Policy on professional discipline for criminal conviction 3

[PM]

In an effort to avoid anything too controversial, . . .I'll throw you this easy question! ;-)

In our engineering jurisdiction, there are four grounds for discipline; one of which is "conviction for a criminal offense in a court of competent jurisdiction".

The responsibility for discipline of members falls to the licensing body. For all but the wealthiest jurisdictions, it's been claimed that it would be impractical to prosecute a discipline case against every engineer that may have been convicted sometime in the past (ie. drunk and disorderly or disturbing the peace being not uncommon back in the old school days).

Just finding out who has a conviction could be a major undertaking (ie. local, national and international records searches).

Assuming there will never be a consistent pursuit of such "criminals" amongst us, should the licensing body have a policy to prosecute some and not all criminally convicted engineers?

For hypothetical example:
Given the following recent two different, yet highly publicized criminal cases, I'd be interested in your views. The first involved:[ul][li]a male,[/li][li]with long standing and distinguished professional service to his employer and most notably,[/li][li]is generally unknown or associated by the Public as an engineer. (ie. including the press coverage after his trial)[/li][/ul]The second case involves:[ul][li]a female,[/li][li]also with long and distinguished standing in the profession, but is[/li][li]very well known publically and generally associated with the engineering profession through her many awards and her work on behalf of the engineering association.[/li][/ul]The first engineer was convicted of aggravated sexual assaults against his baby sitter and the second engineer was convicted of shop lifting.

In the first case, it might be argued that the engineer has done little, if any damage to the profession, while in the second case, the engineer clearly brought considerable disrepute upon the engineering association, not just immeadiately after the trial, but for some time afterwards.

Do you consider these cases as:[ul][li]Essentially equivalent in terms of damage to the profession?[/li][li]Would you treat them similarly from an engineering point of view? (ie. Would you try to heap more criminal sanctions upon these two?)[/li][li]How would you treat other criminal convictions involving engineers who are publically unknown, convictions were for minor offense, etc.?[/li][/ul]Does your local engineering lisensing body have a policy on this sort of dilemma?
Regards,

 

[vpl]

PM - You sure like asking some very tough questions! Maybe this one will have as varied a discussion as your previous post.

My "two cents" on this issue (sorry, it's long):

If it were up to me, I would argue that both need to be treated the same - albeit for different reasons. The way I see it, the main concern by the professional organization is protecting its reputation. Ideally this would be by treating everyone the same, but that often doesn't happen.

From my experience - and I realize this is a somewhat touchy subject (no pun intended!) - sexual predators (i.e., anyone who sexually assualts another human being, regardless of either's gender) are bad news. I won't say they can't be rehabilitated - but it takes a lot of effort on their part, and most won't take the time. We had a case where a fellow engineer harassed some of the women in the office. Management was told, but did nothing. The women basically ganged up on the guy, and told him to shape up - which he did around them. Unfortunately, this guy was sent out to various other companies. At one of them, he started bothering a young woman - who reported it to her boss - and they took prompt action and revoked the guy's access to the site. Then my management started looking into his previous behavior - and he ended up resigning (I don't know about the criminal proceedings). Even if nothing made the news about him being an engineer, it put my company in a bad position for apparently tolerating his behavior.

As to the shoplifter - just because there's a lot of publicity now doesn't mean that future employers or clients will remember it in a month or two. However, to me, it's a basic honesty question. If the person steals, then how can you be sure she's not stealing from you/the company as well? Again, unless the person gets some significant help, the behavior won't change.

So, end result, all things being equal, I feel both should be treated the same. Having said that, I think the professional organization needs to look at the cases with a lot more data than what you've given here. For example, were both convicted of a felony or was one a misdemeanor and the other a felony (note, I'm not suggesting that both cases were misdemeanors)? Is one - or both - in therapy to correct the behavior? Is it a single or repeat offense? When all of these are taken into account, then it boils down to the organization deciding whether it wants to be associated with the individual. Patricia Lougheed

 

[PM]

VPL:

Apologies for not getting the essential facts out ASAP. Both the individuals I cited were convicted of what would be considered felonies in the US.

As you might guess, I'm in a position to know a lot about professional discipline in my jurisdiction. I'm sure you won't mind however, if I have to change a few facts to protect the innocent (or is that the guilty?).

The salient points here are that on the one hand we have an engineer who was convicted of a violent and heinous crime. The public weren't particularly aware of his engineering status at the time, nor are they aware today. On the other hand we have an engineer convicted of a non-violent property crime, but who was highly associated with the Profession then and now (years later) bringing discredit on us all.

So one does substantial damage to the reputation of engineers by virtue of the violence of his crime. I believe the average lay person might refer to him as a scum bag. The second does at least as much if not more damage because of all the negative publicity associated with her behaviour.

Now, what about an engineer who, say had one too many drinks back in his college days, was arrested, and he plead guilty of D&D (ie. this is not Dine & Dash, but rather Drunk & Disorderly). Should that conviction come back to haunt him? Should licesing bodies go searching for such convictions?

 

[PM]

I was thinking of posting this as a different thread, but thought the better of it after VPL's post. She writes: ". . . the main concern by the professional organization is protecting its reputation.

Most would argue that the prime directive of a licensing body is to protect the Public. Question is how to do that in such cases.

Perhaps some of you have sat on professional discipline tribunals and wondered why so many irrelevant civil and criminal law arguments are brought to bear. It occurred to me that many people (and perhaps most engineers) think that the law of engineering discipline is meant to be:[ol][li]punitive, and[/li] [li]compensatory.[/li][/ol]similar to the guiding principles behind criminal and common law.

Does anyone agree that engineering law ought not be punitive or compensatory?

Let's change the names to help get a differnt focus. Let's take major league baseball. A manager has to make a decision about an ageing, but once great player. Is he punishing this player when he tells him he's being sent down to the minor league team to help mentor their players along? Is the manager being punitive? Is he merely preserving the calibre of the team and the level of play? Is removing an engineer's license meant to be punitive or merely an attempt to preserve the calibre of professional practice?

Regards,

 

[Hush]

I don’t feel that it is an engineering association’s place to discipline members for criminal acts they commit; such action should fall solely within the purview of the criminal courts. If you tried to boot out every member who gets caught smoking pot, or driving drunk, or strolling for prostitutes you probably wouldn’t have a lot of practising members left. The engineering associations should only concern themselves with the discipline of unprofessional conduct and unskilled practice. If the person is guilty of unprofessional conduct in the process of committing a criminal act then have at em. If a well-known member commits a criminal act that has nothing to do with the practice of engineering but that act embarrasses the association well that’s a shame but too bad.

As to the two mentioned cases, here’s my viewpoint:

I’m guessing the shoplifter wasn’t holding herself out as a professional engineer to gain access to the goods so she could shove them in her pocket. You could argue that her actions have labelled her untrustworthy but since there is no legal requirement that a professional engineer be bondable I’m thinking her professional association has no basis for any disciplinary action.

The first case is a little trickier, not because the act was heinous but because the sitter and her family may have placed a degree of trust in this man based on his standing as a professional. I.E. he may have inadvertently used his position as a professional engineer to facilitate the crime and probably should be disciplined on that basis.

 

[PM]

Snipped from Hush:
"If you tried to boot out every member who gets caught smoking pot, or driving drunk, or strolling for prostitutes you probably wouldn’t have a lot of practising members left."

I'm skeptical about what this says about the engineering profession. We certainly don't have anything at all close to this situation in my area. I certainly hope Hush is exaggerating, otherwise I'm sure the Public in that region will expect to be warned.

Snipped from Hush:
"The engineering associations should only concern themselves with the discipline of unprofessional conduct and unskilled practice."

I assume the engineering profession in Hush's area is 'self governing' as it is elsewhere in the country. This means that individual practitioners govern their own conduct (sort of an honour system of sorts). If accused of a disciplinable offense, other members of the profession will hear and try the case. This is, perhaps the one distinguishing feature separating professions from trade guilds for example. How can engineers expect their colleagues to comply with lofty ethical rules after they register to practice, if they lead a life of disreputable conduct before, or after they took up engineering? I assume we generally share the view that leopards do not change their spots and that good 'professional temperament' remains a criterion for admission into the profession.

Snipped from Hush:
". . . I’m thinking her professional association has no basis for any disciplinary action."

Actually the association does have a solid case against her. Having a criminal conviction amounts to irrefutable proof of wrong doing. Essentially the only point of having a professional hearing is to consider appropriate sanction. (Notice I didn't say punishment.)

Anyone have thoughts on my baseball analogy?
Regards,

 

[PSE]

As someone who has not held any job positions requiring licensing, certification, registration etc. Please consider these comments as based either from an outsiders point of view or sheer naivite'.

PM in your first post:

"...should the licensing body have a policy to prosecute some and not all criminally convicted engineers?"

I would think that the licensing body if it has such a policy would set some sort of "minimum threshold" to avoid being mired by nuisance types of infractions (ticketable offenses). Perhaps a misdemeanor conviction meet the minimum threshold or some degree misdemeanor. I would think that a felony conviction would likely apply. A statute of limitations might also be appropriate on past offenses as would an appeal process to provide for further review in the event that a conviction were overturned. (In such a case, would the licensing body be liable for damages caused by sanctioning the individual?)

Hush's post:

"I don’t feel that it is an engineering association’s place to discipline members for criminal acts they commit; such action should fall solely within the purview of the criminal courts."

"The engineering associations should only concern themselves with the discipline of unprofessional conduct and unskilled practice. If the person is guilty of unprofessional conduct in the process of committing a criminal act then have at em."

I tend to agree with both of these statements. My own spin would be that the licensing board could use a criminal record for putting a member either on notice or a probationary status. The record could also be used to determine the level of discipline should a member be "guilty of unprofessional conduct in the process of committing a criminal act." This links personal and professional ethical behavior together.

I would like ask the question as to whether or not sanctioning a licensed individual actually works to correct their behavior? What are the professional consequences of such an event on the individual's career? Does this "history" follow the individual if they moved to a different locale to practice their profession?

PM:

In regards to your baseball analogy, How the player regards himself and how the decision is presented to him, seems pre-eminent. If the player thinks his playing career is nearing its end he may see the move to mentoring as a chance to remain in his profession but in a different job path. If he thinks that he still is as sharp as ever, he then might think the decision as either punative or discriminatory.

Regards,

PSE

 

[PM]

PSE:

I suspect you are right about how a player, or an engineer for that matter, might feel after 'playing in the big leagues' and then being sent down to the 'minors'. This theme came out in the movie Bull Duram with Kevin Costner and Susan Sarandon. Certainly Kevin's character, 'Crash' Davis was still sharp and productive, yet presumably not at the same level as other team mates in the 'show'.

I guess my question goes to how the manager feels. Does he see his job as being punitive, or does he see it as preserving the calibre of the game? Is the latter not how our licensing bodies should be motivated when they consider our cases as professional engineers?

It seems to me in our decreasingly tolerant society, that licensing bodies are shifting irrevocably toward penalties and restitution, which effectively usurpes the authority of the criminal and civil courts.

Regards,

 

[Hush]

I’m a sucker for punishment so I’ll continue to play Devil’s advocate and try to clarify my position.

I have no statistics to support it but I would guesstimate that at least two thirds of the engineers I went to school with tried marijuana at least once in their life. By these standards, even if they weren’t caught and convicted, they should voluntarily sanction themselves. Leaves a pretty big engineering shortage in this part of the world. If you don’t think a similar situation everywhere in North America you’ve got your head in the sand.

The point being, associations should not be in the business of interpreting social policy, so either you sanction people for all criminal offences or you sanction them for none. If you don’t like the three crimes I listed here’s some more for you. How about the young student with strong moral convictions who's caught up in a political protest that gets out of hand. In some states buggery is a criminal offence, that’s bound to reduce the number of gays allowed into our profession. Assisted suicide is a criminal offence, are you going to heap even more sanctions on a person who already has to deal with the punishment of the courts and his or her own conscience for the crime of helping his or her parent end the suffering of a pain ridden terminal illness.

I don’t share the view that leopards don’t change their spots. Since the prison system (at least in Canada) is supposedly based on rehabilitation (I know, thats a stretch) one can surmise that the majority of the population do not share this view either.

As to the analogy, sort of but not quite. The aging baseball player has done nothing wrong other than age. If in continuing to play he knew he would put his fellow teammates at risk of injury then the analogy might have some merit, otherwise its simply an economic decision on the part of the Manager.

 

[PM]

Hush:

You're stating the problem, probably more eloquantly than I, but don't you have some solution that is more practical than ". . .either you sanction people for all criminal offences or you sanction them for none." Can I infer that you would not even evict, say an axe murderer from the professional ranks?

Regrads,

 

[Hush]

Hmmm…

I think you probably have me with that one but I’ll take a whack at it.

Assuming this person didn’t violate the code of ethics whilst performing the grisly act. Pretty hard to get around the endangering the public clause but if you take the viewpoint that chopping someone into pieces doesn’t constitute the practise of engineering we can probably ignore it for the sake of the argument.

If this were to take place in Texas one could probably safely assume that after all the appeals were exhausted there wouldn’t be a perpetrator to sanction. In Canada however the guy (or gal) is just as likely to be out of prison in ten years. As ridiculous as it sounds I’d have to take the argument that upon release the person had served his debt to society and has being rehabilitated and is ready to re-enter society as a law abiding citizen therefore no further sanctions would be required. To take any other viewpoint would be to say that our judicial and criminal systems do not work and have no relevance in society, i.e. we would in effect be advocating vigilantism. (I realize that is just so much bull but it’s the best I can do on short notice.)

The problem with this argument is how to (and should you) prevent the person from representing him or herself as a professional while in jail.

Perhaps there is room on this logic train for suspending people while they serve their sentence.

 

[vpl]

Hush - it's getting out of hand when the puns start to fly!

I agree with your point that engineering associations should really be concerning themselves with disciplining unprofessional conduct or unskilled practice, not in digging back to into everyone's past and finding dirt. I also agree with PSE's comment that there should be some minimal threshold, to avoid all the "in the grass" stuff. However, when it comes to "unprofessional conduct" there is a lot of grey. As in the case of PM's shoplifter, just because she was not "on the job" when she was committing a crime, doesn't mean she's not guilty of unprofesional conduct - (of course, it doesn't mean she's guilty either). What it boils down to, I think, is that the organization needs to have some ground rules (expectations, whatever) and they need to apply them equally to avoid appearances of favoritism (talking about publicity - how do you think the press would react if the woman went to them and said "yeah, I'm guilty of shoplifting and got kicked out of this engineering organization but this guy was guilty of sexual assault and they let him stay." Here in the US that sounds like a major gender discrimination lawsuit against the organization.

In looking back at my response, I think I flavored more from an employer's viewpoint than from a professional organization. This may be because (my own view!) the professional engineering organizations here in the US don't seem to have a lot of teeth. I'm not a professional engineer (don't practice enough nuclear engineering to pass their exam and don't have enough mechanical engineering basics to take that one) and if the American Nuclear Society kicks me out, it won't affect my job potential. However, I do know that a company even appearing to tolerate unprofessional behavior can be held criminally liable (unless, of course, you're a friend of the President)

Patricia Lougheed

 

[PSE]

Hush,

I believe that you help to strengthen my point about applying a statute of limitations on offenses that a sanctioning body would consider. (If I am wrong about that definitely let me know!) If a individual has "done the time" or has been re-habilitated then sanction should be lifted or the individual moved to a probationary status. I would propose that such a body would keep a historical record for use in case of "repeat offenders". A pattern of "minor" offenses could prove just as problematic as an individual who is guilty of a major offense. For example, if those engineering students you mentioned continue to use marijuana would it not likely lead to detrimental performance within their profession? In such a case or perhaps in the case of an eggregious offense (axe murderer) a permanent sanction may apply.

To continue with some of the sporting type analogies, I have enjoyed competing in the sport of vintage auto racing for quite a few years . During this time I have served on and occasionally chaired driver's committee's which are used to review on track incidents and determine if any disciplinary actions are needed. Our club utilizes a 13/13 rule recognized by many other clubs both in the US and Canada. In short, if a driver is found to be culpable in a racing incident, then they are put on 13 months probation. If during that period they are culpable in another incident then their driving priviledges are revoked for 13 months. After that time, they are considered as having a clean record once again. A history of offenses is still maintained so that a pattern of repeated incidents could result in permanent loss of driving priviledges. The key to the rules success is that by being recognized by various sanctioning bodies, the individual may not simply go run with another club if they want.

PM,

It might be difficult to determine the mindset of the manager based upon the action of sending a player into the minor leagues. Was it due to performance (punitive); to allow the player to heal from an injury and perhaps return (sabbatical); or to give them the opportunity to develop other players (mentor)? Was it in response to a request from the Team Owner? I fear delving further into these questions would cause us to digress from your original thread.

Having been in a managerial/supervisory position at a previous employer, (don't hold this against me ), I had on unfortunate occasion, the necessity of disciplining people who reported to me. I would raise the question as to whether or not a licensing body should discipline or sanction an individual if that individual has already been subject to discipline by their employer? Would it be more appropriate for a licensing body to act as a historical resource for someone wishing to review an individuals record? Should the body act only on cases involving termination or for self employed professionals?

Regards,

PSE

 

[PM]

In our area the grounds for discipline include:[ul][li]unprofessional conduct[/li][li]negligence or misconduct in the duties of the engineer's office[/li][li]any breach of the Engineering statute or its By-Laws and[/li][li]conviction of a criminal offence.[/li][/ul]If the profession continues to be self-governing as it is now, then reliance must be placed on each member to regulate their own practice in order to avoid damage to the Public interest. Protecting this Public interest, obviously requires action on @ least two fronts, namely:[ol][li]keeping individuals out of the profession who reject responsibility to uphold social rules as demonstrated by criminal convictions and[/li][li]evicting individuals who violate engineering laws while a practicing member of the profession.[/li][/ol]It seems clear that most accept the latter, but reject the former. Given that all citizens, including those in this forum rely on engineers for our safety, it seems to me you all would be eager to have PE's with nothing in their past that might suggest they are irresponsible or prone to dodging accountablity.

Would William LeMessurier, PE ever have stepped forward to fix the CitiCorp Building if he was inclined to dodge responsibility, find loop holes in the rules, or hope no one noticed his mistakes? I suspect you all would secretly prefer individuals of exceptional moral virtue when it comes down to our health and safety. After all, there rarely is anyone else around to spot our glitches, so we can always rely on checks and balances.

Regards,

 

[Hush]

I hope you're not suggesting that someone with a record for driving under the influence is not socially responsible enough to become a Professional Engineer but is perfectly acceptable for the job of President of the United States.

 

[PM]

Hush:

I suspect, from your comment, that I'm not the only one who plants their tongue firmly in their cheek. My mom taught me to avoid two subjects in public discourse, namely politics and religion.

At the risk of violating this admonition, I hazard the comment that perhaps ethical standards for politicians are somewhat lower than for engineers. Having just said this however, a few truly reprehensible engineers come to mind, Saddam Hussein, Joseph Stalin and not to forget Erlichman.

Banter aside, the question is to what lengths should engineers go to preserve the highest ethical standards for its practicing members. As I imply in the CitiCorp building case, I raised in my previous post, the issue of exemplary ethics is a practical (not a theoretical) necessity in our profession. After all, how many people out there walking among us, have real, tangible control over the lives of thousands (if not tens of thousands) of people. I can think of case after case, in my own field of structural engineering, where engineers of lesser ethical acuity have caused the deaths and disabilities of hundreds of people. (eg. Hyatt - Kansas City)

Regards,

 

[PSE]

PM,

At the risk of digressing from your original thread, How would one determine what the ethical standards are within a given profession? Should a licensing body give a license to a Structural Engineer who works for a firm that creates buildings and yet license another structural engineer (government employee or consultant) employed to figure out how to destroy structures (not necessarily vacant)?

The Engineering (and scientific) profession as a whole has the capactity and tendency to do great works for both the benefit and detriment to society (again as a whole). How then could a licensing body choose only the ethical high ground for licensing it's membership? I doubt people enter the engineering profession based upon moral or ethical convictions. I am more inclined to think it is based upon an aptitude for being able to do the type of work. As such, a licensing body will be presented with a societal cross section of people with differing ethics. While I am all for and admire the effort to improve the level of ethical practice in this (or any) profession, I do not believe that it can be taken to extremes.

Regards,

PSE

 

[PM]

Snipped from PSE: ". . . How would one determine what the ethical standards are within a given profession?

The licensing body will provide a copy of the Code of Ethics for any given profession. As to licensing both civil and (presumably you mean) military engineers, I don't see a problem. Lots of sappers are also licensed in their local engineering body. Engineer's obligations are to their own domestic public, not some international public in an enemy state. Military engineers acting against their own citizens are however, an ethical problem, but that point is mute because everyone knows the military is not supposed to act against its own citizens. Accordingly, I suggest that professionals actually do have a moral and ethical motivation for becoming Professionals.

Snipped from PSE: "I doubt people enter the engineering profession based upon moral or ethical convictions.

You don't seem to defferentiate between Professions and professions. For the most part, scientists, fire men and lots of other vocations are referred to as professions in the sense that they are occupations providing the practitioner some compensation. There is no doubt that each of these occupations require a certain specialized skill and knowledge, but they do not compel and enforce a code of conduct. Professions on the other hand do all that, but involve an oath, on the part of its members, to some ethical and moral standard. Furthermore, Professionals voluntarily submit to additional laws, which adherence will be judged by their peers. So my boss has power over my job, but my colleagues have power over my career.

PSE To what extremes do you refer? Do you consider William LeMessurier's behaviour in the case of the New York city CitiCorp building to be an extreme case of ethics?

Regards,

For anyone not familiar with LeMessurier, you can find some background @

http://onlineethics.org/moral/LeMessurier/lem.html

 

[redtrumpet]

I believe a certain amount of discretion and latitude is required on the part of the professional association in deciding against whom to pursue disciplinary action, and in determining the penalties for offences. This discretion should not be used to protect members of the old boys club, but rather to serve the interests of society as a whole. I don't think society is served by going on a "witch hunt" for those with previous criminal convictions. However, if the association becomes aware of such convictions, it has a duty to investigate in accordance with the association's grounds for discipline.

On the particular cases cited, my own feeling is to give the professional penalties the same relative weight as the criminal ones. Shoplifting is a non-violent property crime, it is probably a first offense, and the person might reasonably have forgotten to pay for the item. I don't think this would warrant much more than a reprimand, with no suspension of licence and no fine.

The other case is a violent crime (I assume that is what aggravated means) and an abuse of power. I think such behavior is heinous and reflects very poorly on the member (an understatement, I know) and a licence suspension at least equal to the jail time, and probably 5 years minimum, would not be out of line.

 

[PM]

I'm probably not being very clear. Apologies for struggling with this.

I suggest that professional tribunals should not attempt to supplant or complement either the criminal or civil courts which were established essentially for the specific purpose of punishment and restitution respectively. Accordingly, licensing bodies should not try to punish engineers for unacceptable behaviour, or add punishment to individuals already dealt with by other courts. Nor should they try to compensate parties for breeches of contracts or torts.

The question in my mind is whether the public can trust an engineer who has flaunted the criminal laws in the past. The issue is not whether an engineer was punished enough, but whether the engineer can be trusted to do the ethical thing when under great duress and personal pressure.
Regards,