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Silence Is Not So Golden

Nov 1, 2014

This column has recently presented several cases related to engineers' decisions to speak out on projects seen as posing a threat to the public. The different treatments of these cases, along with the variety of reader reactions to these discussions, demonstrate the complexity involved in determining an engineer's ethical obligation to publicly voice his or her concerns.

BACKGROUND: In June readers learned about an ASCE member who testified at a public hearing about what he labeled a "toxic sea of sludge" in the state's coastal waters. Complainants alleged that the member had exaggerated the condition of the waters and that he did not have the necessary expertise to offer a professional opinion on the subject. While ASCE's Committee on Professional Conduct (CPC) did not feel that the member was guilty of an ethical lapse, its members expressed concern about his use of "sensationalist" language and his failure to clarify the limits of his professional expertise.

James Lefter, P.E., M.ASCE, felt that the CPC made the wrong decision, writing: "Based on your article, it seems that the [complainants] and the CPC seemed more concerned with silencing a would-be 'whistle-blower' than [with] the public interest. Is that what ASCE wants to do?... If so, who among us may speak publicly about technically controversial matters? ASCE progresses by developing new ideas, analyzing and discussing them, not by disparaging and discouraging them."

Albert Perdon, P.E., M.ASCE, agreed that accuracy and technical prowess are essential in offering professional statements: "When 'testimony' takes the form of engineering work products, such as written findings or recommendations derived from planning studies, engineering designs, or construction management services that are provided in return for compensation under a contract, there is a high level of expectation that there is a sound and factual basis for the purported findings and recommendations.  There is an expectation that findings are factually correct and that recommendations (a form of opinions, perhaps) are based on more than instinct or a guess; they are based upon a rigorous analytical framework."

However, Perdon also expressed concern that the admonition to avoid "sensationalist" language might derive more from self-interest than from a quest for technical accuracy: "At times, there may be an inherent conflict of interest in telling a client or a legislative body 'as it is,' instead of 'what they want to hear.'  Such testimony may upset the client and give reason to lose a contract or not be awarded work in the future.... [But when] there is a 'toxic sea of sludge' off a state's shoreline and 'fish survival is impossible over a radius of many, many square miles' it is not hard to see how the public would find such a condition, or the language used to describe it, to be 'sensational.'  When we fail to broadcast these conditions for fear that doing so will anger the people whom we rely on for business, then we have committed a more serious violation of our Code of Ethics than [the member's failure to clarify his background]."

Conversely, in September this column compared how a series of hypothetical scenarios might be viewed under the 1914 Code of Ethics with the responses they would evoke under today's code. One scenario involved a member who determined that a client was violating applicable laws on waste disposal. Despite indications that the client would not address this violation and that the inaction might be inimical to the public, the member honored the terms of her confidentiality agreement and did not report the noncompliance. The column noted that if her silence had furthered a public hazard, this conduct would probably have contravened her obligation to hold paramount the safety, health, and welfare of the public.

Paul Cella, P.E., F.ASCE, disagreed: "The engineer, in the case you portray, fulfilled her obligation when she reported her (presumably honest but possibly flawed) findings and opinion to the company. She had no duty to take the matter further and would breach her agreement if she did so. It is the company that is responsible for compliance with applicable law, not the engineer and not the Society. She did uphold her duty to the public when she honestly told the company what it presumably wasn't happy to hear. But it was not the public that retained her.... The Society should not place itself, or its members, in the position of having to make and reveal a determination every time one of its members is 'uneasy' about a situation."

Cella went on to say that "there might be a situation [in which] an engineer perceives a danger to be so serious, clear, and present that he would feel ethically compelled to breach confidentiality to disclose it, but I don't think the case you present comes close to meeting that standard."


Question

In light of such conflicting views on an engineer's proper role in disclosing public hazards, when does an engineer have the ethical obligation to "blow the whistle" on a perceived threat to the health, safety, or welfare of the public?

DISCUSSION: The word "whistle-blower" is inherently controversial, evoking strong feelings on both sides. For some, a whistle-blower is a heroic figure, an individual with the moral courage and integrity to expose malfeasance or inaction in an area important to the public. For others, the term is negative, suggesting a disgruntled former employees striking back at an employer with claims devoid of merit or a self-serving glory hound making reckless statements in a quest for celebrity or personal benefit.

Regardless of one's view on whistle-blowers, it is evident that engineering codes of ethics seek to define circumstances under which an engineer has not only a right but also an obligation to speak out in the face of a threat to the public. Canon 1 of ASCE's code is unambiguous: "Engineers shall hold paramount the safety, health, and welfare of the public...in the performance of their professional duties." This duty to "hold paramount" the welfare of the public means not just making technically sound decisions in one's own work but also taking steps to address any threat to the public the engineer perceives in rendering his or her services. In cases in which responsible parties fail to act even when advised of the threat, the engineer may have to go further and disclose the matter in a public forum or report it to the authorities. In such cases, as illustrated by Lefter's and Perdon's remarks, an engineer's decision to call attention to a matter should not be influenced by business considerations or other, less paramount concerns. 

Indeed, the obligation to report is often expressly stated in engineering codes of ethics. In ASCE's code, category (d) in the guidelines to practice for canon 1 reads as follows: "Engineers who have knowledge or reason to believe that another person or firm may be in violation of any of the provisions of Canon 1 shall present such information to the proper authority in writing and shall cooperate with the proper authority in furnishing such further information or assistance as may be required." Similar provisions exist in the codes of many other engineering societies, as well as in most state licensing laws. For example, §137.55(c) of the Texas Administrative Code has this to say: "Engineers shall first notify involved parties of any engineering decisions or practices that might endanger the health, safety, property, or welfare of the public. When, in an engineer's judgment, any risk to the public remains unresolved, that engineer shall report any fraud, gross negligence, incompetence, misconduct, [or] unethical or illegal conduct to the board or to proper civil or criminal authorities."

Notwithstanding these edicts, a decision to speak out when a threat is perceived is not to be taken lightly. Such a decision often comes with heavy consequences, for example, loss of employment, harm to one's career prospects and reputation, costly legal actions, intrusive media attention, and even physical threats. Moreover, as evidenced by Cella's concerns, a reckless or ill-spirited decision to report an alleged wrongdoing may have serious legal and ethical ramifications, exposing the whistle-blower to civil liability for defamation. A member of ASCE would also face disciplinary action if he or she contravened canon 3's insistence upon truthful and objective statements or canon 4's requirement to serve as a faithful agent for employers or clients. Disciplinary action would also be in order for violating the prohibition on malicious or indiscriminate attacks on another's work or reputation set forth in category (g) of the guidelines to practice for canon 5.

In view of such risks, how does one determine whether a particular set of facts creates an ethical obligation to speak out? While it is impossible to offer a single test for situations that are invariably complex, an engineer should consider the following:

  1. Degree and likelihood of potential harm: At a distance, almost any engineering matter can be viewed as affecting the "public welfare." An undisclosed use of inferior materials in a business warehouse could result in higher maintenance costs for the business, driving up expenses that are then passed on to the public by way of higher prices. But while even a remote and trivial financial consequence could be described as "public harm," it is not the type of harm envisioned in canon 1's clarion call to hold paramount the health, safety, and welfare of the public. Instead, an engineer should consider the extent to which an undisclosed issue poses a serious risk of injury or loss.
  2. Level of certainty: It goes without saying that there are many cases in which absolute certainty is impossible, and some of the most notorious engineering failures have involved a failure to act in the absence of irrefutable proof, the space shuttle Challenger being a prime example. However, as set forth in various ethical codes, the obligation to report involves the use of "judgment," "knowledge," and "reason," implying more than a simple feeling or unsupported suspicion of wrongdoing. A good rule of thumb is the reasonable person standard: does the engineer possess sufficient evidence or documentation of a situation that a reasonable person would view as constituting a threat to the public?
  3. Exhaustion of other avenues: Before taking his or her concerns to an outside authority or public forum, it is essential for the engineer to explore all available means of resolving the issue by dealing directly with the source. In keeping with an engineer's duties to employers and clients, ASCE's code and other codes stipulate that an engineer must advise employers and clients of the consequences of an ill-advised decision. If an immediate supervisor or manager is unreceptive, the engineer should first consider all other lines of authority within the organization or agency, including internal ethics hotlines or reporting mechanisms and approaches to board members or stockholders. 

As a practical matter, any engineer considering whistle-blowing or similar action may wish to first consult an attorney to explore the legal risks and protections related to such an action and to formulate an overall strategy for dealing with untoward consequences. Ultimately, however, the decision of whether to speak out or blow the whistle on a possible threat to the public will be deeply personal. The engineer will have to consider his or her responsibilities to the public and to clients or employers and to fully understand the consequences not only of speaking out but also of remaining silent.


Members who have an ethics question or would like to file a complaint with the Committee on Professional Conduct may call asce's hot-line 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.

© ASCE,  Civil Engineering , November 2014