P.E. Requirement For State Agency Position

The Board of Ethical Review has had occasion to consider several cases involving facts similar to those in the present case. In BER Case 85-3 a local county ordinance required that the position of county surveyor be filled by a P.E. The first appointee to the position was not a P.E. and was therefore deemed unqualified to continue in the position. The county commissioners met and decided to appoint a P.E. with experience and educational background solely in the field of chemical engineering. The duties and responsibilities of the position of county surveyor included oversight of surveying reports and highway improvement projects but did not include actual preparation of engineering or surveying documents.

The Board considered the question of whether it was ethical for the P.E. to accept the position of county surveyor and concluded it was not, noting that it would be extremely difficult, if not impossible, for a county surveyor with no background or expertise in surveying to perform effective oversight of surveying reports and highway improvement projects for the county. The Board did not see any way in which Engineer A could be in accordance with Section II.2.b. under these facts because whatever course of action he took would result in unethical conduct and compromise his role as county surveyor. We noted that it may seem plausible that Section II.2.c. would provide some ethical avenue through which the P.E. could perform the job as county surveyor. While it was true that he met the legal requirements for the position because he was a licensed professional engineer, we noted that professional ethics required an engineer to go beyond what is specifically permitted by the law.

Later in BER Case 87-1, the Board considered a case remarkably similar to the present case. There, a professional engineer was employed by the Army Corps of Engineers. Because of a substantial decrease in the work load, he was informed that his position with the Corps' River Basin Planning Section was being abolished and that he would be reassigned. He was asked to accept a position with the Coastal and Special Studies Section as a staff engineer where he would be supervised by an experienced engineer.

He accepted the new assignment even though he lacked the technical expertise to perform the required duties. In determining that it was ethical for him to accept the new assignment even though he lacked the technical expertise to perform the required duties, the Board indicated that BER Case 85-3 could be properly distinguished from the facts in BER Case 87-1. Whereas 85-3 involved an engineer who was responsible for personally performing supervisory functions and administering the operations of a technical services department within a governmental body, in BER Case 85 3, the engineer had to possess the knowledge, experience, and background in surveying to direct and manage the technical aspects of his department.

We believe the reasoning of the present case is not the same as that in BER Case 87-1. The Board reads the Code to prohibit Engineer A from accepting this new assignment if he believes he lacked the competence to perform the work. To do so would not limit the ability of engineers to expand their level of experience and knowledge. We believe the intent of Section II.2. et seq. is to limit individual engineers from undertaking assignments or positions of authority and responsibility where they lack adequate competence or experience. While we do not believe the Code's intent is to prohibit engineers from accepting new and different tasks and duties, thereby growing professionally, for the Board to decide otherwise would be to ignore the practical realities of engineering and impose overly flexible practice requirements on the profession and limit the autonomy, judgment and professional discretion of engineers.

We would emphasize that the Code contains the implicit obligation on all engineers to improve their competence through continuing education and professional development. While we recognize that engineers should acquire the necessary skills and experience in performing new duties, and that an engineer's supervisors have an ethical obligation to encourage and support him in that effort, this cannot mean that engineers can be placed in positions of responsibility for which they believe they lack professional competence.

We must take Engineer A at his word that the reason for his failure to accept the position offered was because he believed that he lacked the competence to perform the work, although he would not be performing the services in question independently but as part of a team and within a department of state government. As a professional engineer, in an environmental agency, Engineer A would presumably be placed in responsible charge of activities for which he lacked the necessary education, training and experience.

Having concluded that Engineer A could have ethically declined the position, we can conclude that it was ethical for Engineer B to testify as to Engineer A's qualifications to accept the position offered to Engineer A in the Department of Environmental Services. We base this on the assumption that Engineer B had a reasonable and good faith belief that Engineer A could perform the services in question.

Note: Code III.11 no longer exists.