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October 2013

Questioning Questionable Practices

Situation:

Newspaper clippings are forwarded to ASCE’s Committee on Professional Conduct (CPC) detailing the indictment of a civil engineer and ASCE member on six counts of perjury. The indictment arose in connection with the member’s testimony during a grand jury hearing involving the member’s employer, a civil engineer and the sole owner of an architecture and engineering firm. The owner, who was under federal investigation for numerous acts of tax evasion and other fraudulent activities, was not a member of ASCE.

The circumstances giving rise to the member’s indictment involved a charge that his firm had submitted falsified topographic plans in applying for a loan that would be guaranteed by the U.S. Department of Housing and Urban Development (HUD). The firm’s owner had been engaged in organizing and promoting investment opportunities for residential development projects in a fast-growing suburban region, and these projects would have provided work for his firm.

The land targeted for development, however, featured slopes of more than 25 percent in some areas. Investigators claimed that the firm’s owner, who had committed his own resources in purchasing the land and feared that HUD would reject the loan application because of the need to reduce the slopes, falsely submitted topographic plans based on adjacent properties. These plans depicted significantly reduced contour lines and elevation changes. High points were depicted as being up to 10 ft lower than they actually were, whereas low points were depicted as being as much as 30 ft higher than their true elevations.

The ASCE member had not been employed by the firm at the time these plans were submitted. However, he was subsequently hired as the project’s chief engineer and took part in preparing a second set of topographic plans for the site. Although this second set of plans was not sealed or submitted to any government body, it was delivered to the contractor for use at the jobsite and was a much more accurate depiction of the site’s topography.

Testifying before the grand jury, the ASCE member denied knowing or suspecting that the plans submitted by his employer to HUD were fraudulent. While acknowledging his role in creating the second set of plans, he contended that he had merely complied with his employer’s request to impose the approved development plans on a topographic map obtained from a federal agency and that he had believed it was only for his employer’s personal interest. He denied knowing that his unsealed plans wound up at the construction site.

Yet several other witnesses questioned by the grand jury said that it was “common knowledge” within the office that altered plans had been submitted with the HUD application and that the project was proceeding with two sets of documents. At least one witness claimed to have expressly discussed his concerns about the two sets of plans with the ASCE member, and another stated that the ASCE member had behaved oddly in handling the project maps, keeping them in his office rather than with the remainder of the project files. An architect formerly employed by the firm said that he left after learning of the two sets of plans, which he felt could have been prepared only “for the purpose of deception.”

 

Question:

Did the member’s actions in providing false testimony during a grand jury investigation of his employer violate ASCE’s Code of Ethics?

 

Decision:

Canon 3 of the Code of Ethics reads as follows: “Engineers shall issue public statements only in an objective and truthful manner.” Category (b) in the guidelines to practice for this canon elaborates: “Engineers shall be objective and truthful in professional reports, statements, or testimony. They shall include all relevant and pertinent information in such reports, statements, or testimony.”

Furthermore, at the time this case was decided, category (b) in the guidelines to practice for canon 6 stated that engineers “shall not knowingly act in a manner which will be derogatory to the honor, integrity, or dignity of the engineering profession, or knowingly engage in business or professional practices of a fraudulent, dishonest, or unethical nature.”

When contacted by the CPC, the member insisted that he had not lied to the grand jury. He restated his contention that he had drawn up the plans only at his employer’s request and in the belief that the unsealed documents were strictly for his employer’s personal use. He flatly denied any knowledge of the use that had been made of his plans. With regard to the federal agents’ testimony, he said that the agents had misstated his response to questioning and that while he had indeed complied with his employer’s request to create a second set of plans, he had believed up to the date of the grand jury investigation that the plans submitted with the HUD application were more accurate in depicting site conditions.

Nevertheless, the member acknowledged that he had thought it odd for his employer to ask him to transfer the approved development plans to a second set of maps, and he conceded that in hindsight he should have responded differently to that request.

While the members of the CPC were largely impressed by the member’s open and cooperative response to their inquiry, they were not entirely persuaded by his story. They felt that he may have prepared the second set of plans in good faith and without knowledge of his employer’s deception, but in view of the testimony by other employees they deemed it unlikely that the member could have been so closely involved in the project without having doubts about the propriety of the practices.

While not entirely rejecting the member’s contention that he had not committed perjury, the CPC members felt that the member had been less than forthright in testifying before
the grand jury about his knowledge of his employer’s fraud. The committee members felt that the member had acted imprudently in creating the second set of plans and that he had probably succumbed to the pressure of complying with his employer’s requests out of fear of losing his job.

At the same time, in view of the criminal proceedings against him and the legal difficulties affecting his place of employment, the members of the CPC felt that the member had already been penalized for his questionable professional judgment. Accordingly, they held that the member’s actions violated canons 3 and 6 of the Code of Ethics and recommended that he be suspended from the Society for one year.

In cases that do not involve a recommendation of expulsion, ASCE’s procedural rules specify that the authority for imposing a disciplinary action rests with the Board of Direction’s Executive Committee. Members found by the CPC to have violated the Code of Ethics have the right to a full hearing before the Executive Committee. However, through what is referred to as the consent procedure, they may waive this right in exchange for an assurance that the final action will not exceed the penalty recommended by the CPC.

In this case the member elected to waive his right to a hearing, and the Executive Committee accepted the CPC’s recommendation. The member was suspended for one year, and a notice of the action that did not name the member appeared in an ASCE publication. —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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