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February 2013

 Ethical Practice Demands Expertise

Situation:

A structural engineer and ASCE member is brought before his state licensing board for negligence in the practice of engineering in connection with his submission of inadequate design plans for a building permit application.

The case arose from the member’s lease of a commercial building unit that he was renovating as the site of a new gourmet catering business that was to be owned and managed by his wife. The individual who filed the state board complaint was a contractor hired by the member. The complainant alleged that the member, in addition to failing to pay him for the work he had done, had on multiple occasions signed and sealed plans for a commercial kitchen hood, an exhaust fan, and a duct system that were rejected by the building department because of substantial design inadequacies.

Upon inquiry by the state board, the county building inspector confirmed that he had indeed rejected multiple iterations of a commercial hood plan submitted by the member. The inspector noted that the first set of plans had been submitted without a signature or seal. However, after that initial rejection, no fewer than three subsequent revisions had been filed, each stamped with the member’s signature and seal.

The inspector stated that the plans had lacked detail to properly explain the removal of smoke and vapor from the commercial kitchen, and he cited at least a dozen reasons why the plans failed to satisfy the requirements of the local building code or fire protection standards. In short, the inspector concluded that “the designer of the hood [did] not indicate the most elementary knowledge of hood design...and life safety features necessary to provide a safe and functional installation.” The inspector believed the member’s repeated failures to address the problems listed in each rejected application indicated “a complete lack of knowledge of this aspect of engineering.”

Finding that the member had failed to exercise “due regard for acceptable standards of engineering principles,” the state board suspends the engineer’s license for one year and orders him to pay a $1,000 fine and attend a course on professionalism.

A local section officer reads of the disciplinary action in the state board’s quarterly newsletter and forwards a complaint to ASCE’s Committee on Professional Conduct (CPC).

Question:

Did the member’s actions in sealing plans that contained numerous code violations and other deficiencies violate ASCE’s Code of Ethics?

Discussion:

Canon 2 of the Code of Ethics reads as follows: “Engineers shall perform services only in areas of their competence.” Category (a) in the guidelines to practice for this canon has this to say: “Engineers shall undertake to perform engineering assignments only when qualified by education or experience in the technical field of engineering involved.” What is more, category (c) in the guidelines adds the following: “Engineers shall not affix their signatures or seals to any engineering plan or document dealing with subject matter in which they lack competence by virtue of education or experience.”

When contacted by the CPC, the member admitted that he had no background or expertise in designing commercial ventilation systems, and he was quick to place the blame for his predicament entirely on his contractor. The member claimed that his agreement with the contractor had required the latter to retain a mechanical engineer to design the ventilation system. The member’s drawings, he contended, were only a rough sketch intended to outline to the contractor what he wanted. While acknowledging that he had placed his seal on the plans, the member asserted that he had never intended to submit these plans to the building department and that the contractor had done so without his knowledge or approval.

Moreover, the member stated that the contractor’s submission of the preliminary sketches was part of a pattern of attempts by the contractor to cut corners in carrying out his contractual obligations. The member claimed that the drywall and concrete cutting work performed by the contractor was of unacceptable quality and that attempts to point out the shoddy workmanship had been met with demands for additional payment. When the member was unwilling to pay these additional amounts, the contractor had abandoned the work entirely.

The member opined that the contractor had lodged the complaint with the state board in the hope that it would compel the member to settle their contractual dispute with an offer of payment. Ultimately, however, to spare himself the time and cost of mounting a defense, the member chose not to oppose the state board’s actions.

After numerous written and telephone responses from the accused member and upon review of documents provided by the state board, the CPC members were not convinced that the member had not intentionally practiced engineering outside his area of expertise. They felt that the member’s account of the events did not provide sufficient rationale for his decision to place his seal on what he claimed were merely “working drawings”; nor did the member’s account address how multiple revisions bearing his seal had been prepared and submitted to the county building inspector. The committee members believed a more likely explanation was that the member himself had been attempting to “cut corners” on the costs of renovation by using his own P.E. seal to secure the necessary permits.

The CPC found that the member’s actions in sealing plans on a matter for which he lacked the necessary knowledge or expertise violated categories (a) and (c) in the guidelines to practice for canon 2 of the Code of Ethics. Moreover, the committee members felt that his attempt to secure approval for plans that did not adequately address potential fire hazards violated the obligation set forth in canon 1 to “hold paramount the safety, health, and welfare of the public” and that his conduct as a whole violated canon 6, which at the time read as follows: “Engineers shall act in such a manner as to uphold and enhance the honor, integrity, and dignity of the engineering profession.”

The CPC voted to recommend that the member be suspended for five years. They then notified the member that a hearing would be scheduled before ASCE’s Executive Committee and informed him of his right to present a defense in writing or in person at the hearing.

Instead, the member chose to resign his membership. When a member resigns or allows his or her membership to lapse for nonpayment while under an ethics investigation, such termination is considered to be “with prejudice,” meaning that he or she may not subsequently rejoin the Society unless approved by a two-thirds vote of the Executive Committee. The Executive Committee accepted the member’s forfeiture of membership, and notice of the action was published in an ASCE publication without giving the member’s name.    —TARA HOKE

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.

Tara Hoke is ASCE’s assistant general counsel and a contributing editor to Civil Engineering.

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