Applicable NSPE Code References:
Engineers shall not reveal facts, data, or information without the prior consent of the client or employer except as authorized or required by law or this Code.
Code II.1.f: Engineers having knowledge of any alleged violation of this Code shall report thereon to appropriate professional bodies and, when relevant, also to public authorities, and cooperate with the proper authorities in furnishing such information or assistance as may be required.
Code II.4: Engineers shall act for each employer or client as faithful agents or trustees.
Code III.9: Engineers shall give credit for engineering work to those to whom credit is due, and will recognize the proprietary interests of others.
The facts and circumstances involved in this case are probably most analogous to earlier Board of Ethical Review cases dealing with the issue of whistleblowing.
Over the years, the Board has considered cases relating to the issue of whistleblowing. The first, BER Case No. 82-5, involved the issue of whether an engineer had an ethical obligation or an ethical right to continue his efforts to secure a change in the policy of his employer or to report his concerns to the proper authority. The case related to an engineer, employed by a large industrial employer, who, after observing that certain subcontractor plan submissions were inadequate, notified his employer of the problem. Following several notifications to the employer, which were ignored, the engineer became insistent regarding the problem, with the result that the employer placed a critical memo in the engineer’s file and ultimately placed the engineer on probation and at risk for possible termination.
After reviewing earlier BER cases and appropriate NSPE Code provisions, the Board noted that the facts before it did not relate to a danger to the public health and safety, but were premised upon a claim of unsatisfactory plans and the unjustified expenditure of public funds. The Board concluded that in the type of situation presented in Case No. 82-5, the ethical duty or right of the engineer becomes a matter of personal conscience. The Board was not willing to make a blanket statement that there is an ethical duty in these kinds of situations for the engineer to continue his campaign within the company and make the issue one for public discussion. Said the Board, “the NSPE Code only requires that the engineer withdraw from a project and report to proper authorities when the circumstances involve endangerment of the public, health, safety, and welfare.”
In Case No. 88-6, which involved a city engineer who learned of wastewater ponds overflowing into a river, the Board, in reviewing the reasoning in Case No. 82-5, concluded that the facts involved a danger “to the public health and safety—the contamination of a community water supply.” On that basis, the Board, tracing its rationale in Case No. 82-5, noted that where an engineer determines that a case may involve a danger to the public safety, the engineer has not merely an “ethical right” but has an “ethical obligation” to report the matter to the proper authorities and withdraw from further service on the project.
Importantly, the Board acknowledged that it is difficult to say exactly at what point the engineer should have reported her concerns to the appropriate authorities. However, it was suggested that such reporting could have occurred when the engineer was reasonably certain that no action would be taken concerning her recommendations and that, in her professional judgment, a probable danger to the public health and safety existed.
We believe these two cases are instructive and relevant to the matter presently before the Board, for at least two significant reasons. First, the two cases draw a clear distinction between those matters that involve possible apparent improprieties and those that involve a probable or imminent danger to the public health and safety. Although not stated directly in either earlier case, adding further support to this basic principle is the fact that the language in Code II.1.f. is within the Rule of Practice section specifically relating to the engineer’s paramount obligation to protect the public health and safety.
Second, the circumstances involved in both BER Case Nos. 82-5 and 88-6 appear to involve situations where the engineers have at least made an effort to exhaust all internal mechanisms before contemplating taking action by reporting the dangers to the proper authorities.
Under the facts in the present case, the Board concluded that the facts and circumstance are not of a character that involves any danger—direct or indirect—to the public health and safety. Instead, the facts and circumstances relate to matters of a legal nature and do not relate to engineering judgment or expertise.
Code II.4 places a basic obligation on engineers to be faithful agents and trustees in professional matters with their employers. It is the Board’s opinion that Adam’s actions in reporting his employer’s apparent violation were directly in conflict with the NSPE Code of Ethics. We are troubled that Adam did not consider other less adversarial and surreptitious alternatives. For example, Adam could have first discussed this matter with his employer, pointing out the possible damages that the violation posed to SPQ Engineering, and suggesting that SPQ Engineering confers with its legal counsel before continuing its current actions.
Instead, Adam took a course of action that could cause significant damage to SPQ Engineering and ultimately to Adam himself. One is inclined to wonder about the motivation for Adam’s actions without his first exploring other less adversarial and surreptitious alternatives, in view of the lack of any direct danger to the public health and safety. While, in the context of the facts of this case, we cannot conclude that this provision compels Adam to ignore an apparent violation of the law and the NSPE Code (See Code III.9), by the same token, Adam could have easily exercised far greater judgment and professional discretion before taking action.