Conflict of Interest—PEs Serving on State Licensure Boards

Professional engineers often find themselves involved with and representing multiple organizational interests in their professional activities, and this can give rise to organizational conflicts of interest. Conflicts of interest are among the most prevalent ethical concerns facing engineering practitioners. Over the years, the Board of Ethical Review has considered numerous cases involving engineers who have interests in conflict with the interests of clients, employees, or other engineers. At one time, the NSPE Code of Ethics specifically prohibited engineers from becoming involved in cases or situations in which a conflict of interest was present. This was based on the view that professional engineers must at all times be above reproach and avoid any situation that could be perceived as compromising their professional judgment and integrity as independent professionals.

Over time, the NSPE Code and the Board of Ethical Review have moderated to the point of recognizing that certain types of conflicts of interest are difficult, if not impossible, to avoid and that the more realistic approach for individual engineers faced with this dilemma is to fully disclose the nature and extent of the conflict to the appropriate parties involved or impacted by the conflict. This is based on the view that the parties most affected by the conflict and who have the most at stake (e.g., clients, employers, other engineering firms, etc.) are in the best position to determine whether their interests will be compromised by the conflict. While sometimes perceived conflicts of interest are resolved by the parties as a result of full disclosure, in other instances the conflicts are deeper and require the engineer to disassociate from a specific project.

Previous Board of Ethical Review cases provide some background for considering this case. In BER Case No. 18-2, an engineer was a board member of an engineering technical society and was actively encouraging the society to enter into an agreement with Jones Publishing, a technical journal publisher, to annually publish technical articles and content generated by the society’s members. During meetings of the engineering technical society’s board of directors, the engineer expressed strong resistance to exploring other publishing options to determine what terms and conditions other technical journal publishers might offer to the society. Under a separate private, undisclosed side agreement with Jones Publishing, the engineer was to receive a visible and prestigious position as chairman of the editorial board for another journal published by Jones Publishing if the engineering technical society agreed to enter into the agreement with the company.

In this case, the BER stated the engineer had a trust relationship in his role as a board member of the engineering technical society and, therefore, must provide full disclosure regarding the side agreement with Jones Publishing to become chairman of the editorial board prior to the engineering society’s formal consideration and voting on the matter. The BER believes that conflicts of interest do not necessarily involve only financial considerations, and organizational conflicts can also be significant. In the BER’s view, the engineer also should have recused himself from his role as a board member acting on this issue for the engineering technical society or, if appropriate, resigned as a board member of the engineering technical society.

A second example is BER Case No. 70-6. Here, as a member of a state legislature, Engineer A is on a committee that initially makes appropriations to local communities for certain public works projects. He is also a partner in an engineering firm in the state. Following an appropriation to local communities in the state for projects designed to combat air pollution as recommended by the legislative committee of which Engineer A is a member, the firm of which Engineer A is a member submits its qualifications for a project to be financed by an appropriation from the legislature. At the meeting of the town council in the town in which the firm of Engineer A is located, objection is voiced to the selection of the firm in which Engineer A is a partner because of his influential position in securing the appropriation.

In finding that the firm in which Engineer A is a partner may ethically perform engineering services financed by an appropriation secured in part by the position of Engineer A in the legislature, the Board noted that actual awards to the selected engineering firms were to be made by the governing bodies of the local communities. But Engineer A was not a member of the town council, and the facts do not indicate Engineer A used his political office as a means to enhance the opportunities for his firm to benefit from the legislative action.

A third example is BER Case No. 75-7. In this case, John Doe, a civil engineer in private practice, is engaged principally in topographical survey work and the design of water and sewer facilities. He is an appointed member of a commission that controls and determines the issuance of water and sewer connection permits to private owners and developers. The commission’s authority is of such a nature that its decisions have a decisive impact on land development projects and the construction of facilities of all kinds by private owners. While serving on the commission, Doe performed extensive topographic survey work and designed the water and sewer systems for a new private facility that had earlier received approval for necessary water and sewer connections from the commission while he was a member of the commission. In response to public criticism for an alleged conflict of interest on his part, Doe noted that he had abstained from the discussion and vote on the permit application.

Based on the fact that Doe was aware of a potential conflict of interest and he abstained from the discussion and vote, and that it was not established that Doe had influenced the decision on the permit, the Board concluded it was ethical for Doe to perform the engineering and topographic survey work for a private client while serving on the commission when the water and sewer permits were issued. However, the Board did publish a dissenting view that advocated that Doe’s involvement was simply too close and he should resign from the commission.

Turning to the facts in this case, the BER believes that Engineer A should not be part of any discussion where she is advocating for the improvement of the state’s continuing professional development requirements to the PE Board and legislature. In this manner, her situation most closely parallels that of Case No. 75-7.

In many states, the legislature establishes the law for continuing education requirements and the PE Board enforces that law and establishes the rules. PE Board members typically take an oath to uphold the US and State Constitutions, and to abide by the law established by the state legislature and the rules and regulations adopted by the PE Board. Members of the board of directors of an engineering professional organization typically take an oath to represent the interests of member professionals. If the member professional organization is advocating engineering issues before the legislature or the PE Board, a PE Board member who also serves on the board of the member organization would face a direct conflict. Even absent such direct advocacy, membership on both boards may still present the appearance of a conflict of interest to some members of the public. Membership in engineering professional organizations presents no such conflicts of interest, as engagement in engineering and professional issues is of benefit to PE Board members.

The BER believes that Engineer A has a conflict of interest and that she should resign as a member of the board of directors of her engineering organization if she desires to serve on her state PE board. In the words of Case 75-7, her involvement “is simply too close.”

The BER believes that Engineer B’s situation is completely different. Engineer B is the chair of an engineering committee of a national engineering organization, where he recommends changes to his engineering discipline’s engineering education accreditation criteria for ABET. Thus, the situation of Engineer B more closely approximates that described in Case No. 70-6. The BER does not believe that this is a conflict of interest because individual state PE boards have no jurisdiction over ABET’s engineering education criteria. All engineering disciplines have a society that is responsible for establishing discipline-specific program criteria. State licensing board members have nothing to do with ABET’s discipline-specific criteria. Therefore, the BER does not believe that Engineer B has a conflict of interest.