BER Case 97-12 12/17/97 -- Approved 1 REFERENCES: II.1.c. - Code of Ethics: Engineers shall not reveal facts, data or information without the prior consent of the client or employer except as authorized or required by law or this Code. II.1.e. - Code of Ethics: Engineers having knowledge of any alleged violation of this Code shall report thereon to appropriate professional bodies and, when relevant, also to public authorities, and cooperate with the proper authorities in furnishing such information or assistance as may be required. II.4. - Code of Ethics: Engineers shall act for each employer or client as faithful agents or trustees. III.9. - Code of Ethics: Engineers shall give credit for engineering work to those to whom credit is due, and will recognize the proprietary interests of others. COPYRIGHT --- DUTY TO REPORT VIOLATION OF COPYRIGHT LICENSING AGREEMENT FACTS: Engineer A is employed by SPQ Engineering, an engineering firm in private practice involved in the design of bridges and other structures. As part of its services, SPQ Engineering uses a CAD software design product under a licensing agreement with a vendor. Although under the terms of the licensing agreement, SPQ Engineering is not permitted to use the software at more than one workstation without paying a higher licensing fee, SPQ Engineering ignores this restriction and uses the software at a number of employee workstations. Engineer A becomes aware of this practice and calls a ‘‘hotline’’ publicized in a technical publication and reports his employer’s activities. QUESTION: Was it ethical for Engineer A to report his employer’s apparent violation of the licensing agreement on the ‘‘hotline’’ without first discussing his concerns with his employer? DISCUSSION: The facts and circumstances involved in this case are probably most analogous to earlier Board of Ethical Review cases dealing with the issue of whistleblowing. Over the years, the Board has considered two cases relating to the issue of whistleblowing. The first, BER Case No. 82-5, involved the issue of whether an engineer had an ethical obligation or an ethical right to continue his efforts to secure change in the policy of his employer or to report his concerns to the proper authority. The case related to an engineer, employed by a large industrial employer, who, after observing that certain subcontractor plan submissions were inadequate, notified his employer of the problem. Following several notifications to the employer, which were ignored, the engineer became insistent regarding the problem, with the result that the employer placed a critical memo in the engineer’s file and ultimately placed the engineer on probation and at risk for possible termination. After reviewing earlier BER cases and appropriate NSPE Code provisions, the Board noted that ...

1. BER Case 97-12
12/17/97 -- Approved
1
REFERENCES:
II.1.c. - Code of Ethics: Engineers shall not reveal facts, data or
information without the
prior consent of the client or employer except as authorized or
required by law or this Code.
II.1.e. - Code of Ethics: Engineers having knowledge of any
alleged violation of this Code
shall report thereon to appropriate professional bodies and,
when
relevant, also to public authorities, and cooperate with the
proper
authorities in furnishing such information or assistance as may
be
required.
II.4. - Code of Ethics: Engineers shall act for each employer or
client as faithful agents or
trustees.

2. III.9. - Code of Ethics: Engineers shall give credit for
engineering work to those to whom
credit is due, and will recognize the proprietary interests of
others.
COPYRIGHT --- DUTY TO REPORT VIOLATION OF
COPYRIGHT LICENSING AGREEMENT
FACTS:
Engineer A is employed by SPQ Engineering, an engineering
firm in private practice involved in
the design of bridges and other structures. As part of its
services, SPQ Engineering uses a
CAD software design product under a licensing agreement with
a vendor. Although under the
terms of the licensing agreement, SPQ Engineering is not
permitted to use the software at
more than one workstation without paying a higher licensing
fee, SPQ Engineering ignores this
restriction and uses the software at a number of employee
workstations. Engineer A becomes
aware of this practice and calls a ‘‘hotline’’ publicized in a
technical publication and reports his
employer’s activities.
QUESTION:
Was it ethical for Engineer A to report his employer’s apparent
violation of the licensing
agreement on the ‘‘hotline’’ without first discussing his

3. concerns with his employer?
DISCUSSION:
The facts and circumstances involved in this case are probably
most analogous to earlier Board
of Ethical Review cases dealing with the issue of
whistleblowing.
Over the years, the Board has considered two cases relating to
the issue of whistleblowing.
The first, BER Case No. 82-5, involved the issue of whether an
engineer had an ethical
obligation or an ethical right to continue his efforts to secure
change in the policy of his
employer or to report his concerns to the proper authority. The
case related to an engineer,
employed by a large industrial employer, who, after observing
that certain subcontractor plan
submissions were inadequate, notified his employer of the
problem. Following several
notifications to the employer, which were ignored, the engineer
became insistent regarding the
problem, with the result that the employer placed a critical
memo in the engineer’s file and
ultimately placed the engineer on probation and at risk for
possible termination. After
reviewing earlier BER cases and appropriate NSPE Code
provisions, the Board noted that the
facts before it did not relate to a danger to the public health and
safety, but were premised
upon a claim of unsatisfactory plans and the unjustified
expenditure of public funds. The Board
Copyright © 1997 National Society of Professional Engineer
(NSPE) www.nspe.org . All rights reserved.

4. To request permission to reproduce this NSPE Board of Ethical
Review Case, please contact the NSPE Legal Department
([email protected]).
BER Case 97-12
12/17/97 -- Approved
2
concluded that, in the type of situation presented in Case No.
82-5, the ethical duty or right of
the engineer becomes a matter of personal conscience. The
Board was not willing to make a
blanket statement that there is an ethical duty in these kinds of
situations for the engineer to
continue his campaign within the company and make the issue
one for public discussion. Said
the Board, ‘‘the NSPE Code only requires that the engineer
withdraw from a project and report
to proper authorities when the circumstances involve
endangerment of the public, health,
safety, and welfare.’’
More recently, in Case No. 88-6, which involved a city engineer
who learned of wastewater
ponds overflowing into a river, the Board, in reviewing the
reasoning in Case No. 82-5,
concluded that the facts involved a danger ‘‘to the public health
and safety --- the contamination
of a community water supply.’’ On that basis, the Board,
tracing its rationale in Case No. 82-5,
noted that where an engineer determines that a case may involve

5. 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. Importantly,
the Board acknowledged that it is difficult to say exactly at
what point the engineer should have
reported her concerns to the appropriate authorities. However,
it was suggested that such
reporting could have occurred when the engineer was
reasonably certain that no action would
be taken concerning her recommendations and that, in her
professional judgment, a probable
danger to the public health and safety existed.
We believe these two cases are instructive and relevant to the
matter presently before the
Board, for at least two significant reasons. First, the two cases
draw a clear distinction between
those matters that involve possible apparent improprieties and
those that involve a probable or
imminent danger to the public health and safety. Although not
stated directly in either earlier
case, adding further support to this basic principle is the fact
that the language in NSPE Code
Section II.1.e. is within the Rule of Practice section specifically
relating to the engineer’s
paramount obligation to protect the public health and safety.
Second, the circumstances involved in both BER Case Nos. 82-5
and 88-6 appear to involve
situations where the engineers have at least made an effort to
exhaust all internal mechanisms
before contemplating taking action by reporting the dangers to
the proper authorities.

6. Under the facts in the present case, the Board concludes that the
facts and circumstance are not
of a character that involve any danger -- direct or indirect -- to
the public health and safety.
Instead, the facts and circumstances relate to matters of a legal
nature and do not relate to
engineering judgment or expertise. NSPE Code Section II.4.
places a basic obligation on
engineers to be faithful agents and trustees in professional
matters with their employers. It is
the Board’s opinion that Engineer A’s actions in reporting his
employer’s apparent violation
was directly in conflict with the NSPE Code of Ethics. We are
troubled that Engineer A did not
consider other less adversarial and surreptitious alternatives.
For example, Engineer A could
have first discussed this matter with his employer, pointing out
the possible damages that the
violation posed to SPQ Engineering, and suggesting that SPQ
Engineering confer with its legal
counsel before continuing its current actions. Instead, Engineer
A took a course of action that
could cause significant damage to SPQ Engineering and
ultimately to Engineer A himself. One
is inclined to wonder about the motivation for Engineer A’s
actions without his first exploring
other less adversarial and surreptitious alternatives, in view of
the lack of any direct danger to
the public health and safety. While, in the context of the facts
of this case, we cannot conclude
that this provision compels Engineer A to ignore an apparent
violation of the law and the NSPE
Code (See NSPE Code Section III.9.), by the same token,
Engineer A could have easily exercised
far greater judgment and professional discretion before taking
action.

7. Copyright © 1997 National Society of Professional Engineer
(NSPE) www.nspe.org . All rights reserved.
To request permission to reproduce this NSPE Board of Ethical
Review Case, please contact the NSPE Legal Department
([email protected]).
BER Case 97-12
12/17/97 -- Approved
3
CONCLUSION:
It was not ethical for Engineer A to report his employer’s
apparent violation of the licensing
agreement on the ‘‘hotline’’ without first discussing his
concerns with his employer.
BOARD OF ETHICAL REVIEW
James G. Fuller, P.E.
William E. Norris, P.E.
Paul E. Pritzker, P.E.
Richard Simberg, P.E.
Jimmy H. Smith, P.E., Ph.D.
C. Allen Wortley, P.E.
Donald L. Hiatte, P.E., Chairman

8. NOTE: The NSPE Board of Ethical Review (BER) considers
ethical cases involving either real or
hypothetical matters submitted to it from NSPE members, other
engineers, public officials and
members of the public. The BER reviews each case in the
context of the NSPE Code of Ethics
and earlier BER opinions. The facts contained in each case do
not necessarily represent all of
the pertinent facts submitted to or reviewed by the BER.
Each opinion is intended as guidance to individual practicing
engineers, students and the public.
In regard to the question of application of the NSPE Code of
Ethics to engineering organizations
(e.g., corporations, partnerships, sole-proprietorships,
government agencies, university
engineering departments, etc.), the specific business form or
type should not negate nor detract
from the conformance of individuals to the NSPE Code. The
NSPE Code deals with
professional services -- which services must be performed by
real persons. Real persons in
turn establish and implement policies within business
structures.
This Opinion is for educational purposes only. It may be
reprinted without further permission,

9. provided that this statement is included before or after the text
of the case and that appropriate
attribution is provided to the National Society of Professional
Engineers’ Board of Ethical
Review.
Visit the “Ethics Button” on NSPE’s website (www.nspe.org)
and learn how to obtain complete
volumes that include all NSPE Opinions (or call 1-800-417-
0348).
Copyright © 1997 National Society of Professional Engineer
(NSPE) www.nspe.org . All rights reserved.
To request permission to reproduce this NSPE Board of Ethical
Review Case, please contact the NSPE Legal Department
([email protected]).
NSPE Board of Ethical Review
2/10/11 – APPROVED
Case No. 10-5
Pg. 1

10. Public Health and Safety—Observing Off-Site Safety Issues
Case No. 10-5
Facts:
Engineer A works for ES Consulting, a consulting engineering
firm. In performing
engineering services for ES Consulting, Engineer A performs
construction observation
services on a project for Client X. During the performance of
the construction
observation services for Client X, Engineer A observes potential
safety issues relating to
the performance of work by a subcontractor on a project being
constructed on an
adjacent piece of property for Owner Y, a party with whom
neither Engineer A, ES
Consulting, or Client X has any direct relationship.
Question:
What are Engineer A’s ethical obligations under the
circumstances?
References:
Section I.1 - NSPE Code of Ethics: Engineers, in the fulfillment
of their professional duties, shall hold
paramount the safety, health, and welfare of the public.
Section I.6 - NSPE Code of Ethics: Engineers, in the fulfillment
of their professional duties, shall
conduct themselves honorably, responsibly, ethically, and

11. lawfully so as to enhance the honor, reputation, and usefulness
of the profession.
Section II.1.f. - NSPE Code of Ethics: Engineers having
knowledge of any alleged violation of this Code
shall report thereon to appropriate professional bodies and,
when
relevant, also to public authorities, and cooperate with the
proper
authorities in furnishing such information or assistance as may
be
required.
Section III.2. - NSPE Code of Ethics: Engineers shall at all
times strive to serve the public interest.
Discussion:
An engineer’s role in protecting the public health and safety is
fundamental and basic to
the overall ethical responsibilities of all engineers. The NSPE
Code of Ethics places the
obligation to hold paramount the safety, health, and welfare of
the public as the
engineer’s first and primary obligation. Because of their
education, experience, and
training, engineers possess unique qualifications which often
permit them to identify
situations and circumstances that may raise serious risks.
The NSPE Board of Ethical Review has reviewed a variety of
cases over the years that
have explored the scope and bounds of that obligation. The duty
to hold paramount the

12. public health, safety, and welfare is among the most basic and
fundamental obligations
to which an engineer is required to adhere. While the obligation
is an important and
Copyright © 2010 National Society of Professional Engineer
(NSPE) www.nspe.org. All rights reserved.
To request permission to reproduce this NSPE Board of Ethical
Review Case, please contact the NSPE Legal Department
([email protected]).
NSPE Board of Ethical Review
2/10/11 – APPROVED
Case No. 10-5
Pg. 2
essential one, it is not without some limits with regard to the
role of the engineer in
society generally. While in many instances, the obligation is
often clear and obvious, in
other instances, there could be an obligation on the part of the
engineer to balance
competing or concurrent concerns.
As early as BER Case No. 65-12, the Board dealt with a
situation in which a group of
engineers believed that a product was unsafe. The Board then
determined that as long as
the engineers held to that view, they were ethically justified in

13. refusing to participate in the
processing or production of the product in question. The Board
recognized that such action
by the engineers would likely lead to loss of employment, but
the engineers had a right to
maintain their position based upon the provisions of the NSPE
Code.
In BER Case No. 82-5, where an engineer employed by a large
defense industry firm
documented and reported to his employer excessive costs and
time delays by
subcontractors, the Board ruled that the engineer did not have
an ethical obligation to
continue his efforts to secure a change in the policy after his
employer rejected his reports,
or to report his concerns to a proper authority, but had an
ethical right to do so as a matter
of personal conscience.
The Board noted that the case did not involve a danger to the
public health or safety, but
instead related to a claim of unsatisfactory plans and the
unjustified expenditure of public
funds. The Board indicated that it could have dismissed the case
on the narrow ground that
the Code does not apply to a claim not involving public health
and safety, but the Board
decided that such was too narrow a reading of the ethical duties
of engineers engaged in
such activities. The Board also stated that if an engineer feels
strongly that an employer's
course of conduct is improper when related to public concerns,
and if the engineer feels
compelled to “blow the whistle” to expose facts as he sees
them, he may well have to pay

14. the price of loss of employment. In this type of situation, the
Board felt that the ethical duty
or right of the engineer became a matter of personal conscience,
but the Board was
unwilling to issue a blanket statement that there was an ethical
duty in these kinds of
situations for the engineer to continue the campaign within the
company and make the
issue one for public discussion.
In BER Case No. 88-6, an engineer was employed as the city
engineer/director of public
works with responsibility for disposal of plants and beds
associated with poultry processing
facilities, and reported to a city administrator. After (1)
noticing problems with overflow
capacity, which are required to be reported to the state water
pollution control authorities,
(2) discussing the problem privately with members of the city
council, (3) being warned by
the city administrator to report the problem only to him, (4)
discussing the problem again
informally with the city council, and (5) being relieved by the
city administrator of
responsibility for the disposal of plants and beds, the engineer
continued to work in the
capacity as city engineer/director of public works.
Copyright © 2010 National Society of Professional Engineer
(NSPE) www.nspe.org. All rights reserved.
To request permission to reproduce this NSPE Board of Ethical
Review Case, please contact the NSPE Legal Department
([email protected]).

15. NSPE Board of Ethical Review
2/10/11 – APPROVED
Case No. 10-5
Pg. 3
In ruling that the engineer failed to fulfill her ethical
obligations by informing the city
administrator and certain members of the city council of her
concern, the Board found that
the engineer was aware of a pattern of ongoing disregard for the
law by her immediate
supervisor, as well as by members of the city council. After
several attempts to modify the
views of her superiors, the engineer knew, or should have
known, that "proper authorities"
were not the city officials, but more probably, state officials.
The Board could not find it
credible that a city engineer/director of public works for a
medium-sized town would not be
aware of this basic obligation. The Board said that the
engineer's inaction permitted a
serious violation of the law to continue and made the engineer
an "accessory" to the
actions of the city administrator and others.
The facts in the present case are somewhat different from the
earlier cited cases, notably
because the unsafe condition observed by Engineer A is not
within the professional scope
of responsibility of Engineer A. The Board is of the view that

16. this is a key factual distinction
from the earlier BER cases. As a general rule, an engineer
cannot be expected to take on
personal or professional responsibility for each and every
potential health and safety risk
they may be exposed to during the course of a day, which are
essentially unrelated to the
services for which the engineer is being professionally engaged.
To impose such a
responsibility upon an engineer could thrust the engineer into a
never-ending scope of
activities that are beyond what is reasonable, and could expose
the engineer to unlimited
personal and professional liability.
Having said that, the facts in the present case suggest that
Engineer A’s recognition of
potential safety issues in connection with the adjacent
construction project might cause
Engineer A to decide that the matter requires some level of
response on Engineer A’s part.
One potential response could include bringing the matter to the
attention of Engineer A’s
superiors in ES Consulting and Client X to explore informing
appropriate responsible
parties on the adjacent site (e.g., project superintendent),
particularly if the safety issues
involved could cause some disruption and have some bearing on
the progress of the work
on Client X’s property. However, in the Board of Ethical
Review’s opinion, this is a personal
judgment and does not constitute an ethical obligation that can
be imposed on Engineer A
to take immediate or direct action. To do otherwise would make
Engineer A accountable
for a wide range of public duties and responsibilities that are

17. beyond the bounds of reason.
Conclusion:
Engineer A should bring this potential safety issue to the
attention of Engineer A’s
supervisor and ES Consulting. The Board assumes that the
potential safety issues do not
pose an imminent danger; therefore, Engineer A does not have
an obligation to report this
issue beyond his superiors in ES Consulting.
Board of Ethical Review:
Copyright © 2010 National Society of Professional Engineer
(NSPE) www.nspe.org. All rights reserved.
To request permission to reproduce this NSPE Board of Ethical
Review Case, please contact the NSPE Legal Department
([email protected]).
NSPE Board of Ethical Review
2/10/11 – APPROVED
Case No. 10-5
Pg. 4
Mark H. Dubbin, P.E., NSPE

18. Robert C. Gibson, P.E., F.NSPE
Monte L. Phillips, Ph.D., P.E., F.NSPE
Michael L. Shirley, P.E., F.NSPE
Samuel G. Sudler III, P.E., NSPE
Mumtaz A. Usmen, Ph.D., P.E., F.NSPE
Curtis A. Beck, P.E., F.NSPE, Chair
NOTE: The NSPE Board of Ethical Review considers ethical
cases involving either real or hypothetical matters submitted to
it from
NSPE members, other engineers, public officials, and members
of the public. The BER reviews each case in the context of the
NSPE Code and earlier BER opinions. The facts contained in
each case do not necessarily represent all of the pertinent facts
submitted to or reviewed by the BER.
Each opinion is intended as guidance to individual practicing
engineers, students, and the public. In regard to the question of
application of the NSPE Code to engineering organizations
(e.g., corporations, partnerships, sole proprietorships,
government
agencies, and university engineering departments), the specific
business form or type should not negate nor detract from the
conformance of individuals to the NSPE Code. The NSPE Code
deals with professional services, which must be performed by
real
persons. Real persons in turn establish and implement policies
within business structures.
This opinion is for educational purposes only. It may be
reprinted without further permission, provided that this
statement is included
before or after the text of the case and appropriate attribution is
provided to the National Society of Professional Engineers’
Board of

19. Ethical Review.
To obtain additional NSPE opinions, visit www.nspe.org or call
800-417-0348.
Copyright © 2010 National Society of Professional Engineer
(NSPE) www.nspe.org. All rights reserved.
To request permission to reproduce this NSPE Board of Ethical
Review Case, please contact the NSPE Legal Department
([email protected]).