By Tara Hoke
An ASCE section officer is preparing an email campaign aimed at Life Members when a particular name on the mailing list catches her eye. The officer recognizes the individual as a key figure in a corruption scandal that had occurred in her locality some 20 years earlier, and she is surprised to learn that this individual is a current Life Member on the Society’s membership roster. She contacts the Committee on Professional Conduct to seek confirmation that the member is the same individual named in that scandal and, if so, to ask whether the member’s conduct had ever been reviewed by the committee.
From the information provided by the section officer, the CPC collects news reports of the decades-old case and confirms that the Life Member is indeed the same individual named in the case. The CPC learns that the member had been implicated in an illegal campaign contribution scheme that resulted in the conviction and sentencing of an elected county commissioner.
According to the news accounts, this member, who was then a senior executive at an engineering consulting firm, had made several thousand dollars in payments to the county commissioner. The payments were made purportedly in support of the commissioner’s reelection campaign, but the amounts exceeded the legal limits for individual campaign donations and were not reported in the candidate’s required financial disclosures. Some of the payments were made in the names of other employees of the member’s firm, though as part of his pleading the member admitted to being the source of those funds.
In an apparent quid pro quo for the unlawful payments, the reports note that the commissioner was instrumental in steering a multimillion-dollar transportation project to the member’s firm during the time these payments were being made.
The member pled guilty to violations of the Federal Election Campaign Act of 1971, and in exchange for his plea and cooperation in the investigation, the member was sentenced to probation in lieu of jail time. The firm and the member received hefty criminal fines, and the member resigned from his position at the firm.
As this case had not previously been considered by the Society, the CPC opened a case and contacted the member to request his account of the matter.
What is the appropriate course of action for an alleged violation of the ASCE Code of Ethics reported two decades after it occurred?
At the time this case was considered, Fundamental Canon 5 of the ASCE Code of Ethics said, “Engineers shall build their professional reputation on the merit of their services and shall not compete unfairly with others,” while guideline a under that canon stated, “Engineers shall not give, solicit or receive either directly or indirectly, any political contribution, gratuity, or unlawful consideration in order to secure work, exclusive of securing salaried positions through employment agencies.”
In addition, Fundamental Canon 6 of the former code 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,” with guideline a instructing engineers “not (to) knowingly engage in business or professional practices of a fraudulent, dishonest or unethical nature.”
Though today’s code offers a more concise statement of ethical principles, the same concepts are still carried through in its provisions, with Section 1d directing that engineers “have zero tolerance for bribery, fraud, and corruption in all forms” and Section 3d requiring engineers to “reject practices of unfair competition.”
In response to the CPC’s inquiry, the accused member made no attempt to deny the allegations and expressed regret, if not exactly remorse, for his past actions. He claimed that countless other firms were making similarly illicit payments at the time of this case, and he expressed bitterness at what he felt was a prosecution “making an example of him” because of his firm’s success and his political connections.
Nevertheless, he admitted that making payments to the commissioner was “a stupid decision” and that he “should have known better” than to go along with the scheme.
Upon review of the case, the CPC felt the member had clearly violated canons 5 and 6 of the code, but it was less certain about the wisdom of recommending formal disciplinary action on a 20-year-old case. The CPC compared this situation to the legal arena in which statutes of limitation protect people from punitive action in cases in which their defenses may be hampered by failing memories, the unavailability of witnesses, or other effects from a long passage of time.
While the committee did not believe the age of this case had hindered the investigation, it was nevertheless reluctant to set a precedent of reviewing cases so far removed in time from the actual conduct under review.
The CPC also felt that the purpose of ASCE’s ethics enforcement process was not simply to punish bad behavior but rather to serve some benefit to the profession. Lesser sanctions such as suspensions and letters of censure aim to remind offending members of the importance of ethical conduct — lessons, it is hoped, members will carry forward to avoid future lapses. ASCE’s highest sanction, expulsion, is reserved for the gravest examples of misconduct: The message conveyed to the accused member and the profession at large is that behavior of this nature will not be tolerated.
In the immediate case, the CPC felt that the “message” of disciplinary action would have little value to a member who had retired from the profession more than 15 years earlier and even less value as a belated demonstration of the Society’s commitment to ethical conduct. Instead, the CPC sent a letter to the accused member, informing him of its finding that his conduct violated ASCE’s Code of Ethics but advising him that it had decided not to pursue formal disciplinary action due to the age of the case and its understanding that the member had left professional practice.
If this case is noteworthy for anything, it is for highlighting the most significant shortcoming of ASCE’s complaints-based ethics-enforcement process: If no one reports a potential violation to the CPC, then no investigation is ever likely to occur. As a volunteer organization and not a regulatory body, ASCE is not entitled to referrals from licensing boards or other government authorities, and while CPC members themselves have often presented cases they encounter in the news media, it is not feasible for a small group of volunteers to monitor every forum in which misconduct by a member might be reported.
The drafters of today’s ASCE Code of Ethics likely had this concern in mind when adopting Section 6i of the code: “Engineers report violations of the Code of Ethics to the American Society of Civil Engineers.” Though it is perhaps extreme to suggest that failure to report ethics violations is itself unethical conduct, this provision certainly serves to elevate the importance of reporting violations to the Society, recognizing that the needs of the engineering community are better met when members accept personal responsibility for prompt action against professionals whose conduct falls short of ethical norms.
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
This article first appeared in the July/August 2023 print issue of Civil Engineering as “Handling Violations from Long Ago Is a Tricky Proposition.”