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June 2014

Exercising Care in Expert Testimony

Situation:

An ASCE member submits a request to testify at a state legislative hearing on waste treatment in a coastal U.S. state. Along with his request, he submits biographical information describing his background in sewerage, including his chairmanship of an ASCE committee on waste management. While the member seeks to participate on his own initiative and not at the behest of ASCE, the materials published by the state in advance of the public forum contain numerous references to his affiliation with ASCE. Furthermore, the member is introduced at the hearing as the chair of an ASCE waste management committee.

In his testimony the ASCE member makes a number of inflammatory statements about the effect of industrial waste on the state’s marine environment. He claims that a “toxic sea of sludge” exists off the state’s shoreline and that it has made fish survival impossible over a radius of “many, many square miles.” He further alleges that the agencies responsible for addressing this problem have engaged in “considerable foot-dragging” because of the costs involved and that they would prefer to view this problem as “out of sight and out of mind.”

Several newspaper articles publish the member’s sensationalist language and report that ASCE’s waste management committee chair is seeing dire environmental consequences in the state’s coastal waters. The news sets off a minor media storm, and the leaders of ASCE’s local section receive numerous calls from journalists seeking additional comment on ASCE’s “official” position concerning the “toxic sea of sludge.”

Believing that the member’s conduct constituted an ethical lapse, the section officers submit a complaint to ASCE’s Committee on Professional Conduct (CPC) alleging three areas of misconduct. First, they charge that the member falsely represented himself as an ASCE spokesperson in testifying at the hearing. Second, they contend that the engineer’s “irresponsible and unprofessional statements” served to alarm and mislead the public while greatly exaggerating the actual condition of the state’s coastal waters. Finally, they state that the member’s testimony demonstrated his lack of familiarity with recent monitoring and research projects in nearshore waters, indicating that he was offering opinions on a subject on which he was not qualified to speak.

Question:

Did the member’s actions in connection with his testimony at the state hearing violate ASCE’s Code of Ethics?

Discussion:

At the time this complaint was filed, ASCE’s Code of Ethics differed significantly from its present form. The code then consisted of nine articles, the majority of which were intended to regulate business relationships with clients and between professionals. The only tenet under which the CPC could consider this member’s actions was article 9, a catchall provision that deemed it “unprofessional and...contrary to the public interest” for any member to “act in any manner derogatory to the honor, integrity, or dignity of the engineering profession.”

Had this case been brought before today’s CPC, its members would have found numerous provisions in the Code of Ethics covering the facts of this case. The most directly applicable provision is canon 3: “Engineers shall issue public statements only in an objective and truthful manner.” Category (a) in the guidelines to practice for this canon adds that engineers may not “participate in the dissemination of untrue, unfair, or exaggerated statements,” and category (b) requires that engineers “include all relevant and pertinent information in [professional] reports, statements, or testimony.”

Category (c) in the guidelines for canon 3 also comes into play: “Engineers, when serving as expert witnesses, shall express an engineering opinion only when it is founded upon adequate knowledge of the facts, upon a background of technical competence, and upon honest conviction.” While the term “expert witness” is more commonly applied in the context of civil litigation, it may also apply when a professional is offering his or her opinion in testimony before a government assembly. Furthermore, to the extent that an offer of an expert opinion on an engineering matter may be seen as a type of professional service, the member’s testimony falls under the purview of canon 2, which states that engineers are “to perform services only in areas of their competence.”

When contacted by the CPC, the member heatedly denied all allegations of misconduct. He said that he had not made any claim to be speaking on behalf of ASCE or its committee; rather, he said, he described himself in his request and at the hearing as the president of a local “Friends of the Seashore” association. He did not know why the hearing’s organizers had included his ASCE affiliation, and he contended that he had attempted to “correct the record” with legislative staff members and journalists after seeing news reports describing him as an ASCE spokesperson.

With regard to the testimony itself, the member stated that he had more than 25 years of experience in marine pollution. Acknowledging that he was not an expert on the condition of the state’s nearshore waters, he claimed that his statements on the environmental harm to the region were consistent with testimony from experts in the field, and he stood by his professional opinion.

The CPC reviewed written transcripts of the hearing and other written materials related to the testimony and conducted phone interviews with both the accused member and the complainants. On the basis of this information, the members of the CPC concluded that the member’s actions raised a number of ethical concerns. They felt that the member had acted carelessly in failing to establish whose interests he represented at the hearing. Although he did not describe himself as an ASCE spokesperson, the mistake was evident in the hearing agenda and other materials, and the committee members believed that he should have made it clear in his testimony that he was not speaking on behalf of ASCE.

With regard to his expertise, the committee observed that his qualifications in the area of waste management did not necessarily qualify him as an expert in this specialized topic. At the same time, the committee members recognized that many of the topics that came up at the hearing are the subject of considerable professional debate. Noting that much of the member’s testimony appeared “more emotional than factual,” the committee felt that the member should have exercised more care in his testimony, either by acknowledging the limits of his technical expertise or by avoiding extemporaneous remarks on a subject beyond his field of knowledge.

Ultimately, the CPC concluded that the member’s conduct did not reflect well on him personally and did nothing to enhance the “honor, integrity, or dignity” of the profession. On the other hand, its members did not believe that his actions were of a nature to warrant disciplinary action. The committee sent the member a letter advising him that the members had voted to close the case against him, and the letter counseled him to exercise greater care in future when offering public commentary on engineering matters.  —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.