By Tara Hoke
Situation
A local trade association concerned with engineering holds regular board meetings in the capital city of a small East Coast state. At one of the meetings, the association's executive director, who is a registered lobbyist and the association's only full-time staff member, provides an update on a bill that is working its way through the state's legislature. The bill, which is being heavily promoted by a rival interest group, seeks to prohibit professionals involved in the design of a public works project from accepting work as a construction manager on the same project. It has already been passed by the lower house, and the executive director reports that the chairman of the state senate plans to assign the bill to a committee that is likely to recommend swift passage.
The news is alarming to the association's board members, several of whom are principals of firms that conduct this type of public work and thus would be likely to suffer financial harm from this limitation on their services. The board asks its executive director to seek a meeting with the senate chairman to persuade him to assign the bill to a committee with a more neutral stance on the issue.
When the executive director reports back to the board members, he advises them that the senate chairman has considered their request but is "looking for a deal." The chairman has recently announced his intention to run for lieutenant governor and is eager to secure funding to support this endeavor. The executive director states that the chairman would be willing to arrange for a more favorable disposition of the bill in return for a $10,000 donation to his election campaign.
Several of the members, including the board's president, who is a civil engineer and ASCE member, agree to write personal checks to the chairman's campaign. When these donations fall short of the sum demanded by the chairman, the board's treasurer covers the remainder by signing a check payable to cash from the association's own account. The executive director delivers the payment to the chairman's campaign, and the chairman fulfills his end of the bargain: the bill dies at the hands of an unreceptive committee.
A few months later the executive director receives word that federal agents are investigating allegations of corruption in the state legislature. He contacts the board members, warning them to "forget about" their agreement regarding the bill. He is especially concerned about the money taken from the association's account because state law prohibits corporations from donating to political campaigns. The executive director presents for the board's approval an amended set of minutes for the earlier meeting, this time including a note that the board had approved an expenditure of funds for "administrative costs" incurred in exploring the establishment of a political action committee.
The board agrees, and its president signs the amended set of minutes. The deception, however, does not last long. Under questioning from federal investigators, the president and other board members admit to their actions and agree to testify against the senate chairman in exchange for immunity from prosecution. The chairman is sentenced to three years for bribery and extortion, and the association's executive director also is convicted on counts of perjury and obstruction of justice.
Newspaper accounts of the board president's testimony are forwarded to ASCE's Committee on Professional Conduct (CPC), which opens an investigation into his conduct.
Question
Did the member's conduct violate ASCE's Code of Ethics?
Discussion
The personal donations made by the ASCE member and his colleagues illustrate an interesting aspect of both the legal and the ethical treatment of political contributions. State and federal election laws set a maximum dollar amount that an individual may contribute to any one political campaign, and the donations made by the individual members of that trade association's board did not exceed the legal limits. However, state and federal laws also prohibit any individual from giving anything of value to a public official in exchange for a promise "to perform or not to perform an official act." Thus, while the member's personal contribution was not illegal on the basis of the amount involved, the fact that it was made to induce a public official to scuttle an undesirable piece of legislation put it in a very different light.
Similarly, ASCE's canons consider motive in determining whether a contribution crosses ethical lines. Category (a) in the guidelines to practice for canon 5 reads as follows: "Engineers shall not give, solicit, or receive, either directly or indirectly, any political contribution, gratuity, or unlawful consideration in order to secure work." While the donation in this case was not directly related to an offer of work, the members of the CPC were of the opinion that the contribution had the same motive in that it was made to remove a legislative impediment to obtaining work. For this reason, the member's conduct in offering the payment violated his ethical obligations under canon 5.
Also, at the time this case was considered, category (a) in the guidelines to practice for canon 6 had this to say: "Engineers shall not knowingly act in a manner which will be derogatory to the honor, integrity, and dignity of the engineering profession, or knowingly engage in business or professional practices of a fraudulent, dishonest, or unethical nature." The members of the CPC felt that the board president knew that both his donation and the board's authorization of a company check payable to cash contravened state election laws. Furthermore, when confronted with the news of a federal investigation, he initially supported an attempt to cover up the association's unlawful use of funds. For these reasons, the CPC believed that the president knowingly acted in a dishonest and unethical manner and therefore violated canon 6.
When contacted by the CPC, the member showed no remorse for his actions. He stated that he was merely a victim of the senate chairman's extortion, and he was angry at being "forced" into the position of making the illegal contributions. He also contended that the legislation would not have been unduly harmful to his firm and asserted that he had made the donation only to support the association and his colleagues on the board. He dismissed his signature on the minutes as a "snap decision" that he would not have made if he had had more time for deliberation.
While the CPC members were not impressed by the member's unrepentant demeanor or his outrage at the notion that an engineer with his distinguished career could be accused of "failing to enhance the image of the engineering profession," they nonetheless did not feel that his conduct warranted expulsion from the Society. Instead, they recommended that he be suspended for two years and that notice of this action be published without the member's name.
ASCE's Board of Direction convened a hearing on the case, which the member declined to attend, and ultimately upheld the CPC's recommendation.
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
© ASCE, ASCE News, December, 2016
