Public Welfare—Client Action Following Engineers Services

The facts in this case present a situation that often raises very difficult issues for engineers in their dealings with clients. Engineering practice sometimes places the engineer in the position where the interests of a client and the interests of the public are in open and serious conflict.

Although the NSPE Board of Ethical Review has had occasion to address similar issues in the past, it has not addressed the issue in the context of a client’s apparent violation of environmental laws and regulations relating to wetland mitigation efforts.

Engineers play an essential role in society by taking steps and actions to see that  products, systems, facilities, structures, and the land surrounding them are reasonably safe. Sometimes engineers are placed in situations where they must balance the extent of their obligations to their employer or client with their obligations to protect the public health and safety.

An example of the basic ethical dichotomy presented in this case was considered by the BER in Case No. 89-7. In that case, Engineer A was retained to investigate the structural integrity of a 60-year-old occupied apartment building which his client was planning to sell. Under the terms of the agreement with the client, the structural report written by Engineer A was to remain confidential. In addition, the client made clear to Engineer A that the building was being sold "as is" and that the client was not planning to take any remedial action to repair or renovate any system within the building prior to its sale. Engineer A performed several structural tests on the building and determined that the building was structurally sound. However, during the course of providing services, the client confided in Engineer A and informed him that the building contained deficiencies in the electrical and mechanical systems, which violated applicable codes and standards. While Engineer A is not an electrical or mechanical engineer, he realized that those deficiencies could cause injury to the occupants of the building and so informed the client. Specifically, in his report, Engineer A made a brief mention of his conversation with the client concerning the deficiencies. However, in view of the terms of the agreement, Engineer A did not report the safety violations to any third party.

In deciding it was unethical for Engineer A not to report the safety violations to the appropriate public authorities, the Board noted that the facts presented in the case raised a conflict between two basic ethical obligations of an engineer: The obligation of the engineer to be faithful to the client and not to disclose confidential information concerning the business affairs of a client without that client's consent, and the obligation of the engineer to hold paramount the public health and safety.

As noted in BER Case No. 89-7, there are various rationales for the nondisclosure language contained in the NSPE Code of Ethics. Engineers, in the performance of their professional services, act as "agents" or "trustees" to their clients. They are privy to a great deal of information and background concerning the business affairs of their client. The disclosure of confidential information could be quite detrimental to the interests of their client and, therefore, engineers as "agents" or "trustees" are expected to maintain the confidential nature of the information revealed to them in the course of rendering their professional services.

In BER Case No. 97-13, another more recent case that raised similar issues, a public agency retained the services of VWX Architects and Engineers to perform a major scheduled overhaul of a bridge. VWX Architects and Engineers retained the services of Engineer A, a civil engineer, as its sub-consultant to perform bridge inspection services on the bridge. Engineer A's scope of work was solely to identify any pavement damage on the bridge and report the damage to VWX for further review and repair. Three months prior to the beginning of the scheduled overhaul of the bridge, while traveling across the bridge, Police Officer B lost control of his patrol car. The vehicle crashed into the bridge wall. The wall failed to restrain the vehicle, which fell to the river below, killing Police Officer B. While conducting the bridge inspection, and although not part of the scope of services for which he was retained, Engineer A noticed an apparent pre-existing defective condition in the wall close to where the accident involving Police Officer B occurred. Engineer A surmised that the defective condition may have been a contributing factor in the wall failure and noted this in his engineering notes. Engineer A verbally reported this information to his client, who then verbally reported the information to the public agency. The public agency contacted VWX Architects and Engineers which then contacted Engineer A and asked Engineer A not to include this additional information in his final report since it was not part of his scope of work. Engineer A stated that he would retain the information from his engineering notes but not include it in the final report, as requested. Engineer A did not report this information to any other public agency or authority.

In deciding that (1) it was ethical for Engineer A to retain the information in his engineering notes but not include it in the final written report as requested, and (2) it was ethical for Engineer A not to report this information to any other public agency or authority as long as corrective action was taken by the public agency within a relatively short period of time, the Board noted that Engineer A acted reasonably under the circumstances by properly balancing the obligation of the engineer to be faithful to the client and not to disclose what might be considered by the client to be confidential information concerning the business affairs of a client without that client's consent, and the obligation of the engineer to hold paramount the public health and safety.

The Board said this because there was nothing under the facts to indicate anything more than Engineer A's general surmise and speculation about the cause of the structural failure of the wall. Engineer A's observation appeared to be based upon a visual inspection without anything more, the facts did not indicate that Engineer A had expertise in structural engineering. While it might have been appropriate for Engineer A to note such information in his field notes, to place this information in a final report would not be responsible and could unnecessarily inflame the situation. However, under no circumstance would it be appropriate for Engineer A to alter his field notes.

Also, while it might be appropriate for Engineer A to verbally report this information to Engineer A's client, and for the client to report this information to the public agency, it is clear that Engineer A was retained to perform a specific task for which he was presumably competent. Clearly the prime consultant, which has overall responsibility for the project, was in a far better position than Engineer A to understand the interrelationships between various elements of the projects, including the history of previous work performed on the bridge, prior consultants, contractors, etc., in order to make an informed evaluation.

Therefore, the Board concluded that Engineer A did the appropriate thing in coming forward to his client with the information and also by documenting the information for possible future reference as appropriate. Under the circumstances, the Board concluded that it would have been improper for Engineer A to include reference to the information in his final report, particularly since it would have been based upon mere speculation and not careful testing or evaluation by a competent individual or firm. At the same time, the Board was of the opinion that Engineer A had an obligation to follow through to see that correct follow-up action was taken by the public agency. Finally, the Board concluded that for Engineer A to have reported this information to a public authority under the circumstances as outlined in the facts, before determining whether corrective action is taken, would have been an overreaction and could easily have risked jeopardizing the professional reputations of his client and the public agency.

Turning to the facts in the present case, the Board can easily distinguish BER Case Nos. 89-7 and 97-13 from the present case. Those two cases involved a different set of factors that created a reasonable basis for an engineer to take a more measured approach to the situation. In BER Case No. 89-7, for example, the facts revealed that the client had confided in the engineer and may have relied upon the engineer to maintain the information in confidence. In addition, the engineer in BER Case No. 89-7 did not have any particular expertise in the technical areas (mechanical, electrical) involved in the matter at issue. Taken together, it would be reasonable for an engineer under those circumstances to act in a deliberate and cautious manner before taking any action. Similarly, in BER Case No. 97-13, the engineer’s evaluation was based upon general surmise and speculation about the cause of the structural failure of the wall, based entirely upon a visual inspection without anything more. In addition, as in BER Case No. 89-7, there was nothing noted in the facts to indicate that Engineer A had expertise in the specific discipline involved—structural engineering. Again, BER Case No. 97-13 indicates some basis for the engineer to be more reflective and careful before making statements or taking actions that could jeopardize the interests of others.

In contrast, the facts in the present case indicate a violation of the federal and state laws and regulations. Engineer A’s actions appear to be obvious—contact the client and inquire directly about the actions the client has taken and point out the violations of the law and that immediate steps need to be taken to remedy the violation. If the client indicates that those steps will be taken, the engineer should monitor the situation until the engineer is sufficiently satisfied that the situation has been remedied. In this connection, the engineer should advise that the all remedial actions should be in full compliance with all applicable environmental laws and regulations, which may include the review of a licensed engineer. If appropriate steps are not taken by the client, the engineer would have an obligation to bring this matter to the attention of the appropriate authorities.