This is the October 2024 edition of our 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.
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Your opinion has been registered for the October 2024 edition of our monthly series of Ethics case studies titled What Do You Think?
Your vote is recorded as:
Want to know how your peers voted? We’ll send you an email with the poll results on October 22.
A Review of the Facts
Engineer Annie is retained by an architect to provide mechanical engineering services in connection with the design of a small office building. Annie performs her services and thereafter a dispute arises between Annie and the architect as to Annie’s final compensation for her services. The issue is never finally resolved. Several months later, the owner, who retained the architect on the project, requested that Annie provide him with a copy of the final record drawings in order to perform certain work on the building which does not involve issues of safety or health. The owner offers to pay Annie the cost of reproduction and any administrative staff costs and to attempt to mediate the dispute between Annie and the architect. Annie refuses to provide the owner with a copy of the drawings and declines the owner’s offer to mediate the dispute.
What Do You Think?
Was it ethical for Annie to refuse to provide the owner with a copy of the drawings and to decline the owner’s offer to attempt to mediate the dispute between Annie and the architect?
Applicable NSPE Code References:
I.1
“Engineers, in the fulfillment of their professional duties, shall hold paramount the safety, health and welfare of the public.”II.4
“Engineers shall act for each employer or client as faithful agents or trustees.”
Discussion
The facts presented in this case touch upon a sensitive ethical issue faced by engineers-what are the third-party ethical responsibilities of the engineer who is involved in a contract dispute?
The NSPE Code of Ethics is patently clear in Code I.1, but that language, standing alone, does not provide a significant amount of guidance to us in considering the facts before us. The language in Code II.4, on its face, does not provide much clarity to us in the context of this case because it is unclear whether the engineer has an ethical obligation to the owner who is neither an employer nor a client under the facts.
While the Board has heretofore not addressed a case such as this, we have addressed at least one case that might provide us with some direction. In Case 67-3, Engineer X was retained by a municipality to prepare plans and specifications for a comprehensive sanitary sewer program. After approximately 80 percent of the total project was constructed in subsequent years, Engineer X’s contract was terminated and he was paid in full for his services.
Ten years later, the municipality retained another engineer to revise and update the plans and specifications prepared by Engineer X. The municipality requested Engineer X to provide it with originals or copies of the plans and specifications that Engineer X had in his possession, offering to pay Engineer X the cost of reproduction. Engineer X refused to comply with the request. The original contract was silent as to ownership of the plans and specifications, but did contain a clause stating that: “If the City requires more than six complete sets of final plans, specifications, and documents, the Engineers agree to provide any number of additional copies for no more than blueprinting, mimeographing and mailing costs.”
In finding that Engineer X was ethically obligated to provide the originals or copies of the plans to the municipality, the Board noted that as a general rule in the absence of a contract provision on ownership of plans, the plans and contract documents are the property of the client. Moreover, we noted that Engineer X’s refusal to cooperate will put the municipality at unnecessary additional expense to the extent that the second engineer would be required to expend additional time to investigate the work done under the earlier contract as related to the work to be performed. We noted that this situation would not be in accord with the mandate of the Code in that Engineer X was not regarding his duty to the public welfare as a paramount consideration. Of considerable note, the Board concluded by stating: “Under the (original) contract, Engineer X was obligated to furnish additional copies of the plans to the client upon request. The fact that the contract is now terminated, regardless of the legal position of the parties, should not be used by him as a means of technical avoidance of his ethical obligation to serve the interests of the client without any cost to Engineer X. The ethical duty is supported by the dictate Code 1.”
Under the facts of the instant case, it is clear that Annie was retained by the architect and not the owner. From a purely technical standpoint, therefore, it was the architect and not the owner who was the “client” and arguably any potential ethical obligations owed by Annie to a “client” were owed to the architect and not to the owner. However, this preliminary conclusion has to be weighed against other circumstances which take into consideration other provisions of the Code of Ethics and the practical realities of professional relationships.
First, as we noted in Case 67-3 as a general rule, in the absence of a contractual provision to the contrary, the drawings, plans, and specifications prepared by an engineer for a client are the property of the client. While we are mindful of our preliminary conclusion that technically, it was the architect and not the owner who was the “client” of the engineer, we believe the Code should be read flexibly, particularly where the service being rendered by the engineer is being incorporated into a larger design plan for the benefit of a client. In this larger context, the term “client” should be interpreted more broadly to encompass the owner-the ultimate “beneficiary” of the services that Annie has been retained to provide, and the one who, however indirectly, has provided compensation for her services.
In addition, as noted in Case 67-3, there exist additional professional obligations of which Annie must be mindful. Annie’s refusal to provide the owner with copies of the drawings until her dispute with the architect is resolved could potentially jeopardize the economic value of his building. Placing the jeopardy in this manner contravention of Ethics.
Finally, we are troubled by Annie’s arbitrary refusal of the owner’s offer to mediate the dispute between Annie and the architect. Neither Annie’s interest in a resolution of her dispute with the architect nor the owner’s interest in obtaining a copy of the record drawings were well served by her refusal. Annie’s refusal was neither within the letter nor the spirit of Code II.4 of the Code of Ethics.
The Ethical Review Board’s Conclusion
It was unethical for Annie to refuse to provide the owner with the drawings and to decline owner’s offer to attempt to mediate the dispute between Annie and the architect.
BOARD OF ETHICAL REVIEW
Eugene N. Bechamps,; 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
Note – In regard to the question of application of the Code to corporations vis-a-vis real persons, business form or type should not negate nor influence conformance of individuals to the Code. The Code deals with professional services, which services must be performed by real persons. Real persons in turn establish and implement policies within business structures. The Code is clearly written to apply to the Engineer and it is incumbent on a member of NSPE to endeavor to live up to its provisions. This applies to all pertinent sections of the Code. 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.
Annie owed nothing to the owner, who was not her client. The discussion mentions “Annie’s arbitrary refusal of the owner’s offer to mediate”. Annie’s refusal was most likely not arbitrary. The fact that the owner could not get the drawings from the Architect, who was hired by the owner and who already had the drawings, tells us that there were deeper problems. The owner’s offer to pay for the cost of copies is trivial; and the offer to mediate didn’t go far enough. The owner should have offered fair compensation for Annie’s work, then the owner could take the matter up with the Architect separately.