This is the September 2019 edition of PDHengineer’s monthly series of Ethics case studies titled What Do You Think? This series is comprised of case studies from NSPE archives, involving both real and hypothetical matters submitted by engineers, public officials and members of the public.

Your peers and the NSPE Board of Ethical Review have reviewed the facts of the case as shown below. And, here are the results.

A Review of the Facts

Engineer Tammy is employed by Firm Y, a medium-sized engineering consulting firm controlled by Engineer Greg. Tammy is one of a few engineers in Firm Y with expertise in hydrology, but the firm’s work in the field of hydrology does not constitute a significant percentage of the firm’s work. Tammy, an associate with the firm, gives two weeks notice of her intent to move to another firm. Thereafter, Greg, a principal in Firm Y, continues to distribute a brochure identifying Tammy as an employee of the firm and list Tammy on the firm’s resume.

Is it ethical for Greg to continue to represent Tammy as an employee of Firm Y under the circumstances described?

Here is the result of our survey of your peers:

17% Ethical. 83% Not Ethical

Applicable NSPE Code References:
Code II.3a: Engineers shall be objective and truthful in professional reports, statements, or testimony. They shall include all relevant and pertinent information in such reports, statements, or testimony, which should bear the date indicating when it was current.
Code II.5a: Engineers shall not falsify their qualifications or permit misrepresentation of their or their associates’ qualifications. They shall not misrepresent or exaggerate their responsibility in or for the subject matter of prior assignments. Brochures or other presentations incident to the solicitation of employment shall not misrepresent pertinent facts concerning employers, employees, associates, joint venturers, or past accomplishments.

Discussion

In recent years, the engineering profession, much in the same manner as the legal and medical professions, has seen a virtual explosion of activities on the part of individual practitioners as well as firms to heighten their level of recognition in the eyes of prospective clients. With the virtual elimination of legal as well as ethical proscriptions which for many years limited the ability of engineers and other professional groups to advertise, we have entered a “brave new world” where it often seems “anything goes.”

The Board has had occasion to consider a case similar to the instant case. In Case BER 83-1, Engineer Andy worked for Engineer Bill. Bill notified Andy that Bill was going to terminate Andy because of lack of work. Andy continued to work for Bill for several additional months after the termination notice. During that period, Bill distributed a previously printed brochure listing Andy as one of Bill’s key employees, and continued to use the previously printed brochure with Andy’s name in it well after Bill did in fact terminate Andy.

The Board ruled that it was not unethical for Bill to distribute a previously printed brochure listing Andy as a key employee providing Bill apprised the prospective client during negotiation of Andy’s pending termination. The Board also ruled that it was unethical for Bill to distribute a brochure listing Andy as a key employee after Andy’s actual termination.

Interpreting the meaning of Code II.5a, we noted that the words “pertinent facts” are those facts that have a clear and decisive relevance to a matter at hand. Another way to characterize pertinent facts is as those that are “relevant and highly significant.” We determined whether (1) Bill in fact misrepresented “pertinent facts” and (2) whether it was the intent and purpose of Bill to “enhance the firm’s qualifications and work.” We noted that both factors must be present for a violation of Code II.5a to exist.

We concluded that the inclusion of the name of Andy in the firm’s brochure constituted a misrepresentation of “pertinent facts” because the names of the firm’s members are often quite significant to the client selecting the firm. The client may be familiar with an individual member of the firm as represented in the brochure.

In BER Case 83-1, a second point which we considered was whether it was the “intent and purpose” of Bill to “enhance the firm’s qualifications and work” by including Andy’s name in the promotional brochure after Andy left the firm. The facts presented in the case demonstrated that Bill acted with “intent and purpose” in distributing the misleading brochure. Bill distributed the brochure while Andy was still employed but had been given a notice of termination. The Board noted that this could easily mislead potential clients into believing that Andy, noted as a key employee, would be available in the firm for consultation on future projects. Moreover, Bill distributed the brochure after Andy had left the firm. The Board concluded that this would be a clear misrepresentation of a pertinent fact with the intent to enhance the firm’s qualifications and as such constituted a violation of the Code.

Reviewing the facts involved in the present case, we are of the view that the facts while similar, are different in one important area. In the BER Case 83-1, Andy was highlighted in the firm’s promotional brochure as a “key employee.” Under the totality of the facts and circumstances of the case, it was apparent that Bill’s continued inclusion of Andy’s name in the brochure constituted an overt misrepresentation of an important fact concerning the overall make-up of the firm.

Under the facts of the instant case, there is no suggestion that any of the brochures or other promotional material describe Tammy as a “key employee” in the firm. Nor is there any effort or attempt on the part of Firm Y to highlight the activities or achievements of Tammy in the field of hydrology. While the facts reveal that Tammy is one of the few engineers in the firm with expertise in the field of hydrology, Tammy is not the only engineer in the firm who possesses such expertise. In addition, it appears that this area of practice does not constitute a significant portion of the services provided by Firm Y; therefore it would seem to us that the inclusion of the name of Tammy in the firm’s brochure and resume would not constitute a misrepresentation of “pertinent facts.”

In addition, unlike BER Case 83-1, we are reluctant to conclude that the actions of Firm Y and Greg in including the name of Tammy in the firm’s brochure and resume demonstrate an intent to “enhance the firm’s qualifications and work.” In the present case, there does not appear to be the same motive on the part of the principal engineer or the firm to act in a manner which will materially benefit the firm as was so in BER Case 83-1. Here the action by Firm Y and Greg appear more in the manner of an oversight without malice or intent.

Having said this, we must make clear that we are not condoning the failure of an engineering firm to correct material (brochures, resumes, etc.) which might have the unintentional effect of misleading clients, potential clients and others. While we recognize the realities of firm practice and the logistical problems involved in marketing and promotion, we do believe it is important for firms to take actions to expeditiously correct any false impressions which might exist.

In this regard we believe engineering firms that use printed material as part of their marketing efforts should take reasonable steps to assure that such written matter is as accurate and up-to-date as possible.

The Ethical Review Board’s Conclusion

It is ethical

It was not unethical for Greg to continue to represent Tammy as an employee of Firm Y under the circumstances described.

BOARD OF ETHICAL REVIEW
John F. X. Browne, P.E.; William A. Cox, Jr., P.E.; Herbert G. Koogle, P.E.-L.S.; Paul E. Pritzker, P.E.; Harrison Streeter, P.E.; Otto A. Tennant, P.E.; Lindley Manning, P.E., Chairman

*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 it 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.