SCENARIO Acting on a tip from a whistleblower, federal investigators conduct an investigation into corruption in a populous county near one of the Midwest’s largest cities. Wiretaps placed on the phones of several officials in the county’s public works department support the tipster’s information and suggest the existence of an extensive scheme to funnel bribes to the county’s public works commissioner and other highly placed officials in exchange for public works contracts, permits, and other considerations.
When confronted by federal investigators with evidence of his involvement, a county employee admits his role as a conduit for the illicit payments and agrees to assist the investigation by wearing a wire into meetings with other participants in the scheme. With the employee’s cooperation, the investigators gather enough evidence to indict no less than two dozen contractors, public officials, and political operatives on charges including bribery, wire fraud, and conspiracy.
One of the indicted contractors is a civil engineer and partner at a local engineering firm, who is recorded making a payment of several thousand dollars to the employee, purportedly to secure the commissioner’s influence in renewing a large consulting contract held by his firm. While the contract is only one of multiple contracts won by the firm over the duration of the alleged bribery scheme, the firm’s other partners reject any suggestion of impropriety in their other procurement activities and flatly deny any knowledge of the indicted engineer’s activities.
In support of their claim, they point to the indicted partner’s efforts to disguise the unlawful transaction in the firm’s accounting. While the engineer initially paid the bribe from his personal funds, he later persuaded a subcontractor to submit a fraudulent invoice to the firm for work the firm’s executive had actually done himself and then used the excess payment to reimburse himself for the bribe.
In exchange for his guilty plea and testimony against the public works commissioner and other participants, the engineer’s sentence is commuted to time served and three years’ probation. Meanwhile the county official at the heart of the conspiracy is found guilty of accepting nearly a half-million dollars in bribes and is sentenced to 15 years in prison.
QUESTION If this case were considered under the new ASCE Code of Ethics, what provisions would the engineer’s conduct have violated?
DISCUSSION As noted in prior columns, perhaps the most evident change in the new Code of Ethics adopted in October 2020 is its dramatic reduction in word count, replacing the prior code’s roughly 2,200 words of ethical guidance with a document less than a third that size. One concern raised by reviewers during the development of the new code was the fear that forgoing the old code’s more detailed, situation-specific guidance in favor of simple, high-level statements might have the effect of “watering down” its ethical impact — creating the false impression that the Society was lowering its standard of conduct or diminishing the importance of the profession’s most fundamental ethical precepts.
One specific area of concern identified by reviewers of the draft code was its language on bribery, fraud, and corruption. Language banning procurement misconduct is by no means new to ASCE’s Codes of Ethics; as far back as 1961, guideline 2 under Article 9 instructed that engineers “shall not give or receive any payments for the purpose of influencing the selection of an engineer for an engineering engagement,” while guideline 1 under that article similarly proscribed making political contributions to secure work, and guideline 3 cautioned engineers about the use of “extravagant entertainment, gifts, or similar expenditures” to influence clients.
Yet perhaps the strongest statement regarding the engineer’s ethical obligation to combat corruption in the market for engineering services came in 2006 with the introduction of “zero tolerance” language to ASCE’s Code of Ethics. Housed in the code’s Fundamental Canon 6, this language read: “Engineers shall act in such a manner as to uphold and enhance the honor, integrity, and dignity of the engineering profession and shall act with zero tolerance for bribery, fraud, and corruption.”
In addition, several new guidelines elaborated on the scope of zero tolerance. Guidelines a and b under this canon directed engineers to be “scrupulously honest” and “not knowingly engage in business or professional practices of a fraudulent, dishonest, or unethical nature.”
Guidelines c and d reminded engineers that this stricture applied to “all engineering or construction activities in which they are engaged” and advised heightened vigilance “where payments of gratuities or bribes are institutionalized practices.”
Finally, guidelines e and f touted the value of transparency and offered some practical advice for avoiding misconduct, including disclosure of the “names, addresses, purposes, and fees” paid to agents involved in procurement along with contractual certifications of adherence to the “zero tolerance” mandate for all parties involved in a project.
When in 2018 the Task Committee on the Code of Ethics began its work on a proposed new code, structured as a hierarchy of the engineer’s most important stakeholders, the committee was quick to elevate the precepts of Canon 6 into the highest category of ethical duties: the obligations to society. At the same time, however, the task committee felt that the language of this canon could be greatly simplified. In fact, in the earliest draft of the new code, section 1d read simply: “Engineers reject bribery and fraud in all forms.”
When presented to ASCE’s membership for review and feedback, this abridgement of the old Canon 6 drew a number of insightful comments. Some reviewers noted that, while bribery and fraud were perhaps the most common abuses in engineering procurement, the broader term of corruption was still needed to encompass any of the means by which individuals abuse power or authority for private benefit, from simple cronyism to embezzlement, money laundering, and even human rights abuses.
Others found the word “reject” lacking as compared to the previous code’s “zero tolerance,” finding that the former could be satisfied merely by having no personal involvement in corrupt practices while the latter imposed an affirmative obligation to fight corruption wherever it occurs. More than one commenter opined that engineers should have an ethical obligation to report corruption as an aspect of their paramount commitment to protect the public welfare.
Taking these comments to heart, the task committee revised its proposed language in subsequent drafts, and today section 1d of the Code of Ethics reads: “Engineers have zero tolerance for bribery, fraud, and corruption in all forms, and report violations to the proper authorities.”
In the case described here, it is clear the engineer’s participation in this scheme did not demonstrate “zero tolerance for bribery, fraud, and corruption,” so ASCE’s Committee on Professional Conduct would likely feel the engineer’s conduct had violated section 1d of the code. The CPC might also determine that the engineer’s attempts to influence a public official’s decision-making on a contract violated section 3d’s directive to “reject practices of unfair competition” and that his misuse of company funds represented a failure to meet his section IVa obligation to “act as (a) faithful agent” to his employer.
Though ASCE’s concise new Code of Ethics no longer offers specific details on compliance with this ethical mandate, there are a number of other resources from which engineers can develop procedures for implementing a culture of zero tolerance in their professional workspace. One good starting point is the Anti-Corruption Ethics and Compliance Handbook for Business, jointly produced by the World Bank, the United Nations Office on Drugs and Crime, and the Organisation for Economic Co-operation and Development, which offers useful commentary on the elements of a corporate anticorruption program.
This article first appeared in the July/August 2021 issue of Civil Engineering as "Zero Tolerance for Bribery and Corruption Is Still the Imperative."