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April 2012

Should Past Ethics Violations Be Disclosed in Elections?

Situation

An ASCE member and civil engineer employed as the vice president of a consulting firm has a falling out with the firm’s owner and decides to establish his own practice. Before leaving his current position, however, and without informing his employer, he contacts a number of the firm’s long-standing clients to tell them that he is leaving and to invite them to follow him to his new practice. He emphasizes to these clients the high standard of service he has provided during his employment and expresses the opinion that the consulting firm will not be able to provide the same quality of service in his absence. His pitch proves successful, and several of these clients begin funneling work to his new firm.

Upon learning of the engineer’s actions, his former employer—also a civil engineer and ASCE member—files a complaint with ASCE’s Committee on Professional Conduct (CPC). The CPC opens a case and informs the member that he is under investigation for a possible violation of canon 4 of ASCE’s Code of Ethics, which reads as follows: “Engineers shall act in professional matters for each employer or client as faithful agents or trustees, and shall avoid conflicts of interest.”

The member denies all charges of unethical conduct. He admits that he contacted clients to inform them of his departure but asserts that he did not directly solicit any client to follow him to his new practice. He further contends that any doubts as to the future quality of service that would be offered by his former employer were raised not by him but by the clients and that he felt bound to respond with a fair and honest opinion.

The CPC members are not persuaded by his defense and vote to recommend that he be suspended for a period of one year with notice of the action to be published without the member’s name. The CPC advises the member that he is entitled to a hearing on the matter before ASCE’s Executive Committee or may resolve the case by a “consent decree” in which he accepts the recommended sanction and waives his right to a hearing. The member selects the consent decree, and the Executive Committee approves the agreement. Notice of the action is then published in Civil Engineering, but the member is not named.

Seven years later, the engineer, who renewed his membership immediately after his one-year suspension, expresses interest in seeking election for an ASCE section office. When news of the engineer’s intent reaches his former employer, the employer sends a letter to members of the section board and its nominating committee objecting to the member’s candidacy. The employer encloses a copy of the notice published in Civil Engineering and names the prospective candidate as the person disciplined in the case. The employer states that, in his opinion, an individual who has been disciplined for breaching ASCE’s Code of Ethics should not be accepted for consideration as a nominee for section office.

The section’s nominating committee forwards a copy of the letter to ASCE’s national office for assistance in determining how to respond.

Question

Should information about a past ethics violation by a member seeking a section office be disclosed to the body considering his candidacy and what bearing should that information have on the member’s future activities within the Society?

Discussion

ASCE’s ethics enforcement process has traditionally been characterized by strict confidentiality. The Society’s rules of policy and procedure contain several provisions designed to limit disclosure throughout the ethics enforcement process. For example, subsection 3.0.2.3 of the rules states that CPC members may discuss cases “only with members of the Committee, staff members privy to Committee proceedings, and such other persons deemed by the Committee as having a need to know,” and subsection 3.0.6.8 adds that all ethics proceedings “except the action taken by the Executive Committee or the Board of Direction...shall be confidential.”

With respect to publication of sanctions, subsection 3.0.9.4 of the rules stipulates that ASCE’s Executive Committee or Board of Direction may authorize the inclusion of a notice of disciplinary action in an ASCE publication and that “the name of the Society member… may be mentioned in such notice, provided that the disciplined individual has first been notified of the disciplinary action and provided such notice is limited to (a) a factual statement of the action of the Executive Committee or Board of Direction and (b) only such facts...as are set forth in a publicly available judicial or administrative petition, decision, or related document.”

The letter received by the section was forwarded to the CPC for review, and the issue of confidentiality sparked considerable debate. Some members expressed strong opposition to what they deemed a violation of ASCE’s confidential disciplinary proceedings. In their view, publication of a member’s name was itself a form of disciplinary action, one that the rules of policy and procedure permitted only ASCE’s governing bodies to impose. In the present case, neither the CPC nor the Executive Committee felt that the member’s offense had been sufficiently grave to merit disclosure of his name; thus, by linking the member’s name to the anonymous disciplinary notice, the former employer had flouted ASCE’s rules and the judgment of its Executive Committee.

With respect to the nominating committee’s course of action, some CPC members felt that because there had been no “official” notice of an action against the member, the section could not consider this action in selecting nominees.

Others took the view that candidates participating in a section election are accountable to their fellow members and that if a member has knowledge that is relevant to an assessment of the candidate’s character, ASCE should not attempt to stifle discussion. Indeed, some committee members challenged the very notion of anonymity with respect to a candidate for Society office. In their view, a past violation of the Code of Ethics is crucial information about a candidate, and far from ignoring this information, the Society should actively disclose the information to the appropriate geographic entities to ensure that the members concerned have the best possible information at hand when evaluating leadership candidates.

In the end, the CPC’s response featured a blending of these views. The committee drafted a letter to the former employer reminding him of the Society’s rules on ethics enforcement procedures, affirming the Society’s commitment to confidentiality, and requesting the employer’s cooperation in “ensuring the integrity of our ethics enforcement program.” Meanwhile, the section’s nominating committee was advised that it was entitled to take all information about a candidate’s history into consideration, including his past activities, his other achievements, and his vision for the section’s future.

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, that some details may have been altered for purposes of illustration or confidentiality, 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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