Note: While the following cases are hypothetical, they reflect themes that have frequently been considered by ASCE’s Committee on Professional Conduct, and they offer lessons about the ethics of commenting on another individual’s work, reputation, or character.
A retaining wall in a residential development fails, causing damage to two properties that border the structure. While the design engineer believes the evidence clearly establishes construction deficiencies as the cause of the failure, the contractor produces an expert witness who attributes the failure instead to inadequate design.
The case settles with both parties contributing a share of the damages, but the design engineer is incensed by what he feels to be a bad faith argument advanced by the expert witness, an ASCE member. The design engineer files a complaint with ASCE’s Committee on Professional Conduct, claiming that the expert failed to conduct an adequate investigation and willfully made false or misleading statements about the design in order to shift fault from the contractor.
Frustrated with his difficult supervisor and the resulting tension in his workplace, an engineer hands in his notice. Though the engineer has no other job offer in hand, he feels confident that the good job market and his strong resume will make it easy for him to find work. Yet months later, the engineer still finds himself unemployed. While several prospective employers had asked for references and indicated he was among their top candidates, in each case an offer failed to materialize.
Suspecting that a poor reference may have something to do with his difficulties, the engineer hires a reference-checking service to contact his previous employer under the guise of checking references for another firm. The reference service confirms the engineer’s suspicions: His former supervisor, an ASCE member, is indeed maligning him to would-be employers, claiming that the engineer’s resume is exaggerated and raising questions about his integrity, commitment, and overall fitness for the practice.
Shocked by the allegations, the engineer files an ethics complaint against his former boss.
Two ASCE members on the program committee for a statewide conference clash over technical content for the program. What begins as a simple disagreement soon turns ugly, with the members verbally attacking each other in emails exchanged among the program committee and other volunteer leaders.
One accuses the other of discrimination against members of an underserved population, while the other is accused of using his influence on the committee to benefit his personal interests and disadvantage competitors. Each ultimately files a complaint with the CPC, claiming that the other has made false accusations of unethical conduct.
An ASCE member posts a series of humorous videos on social media parodying her experiences in the workplace. While she claims the characters in her videos are not based on any real person or situation, the videos nevertheless draw the ire of a recent client.
The client claims that the attire, speech, and mannerisms of a character in her videos are clear references to him and that her depiction of this character as profit obsessed and morally questionable is thus an attack on his character. The client contacts the CPC to complain that the engineer’s videos violate the ASCE Code of Ethics.
Assuming the statements alleged by the complainants are true, would the members’ actions in these scenarios violate the ASCE Code of Ethics?
As the fifth section of the code, the category devoted to peers falls last among the code’s hierarchy of stakeholders. While this placement means that an ethical duty to colleagues may be superseded by a conflicting duty to clients, the public, or the profession at large, it does not follow that ethical obligations to peers are unnecessary or unimportant.
In fact, the original ASCE Code of Ethics, adopted in 1914, could roughly be broken into two categories — duty to clients and duty to peers — making duty to peers one of the few ethical principles that has survived in ASCE’s code since its inception. And, while recent years have seen an overall decline in cases submitted to the CPC, complaints involving peer-to-peer conduct have seen an increase — suggesting that engineers today are placing even greater emphasis on the importance of the ethical treatment of professional colleagues.
When a task committee was convened to draft today’s code of ethics, one of the group’s first decisions was that the new code should be affirmational in nature rather than prescriptive; in other words, the code’s provisions would be expressed as a reinforcement of positive behavior (“engineers do and will”) and not as a list of bad behavior (“engineers can’t and don’t”).
In most cases, this transition was easily accomplished; statements directing engineers not to compete unfairly, discriminate against others, or misuse confidential information became language promising that engineers reject unfair competition, treat people fairly, and protect clients’ confidences.
One provision the task committee struggled to rephrase, however, was guideline g under the old Canon 5, which read: “Engineers shall not maliciously or falsely, directly or indirectly, injure the professional reputation, prospects, practice or employment of another engineer or indiscriminately criticize another’s work.”
The committee considered leaving this provision as the only negative statement in the new code but in the end felt it conflicted too much with the other provisions.
The committee next considered replacement language such as “reject,” “refrain from,” or “avoid” unfair criticism, but thought that these substitutes either confused or diminished the meaning of this ethical obligation. Ultimately, the committee settled on what is now Section 5h of the new code: “Engineers comment only in a professional manner on the work, professional reputation, and personal character of other engineers.”
While this provision fits the overall tone of the new code, it could certainly be argued that this language lacks the clarity of its prior iteration. What does it mean to comment in a professional manner? Conversely, when does a comment about another engineer become unprofessional?
On that point, it may be helpful to note that the code of ethics as a whole is a road map for professional conduct, meaning that questions about whether a comment is consistent with professional conduct can be addressed by looking at the other provisions of the code for guidance.
In the first scenario, an expert witness who presents testimony with an improper motive or a lack of technical basis is likely to fall short of Section 1c’s stricture to “express professional opinions truthfully and only when founded on adequate knowledge and honest conviction.”
In the second, an engineer who unfairly or unjustly criticizes a former employee falls short of Section 1f’s call to “treat all persons with respect, dignity, and fairness.”
In the third scenario, if the conclusion of the CPC was that the engineers allowed a professional dispute to escalate into unfair or untrue accusations of unethical behavior, then the CPC may have felt that the members’ conduct did not “uphold the honor, integrity, and dignity of the profession” as Section 3a instructs. It might also find that their volunteer service had been compromised by their unprofessional behavior, raising questions about Section 4a’s guidance on service “as faithful agents.”
As for the fourth scenario, while the CPC might question the code’s application to a work of parody published on a personal social media account that did not directly make allegations against a specific individual, if it felt the engineer had knowingly or carelessly exposed the client to unfair criticism, then the CPC might also deem this conduct to conflict with the obligations of truthfulness, fairness, and integrity.
The CPC might also express concern that an engineer’s pastime of skewering professional colleagues or clients on social media could invoke any number of ethical issues, ranging from confidentiality and faithfulness to fostering respect, inclusion, and health in the workplace.
Two other points about the peers stakeholder are highlighted by these cases. First, while the term “peer” might suggest colleagues of roughly equal status, age, or experience, several of this section’s provisions refer to junior or subordinate professionals.
Also, Section 5h refers specifically to comments about “engineers,” but as is the case with the social media parody, it is likely that the CPC would interpret this language to require engineers to “comment only in a professional manner on the work, professional reputation, and personal character” of others in the engineer’s workspace.
Perhaps future versions of the ASCE Code of Ethics will expressly expand on the scope of the duty to peers.
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
This article first appeared in the May/June 2023 print issue of Civil Engineering as “Hypotheticals Allow for Deep Exploration of Code.”