By Tara Hoke
As recent articles in this column have demonstrated, discussions of professional conduct frequently require consideration of state and federal law. While in most cases professional ethics and statutory requirements overlap, certain types of conduct may violate one standard while satisfying another. For example, plagiarism violates ASCE's ethical requirement that engineers "give proper credit for engineering work to those to whom credit is due" (guidelines for canon 5), but state licensing laws do not necessarily subject the plagiarist to disciplinary action. Conversely, engineers who seal another's design plan after careful review are in compliance with ASCE's Code of Ethics, but many states have enacted laws imposing tight restrictions on the sealing of design documents. The following scenario illustrates the interplay between ethics and legal compliance.
Situation
A structural engineer licensed in Pennsylvania is hired by a large multistate employer to perform design work on a water treatment facility in western Pennsylvania. Upon completion of the project, the engineer learns that his employer is planning to construct a similar facility in Texas. The engineer learns from his supervisor that the firm is so pleased with his work that it would like him to take the lead on the Texas project. The firm offers a substantial package of incentives to encourage the engineer to relocate to its Texas office. Although the engineer is not licensed in Texas, the compensation package is tempting, and his family has no objection to the move. The engineer accepts the transfer, understanding that it is unnecessary for him to apply for Texas licensure as long as he performs work only for his current employer.
Question
Under what circumstances would the above situation not represent a violation of state law or ASCE's Code of Ethics?
Decision
The practice of engineering is subject to licensure in all U.S. states and territories. State laws mandate that any person engaged in the practice of engineering be licensed by the applicable licensing board. An engineer who practices engineering in Texas while being licensed only in Pennsylvania would, by this definition, be an unlicensed practitioner and thus might be subject to civil penalties or even criminal prosecution under Texas law. While states may differ somewhat over what constitutes the "practice of engineering," the facts described here are likely to be deemed such practice, suggesting that the engineer in this scenario has engaged in the unlicensed practice of engineering.
While ASCE's Code of Ethics does not expressly prohibit engineers from practicing engineering in states where they are not licensed, paragraph (d) in the guidelines to practice for canon 5 has this to say: "Engineers shall not falsify or permit misrepresentation of their academic or professional qualifications or experience." When an engineer performs engineering services for a client, the engineer is implicitly representing that he or she is fully qualified to perform those services. Any ASCE member who offers services knowing that he or she has not met the legal requirements to undertake such work is thus misrepresenting his or her professional qualifications and thus violates not only the state laws regulating engineering but also the Society's Code of Ethics.
However, if the engineer's employer in the above scenario is not a private firm but rather the U.S. government, the employee's conduct is likely to be acceptable under state law and, by extension, ASCE's Code of Ethics. Section 1001.054 of the Texas Engineering Practice Act reads as follows: "An officer or employee of the United States is exempt from the licensing requirements of this chapter during the time the officer or employee is engaged in the practice of engineering for the United States in this state," and similar exemptions may be found in most, if not all, of the licensing regulations for other U.S. states and territories.
Although this exception is expressed in state statutes, its source can be traced all the way to the U.S. Constitution. Article IV (section 2) of the Constitution reads as follows: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Known as the supremacy clause, this provision means that when federal and state laws are in direct conflict and there is no language in the federal law allowing states to enforce conflicting legislation, federal law overrides the laws of the state.
In 1956 the U.S. Supreme Court ruled that an Arkansas licensing board could not impose its licensing rules on a federal contractor hired to build facilities in the state for the air force. The Supreme Court observed that the federal procurement act that authorized the contract had set the standards by which the appropriate contractor was to be selected. The court found that imposing state rules on a federal contractor would "give the [s]tate's licensing board a virtual power of review" over the U.S. government's determination that the professional was qualified to perform the work and therefore would violate the principle that federal law is the supreme law of the land.
As a consequence of this decision, as well as of several subsequent Supreme Court decisions involving lawyers, private investigators, and other professionals subject to state licensure, the supremacy clause has been established to mean that only the federal government has the right to set qualifications that a professional must meet to perform work for a federal agency or employer. While federal regulations can, and generally do, require licensure for professionals engaged for federal work, the states have no authority to impose any particular requirements. As the Supreme Court observed, "It is the duty of the [federal] [d]epartment to employ persons competent for their work and that duty it must be presumed has been performed."
If the engineer in the above scenario is performing work solely for the U.S. government, the engineer is not required to hold Texas licensure in order to practice engineering. Therefore, he or she is not "misrepresenting" his or her status as a fully authorized professional in violation of ASCE's Code of Ethics. However, it must be noted that while the engineer remains unlicensed in Texas, he or she must strictly adhere to the narrow exemption for federal work. If the engineer offers consultation on a private matter or renders any service implying qualification as an engineer licensed in Texas, the engineer may again be subject to state law and to a potential charge of unethical conduct.
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
© ASCE, ASCE News, February, 2008
