Engineering Ethics Cases
Whistleblowing City Engineer --adapted from NSPE Case No. 88-6 , (edited by Pilat, 11/5/03)
http://www.onlineethics.org/cases/nspe/ec88-6.html
Mario, the City Engineer/Director of Public Works for a medium-sized city, is the only licensed professional engineer (and also a civil engineer) in a position of responsibility within the city government. This city has several large food-processing plants that discharge large amounts of waste into the wastewater system during canning season. Mario is responsible for the wastewater treatment plant and reports to James about its operation.
Mario tells James that the wastewater treatment plant is not capable of handling potential overflow during the rainy season and offers several possible solutions. James replies that they will face the problem when it happens.
Engineer Mario privately notifies other city officials about the wastewater treatment plant problem, but James removes the responsibility for the sanitation system from Mario and gives it to Chris, a technician who is normally under Mario's supervision. James instructs technician Chris to report directly to him and confirms this arrangement with a memo, which is copied to engineer Mario. Mario is also placed on probation. He is warned that if he discusses the matter further, he will be terminated.
Mario continues to work for the government as City Engineer/Director of Public Works; he assumes no responsibility for the wastewater treatment plant, but continues to advise technician Chris without James's knowledge. During the winter, heavy storms occur in the city. It becomes clear to those involved that if the wastewater treatment plant's waste water is not released into the local river, the ponds will overflow and dump all of the waste into the river. Under state law, this condition must be reported to the State Water Pollution Control Authority.
How would you respond to this situation? How do you assess engineer Mario's actions? What about James's actions? What about technician Chris? What are engineer Mario's obligations1 to either James or the Public Works Department? What are Mario's responsibilities2 for the environmental health of city residents? How might these responsibilities be fulfilled simultaneously? Which takes precedence in case of conflict? What additional information would you like to have, and what difference would it make to your assessment?
Definitions:
1 Obligations - Requirements arising from a person's situation or circumstances (e.g., relationships, knowledge, position) that specify what must or must not be done for some moral, legal, religious, or institutional reasons. For example, students have an obligation to see their advisor on or before Registration Day. People have a moral obligation to keep their promises. Notice that usually statements of obligations specify what acts are required or forbidden without reference to the consequences of performing the act (except insofar as these consequences are a part of the characterization of the act itself -- for example, killing is an act that results in death.) However, occasionally you will see such statements as "engineers have an obligation in their work to ensure public safety," meaning that engineers are morally required to ensure the public safety but without specifying what acts they should or should not perform in order to ensure safety. A legal obligation is a legal requirement that specifies what types of actions are permitted, forbidden, or required on legal grounds. Often legal obligations are monetary debts. When we speak of an obligation without specifying its nature we will mean a moral obligation.
2 Responsibility - The moral and forward-looking sense of responsibility is the sense in which one is responsible for achieving (or maintaining) a good result in some matter. The idea is that one is entrusted with achieving or maintaining this outcome, and expected to both have relevant knowledge and skills, and to make a conscientious effort. However, despite one's best efforts, the result may not be achieved. For example, patients of responsible physicians may die, and the work of a responsible engineer may result in an accident because the accident was not foreseeable, it was not possible to compensate for the factors causing the accident, or because others were unwilling to heed the engineer's warnings.
The moral and backward-looking sense of responsibility is that in which a person or group deserves ethical evaluation for some act or outcome, that is deserves moral praise for a good outcome or blame for a bad one. The moral sense of responsibility should not be confused with the causal sense of responsibility for some existing or past state of affairs. For example, when we say that "the storm was responsible for three deaths and heavy property damage," meaning that it caused these outcomes, we do not mean to attribute moral responsibility to the storm. Storms do not have moral responsibilities, and are neither responsible or irresponsible in the moral sense. However, when a moral agent is causally responsible for some outcome, that is some reason to think that the agent is morally responsible for it. Causal responsibility is not conclusive evidence of moral responsibility, however. If one's actions case a terrible outcome only because of bad moral luck, in the form of a freak accident, then one is not morally responsible for the outcome.
Forward-looking responsibilities are often specified in terms of the outcome to be achieved rather than the acts to be performed. It takes judgment to figure out what acts will achieve a given outcome. For this reason you will hear the phrase "the age of responsibility" or "the age of discretion" used to mean an age at which a person is sufficiently mature to exercise such judgment. Such practical wisdom is not required in order to fulfill many obligations which are often specified in terms of the acts to be performed or to be avoided. For example, contrast the engineer's responsibility for the safety of the public with a citizen's obligation to testify when witness to a crime. Notice that "obligation" would never be used in the way "responsible" is, to refer to a virtue of a person. That is, you would not say that so-and-so was an "obligatory" person, though you may say she was "responsible."
Sometimes "responsibility" is used to mean an act one is required to perform, as in "It is your responsibility to take minutes for this meeting." In this Center, the term "responsibility" will be used only for matters that require some exercise of discretion and judgment and required acts will just be called "obligations."
Sometimes "responsible" is used in a phrase of the form "responsible to (some other party), in which the term "responsible" is used as a synonym for "answerable" or "accountable." An example would be: "This citizens' group was accountable/responsible/answerable to its parent organization." This use of the term "responsible" is easily distinguished from the present one which is "responsible for (some matter for which one must exercise discretion)."
Official Responsibility
The responsibility that one is assigned as a result of one's job or office. Of course, official responsibilities might require one to behave unethically - "it was my job" is not a valid excuse for immoral behavior. However, even when the requirements of an official responsibility are ethically acceptable, the concept of an official responsibility functions differently from moral responsibility. Official responsibility resembles moral responsibility in generating prescriptions for conduct - duties, or at least statements about what someone "ought" to do. As philosopher John Ladd points out, moral and official responsibility differ in at least two respects: First, official responsibilities are exclusionary - if one person has a particular official responsibility, another person does not (unless, of course, it was part of the job description of both). Second, official responsibilities, together with whatever rights, duties and requirements for accountability attend them, are all alienable (see rights) - they can be given to or taken over by someone else. In contrast, if one has a moral responsibility to inform the public about some matter, then even if one is in the position to delegate that responsibility to someone else, one still must see that the responsibility is fulfilled, because one does not get rid of a moral responsibility by giving it to someone else.
Professional Responsibility
Professional responsibility is a prominent example of the kind of moral responsibility that arises from the special knowledge that one possesses. It is mastery of a special body of advanced knowledge, particularly knowledge that bears directly on the well-being of others, that demarcates a profession. As custodians of special knowledge which bears on human well-being, professionals are constrained by special moral responsibilities; that is, moral requirements to apply their knowledge in ways that benefit the rest of the society.
Discussion of the Whistleblowing City Engineer Case - Case No. 88-6:
Facts:
Engineer A is employed as the City Engineer / Director of Public Works for a medium-sized city and is the only licensed professional engineer in a position of responsibility in the city government. The city has several large food processing plants that discharge very large amounts of vegetable wastes into the city's sanitary sewer (wastewater) system during the canning season. Part of the canning season coincides with the rainy season.
Engineer A has the responsibility for the wastewater treatment plant and is directly responsible to City Administrator C. Technician B answers to Engineer A.
During the course of employment, Engineer A notifies Administrator C of the inadequate capacity of the wastewater treatment plant to handle the potential overflow during the rainy season and offers possible solutions. Engineer A has also discussed the problem privately with certain members of the city council without the permission of City Administrator C. City Administrator C has told Engineer A that "we will face the problem when it comes." City Administrator C orders Engineer A to discuss the problems only with him and warns Engineer A that his job is in danger if Engineer A disobeys.
Engineer A again privately brings the problem up to other city officials. City Administrator C removes Engineer A from responsibility of the entire sanitary system and the chain of command by a letter instructing Technician B that he is to take responsible charge of the wastewater system and report directly to City Administrator C. Technician B asks for a clarification and is again instructed via memo by City Administrator C that he, Technician B, is completely responsible and is to report any interference by a third party to City Administrator C. Engineer A receives a copy of the memo. In addition, Engineer A is placed on probation and ordered not to discuss this matter further and that if he does he will be terminated.
Engineer A continues in his capacity as City Engineer/Director of Public Works, assumes no responsibility for the disposal plant and beds, but continues to advise Technician B without the knowledge of City Administrator C.
That winter during the canning season, particularly heavy storms occur in the city. It becomes obvious to those involved that if waste water from the ponds containing the domestic waste is not released to the local river, the ponds will overflow the levees and dump all waste into the river. Under state law, this condition is required to be reported to the state water pollution control authority, the agency responsible for monitoring and overseeing water quality in state streams and rivers.
Question:
Did Engineer A fulfill his ethical obligation by informing City Administrator C and certain members of the city council of her concerns?
References:
NSPE Code of Ethics- Section I.1.:"Engineers, in the fulfillment of their professional duties, shall hold paramount the safety, health and welfare of the public in the performance of their professional duties."
Section II.1.a.:"Engineers shall at all times recognize that their primary obligation is to protect the safety, health, property and welfare of the public. If their professional judgment is overruled under circumstances where the safety, health, property or welfare of the public are endangered, they shall notify their employer or client and such other authority as may be appropriate."
Section II.4.:"Engineers shall act in professional matters for each employer or client as faithful agents or trustees."
Section III.2.b.:"Engineers shall not complete, sign, or seal plans and/or specifications that are not of a design safe to the public health and welfare and in conformity with accepted engineering standards. If the client or employer insists on such unprofessional conduct, they shall notify the proper authorities and withdraw from further service on the project."
Discussion:
The engineer's obligation to hold paramount the safety, health, and welfare of the public in the performance of his professional duties, is probably among the most basic. Clearly, its importance is evident by the fact that it is the very first obligation stated in the NSPE Code of Ethics. Moreover, the premise upon which professional engineering exists -- the engineering registration process -- is founded upon the proposition that in order to protect the public health and safety, the state has an interest in regulating by law the practice of the profession.
While easily stated in the abstract, the breadth and scope of this fundamental obligation is far more difficult to fix. As we have long known, ethics frequently involves a delicate balance between competing and, oft times, conflicting obligations. However, it seems clear that where the conflict is between one important obligation or loyalty and the protection of the public, for the engineer the latter must be viewed as the higher obligation.
The Board has faced this most difficult issue on two other occasions in somewhat dissimilar circumstances. In Case 65-12, we dealt with a situation in which a group of engineers believed that certain machinery was unsafe, and we determined that the engineers were ethically justified in refusing to participate in the processing or production of the product in question. We recognized in that case that such action by the engineers would likely lead to the loss of employment.
More recently, in Case 82-5, the engineer was employed by a large industrial company and after reviewing plans for materials supplied by a subcontractor, determined that they were inadequate both from a design and a cost standpoint and therefore should be rejected. Thereafter, the engineer advised his superiors of the deficiencies but his recommendations were rejected. The engineer persisted with his recommendations and was placed on probation with the warning that if his job performance did not improve he would be terminated.
In finding that an engineer does not have an ethical obligation to continue an effort to secure a change in the policy of an employer under these circumstances, or to report his concerns to the proper authority, we stated, nevertheless, that the engineer has an ethical "right" to do so as a matter of personal conscience. We emphasized, however, that the case then before us did not directly involve the protection of the public safety, health, and welfare, but rather was an internal dispute between an employer and an employee.
In addition, we found in Case 82-5 that the situation presented has become well known in recent years as "whistleblowing" and if an engineer feels strongly that an employer's course of action is improper when it relates to public concerns, and if the engineer feels compelled to "blow the whistle" to expose the facts as he sees them, he may well have to pay the price of loss of employment. We also commented that in recent years, engineers have gone through such experiences and even if they have ultimately prevailed on legal or political grounds, the experience is not to be taken lightly. We concluded that "the Code only requires that the engineer withdraw from a project and report to proper authorities when the circumstances involve endangerment to the public safety, health and welfare."
Clearly, the case presently before the Board involves "endangerment to the public safety, health and welfare" -- the contamination of the water supply -- and therefore it is clear that Engineer A has an obligation to report the matter to his employer. Under the facts it appears that Engineer A has fulfilled this specific aspect of his obligation by reporting his concerns to City Administrator C and thereafter to certain members of the city council. However, under the facts of this case, we believe Engineer A had an ethical obligation under the Code to go considerably farther.
As noted in Case 82-5 and in the Code, 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. We believe this is particularly clear when the engineer involved is a public servant (city engineer and director of public works).
In the context of this case, we do not believe that Engineer A's act of reporting his concerns to City Administrator C or certain members of the city council constituted a reporting to the "proper authorities" as intended under the Code. Nor do we believe, Engineer A's decision to assume no responsibility for the plant and beds constitutes a "withdrawal from further service on the project."
It is clear under the facts of this case that Engineer A was aware of a pattern of ongoing disregard for the law by his immediate superior as well as members of the city council. After several attempts to modify the views of her superiors, it is our view that Engineer A knew or should have known that the "proper authorities" were not the city officials, but more probably state officials (i.e., state water pollution control authority). We cannot find it credible that a City Engineer/Director of Public Works for a medium-sized town would not be aware of this basic obligation. Engineer A's inaction permitted a serious violation of the law to continue and appeared to make Engineer A an "accessory" to the actions of City Administrator C and the others.
It is difficult for us to say exactly at what point Engineer A should have reported his concerns to the "appropriate authorities." However, we would suggest that such reporting should have occurred at such time as Engineer A was reasonably certain that no action would be taken concerning her recommendations either by City Administrator C or the members of the city council and, that in his professional judgment, a probable danger to the public safety and health then existed.
In addition, we find it troubling that Engineer A would permit his professional integrity to be compromised in the manner herein described. As the legally established city engineer and director of public works, Engineer A allowed his engineering authority to be circumvented and overruled by a non-engineer under circumstances involving the public safety. It is clear that Engineer A had an ethical obligation to report this occurrence to the "proper authorities" as stated above.
In closing, we must acknowledge a basic reality that must confront all engineers faced with similar decisions. As we noted in Cases 65-12 and 82-5, the engineer who makes the decision to "blow the whistle" will in many instances be faced with the loss of employment. While we recognize this sobering fact, we would be ignoring our obligation to the Code and hence to the engineering profession if, in matters of public health and safety, we were to decide otherwise. For an engineer to permit her professional obligations and duties to be compromised to the point of endangering the public safety and health does grave damage to the image and interests of all engineers.
Conclusion:*
Engineer A did not fulfill his ethical obligations by informing the City Administrator and certain members of the city council of her concerns.
*Note: This opinion is based on data submitted to the Board of Ethical Review and does not necessarily represent all of the pertinent facts when applied to a specific case. This opinion is for educational purposes only and should not be construed as expressing any opinion on the ethics of specific individuals. This opinion may be reprinted without further permission, provided that this statement is included before or after the text of the case.
Board of Ethical Review:
* Eugene N. Bechamps, P.E. * Robert J. Haefeli, P.E. * Robert W. Jarvis, P.E. * Lindley Manning, P.E.
* Paul E. Pritzker, P.E. * Harrison Streeter, P.E. * Herbert G. Koogle, P.E.-L.S., chairman
1996 NSPE Code of Ethics This is the latest version of the code; an earlier version was used in this case.
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Idaho Falls City Engineer Refuses to Sign & Seal Project Designs
A very important legal case has unfolded in Idaho Falls, Idaho. This case involves the issue of responsible charge, which goes to the heart of the Engineering Profession. Ed Turner, PE, a member of NSPE, has been engaged in a protracted legal battle with the City of Idaho Falls over the past three years. Ed was the City Engineer until he was forced to resign for refusing to sign and seal projects over which he did not have responsible charge. The projects included land development plats or plans by private firms that Ed as City Engineer was required by law to review and approve for the city (but not required to seal) and design documents done by city staff. He acted ethically and morally. His conduct was exemplary and highly professional. Ed Turner, PE, the former City Engineer of Idaho Falls, Idaho has been waging a valiant battle on behalf of the Engineering Profession. Ed sacrificed his career and economic well being as well as his peace of mind to uphold the highest principles of the Engineering Profession and to defend the public’s health, safety and welfare.
Ed had been a highly regarded and efficient City Engineer for Idaho Falls for over 27 years when he was forced to resign for refusing to sign and seal projects over which he did not have responsible charge. A new cityadministration demoted him to make room for a non-Engineer, but still required him to sign and seal plans over which he no longer had responsible charge. He refused because it was a clear violation of the Idaho Professional Engineer Licensure Law. A non-engineer demanded that Ed perform actions that would violate his code of ethics and the Idaho Engineering Licensure Statue in order to satisfy some special interests. To his credit, Ed stuck to his principles and upheld the Engineer’s Credo which mandates that a Professional Engineer “live and work according to the laws of man and the highest standards of professional conduct…” and “place….the public welfare above all other considerations.”
The AEA (American Engineering Alliance) has concentrated its public relations effort on publicizing the Ed Turner legal case in Idaho Falls, Idaho. As many of you know, Ed Turner has been engaged in a protracted legal battle with the City of Idaho Falls. Ed was forced to resign because he refused to sign and seal projects over which he did not have responsible charge. He acted ethically and professionally. His conduct is a shining example of true professionalism which all engineers should strive to emulate.
The issues at stake in this case are so critical to the very survival of the engineering profession that AEA has committed considerable resources to seeing that Ed Turner prevails in his lawsuit. AEA has taken the lead in mobilizing support for Ed Turner within the engineering community. We intend to intensify our public relations effort until the mass media picks up this story and starts covering this very important case which has major implications not only for the engineering community but also to the public at large
Idaho Society of PE Board Responds to Turner Controversy
The following letter from the Idaho Society of Professional Engineers' Board of Directors was received by Engineering Times in response to the engineering ethics case involving NSPE member Ed Turner and his former employer, the City of Idaho Falls.
The Ed Turner case has been an emotionally charged issue in Idaho, and nationally. For those who may be unfamiliar with the case, a brief synopsis follows. Turner had been a design engineer and the city engineer for the City of Idaho Falls, Idaho, for 27 years. As city engineer since 1981, Turner had supervisory, management, and administrative duties for the engineering department. A new public works director, hired in 1985, relieved Turner of his supervisory, management, and administrative duties and appointed a non-engineer as engineering department administrator. Turner retained the city engineer title, but expressed concerns that he no longer had departmental responsible charge. Turner filed a grievance under the city's personnel rules in April 1996, and was demoted to design engineer in June. He resigned in July 1996 and sued the city, claiming wrongful constructive discharge; wrongful termination in violation of public policy; breach of contract; breach of the implied covenant of good faith and fair dealing; defamation; intentional infliction of emotional distress; and negligent supervision.
Turner, a member of NSPE and the Idaho Society of Professional Engineers, apprised the Idaho licensure board of his situation. However, no written complaint was ever filed with the Idaho board, and its policy is to hear alleged violations only when a written complaint is filed. The board wrote the city informing them of the Idaho code requirements, noting that the city engineer and engineering administrator job descriptions were very similar and if the engineering administrator performed "engineering," that individual would be required to be a licensed engineer.
Turner's case came up at nearly every ISPE Board of Directors meeting for three years, and was discussed often by members. Opinions varied from total support for Turner to the belief that the city should have fired Turner and retained another engineer. All ISPE members contacted agreed responsible charge was the core issue, but there was no consensus that Turner's supervisors pushed him to do work over which he did not have responsible charge.
An Idaho statute forbids termination of an employee because they refuse to break a law. Turner claimed that he was forced to resign because he refused to seal and sign documents over which he did not have responsible charge. In ruling for the city, the court noted that Turner was hypothetically correct, and that being discharged because of a refusal to seal documents over which one did not have responsible charge would violate public policy. The court found, however, that of the 37 documents Turner refused to seal and sign, 36 were plats or plans by private firms that he was required by law to review and sign off on for the city, but not required to seal and sign. The remaining document was a design done by city staff, which the city claimed was completed essentially under Turner's direction before he was demoted. The court also concluded that Turner retained control of the department's design work, and the fact that he had been relieved of supervisory duties did not preclude him from being in responsible charge of this work.
In dismissing Turner's case, the court concluded that there was no basis for any of Turner's claims, either as a matter in law or fact. Some of the claims were set aside because of improper filing, which has resulted in a malpractice lawsuit by Turner against his original legal counsel. The city also counter-sued Turner for legal costs. Rather than continue an uncertain and costly legal battle, Turner settled with the city, agreed not to appeal his case, and paid the city $10,000 for legal costs.
The fact that the case was never actually tried meant two things. First, the claims and counter-claims were never completely analyzed, debated, and resolved. Second, there was no opportunity for NSPE, ISPE, or anyone else to testify on Turner's behalf, or file a friend-of-the-court brief.
ISPE, NSPE, and the Idaho licensing board have been criticized for not taking a stronger stand in Turner's case. As the ISPE Board of Directors, we felt Turner's situation was, by and large, a personnel grievance issue, and that ISPE's interest was limited solely to the responsible charge issue.
July 2, 2000 Ed Turner Awarded $285,000 in Legal Fees in Legal Malpractice Lawsuit
Ed Turner was completely vindicated in District Court of Kenyon County, Idaho (near Boise). A jury took less than eight hours to render him a verdict and awarded him $285,000 in legal fees. For those of your colleagues who are not familiar with this case, I will briefly summarize the case now.
Ed Turner was the City Engineer of Idaho Falls, Idaho; he was there for over twenty seven years. About four years ago, there was a reorganization of the City Engineering Department, and a non Engineer was put in charge of the Engineering Department. Ed was asked to sign documents over which he did not have responsible charge. Since this violated the Idaho Engineering Statute and the code of ethics for Professional Engineers, Ed refused to sign the documents. Because of his refusal, he was demoted and stripped of all supervisory functions. As a result of intolerable working conditions, Ed resigned. Subsequently, Ed sued the city of Idaho Falls. His case was ultimately thrown out on a technicality. Because he felt could not get a fair trial in Idaho Falls, he decided to settle with the city. He then sued his lawyer for malpractice. Ed was advised to seek legal justice in another jurisdiction because it appeared that he could not get a fair trial in Idaho Falls. After many hardships, the case finally went to trial, and in less two weeks a jury returned a favorable verdict, which completely vindicated Ed and also made him financially whole. The case was finally over and justice rendered on June 23, 2000.
This case is extremely important to the Engineering Profession, in that it re-affirmed the issue of "Responsible Charge" as being central to the discharging of the responsibilities of the Professional Engineer. Although the case was a malpractice lawsuit, Ed's lawyer had to prove that his original case against the city of Idaho Falls would have been won if his original lawyer had not mishandled the case. In essence, Ed's present lawyer had to win two cases which in legal lingo is called the "case within a case"; first he had to demonstrate that the original case which hinged on the issue of Responsible Charge, could have been won if the lawyer had done a proper job. Secondly, he had to demonstrate that his original lawyer had been negligent.
The American Engineering Alliance, along with other Engineering Societies and many members of the Engineering Community, supported Ed and his legal struggle over the years. Now that the Engineering Profession has won this major legal victory, we need to publicize it to the rest of the Engineering Community and the public.
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Trench Boxes And The Construction Site Social Responsibility Versus Legal Liability
http://ethics.tamu.edu/ethics/trench/trench.htm June, 1992
Ethical Issues Of The Case
1) Where does the responsibility of the engineer end and the responsibility of the
construction site contractor begin?
2) Should engineers allow construction workers to endanger their lives by not using trench boxes on-site?
3) Should construction management be held responsible for ensuring that trench boxes are used?
What is their responsibility?
4) If social responsibility comes before legal liability, what would you do in a similar situation,
given that the OSHA regulations make use of trench boxes optional?
Synopsis
Trench digging is one of the oldest types of construction work documented in history. Prior to World War II, trenches were dug by hand. As workers dug trenches deeper, the sides of the trench had to be shored, or supported, to keep the walls of the trench from collapsing. Following the war, innovations were made in cable backhoes, and trench digging disappeared as an established profession. By the 1950's, hydraulically-actuated backhoes were developed, making it possible to rapidly dig very deep trenches. As a result of backhoe innovations, and because there were no workers inside the trenches during digging, trench walls were no longer shored.
All trenches have what is known as a stand-up time. The stand-up time is the time that elapses from the time the trench is dug until the trench walls start collapsing. Stand-up time is dependent on many factors, including soil type, water content, trench depth, weather conditions, and whether or not the soil has been previously disturbed. Stand-up times can be as short as zero seconds or as long as several months, and are difficult to predict. Before trenches are dug, someone can take soil samples as a means of estimating stand-up time; however, soil conditions can be dramatically disparate only a few feet from where the soil sample was taken.
After a trench is dug, workers go down into the trench, performing whatever work is necessary, such as laying pipe or telephone lines, welding pipe, or installing valves. If the walls of the trench are not supported, there is the possibility that the walls will collapse and trap the workers in the trench (see view of trench contained on the following page). Historically, there have been between 100 and 300 people killed in the United States every year due to trench collapses. The state of Texas usually leads the nation in this statistic.
Professional Responsibility And Use Of Trench Boxes
The public has become increasingly aware that industrial progress often has negative side-effects. The place of engineers in protecting the public from these negative effects is a controversial issue. This controversy becomes especially spirited when moral responsibility may appear wider than legal responsibility. The use of trench boxes on construction sites illustrates this debate.
A trench box (also called a trench shield) may be placed in the trench to prevent trench failures from injuring workers. A trench box consists of two large plates, usually made of steel, which are parallel to the walls of the trench, and horizontal cross-members which hold the two plates apart. The lower edge of the box rests on the bottom of the trench, and the top edge extends above the tope of the trench. The workers stay between the plates of the trench box, so that if the wall of the trench collapses, the dirt will be stopped by the trench box. As work progresses, the trench box is pulled along the trench with a backhoe.
Due to the added expense of using the trench box, many contractors are reluctant to use them. They know that if a worker is killed or injured in a trench wall collapse, State Workman's Compensation will cover all medical expenses and reimburse the families of the deceased workers. Barring gross negligence, the families are not allowed to sue in Texas, where about 10-15% of the annual fatalities occur.
When a construction project requires a large excavation, such as digging the foundation for a tall building, the support structure for the excavated walls is specified in the plans. The main problem involving nonuse of trench boxes occurs in cities, when water or sewer lines are being installed or repaired. The engineer usually does not specify the support structure for the trench on the plans, but leaves that to the contractor.
In September 1987, a bill was passed in Texas that required the following: plans for city projects had to include the support structure on the plans, the support structure (or trench box) had to be included in the bid for the project, and the contractor had to install the trench box in the trench. In 1987, before the bill was passed, 18 people died in Texas due to trench wall collapses. In 1988, only two people were killed, and both of these deaths were not the result of a trench box inadequacy.
In January 1990, the law was changed. Plans are now only required to show the Federal Occupational Safety and Health Administration (OSHA) regulation for trench support on the plans, not the actual design of the support system itself. It is up to the contractor to provide a suitable support system for the trench. The OSHA regulation gives the following four ways of providing for proper trench support:
1. Slope the sides of the trench to a specified angle, thus eliminating the need for all support.
2. Look at the soil and determine the type of support required from the tables provided in the OSHA regulation.
3. Hire an engineer to design a suitable support system.
4. Go to a trench wall manufacturer and use their tables for determining the proper support system.
Engineering Design: Literature On Social Responsibility Versus Legal Liability
Introduction
Litigation associated with engineering design has escalated enormously over the last few decades, and has increased the intensity of debates over whether engineers and their companies should give priority to social responsibility or legal liability. Where does a design engineer and his/her company's responsibility end and the responsibility of the subcontractor, manufacturer and consumer begin? Liability is complicated by the fact that law typically lags behind social costs associated with failed design. In other words, legislation is often after-the-fact, so how can an engineering firm justify its actions based on current legal definitions? If a company's design has adverse affects on the public welfare, laws must be enacted to ensure that appropriate safety standards are met. Or, at the very least, legal suits are filed so injured parties can be compensated and culprits penalized. This phenomenon has become particularly critical regarding litigation involving engineering design and product liability.
The public has become increasingly aware that benefits of industrial progress are often associated with negative side-effects. The responsibility of engineers in protecting the public from these side-effects is the focus of a lively debate. This is intensified by the fact that legal liability and social responsibility may not always coincide.1
What should be said about the engineer's and his/her company's social responsibility? Is it not their job to act as society's protector? Should social responsibility not precede any discussion of legal liability? And should a design engineer not take every precaution to ensure his/her company's product is safe before it enters the market? Safety must be an essential design consideration. As Christopher D. Stone notes in his "Where the Law Ends: The Social Control of Corporate Behavior,"
Even if we put aside the defects in the impact of the sanctions, there still remains the problem that law is primarily a reactive institution. Lawmakers have to appreciate and respond to problems that corporate engineers, chemists, and financiers were anticipating (or should have anticipated) long before that the drugs their corporations are about to produce can alter consciousness or damage the gene pool of the human race, that they are on the verge of multinational expansion that will endow them with the power to trigger worldwide financial crises in generally unforeseen ways, and so on. Even if laws could be passed to deal effectively with these dangers, until they are passed a great deal of damage some perhaps irreversible can be done. Thus, there is something grotesque and socially dangerous in encouraging corporate managers to believe that, until the law tells them otherwise, they have no responsibilities beyond the law and their impulses (whether their impulses spring from the id or from the balance sheet). We do not encourage human beings to suppose so. And the dangers to society seem all the more acute where corporations are concerned.2
Social Responsibility for Public Safety An Overview
With corporate decision-making structures as the focus, we find that many of the difficult ethical choices corporate managers and design engineers must make involve conflicts regarding who is responsible for a given activity. Managers and engineers alike have different obligations depending on their role within the corporation. Managers often perceive themselves as having a special duty to protect the financial well-being of the company. Engineering codes assign to engineers special duty to protect the public. Whether these roles are appropriate and especially whether this narrow conception of the role of managers is adequate is a matter of debate. As one writer has put it, "Corporate role morality takes as given precisely what classical moral theory wishes to evaluate, the worthiness of the duties assigned by one's role."3
If engineers do have a special obligation to the health and safety of the public, an engineer must often place his/her social responsibility over the objectives of his/her employer. "Just as we must know the rules of baseball to know what to do with the ball, so we must know engineering ethics to know, for example, whether, as engineers, we should merely weigh safety against the wishes of our employer or instead give safety preference over those wishes."4 Sometimes a cost/benefit analysis is not enough, especially when lives are at stake.
In his "Explaining Wrongdoing," Michael Davis emphasizes the need for professionals to distance themselves from a "microscopic" way of looking at their role within the corporation, to look up from their given tasks to see the larger implications of the work they perform for society. In essence, Davis argues that problems associated with professional ethics center on these fundamental questions of social obligation. Using the famous Challenger disaster as a case study, Davis shows that while no one broke the law in Challenger, there was clearly wrongdoing on the part of Morton Thiokol's managers and engineers. "For an engineer, safety is the paramount consideration. The engineers could not say the launch would be safe. So, Lund should have delayed the launch. Seven people died, in part at least, because he did not do what, as an engineer, he was supposed to do."5 This is not simply limited to highly publicized disasters. In all fields of engineering, concern over safety, and the engineer's responsibility for ensuring it, is paramount. In his "Safety An Important Responsibility," Carlton Robinson argues that safety is an especially critical factor for transport engineers and their managers. Given the volume of traffic on roads, safety must come before cost considerations in highway design and construction. Carlton argues that if, at present, increased safety is not the primary goal in engineering design and construction projects, it should be.6 Safety is a social, not a legal obligation, and engineers and their managers must always keep their obligations to the public welfare at the fore when making design and management decisions.
Another example on the importance of choosing social responsibility over the law involves the Soldier of Fortune guns-for-hire classified advertising cases. In his article, Don Tomlinson asks whether we are first professionals or first human beings. While placing guns-for-hire advertisements was not illegal, it was immoral, and people died because of the advertisements. Soldier of Fortune acted irresponsibly toward the public, and "Law cannot shield anyone from the most basic duty all human beings owe all other human beings: respect for life. Law and ethics are not one and the same. Further, using law as a justification for conduct which is socially irresponsible is socially irresponsible itself."7 The same duties apply to engineering design and management.
Quality engineering is a necessity. This means there is a need for creative engineering and ethical corporate practice. The American Society of Civil Engineering Code of Ethics states that "engineers must hold the public safety, welfare, and health paramount and use our knowledge and skill for the enhancement of human welfare."8 When engineers, managers, corporate owners, contractors, subcontractors and inspectors take pride in and responsibility for their designs the entire engineering profession benefits. According to Charlton Moorman, ethical engineering practice positively affects engineering creativity, and the "engineering profession benefits when ethics are followed and creativity is used by the engineer. When not followed, bad public relations are a possibility for the engineer, the company employing the engineer and the profession in general."9
Professional engineering societies play a significant role in ensuring that safety standards are maintained, and it is imperative that individual professional engineers adhere to what his/her society mandates. Michael Davis notes that in thinking like an engineer, one must remember the place of a code of ethics in the practice of his/her profession:
Engineers should not only do as their profession's code requires, but should also support it less directly by encouraging others to do as it requires and by criticizing, ostracizing, or otherwise calling to account those who do not. They should support their profession's code in these ways for at least four reasons: First, engineers should support their profession's code because supporting it will help protect them and those they care about from being injured by what other engineers do. Second, supporting the code will also help assure each engineer a working environment in which it will be easier than it would otherwise be to resist pressures to do much that the engineer would rather not do. Third, engineers should support their profession's code because supporting it helps make their profession a practice of which they need not feel morally justified embarrassment, shame, or guilt. And fourth, one has an obligation of fairness to do his part insofar as he claims to be an engineer and other engineers are doing their part in generating these benefits for all engineers.10
Sometimes, however, even when engineers meet their design obligations, failures still occur. What is the engineer's responsibility once the design is handed over to a contractor, subcontractor or the consumer? Is the designer liable for aiding others in the use of a product? What criteria can the engineer invoke? In his "Charity and the Duty to Rescue," John Whelan says, "there is not a duty to aid; however, many failures to aid deserve moral criticism; and some of them deserve very serious moral criticism."11 He notes that one must distinguish between morally objectionable failures to aid and those which are merely failures of consideration. They are distinguishable by knowing what the obligations of the rescuer (or in this case, the engineer) are. "Knowledge (or any reasonable belief)...is relevant to any obligation. ...what matters[; however,] is whether you can do something about it."12 In determining whether you are obligated to do something to prevent harm to others, two of his six rules apply directly to engineering design: 1) that there is sufficient professional reason to believe that you can prevent unreasonable danger at little cost to yourself; and 2) that you do not have sufficient reason to believe someone else can prevent harm if you do not.13 This raises serious questions about the meaning of 'safety' and 'unreasonable danger' as design considerations.
One of the problems is that engineers are often not educated to look at notions of "unreasonably dangerous products." In his work, D. Muster uses the analogy of medical health practitioners to encourage a forensic approach to engineering. "Some engineers tend to ignore design considerations that cannot be quantified easily for analysis or, at least, they consider them to be of less importance than others which lend themselves readily to being modelled and analysed."14 For Muster, the real problem engineers face is that they are not properly educated in product liability law and the legal concept of an "unreasonably dangerous product," so they do not fully appreciate when they are ethically obligated to assist others in the product chain.
Strict liability for a defective product falls into three categories, and all three are significant in the chain: design, manufacturing, and marketing. In particular, Muster notes that "A marketing defect is synonymous with the failure of a manufacturer to give adequate warnings and instructions for the proper use of his product."15 This is also true for the designer. When looking at whether there was an "unreasonable" danger, courts test the product as to whether it was: state-of-the-art, an unavoidably unsafe product, misused by the user, or misused in a way that could have been foreseen.
Like the other authors, Muster argues that safety is an essential design consideration, and, given all the educational programs and literature available to engineers, "no designer can claim the information on which to base a safe design is unavailable."16 He further notes, like Stone, that most design changes are directly attributable to product liability litigation, and that safe products are part of good business practice. Thus, safety is seen as the absence of unreasonable danger. Anything short of that can be considered morally unacceptable. Yet, morally unacceptable conduct continues apace, and the amount of litigation escalates. So, let us look at the consequences for the engineering profession.
Legal and Social Consequences for the Engineering Profession
As we have already pointed out, claims against design professionals and their companies are on the increase. Even if the professional engineer believes he/she has done everything to avoid "unreasonable" danger, accidents happen, and designers are increasingly held liable for construction and product mishaps. Engineers must, therefore, familiarize themselves with the legal doctrines of informed consent, novel tort remedies and reforms, third-party liability issues, liability insurance and legislative lobbying techniques.
The legal doctrine of informed consent is based on tort law. In A History and Theory of Informed Consent, a "tort" is defined as "a civil injury to one's person or property that is intentionally or negligently inflicted by another and that is measured in terms of, and compensated by, money damages."17 Any failure to obtain informed consent in situations where it is legally required is considered a "tort." While the book deals almost exclusively with medical ethics, the implications for engineering designers is clear.
In recent years, a novel theory of tort remedy, the "Hedonic tort," is becoming more prominent. The "Hedonic tort" remedy considers as its base the theory of individual happiness, and its attributes include "quality of life factors such as environmental standards, quality of education, weather, and the amounts of time spent pursuing vocations."18 According to Jack Karns, individual happiness is based on three factors: "a. degree of moral virtue, b. degree of good fortune with which the individual is blessed, and c. [and most important for the design engineer's consideration] whether a tragic choice is made based on circumstances beyond someone's control."19 Hedonic damage suits could conceivably ruin a professional's (and his/her firm's) reputation, never mind financial viability to practice. Thus, this theory of tort remedy could have significant impacts on product design, incorporating additional safety features in order to minimize such damage claims.
One of the problems associated with tort reform, however, is the issue of insurance. Because claims have increased substantially in the last few decades, battles over reform have escalated since the early 1980's. As Dennis Schapker notes, many firms have responded to these increased claims by dropping their insurance coverage's of 1990, 21% of all design firms were uninsured. This percentage of uninsured firms does not bode well for the engineering profession as a whole. Thus, he argues that design professionals must get involved in the debate over tort reform.20 This call to action becomes more urgent as designers are increasingly being held responsible for negligence in their work (including the work of their subcontractor), despite written contract disclaimers aimed at defending their interests. Civil Engineering notes that "the privity of contract defense is no longer an absolute shield that design professionals may use to protect themselves from liability to third parties."21 Thus, engineers must know about tort reform and liability insurance in a way that was unnecessary even a few years ago.
While insurance is not an excuse for unprofessional behavior, engineers must know more about it. In his case study of an insurance carrier, Randall Horne notes that, "With the ever-increasing tendency toward litigation, clients have begun to view their design professional's liability insurance as a potential source of full reimbursement for any damages they may incur."22 This can be a paralyzing concept for the engineer, to say the very least. Claims against designers not only mean increased insurance expenses, but also loss of the good will of clients and a tarnished reputation that can harm future business prospective. "Although it may be difficult to assign a monetary value to these losses, it is not difficult to imagine that they could be career or at least business threatening."23
Thus, engineers must get involved, as must their societies. The nature of engineering in the United States means that each state can create unique laws governing the practice of engineering. This has resulted in a liability crisis of the first order. While most recognize the need for engineers to place their social responsibility over issues of legal liability, many petty law suits make practicing as a professional a risky venture. If engineers get involved in the debate over legal liability, perhaps they can spend more time policing themselves, and less time in the court room. Mark Friedlander, a liability attorney, argues that engineers and their societies must acquire the requisite knowledge about liability issues, and then lobby for legislation that will protect them from the ever-increasing litigation crisis. "Among the most costly and frivolous lawsuits are construction-site-accident claims. Engineers ordinarily have no responsibility for construction-site safety. Nevertheless, obtaining indemnity against these claims from the contractor, or defense under the contractor's general liability policy, is difficult. In my experience, such claims constitute most frivolous malpractice claims filed against design professionals."24
If engineers are better educated about the litigation process, perhaps they can better serve society at large. The courts are siding with contractors, which means that the public feels engineers should continue answering for their designs on site. And maybe they should take a more active role. The only way to know for sure that their design instructions are being adhered to is by getting involved, and knowing what both their social as well as legal responsibilities are. Only then can they determine, and influence society at large about, the benefits from their work.
Ethical Issues Of The Case Points For Discussion
In the light of the essay in the previous section, how would you say the social contract between engineering professionals and the public applies to the use of trench walls?
In "Professional Responsibility for Harmful Actions," Martin Curd and Larry May propose the following simplified account of professional responsibility embodying a rather crude model of negligence:
The Malpractice Model of Professional Responsibility: A professional, S, is negligent and hence responsible for the harm he or she causes, if his or her behavior fits the following pattern:
1) as a member of his or her profession, S has a duty to conform to the standard operating procedures of his or her profession;
2) at time t, action X conforms to the standard operating procedures of S's profession;
3) S omits to perform X at time t;
4) harm is caused to some person, P, as a result of S's failure to do X; that is, if S had done X, then the harm to P would not have occurred.25
Is there a violation of this model when engineers allow construction sites to operate without the safety feature of trench boxes? If not, is the model itself defective? If so, how should it be changed? Assume that a patient in a local hospital with a serious malady has a doctor who believes he is not knowledgeable enough about that malady. He goes to his medical colleagues on the hospital staff and asks their advice. They all refuse to talk to him, since the patient is not theirs. They cite possible malpractice liability insurance problems as their reason. They believe existing state-level "good-samaritan" laws will not protect them in these circumstances. Does this mean the patient has to hire the other expert doctors to protect himself? What if the patient is not even aware of their refusal to cooperate and is never told about it? Certainly, this analogy pertains to the use of trench boxes.
Annotated Bibliography
Curd, Martin and May, Larry, "Professional Responsibility for Harmful Actions," Module Series in Applied Ethics, Center for the Studies of Ethics in the Professions, Illinois Institute of Technology, 1984.
This essay explores the grounds on which professionals should be held responsible for harms caused by their actions. Most of the examples are about engineers, designers, and architects involved in real-life cases from tort law.
Davis, Michael, "Thinking Like An Engineer: The Place of a Code of Ethics in the Practice of a Profession," Philosophy & Public Affairs, Vol. 20, No. 2, Spring 1991, pp. 150-167. (see also, "Explaining Wrongdoing," Journal of Social Philosophy, Vol. 20, Numbers 1&2, Spring/Fall 1989, pp. 74-90.)
In these lucid essays, Davis argues that "a code of professional ethics is central to advising individual engineers how to conduct themselves, to judging their conduct, and ultimately to understanding engineering as a profession." Using the now infamous Challenger disaster as his model, Davis discusses both the evolution of engineering ethics as well as why engineers should obey their professional codes of ethics, from both a pragmatic and ethical point of view. Essential reading for any graduating engineering student.
Muster, D., "Safety and Reasonable Danger as Design Criteria for Engineers: Some Effects of Products Liability Law on Engineering Design," Proceedings of the Institution of Mechanical Engineers, Part B, Journal of Engineering Manufacture, Vol. 204, No. B3, 1990, pp. 185-190.
This paper discusses issues of safety and the concept of "unreasonable" danger in engineering design. Using a medical analogy, Muster argues that engineers must aim at forensic engineering, relying on moral considerations as well as technical considerations in design. He further discusses product liability laws and their impact on engineering design.
Faden, Ruth R. and Beauchamp, Tom L., "A History and Theory of Informed Consent," New York: Oxford University Press, 1986.
This book defines and discusses the legal doctrine of informed consent, by looking at tort and constitutional law as it applies to medical ethics. Although written for and about medical ethics, the book's message has value for engineering ethics as well.
Friedlander, Mark C., "A Legislative Agenda to Curb Liability Lawsuits," Consulting/Specifying Engineer, Vol. 7, March 1990, pp. 27-32.
Attorney Friedlander argues that professional societies must get involved in lobbying for legislation that protects engineers against frivolous malpractice claims.
Horne, Randall M., "Understanding Terra RRG Professional Liability Insurance," Journal of Professional Issues in Engineering, Vol. 116, July 1990, pp. 239-249.
This article presents a case study of one insurance carrier. Horne shows how important it is for engineers to understand liability insurance, especially given the rise in litigation in the past decades.
Karns, Jack P., "Economics, Ethics and Tort Remedies: Emerging Concept of Hedonic Value," Journal of Business Ethics, Vol. 9, September 1990, pp. 707-713.
This article discusses a novel tort remedy, the Hedonic tort, based on the concept of quality of life and the theory of individual happiness. He argues that this tort remedy will have a significant impact on product design, as a move is made to ensure greater product safety.
"Liability of a Design Professional for Impact Costs of a Subcontractor," Civil Engineering (American Society of Civil Engineers), Vol. 59, January 1989, p. 30.
This article shows how design engineers are being held responsible for negligence in both their work and the work of their subcontractors.
Moorman, Charlton Kent, "Does Ethical Engineering Practice Affect Creativity?", Civil Engineering (American Society of Civil Engineers), Vol. 59, November 1989, pp. 68-69.
This short article stresses the importance of ethical behavior for engineering creativity. Moorman argues that engineers must hold the public safety foremost while designing for the market.
Nesteruk, Jeffrey, "The Ethical Significance of Corporate Law," Journal of Business Ethics, Vol. 10, No. 9, September 1991, pp. 723-727.
In this article, the focus is on corporate decision-making structures, and conflicts regarding particular role obligations. Nesteruk argues that as laws change, so do the roles of people in the corporate hierarchy, thereby creating problems for the legal aspects of corporate social responsibility.
Robinson, Carlton C., "Safety--An Important Responsibility," ITE Journal (Institute of Transportation Engineers), Vol. 61, No. 7, July 1991, pp. 21-24.
This article discusses safety as a critical ingredient for transport engineers and their managers.
Schapker, Dennis R., "Tort Reform and Design Professionals," Journal of Professional Issues in Engineering, Vol. 116, July 1990, pp. 258-265.
This article discusses the battle over tort reform and how it has affected the engineering profession since 1980. It is a call for engineers to get involved in the debate.
Stone, Christopher D., "Where the Law Ends: The Social Control of Corporate Behavior," New York: Harper & Row, 1975.
This book looks at corporate moral behavior; in particular, how law is a reaction to misdeeds in business behavior. Stone provides a thorough, albeit negative analysis of corporate ethics, and provides recommendations for promoting ethical behavior. Although written in 1975, the book still holds value for the student interested in the issue of social responsibility versus legal liability.
Tomlinson, Don E., "Choosing Social Responsibility Over Law: The Soldier of Fortune Classified Advertising Cases," Business and Professional Ethics, Vol. 9, Nos. 1&2, Spring-Summer 1990, pp. 79-96.
This article discusses the ethics of the Soldier of Fortune's guns-for-hire advertisements that resulted in several murders across the United States.
Whelan, John M. Jr., "Charity and the Duty to Rescue," Social Theory and Practice, Vol. 17, Fall 1991, pp. 441-56.
This article discusses those classes of action and inaction that can be seen as morally objectionable failures to aid. He argues that one cannot simply weigh the competing interests of the savior and victim, that what matters is whether, as a professional, you are in a position to help.
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Reference: http://courses.washington.edu/cee440/ETHICS1B.htm