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The First Step Astray

Nov 1, 2016


Situation

A civil engineer and ASCE member runs into an old college acquaintance at a local technical conference. This acquaintance is currently employed in a decision-making capacity for a research arm of the U.S. Department of Transportation, and the engineer takes the opportunity to express his interest in doing research and development work in the area of intelligent highway systems. The acquaintance notes that his agency is dissatisfied with the work being performed under an existing contract in that area, and he encourages the engineer to start his own company and to submit a proposal for the contract at the time of its upcoming renewal.

The engineer takes his acquaintance's advice, and his new company proves successful in its bid to perform work under a Department of Transportation research and development contract. Shortly after receiving the award, however, the engineer is approached by the acquaintance with a demand for payment. The acquaintance explains that his agency is contemplating an additional contract related to the work being done by the engineer's company, and he explains that the additional payment will help him "make the case" for sending further work in the engineer's direction.

Anxious to keep his new company on a solid financial footing, the engineer agrees to make the payment and thus enters into a scheme of illegal payments that will continue for almost a full decade. At first the transactions consist strictly of transfers of money in exchange for the acquaintance's help in securing government contracts, but when the engineer balks at the increasing amounts of money being demanded, the acquaintance suggests an alternative. The engineer begins to submit fictitious invoices for work being performed on his existing federal contracts, and the acquaintance ensures that his staff approves the invoices without question. After a series of bank transfers intended to disguise the ultimate destination of the payment, the funds from these fraudulent invoices are ultimately converted to cash. The engineer hands over two-thirds of the payments to the acquaintance while keeping the remainder for himself.

Over the course of many years, the engineer makes nearly $300,000 in payments to the acquaintance, and in exchange his company is awarded millions of dollars of federal research money. Ultimately, however, government investigators get wise to the scheme. The engineer pleads guilty to one count of conspiracy to pay unlawful gratuities. In exchange for his cooperation and testimony against the acquaintance, who, it is learned, has engaged in this ploy not only with the ASCE member but also with a number of other contractors, the engineer receives a reduced sentence of 24 months.

Notice of the engineer's guilty plea is forwarded to the Committee on Professional Conduct (CPC), which opens an investigation.


Question

What canons of the ASCE Code of Ethics were violated by this member's conduct?

Decision

While it may seem a bit superfluous to discuss the ethical missteps of a member who intentionally engages in criminal behavior, cases such as this still offer valuable lessons.

Although there is nothing to suggest that the engineer did anything improper in securing his first research contract, he allowed the prospect of a new contract or, perhaps, the prospect of losing the one he had already won to tempt him into his first ethical lapse: he paid a gratuity. In so doing, he violated canon 5: "Engineers shall build their professional reputation on the merit of their services and shall not compete unfairly with others." Moreover, category (a) in the guidelines to practice for this canon adds the following: "Engineers shall not give, solicit, or receive, either directly or indirectly, any political contribution, gratuity, or unlawful consideration in order to secure work."

Once he had made the choice to cross that ethical line, however, it seems that the member found it easier to continue in this fashion. From offering larger and more numerous gratuities, he moved on to falsifying invoices, thus violating his obligation under canon 4 to "act as a faithful agent or trustee" for his client. This deceit included lying about his professional activities, in violation of canon 3's strictures about truthfulness. It also entailed an abuse of public funds, which at best called into question his adherence to canon 1, which requires engineers to "hold paramount" the public welfare.

Thus, if ethics is the path that engineers must follow, this case demonstrates that misconduct is the treacherous ground on either side of that path, each false step leading the unwary traveler deeper into the morass. For this reason, engineers should be especially mindful of the language in canon 6 advising "zero tolerance for bribery, fraud, and corruption." Furthermore, the guidelines to practice for this canon counsel engineers to be "scrupulously honest," to be "especially vigilant," and to "strive for transparency." By allowing no excuse to justify even a small financial or professional impropriety, engineers can steer clear of behavior that might lead them to excuse far graver ethical lapses.

In the present case, while the CPC is still conducting its investigation, the engineer's membership lapses for nonpayment of dues. Under ASCE's rules, when a member allows his or her dues to lapse during an ethics investigation, he or she is deemed to have resigned "with prejudice," meaning that readmission becomes possible only through a two-thirds vote by ASCE's Executive Committee. ASCE's rules also provide that the Society can publish notice of this action as long as it is limited to a statement that the member's dues lapsed "following notification that the Committee on Professional Conduct was investigating the possibility that the member had violated the ASCE Code of Ethics."

When the CPC advised the Executive Committee of this member's case, it objected to this limitation on public notice. Arguing that the restrictions "served to impede efforts to educate the membership on ethics issues," the CPC requested a change in ASCE's rules to permit the publication of the facts and circumstances behind disciplinary actions. While the Executive Committee was sympathetic to the CPC's arguments, it nevertheless rejected the idea of providing details in its formal notices. Instead, ASCE's leadership used the suggestion to initiate a discussion of how to derive educational value from past disciplinary cases, a discussion that some years later resulted in the creation of this column.



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 2016