCE has never adopted a formal interpretation of this provision, the use of the word “observed” suggests that this provision applies at a minimum to any individual who has personal knowledge of another member’s violation of the code.

Members who have an ethics question or would like to file a complaint with the Committee on Professional Conduct may call asce’s hotline at (703) 295-6061 or (800) 548-asce (2723), extension 6061. The attorneys staffing this line can provide advice on how to handle an ethics issue or file a complaint. Please note that individual facts and circumstances vary from case to case and that the general summary information contained in these case studies is not to be construed as a precedent binding upon the Society. 

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