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The Duty of Fair Dealing

Nov 1, 2015


An ASCE member files a complaint with the Committee on Professional Conduct (CPC) against another member, alleging that the latter has been using his new position as a city building official to pursue a "personal vendetta" against him. 

The complainant, a licensed structural engineer and land surveyor, has for several years provided design services to swimming pool contractors in a large locale in the western United States popular with tourists. Recently, however, the complainant's work has been hindered by what he sees as the accused member's obstructive behavior. He contends that the member has routinely rejected his design plans without cause, has made derogatory statements about his character and his work to clients, and has attempted to enlist other city officials in participating in this "harassing and defamatory" behavior.

Enclosed with the member's complaint are letters of support from two swimming pool contractors. The first describes his attempts to obtain a building permit for a residential swimming pool designed by the complainant. The contractor claims that the design plans sat on the building official's desk for what he deemed "a ridiculous amount of time" before being rejected with a lengthy list of corrections. When the complainant made all of the corrections and resubmitted the plans, the official rejected them a second time without further explanation. When contacted by the contractor to ask why the second submission had been rejected, the official would only say that if the contractor "had a competent engineer, he would know what was wrong."

The second contractor explains that he had personally delivered a set of plans to the building official and that the latter had become agitated upon seeing that the plans had been sealed by the complainant. The contractor states that the official had called the complainant an "irresponsible idiot" who "shouldn't be practicing as an engineer." The official further stated that he would not approve the contractor's permit until the contractor "got an engineer who knew what he was doing." The contractor adds that he had filed a complaint with the city manager's office and that subsequently the plans had been approved as submitted

The complainant provides dates and details of half a dozen other projects, each of which he feels demonstrates the building official's pattern of intentional delays, interference with clients, and defamatory comments about his work. Finally, the complainant notes that prior to taking full-time employment as a public servant, the accused member had himself been in the business of designing swimming pools for local contractors. The complainant alleges that the member's client base had declined significantly when the complainant moved into the area, and he opines that the member's present conduct is the result of his lingering resentment over those losses.


Did the city building official's actions violate ASCE's Code of Ethics?


While an engineer's ethical duties to a competitor are not nearly as extensive as those to an employer or client, ASCE's code nevertheless imposes a baseline requirement of fair dealing. Canon 5 reads as follows: "Engineers shall build their professional reputation on the merit of their services and shall not compete unfairly with others." Category (g) in the guidelines to practice for this canon is more pointed: "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."

This canon 5 duty of fair dealing is likely to be violated when, by his or her words or deeds, an individual abuses a position of public authority to gain a private advantage over another. Furthermore, if an engineer's pursuit of a personal agenda prevents him or her from discharging public duties in an honest and impartial manner, then the engineer might also be in violation of canon 4's injunction to serve his or her employer as a "faithful trustee" and the obligation set forth in canon 6 to "uphold and enhance the honor, integrity, and dignity of the engineering profession."

When contacted by the CPC, the accused member did not deny that he engaged in the outlined conduct, but he vehemently rejected any suggestion that his actions were intended to further a private interest. He contended that the complainant's reputation among city and county officials was extremely poor. The complainant designed pools using standard specifications but appeared to demonstrate little knowledge or understanding of swimming pool design or the city's unique statutory requirements. He further stated that the complainant had developed a habit of relying on city inspectors for design advice; the complainant would submit erroneous or insufficient plans and then would use the reviewers' detailed corrections to make the necessary revisions prior to resubmission.

In support of his defense, the member named two other public employees with knowledge of the complainant's work. He claimed that both employees held similarly low opinions of the complainant and that at least one of them had expressed a wish never to have to "waste time" reviewing one of the complainant's plans again

The member conceded that he may have been outspoken but argued that his goal was not to impede the complainant but merely to honor his duty to protect the public. He felt that he was serving the public interest by discouraging the complainant's clients from accepting such inadequate work. At the same time, the city official admitted that he had no knowledge of an actual failure deriving from the complainant's designs

Although the members of the CPC confirmed that others shared the accused member's opinion of the complainant's professional competence, they did not believe that this fact excused the official from the unprofessional nature of his actions. Even if the member believed in the truth of his criticisms and did not act out of malice, the committee members concluded that disparaging remarks to the complainant's clients were by no means an appropriate way to express his misgivings. Furthermore, by delaying action and creating other difficulties for the complainant's clients, the CPC viewed the member's behavior as a disservice both to his public office and to the profession he represented

Accordingly, the CPC members held that the member had violated canon 5 of the Code of Ethics but could not reach agreement on any formal disciplinary action. Instead, the CPC sent the member an informal letter of caution pointing out that he had demonstrated poor judgment in his actions with regard to the complainant's work. The letter noted that, if in the future he observed that an engineer's work was inadequate or unsafe, the proper response would be to submit a "reasonable and documented complaint" to the state entity charged with investigating such matters

While this column has focused on the ethical implications of the city official's conduct, it is important to note that his actions could have had significant legal implications as well. If the complainant had been able to demonstrate that the official made a false statement of fact that caused harm to the complainant's reputation or business, the complainant might have had grounds to recover monetary damages in a defamation lawsuit. The official's status as a government employee probably would have afforded him some level of legal immunity, but not if it was found that he acted outside the scope of his employment or with an intentional or reckless disregard for the facts. In any event, all professionals, regardless of employment status, should remember that thoughtless or ill-tempered statements about another's competence, integrity, or character may result not only in an ethics complaint but also in protracted and potentially costly litigation.

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.

© ASCE,  Civil Engineering , November 2015