Ethics and professional practice

This chapter covers the following topics:

• Codes of ethics: the NCEES Model Rules, the NSPE Code, and the ASCE Code
• Professional liability
• Licensure
• Contracts and contract law

Ethics questions on the FE are short scenarios with one defensible answer. That answer is almost always the one that protects the public, stays within the engineer’s competence and authority, and is honest with everyone involved. The skill being tested is recognizing which obligation a scenario turns on.

Codes of ethics

Engineering is a licensed profession because its failures endanger people who never agreed to the risk. Two kinds of code govern an engineer’s conduct:

• Rules of professional conduct adopted by each state licensing board. These carry the force of law, and violating them can cost a licensee their license.
• Codes of ethics published by professional and technical societies such as NSPE and ASCE. These bind members of the society and set expectations for the profession, but a society cannot revoke a license.

NCEES rules of professional conduct

NCEES, which writes the FE exam, publishes Model Rules that many state boards draw on for their own rules of professional conduct. The Model Rules state that they are “binding upon every licensee and on all firms authorized to offer or perform engineering or surveying services” in the jurisdiction that adopts them. They group a licensee’s obligations three ways.

Obligations to the public

• A licensee’s “first and foremost responsibility is to safeguard the health, safety, and welfare of the public.”
• When a licensee’s professional judgment is overruled in a way that endangers public health, safety, or welfare, the licensee must notify “their employer or client and such other authority as may be appropriate.”
• A licensee who has knowledge or reason to believe that anyone has violated the laws or rules governing engineering or surveying practice must report it to the board.

Obligations to employers and clients

• Undertake assignments only when qualified by education or experience in the specific technical field involved.
• Sign or seal only documents that are within your competence and that were prepared under your responsible charge.
• Keep information obtained in a professional capacity confidential unless the client, employer, or public body served consents, or law or rules authorize or require disclosure.
• Don’t solicit or accept gratuities from contractors or others in connection with work for an employer or client.
• Disclose all known or potential conflicts of interest - anything that could influence, or appear to influence, your judgment.
• Don’t accept compensation from more than one party for services on the same project unless the circumstances are fully disclosed and agreed to in writing by all interested parties.

Obligations to other licensees

• Don’t offer, give, solicit, or receive a commission, gift, or other valuable consideration to secure work, and don’t make a political contribution intended to influence the award of a public contract.
• Don’t maliciously or falsely injure another licensee’s professional reputation.
• Make a reasonable effort to tell another licensee when you believe their work contains a material error that may affect public health, safety, or welfare.

The NSPE code

The National Society of Professional Engineers’ Code opens with six fundamental canons. Engineers, in fulfilling their professional duties, shall:

1. Hold paramount the safety, health, and welfare of the public.
2. Perform services only in areas of their competence.
3. Issue public statements only in an objective and truthful manner.
4. Act for each employer or client as faithful agents or trustees.
5. Avoid deceptive acts.
6. Conduct themselves honorably, responsibly, ethically, and lawfully so as to enhance the honor, reputation, and usefulness of the profession.

The NSPE Code does not rank its canons by their order. Canon 1’s “hold paramount” is what places public safety above every other duty, including faithful service to an employer or client under canon 4.

The ASCE code

The American Society of Civil Engineers reorganized its code in 2020 around five stakeholders, listed in order of priority when their interests conflict:

1. Society
2. Natural and built environment
3. Profession
4. Clients and employers
5. Peers

Within a group no duty outranks another, with one exception: the first duty to society - “first and foremost, protect the health, safety, and welfare of the public” - takes precedence over every other responsibility in the code.

Reading an ethics scenario: a useful rule of thumb when duties collide is public safety first, then honesty, then loyalty to the client or employer. An answer that keeps a client happy by staying quiet about a hazard is never correct, and neither is one that goes straight to the press before notifying the client and the appropriate authority. The FE Reference Handbook has its own Ethics and Professional Practice chapter, so read through it once before exam day.

Example: A gift from a supplier

An engineer is preparing a recommendation for a client on which pump supplier to use. One supplier offers the engineer tickets to a professional sporting event. What should the engineer do?

The tickets are a gratuity from a party with an interest in the engineer’s recommendation. Accepting them violates the rule against gratuities and creates, at minimum, the appearance of a conflict of interest.

Answer: Decline the tickets.

Example: Judgment overruled

An engineer finds that a retaining wall under construction beside a public sidewalk lacks the drainage the design requires, and the wall could fail onto the sidewalk. The client decides to proceed without the drainage to save money. What must the engineer do?

Answer: Notify the client of the danger (in writing is good practice) and, because the public is at risk, notify the appropriate authority, such as the local building official. Staying silent to preserve the client relationship is not an option.

Example: Sealing someone else’s drawings

A firm asks a licensed engineer to seal a set of drawings prepared by an unlicensed designer the engineer has never supervised. May the engineer seal them?

Answer: No. A licensee may seal only work prepared under their responsible charge. Reviewing a finished set is not the same as having exercised control over the work.

Professional liability

Engineers are held legally accountable for their professional services.

Definitions

Standard of care

The level of skill and care that a reasonably prudent engineer would exercise under similar circumstances, at the same time and in the same or a similar locality. An engineer is not a guarantor of a perfect result.

Negligence

Failure to meet the standard of care, causing harm.

A negligence claim generally requires four elements: a duty owed to the injured party, a breach of that duty, causation linking the breach to the harm, and actual damages. An error that harms no one is not actionable negligence, and harm that would have happened anyway was not caused by the error.

Liability reaches an engineer in two main ways:

• Contract liability runs to the parties to the contract, for failing to do what the contract promised.
• Tort liability can run to third parties with no contract at all - a member of the public injured by a negligently designed structure, for example.

Engineers manage this exposure with professional liability (errors and omissions) insurance and through contract terms: a standard-of-care clause, a limitation-of-liability clause, and indemnification provisions that allocate who pays if a claim arises. Promising a guaranteed result is a risk in itself, because it can hold the engineer to perfection rather than to the standard of care. Claims are also time-limited. A statute of limitations typically runs from when an injury occurs or is discovered. A statute of repose runs from the substantial completion of a project and bars a claim once its period ends, even if the defect has not yet been discovered. Every state has statutes of limitations, and nearly all add a statute of repose for design and construction claims, with periods that vary by state.

A society’s code of ethics is not a legal standard of care. The ASCE Code says so directly: “This Code does not establish a standard of care, nor should it be interpreted as such.”

Licensure

Each state and territory licenses engineers to protect the public. Licensure is by jurisdiction: an engineer licensed in one state may not practice, or offer engineering services to the public, in another state without being licensed there too. Many boards grant licensure to engineers already licensed elsewhere (often called licensure by comity or endorsement), but it is still a separate license from each board.

Under the NCEES Model Law, the usual path has two stages:

• Engineer intern (EI): a qualifying degree (such as an EAC/ABET engineering degree or an ETAC/ABET engineering technology degree) plus passing the FE exam. Some states still use the older title engineer in training, or EIT.
• Professional engineer (PE): passing the FE and the Principles and Practice of Engineering (PE) exam, plus any jurisdiction-specific exam, and a record of four years of progressive engineering experience after an EAC/ABET engineering degree. After an engineering technology degree the Model Law requires six years, and a graduate engineering degree can substitute for part of the experience.

Each board sets its own requirements, so these are the model rather than a universal rule.

Definitions

Responsible charge

Full professional knowledge of and control over engineering work. The engineer in responsible charge has the authority to review, change, reject, or approve the work, is personally aware of the project’s scope and requirements, can answer questions about the engineering decisions, and accepts full responsibility for the work.

Seal

The licensee’s official mark, applied to documents with a signature to show they were prepared under the licensee’s responsible charge. A seal may be placed only on work that was under the licensee’s responsible charge and within the licensee’s competence.

Many boards also require continuing education, measured in professional development hours, to renew a license, and many require a firm that offers engineering services to hold its own authorization to practice.

Example: Practicing across state lines

An engineer licensed in Ohio is asked to design a drainage system for a site in Indiana. What does the engineer need before offering the work?

Answer: An Indiana license. Licensure is granted by each jurisdiction, and an Ohio license does not authorize practice in Indiana.

Contracts and contract law

A contract is a legally enforceable agreement. For a contract to be valid it needs:

• An offer and an acceptance of that offer (together, mutual agreement)
• Consideration - something of value exchanged by each party
• Competent parties - each legally capable of entering a contract
• A lawful purpose

Oral contracts can be binding, but they are hard to prove, and some agreements must be in writing to be enforceable. Engineering agreements should always be in writing.

Breach and remedies

A party that fails to perform as promised is in breach. The usual remedy is compensatory damages, which put the injured party where it would have been had the contract been performed. Construction contracts often set liquidated damages in advance - a fixed amount per day of late completion - which are enforceable when they are a reasonable forecast, made at signing, of a loss that would be hard to prove, rather than a penalty. Changes to the work are made through a written change order, which adjusts scope, price, time, or all three.

How the contractor gets paid

The payment terms decide who carries the risk that the work costs more than expected.

A lump sum suits a fully designed project. Unit prices suit work whose quantities can’t be known in advance, such as excavation in uncertain ground. Cost-plus suits urgent or poorly defined work, and a cost-plus contract with a percentage fee gives the contractor no incentive to control cost, since the fee grows as the cost does. How those contracts are procured and bonded, and the project delivery methods they sit inside, are covered in the construction engineering chapter.