Exposing Fraud Leads to Expulsion

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By Tara Hoke

Situation

In 1955, a civil engineer publishes a pamphlet for distribution to ASCE members, decrying what he describes as an unjust action taken by the Society's board against him and his professional colleague.

The pamphlet explains that, in 1928, Los Angeles County entered into a contract for construction of a dam on the San Gabriel River, based on a site selection and design provided by the Los Angeles County Flood Control District's chief engineer. The contract's fee structure included one unusual detail: Excavation done above the streambed would be charged at an above-market rate of $3 per cu yd, while excavation below the streambed would be performed for less than 40 cents per cu yd.

Several months into the project an immense landslide sent 100,000 tons of earth into the growing excavation pit. A team of engineers was sent to study the site, and its report revealed that a dam of the proposed dimensions could not be built safely at the selected location because of unstable rock conditions. The project was scrapped, and the millions of dollars that had been paid to the contractor at the cost of $3 per cu yd went entirely to waste.

In the aftermath of the landslide, details of the excavation costs sparked suspicion in the local community. An editorial in the Los Angeles Times alleged that the contractors, from the beginning, had known from their own assessment that the site was unsuitable. Furthermore, they had fraudulently taken advantage of this knowledge to shift profits into their earlier excavation work-expecting that they would never be called on to do later excavation at the cut-rate price.

Meanwhile, another newspaper editor contacted the pamphlet writer in search of an independent engineer to survey the excavation site. The writer recommended a colleague of his, who found that the contractor had been paid for nearly 800,000 cu yd of excavation, not the 500,000 reported by the Flood Control District engineer. With over 250,000 cu yd of excavation performed outside the legal payline specified in the project drawings, the writer's colleague estimated that the county had been defrauded of more than $700,000. The pamphlet writer reviewed and approved his colleague's calculations, and the newspaper editor published the findings.

Following this publication, however, the pamphlet writer alleged that he and his colleague were subjected to a campaign of retaliation from engineers who objected to what they felt was an attack on the Flood Control District engineer's competence and integrity. The writer's colleague received word that a complaint had been filed with the state licensing board accusing the colleague of "gross incompetence" in preparing his report, and the board convened a hearing to determine whether the colleague's license should have been revoked. One of the testifying witnesses was a member of ASCE's Board of Direction, who had also been commissioned to author a report on the project's failure. His report and subsequent testimony fully absolved the public engineer of fault in the failed project and alleged that the colleague's claims of excavation occurring beyond the payline were "based upon an inaccurate survey and an inaccurate reading of the Flood Control District map."

The accused colleague submitted evidence supporting the accuracy of his survey findings, and the state board ultimately dismissed the charge; however, a few months later, the writer and his colleague were advised that the ASCE board was reviewing a complaint that the two had violated the Society's Code of Ethics. The writer and colleague again prepared to defend the veracity of their report, but despite their efforts, in January 1932, the two were informed that they had been expelled from ASCE for "bringing on a brother engineer injury to his reputation."

Months later, an investigation into a former Los Angeles County Board of Supervisors member uncovered his receipt of $80,000 in bribes from the San Gabriel Dam contractors. The supervisor was convicted of corruption, and the county prepared to file suit against the contractors; the company quickly settled for a payment of $740,000-almost exactly the amount of "illegal payment" identified in the accused members' report. Though the Flood Control District engineer was exonerated of criminal conduct, he was roundly condemned for his lack of oversight on the project. Conversely, a newly appointed Los Angeles County Board of Supervisors passed a resolution formally lauding the pamphlet writer and his colleague for their public service in sparking the inquiry that led to exposure of the fraud.

The pamphlet writer notes that in the two decades following the investigation, a number of prominent ASCE members and other individuals had urged the ASCE board to rescind its expulsion of the two former members but that the board had refused. He concludes by calling on the membership to support greater transparency in the Society's ethics investigation process in order to prevent the expulsion process from serving to "castigate courageous engineers and to protect 'privileged' corruption."

Question

Was the board's action on this matter consistent with today's approach to enforcing the ASCE Code of Ethics?

Discussion

Unfortunately, no records of this case remain in ASCE's historical archives, making it impossible to search for insight on the considerations that may have driven either the original expulsions or the decisions by subsequent boards to reject reinstatement of the former members. Nevertheless, a number of interesting observations can be made from the board's handling of this case.

At the time of the members' expulsion, article 2 of the Code of Ethics read: "It shall be considered unprofessional and inconsistent with honorable and dignified bearing for any member … to attempt to injure falsely or maliciously, directly or indirectly, the professional reputation, prospects, or business, of another Engineer." This provision is one of the few clauses that remains largely unchanged from the original Code of Ethics; today it is found in guideline g to canon 5.

While this canon likely served as the basis for the members' expulsion, it is questionable whether the actions in this case would meet today's threshold for violating this canon. It is possible the board believed that the members' report contained inaccuracies, either in assessing the extent of excavation or in finding fault with the district engineer for this overpayment, but the language of article 2 and its successors does not proscribe mere "inaccurate" statements leading to injury of another engineer. Instead, these guidelines focus on "false" and "malicious" statements, terms that are well known in modern defamation law and are commonly understood to require some element of bad faith--a finding that the speaker either knew, or acted with reckless disregard of the likelihood, that the harmful statement was untrue. Without reason to doubt that the members prepared this report as a truthful expression of their opinion, based on sound reasoning and an adequate investigation of the facts, it is unlikely that today's Committee on Professional Conduct (CPC) would find that the members had "falsely or maliciously" harmed another engineer.

Furthermore, the board made its decision at a time when legal actions arising from the San Gabriel Dam scandal were ongoing--unlike today's model, in which CPC policy is to table any ethics complaint until all litigation arising from the case has been resolved. Though even later boards did not appear to be swayed by evidence supporting the members' claim of fraud, it is still clear that ASCE's initial decision to expel these members was made without complete knowledge of all the relevant facts.

Finally, it is likely from the facts presented that a sitting ASCE board member with a personal connection to the case may have had some involvement in initiating the ethics complaint. In cases in which a board member has a personal stake in a decision, ASCE's conflict-of-interest policies establish clear rules for ensuring the integrity of the process, including recusal of the director from the discussion and the vote, and in some cases call for convening an independent body or outside attorney to offer disinterested counsel. While it is possible that the 1930s board followed a similar commonsense approach, without those measures it is impossible to say how much of the board's decision may have been influenced by a director's personal interest in refuting the merits of the accused members' report.

Though the former member's pamphlet may not have spurred future boards to reconsider his expulsion, it is notable that the decades to follow saw significant changes to ASCE's Code and its enforcement procedures, changes that have helped to alleviate many of the issues presented by this case.

In 1961, the Society adopted its first Guide to Professional Practice under the Code of Ethics . Included in this guideline document was a note confirming that the ethical prohibition on causing injury to another professional "does not remove the moral obligation to expose unethical conduct before the proper authorities." This change, of course, preceded the Society's comprehensive revision in 1976, a revision that transformed the Code from an inwardly focused set of rules aimed at protecting fellow engineers and their businesses to a more outwardly focused code emphasizing the duty to above all protect and serve the public interest.

In 1967, membership in the CPC was changed to consist of former, rather than current, members of the Board of Direction, ensuring that ethics complaints would be reviewed by a group of individuals independent of those who would later adjudicate complaints and decide on disciplinary actions.

Finally, since the 1960s, ASCE has continued to review and refine its procedure for administering ethics complaints, with the goal of establishing a complaints process that demonstrates fundamental fairness and respect for accused members. Today that procedure is spelled out in ASCE's Rules of Policy & Procedure and includes important considerations such as proper notice, the right to present a defense using legal counsel, and the procedure for disciplinary hearings and appeals.

Exposing Fraud Leads to Expulsion

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