Apr 1, 2016
Newspaper reports are forwarded to ASCE's Committee on Professional Conduct (CPC) detailing the indictment of four individuals on charges of forgery, tampering with records, and criminal conspiracy. One is a developer, two are engineers from a private firm, and the fourth is a former town engineer.
The case arose from the developer's efforts to secure approval for construction of a shopping center in a rural township in a Middle Atlantic state. The developer's construction permit had been rejected multiple times by the township, and the developer had filed suit, claiming that the rejections were improper. The parties ultimately agreed on a settlement that included a court-approved construction plan and blueprints.
The newspaper accounts allege, however, that shortly after this settlement, the developer sought bids for construction of the shopping center and was dismayed when the bids came in too high. The developer returned to the private firm he had retained to design the center and demanded that it make changes to reduce the construction cost. As reported by one of the engineering firm's employees, the developer told the engineers, "You gave me a Cadillac when I asked you to design me a Chevy."
The developer, however, did not want to endure the cost, delay, or uncertainty involved in seeking approval for the new plans. Instead, as the indictment alleges, the engineers made numerous changes to the plan, eliminating an office and a parking lot, dramatically altering the shape and location of the main building, and moving the driveways and drainage lines. They then backdated the plans to the date of the original documents. The developer forwarded the altered plans to the town engineer, who was a friend and had frequently benefited from the developer's generous entertainment budget. The friend deceived the township supervisors into believing that they were approving the original, court-approved plans.
The deception was successful, and construction began on the new project. However, the project continued to be extremely unpopular with neighborhood residents. Many of them had hoped that the land would be rezoned for residential use, and several had lodged complaints about the undesirable effects of the project on traffic and stormwater control. After work had proceeded for nearly 18 months, one of the project's most vociferous opponents procured a copy of the court-approved plans and observed that the location of a driveway on the plans did not correspond to the location as it was being built. She reported this discrepancy to township officials, and the altered plans were exposed.
One of the two engineers from the private firm was an ASCE member. The other three individuals in the criminal complaint were not members.
Did the member's participation in a scheme to fraudulently receive approval of construction plans violate ASCE's Code of Ethics?
Of all the internal and external factors that may lead an engineer to make an ethically unsound decision, perhaps none is as exigent as pressure from an unhappy client. Indeed, meeting a client's expectations is not only essential for an engineer's financial and business objectives; it is in itself an ethical obligation, expressed by canon 4's exhortation to serve clients "as faithful agents or trustees."
Nevertheless, it goes without saying that canon 4 must be interpreted in the context of other provisions of the Code of Ethics. Clients may not always have the necessary expertise to recognize when their objectives are at odds with the dictates of safety, honesty, or legality. Moreover, they may be unable to strike a balance between conflicting interests that conforms to the ethical precepts that come into play. When the client's directives are in conflict with an engineer's ethical obligations, it is incumbent upon the engineer to first seek to persuade the client to reconsider that directive. Should such an approach prove unavailing, the engineer must make the difficult and perhaps financially disadvantageous decision to honor his or her obligation to the public or to the law despite the client's expectations.
With regard to the present case, canon 6 is certainly applicable: "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." Driving home the point, category (a) in the guidelines to practice for this canon adds the following: "Engineers shall not knowingly engage in business or professional practices of a fraudulent, dishonest, or unethical nature." If the ASCE member in this case was indeed a knowing participant in the scheme to fraudulently secure approval of an altered construction plan, then his conduct probably violated canon 6.
Upon review of the submitted newspaper reports, the members of the CPC thought that the facts raised sufficient evidence of a potential ethics violation. However, under ASCE's rules of policy and procedure, the CPC is directed as a general policy "not to take action in professional conduct matters while a court case is under way." This policy has both a procedural and a philosophical rationale. From a procedural standpoint, parties to ongoing litigation are less likely to have the time or the inclination to provide the CPC with information about their legal dispute. Philosophically, the CPC does not want to issue a ruling that could be used by a party in a legal dispute to exert pressure or influence.
Accordingly, as the criminal trial of the alleged conspirators was moving forward, the CPC advised the member that it was opening a case but that it would table the matter until all of the matters in the litigation had been resolved. The member did not respond to the CPC's letter, but during the litigation the engineer's membership lapsed because of nonpayment of dues. Under ASCE's bylaws, any member who is dropped for nonpayment while under notice of a pending ethics investigation is deemed to have forfeited his or her membership "with prejudice," meaning that the member may not rejoin the Society without a two-thirds affirmative vote by the members of ASCE's Executive Committee.
At trial, the defendants all had different stories as to their level of knowledge in the alleged fraud. The town engineer stated that he had believed the plans included only minor modifications and that he had disclosed those modifications to the township when submitting the plans for signature. The design engineers agreed that they had made significant changes at their client's request, but they denied knowing that their revisions had been backdated and submitted as the court-approved plans. Finally, the developer claimed that he was aware only of the deletion of the office building and parking lot. He was of the opinion that the town engineer had advised the township of those changes when the revised plans were submitted.
Ultimately, the jury appeared to have difficulty distinguishing the truth among the web of denials and accusations. Its members were able to reach a guilty verdict against only one of the defendants: the town engineer who had submitted the backdated plans to the township supervisors for signature. But the legal battle did not end with the criminal prosecution. Citing several code violations in the half-built premises, including insufficient stormwater detention and inadequate setback of the main building from the street, the township filed suit to require the developer to demolish the noncompliant premises and rebuild in accordance with the original plans.
After several years of legal wrangling, the township prevailed. The eventual costs of correcting the deviations proved to be nearly triple the amount that the developer had saved through the fraudulent alterations.
Members who have an ethics question or would like to file a complaint with the Committee on Professional Conduct may call ASCE's hotline at (703) 295-6151 or (800) 548-ASCE (2723), extension 6151. The attorneys staffing this line can provide advice on how to handle an ethics issue or file a complaint. Please note that individual facts and circumstances vary from case to case, that some details may have been altered for purposes of illustration or confidentiality, and that the general summary information contained in these case studies is not to be construed as a precedent binding upon the Society.
, April 2016