1. Yrd. Doç. Dr. Serkan Kıvrak
İNŞ 239 İNŞAAT MÜHENDİSLİĞİNDE HUKUKSAL YAKLAŞIMLAR VE ETİK Ders Notları-5
Yrd. Doç. Dr. Serkan Kıvrak

2. EXAMPLE (Case No. 99-6)
Engineer A, a member of NSPE, is employed by the FGH Construction Company and works closely with Engineer B who is an employee of LMN Supplies. LMN Supplies sells construction materials and supplies. Part of Engineer A’s responsibilities are to negotiate and approve bids by LMN Supplies that are submitted by Engineer B. LMN Supplies offers, and Engineer A accepts, an employment position with LMN Supplies. Engineer A submits his resignation and gives two weeks notice to FGH Construction Company and is not asked and does not mention that he will be employed by LMN Supplies. For the next two weeks before leaving FGH Construction Company, Engineer A continues to negotiate and approve bids submitted by LMN Supplies.

3. EXAMPLE
(Case No. 99-6)
Question:
Was it ethical for Engineer A to fail to mention to FGH Construction Company that he will be employed by its vendor LMN Supplies?

4. References: (Case No. 99-6)
EXAMPLE
(Case No. 99-6)
References:
Section II.3.a. - Code of Ethics: 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.
Section II.4.a. - Code of Ethics: Engineers shall disclose all known or potential conflicts of interest which could influence or appear to influence their judgment or the quality of their services.
Section III.3.a. - Code of Ethics: Engineers shall avoid the use of statements containing a material misrepresentation of fact or omitting a material fact.

5. EXAMPLE
(Case No. 99-6)
The departure of an employee to an allied company can raise ethical concerns as can the situation when an employee moves over to a competing company. Although on the surface, the departure of the employee might provide both companies with benefits by allowing the two companies to strengthen their relationship and enhance communications between the two companies, there are also conflicts that can arise in the arrangement. The facts in this case identify a clear conflict, or at least the appearance of a potential conflict, faced by the employee involved in the transition.

6. EXAMPLE
(Case No. 99-6)
By not informing FGH Construction, Engineer A’s actions will most probably raise some doubt in the minds of the supervisors and perhaps owners of FGH Construction about whether Engineer A’s continued negotiation and approval of bids submitted by LMN Supplies were somehow tainted and could have resulted in inflated costs to FGH Construction or other unearned competitive advantages for the benefit of Engineer A’s new employer, LMN Supplies.

7. EXAMPLE
(Case No. 99-6)
Engineer A’s failure to fully disclose his new position with LMN Supplies, and to continue to negotiate and approve LMN Supplies’ bids to his current employer, was not in accordance with the spirit or the intent of the NSPE Code. His actions want for the highest standards of honesty and integrity expected of engineers, and were not circumspect.

8. Conclusion (Case No. 99-6)
It was not ethical for Engineer A to fail to mention to FGH Construction Company that he will be employed by its vendor LMN Supplies.

9. EXAMPLE (Case No. 99-5)
Engineer A’s firm is attempting to increase its staff capacity and after publishing a series of advertisements in local and national job classified publications, decides to send out recruitment postcards to engineers in the local and state engineering community. Using the state board registry of professional engineers, the firm sends the unsolicited postcards out to individual engineers at the address listed in the directory announcing Engineer A’s firm’s interest in recruiting new engineer employees. Such mailings are not prohibited by the state board. Many of the cards are sent to the individual engineers at their firm’s address.

10. EXAMPLE
(Case No. 99-5)
Question:
Was it ethical for Engineer A’s firm to send postcards out to individual engineers in the manner described?

11. References: (Case No. 99-5)
EXAMPLE
(Case No. 99-5)
References:
Section III.3. - Code of Ethics: Engineers shall avoid all conduct or practice which deceives the public.
Section III.3.a. - Code of Ethics: Engineers shall avoid the use of statements containing a material misrepresentation of fact or omitting a material fact.
Section III.3.b. - Code of Ethics: Consistent with the foregoing, Engineers may advertise for recruitment of personnel.
Section III.7. - Code of Ethics: Engineers shall not attempt to injure, maliciously or falsely, directly or indirectly, the professional reputation, prospects, practice or employment of other engineers. Engineers who believe others are guilty of not ethical or illegal practice shall present such information to the proper authority for action.

12. EXAMPLE
(Case No. 99-5)
In today’s employment environment, with employers of engineers scrambling to maintain a competent workforce, many employers are attempting more aggressive employment recruitment and retention approaches. It appears that in times of heightened competition, whether for engineering services or for
engineering employees, sometimes ethical considerations are minimized and even lost as firms attempt to do what is necessary to stay in business and prosper.

13. EXAMPLE
(Case No. 99-5)
Over the past decades, the culture of employment has changed from steady progression within a single company or firm to one where young engineers must plan on a substantial number of employment changes in the course of their careers. Employers, in an age of increasing competition, increasingly rely on relatively short term hiring of professionals to meet changing market demands. Free and open communication of available positions is critical in meeting today’s market demands.

14. EXAMPLE
(Case No. 99-5)
Reflecting this changing culture, since the 1970s, the Code has placed increasingly less emphasis on the style and methods of recruitment while steadfastly maintaining standards of integrity of recruitment statements. The facts in this case do not include any improprieties in the contents of the postcards. Instead, they center upon the method of distribution to prospective clients.

15. EXAMPLE
(Case No. 99-5)
Nevertheless the method used does raise at least two potential problems. By sending out a mass unsolicited mailing to an engineering licensure board list of professional engineers in the state, Engineer A would invariably be sending the solicitation in at least some cases to the business addresses of those professional engineers. The Board does not believe this type of solicitation crosses the line and employer should be expected to accept incoming correspondence from competing firms soliciting its employees for positions with that competing firm.

16. EXAMPLE
(Case No. 99-5)
Using company resources and time to process such material is a minor inconvenience which any employer can be expected to tolerate. This is much different than situations where employees use equipment, supplies, laboratory, or other office facilities of an employer to carry on an outside business.

17. EXAMPLE
(Case No. 99-5)
By sending unsolicited letters to firms of various sizes, Engineer A’s actions might have the unintended effect of causing unknowing employers in firms receiving the letters to conclude, without more information, that their employees are soliciting information or actively seeking employment elsewhere and doing so on company time. This could have the effect of straining relations within the firm and cause misunderstanding and mistrust within the firm. However, the Board does not believe this issue rises to an ethical violation.

18. Conclusion (Case No. 99-5)
It was ethical for Engineer A’s firm to send postcards out to individual engineers in the manner described.

19. EXAMPLE (Case No. 99-3)
Engineer A is employed by Company X and as part of her job, Engineer A organizes continuing education seminars (i.e., contacting speakers, making meeting arrangements, etc.) for Company X. Company Y, a company that competes for business with Company X, is aware of Engineer A’s track record in organizing effective and well-received continuing education seminars and requests that Engineer A organize a continuing education seminar for Company Y’s architects, engineers, and surveyors, whereby Company Y would pay Engineer A for such services. Engineer A agrees to provide the services to Company Y. Engineer A tells her supervisor about establishing the continuing education business but does not mention that the services will be provided to Company Y, a competitor of Company X. Her employer, Company X, does not object.

20. EXAMPLE
(Case No. 99-3)
Question:
Was it ethical for Engineer A to agree to provide continuing education seminar services to Company Y?

21. References: (Case No. 99-3)
EXAMPLE
(Case No. 99-3)
References:
Section II.4. - Code of Ethics: Engineers shall act for each employer or client as faithful agents or trustees.
Section III.1.c. - Code of Ethics: Engineers shall not accept outside employment to the detriment of their regular work or interest. Before accepting any outside engineering employment, they will notify their employers.
Section III.3.a. - Code of Ethics: Engineers shall avoid the use of statements containing a material misrepresentation of fact or omitting a material fact.
Section III.6.b. - Code of Ethics: Engineers in salaried positions shall accept part-time engineering work only to the extent consistent with policies of the employer and in accordance with ethical considerations.

22. EXAMPLE
(Case No. 99-3)
There is clearly merit in having engineers work to promote and expand engineering education opportunities for engineers and other design professionals. With the increasing interest in continuing professional competency, life-long learning, and other educational programs, there will undoubtedly be a great need for knowledgeable and experienced engineers and others to provide services for the benefit of the engineering profession. Certainly the efforts of engineers such as Engineer A should generally be encouraged in order to meet the needs of all elements of the engineering profession.

23. EXAMPLE
(Case No. 99-3)
At the same time, the Board is somewhat concerned about aspects of and the manner in which Engineer A pursued her activities in this area. The NSPE Code makes clear that before accepting outside employment, an engineer has an obligation to notify the engineer’s employer. While it is true that under the facts, Engineer A did notify her employer that fact that she was establishing a continuing education business, Engineer A failed to fully disclose that she would be working for the benefit of a competitor of her employer.

24. EXAMPLE
(Case No. 99-3)
Her failure to provide this critical information did not permit her employer with the opportunity to make an informed decision concerning her outside employment. In passing, the Board would note that Engineer A’s firm, Company X, will most probably learn that Engineer A is providing services to Company Y and in view of her failure to inform Company X, of this fact when informing the company of her decision to establish a continuing education business, the consequences to Engineer A may be severe.

25. EXAMPLE
(Case No. 99-3)
The Board was not certain of all of the facts and details involved in Engineer A’s decision not to inform her employer of her relationship with Company Y. It may have been as simple as the fact that Engineer A believed that Company X would have objected to this relationship and Engineer A, therefore, decided not to fully disclose this fact to Company X since she wanted to pursue the opportunity. Or, Engineer A might have had plans to depart from Company X and establish her own business and decided to let her ties to Company X gradually diminish. Whatever her motivation, the Board believes that her actions were not consistent with the NSPE Code.

26. Conclusion (Case No. 99-3)
It was not ethical for Engineer A to agree to provide continuing education seminar services to the competing Company Y without the knowledge and consent of her employer.

27. EXAMPLE (Case No. 99-1)
Engineer A is employed by Company X. Several of the partners from Company X leave Company X to create Company Y. Each of the departing partners had executed an individual non-solicitation provision in contracts they had executed with Company X at the time they began employment with Company X -- which is still in force. The provision is drafted to apply only to the partners but does not mention the activities of their future employees. Engineer A is contacted by one of the new Company Y partners, Engineer B, who originally hired Engineer A for Company X. Engineer A agrees to a request to join Company Y to serve as director of business development.

28. EXAMPLE (Case No. 99-1)
One of the reasons Engineer B is interested in hiring Engineer A is that Engineer A has excellent business relationships with a number of Company X's public and private clients. In addition, Engineer B is aware that Engineer A never signed a non-solicitation provision (işten ayrılma durumunda mevcut müşterilerle temasa geçmeme sözleşmesi). After becoming an employee of Company Y, Engineer A, who was not required to sign a nonsolicitation agreement when employed by Company X, begins soliciting clients of Company X.

29. 1. Was it ethical for Engineer A to solicit clients of Company X?
EXAMPLE
(Case No. 99-1)
Question:
1. Was it ethical for Engineer A to solicit clients of Company X?
2. Was it ethical for Engineer B to hire Engineer A to serve as director of business development for Company Y?

30. References: (Case No. 99-1)
EXAMPLE
(Case No. 99-1)
References:
Section III.4.a. - Code of Ethics: Engineers shall not, without the consent of all interested parties, promote or arrange for new employment or practice in connection with a specific project for which the Engineer has gained particular and specialized knowledge.
Section III.8.b. - Code of Ethics: Engineers shall not use association with a nonengineer, a corporation, or partnership as a "cloak" for unethical acts.

31. EXAMPLE
(Case No. 99-1)
It is clear that while there is no reason to suspect that Engineer A is anything but a competent professional engineer who performs his services in a professional manner, the facts and circumstances in this case appear to indicate that Engineer B's primary motivation in contacting Engineer A to join the new Company Y is to solicit Company X's clients without Engineer B and the other engineers that were formerly employed by Company X violating the terms of the non-solicitation agreement. While at first glance the actions by Engineer B in seeking to "raid" Engineer A from Company X appear to be in conflict with the language and the spirit of the NSPE Code of Ethics, a review of the NSPE Code language appears to indicate that the issue is not entirely clear.

32. EXAMPLE
(Case No. 99-1)
There does not appear to be anything under the facts to indicate that Engineer A gained particular or specialized knowledge in connection with a particular project in connection with his former employment or clients that would suggest an NSPE Code violation. The facts suggest only that Engineer A is especially talented and has had excellent client relations with Company X's clients. Having good interpersonal and public relations skills are personal and do not suggest particular or specialized knowledge under the NSPE Code.

33. EXAMPLE
(Case No. 99-1)
In view of the manner in which the non-solicitation provisions were drafted and applied, the Board concludes that Engineer B violated provisions of the NSPE Code by seeking the services of Engineer A. Presumably Engineer B and the other former partners will honor the terms of the non-solicitation agreement and not personally solicit former clients of Company X. At the same time, having an employee not subject to the nonsolicitation agreement engage in solicitation activities appears to be inconsistent with the NSPE Code. Engineer B appears to have used the hiring of Engineer A as a cloak or subterfuge in order to avoid the effect of the non-solicitation agreement with Company X. Engineer A is acting as an agent of Company Y, all partners of which have a non-solicitation agreement, and should have informed Engineer A.

34. Conclusion (Case No. 99-1)
It was ethical for Engineer A to solicit clients of Company X.
It was not ethical for Engineer B to hire Engineer A to serve as director of business development for Company Y.

35. EXAMPLE (Case No. 98-1)
Engineer A, a principal in a local consulting engineering firm practicing as a Professional corporation, who also is a principal owner in a construction contracting firm, prepared plans and specifications for the design and construction of a conventional/nonproprietary roof structure for a municipal wastewater treatment facility. The scope of his services were limited to this project only. The municipality engaged a second firm, Engineer B, to administer the bidding and construction, using the plans and specifications prepared by Engineer A. The project was advertised for public bidding, and bids were received and opened. One of the bidders was Engineer A’s construction contractor firm.

36. EXAMPLE
(Case No. 98-1)
Question:
Was it ethical for Engineer A to bid as the general contractor on a project Engineer A designed?

37. References: (Case No. 98-1)
EXAMPLE
(Case No. 98-1)
References:
Section III.4.a. - Code of Ethics: Engineers shall not, without the consent of all interested parties, promote or arrange for new employment or practice in connection with a specific project for which the Engineer has gained particular and specialized knowledge.
Section III.8.a. - Code of Ethics: Engineers shall conform with state licensure laws in the practice of engineering.

38. EXAMPLE
(Case No. 98-1)
From the facts of this case, it is clear that Engineer A, by being involved in the design of the roof structure for the municipal utility system has become thoroughly knowledgeable about the plans, specifications, drawings, and financing of the project and will have a material and arguably unfair competitive advantage over other contractors who submit bids on the project. Also, although there is nothing in the facts to suggest this possibility, Engineer A could potentially be exposed to criticism that his firm designed a roof structure system that either specified or contained performance criteria that was coordinated with a potential proposal by Engineer A’s construction contracting firm.

39. EXAMPLE
(Case No. 98-1)
Finally, while not stated in the facts, there appears to be a possible implication based upon a reading of the facts that among the reasons why Engineer A may have been engaged for design services only was the fact that the laws of the jurisdiction in which the work is being performed precluded Engineer A from performing the work under a “design/build” arrangement and that Engineer A’s “limited engagement” effectively permitted Engineer A to bid the work as the contractor through a de facto design/build arrangement.

40. EXAMPLE
(Case No. 98-1)
If the purpose of this arrangement was merely to serve as a subterfuge to allow Engineer A the opportunity to evade a legal restriction on design/build and provide Engineer A with a competitive advantage, the Board of Ethical Review would have serious concerns about this arrangement, since it is clear that such an arrangement would undermine procedures at least arguably intended for the protection of the public.

41. EXAMPLE
(Case No. 98-1)
On the other hand, the Board would not be less concerned if the laws of the jurisdiction permitted a design/build contracting arrangement. While design/build has become an accepted and established project delivery system that identifies single-point responsibility for design and construction services, and most of the ethical objections to design/build concerning the engineer’s obligation to the client have been clarified, strict adherence to federal, state and local design/build procedures are critical to assure the protection of the public and the administration of fair and reasonable practices for designers and contractors.

42. EXAMPLE
(Case No. 98-1)
Moreover, engaging the services of an separate engineer, Engineer B, to administer the bidding and construction phase, will presumably establish a degree of objectivity and impartiality over the process and result in a ongoing independent review of the plans and specifications for the benefit of the client. Gaining the benefit of the design engineer's thorough knowledge and understanding of the plans and specifications as part of the construction team is an option a client should be able to consider.

43. Conclusion (Case No. 98-1)
It is ethical for Engineer A to bid as the general contractor on a project Engineer A designed under the facts presented, as long as the process followed was not a subterfuge to evade the requirements of state and local procurement, licensure laws, and disclosures or consent of all interested parties contained.