What do you do when an authority having jurisdiction owns an imminently hazardous building? 7

[throwaway69]

Throwaway account because my main has parts of my name.

I'm acting as a subconsultant on a historic facade restoration project for a municipal client. The unreinforced stucco on a part of the structure is in bad shape. One exposure has probably 10' by 10' sections which have de-laminated from the substrate and spalled. Given that it is unreinforced, it is basically only held in place along its edges. The condition has gotten worse since it was first inspected about a year ago, and at least one nearby maybe 1sf spall recently blew off the building during a storm and fell 45' to a pedestrian accessible area. The main spall is located about 35 feet directly above one of the primary pedestrian routes for the building complex (though it is largely closed - see below).

Our firm has covered our asses and informed the prime consultant in writing on at least 4 occasions and the municipality directly at least once. They don't seem to be taking it seriously based on their actions. They adjusted some fencing to keep people at bay. Right now the facility is closed, even though pedestrians can use the surrounding walkways. But overall there's no real need for anyone not working for the facility to use this particular foot traffic route right now.

My gut tells me when they're scheduled to re-open, the municipality is just going to take the fencing down and sweep this under the rug, leaving thousands of people per day to walk under this death trap where 2000# of concrete could come down in a strong wind. We've made different recommendations that are more than "remove the stucco" (e.g. protective bridging.)

If I was working directly for a private client I would call the municipality as soon as they moved those fences an inch. So my two questions -
With this being a municipal client who's ignoring me, who am I supposed to call? The municipality already knows, since it's their building, and I told them about it.
And do I have any different ethical obligations since I am a subconsultant with a municipal client?

TIA.

 

[CANPRO]

I'd call the Dept of Labor/Safety Dept. Not sure where you're located, but thats usually a step above the municipal level.

 

[Ron]

If the AHJ won't listen or do anything about an imminent life safety issue, send a letter to the Mayor and council....they are his bosses. If no one responds, take it to a local news station.

 

[throwaway69]

I'm in New York State. I am a bit concerned about the professional (and possible ethical) implications of signing my name to something that deliberately acts against the interests of my client. Where I'm located, we can typically report to the AHJ anonymously which is certainly the way I would prefer to handle it.

 

[BAretired]

Even with fencing, there should be signs posted in the affected area warning people of the danger of falling concrete.

BA

 

[oldestguy]

Some might call you a busy body. However,this thought may never come about.

My gut tells me when they're scheduled to re-open, the municipality is just going to take the fencing down

In my career I have run to a few cases where there has been neglect by the contractor that is ignored and the warnings by me are not doing any good at correcting dangerous things. Even as a "not highest level" engineer I have informed the contractor that our company is leaving the job as engineers due to the problem not being corrected. Luckily my boss, the owner of the firm, didn't like the action by me but stood by me anyhow. In your case, it doesn't sound all that positive as to what action may happen. However expressing your concerns to your boss may help. Getting your superiors to act may work better than you trying alone..

In your letter to the Mayor, be sure to indicate your education and specialty, assuming it will mean something.

 

[JoshPlumSE]

The way I see this there are a number of questions you have to ask yourself:

1) Have you done what you need to do to inform your client of the situation so that they can take action? I think the answer to this question is yes. You've informed your client of this 4 times.

2) Is the client required by law to conform to your recommendations? I don't think they are. But, by not doing so, they may be liable themselves. Of course, they might hire another consultant that gives them a different recommendation.

3) What's your professional responsibility to the public? I think in this case, it's to notify the municipality directly. You've done that do. So, I think you're covered as far as professional exposure / liability.

4) Is there a moral responsibility above this that you have? This is a question you have to answer yourself. You could raise this issue even higher: a) like going to the media, b) filing an ethics complaint with the engineering board related to your client not taking action, c) informing the mayor's office / city counsel, etc. I suspect that some of those actions would open you up to potential civil litigation. So, I would proceed with caution.... Remember, it's not an established FACT that this is a dangerous situation. So, you would have to present this as a serious professional CONCERN that you'd like someone else to look into, and you're afraid that the folks you've informed (client and municipality) MIGHT not be taking this seriously enough.

 

[throwaway69]

oldest - I hear what you are saying but given that the AHJ has done nothing in the last 10 months, I'm not optimistic anything will happen in the next 2. Hell, 10 months ago I wasn't sure I had an ethical obligation to report this. But at this point it's basically crumbling and obviously I'm here assessing next steps.

I'm in my early 30's. If my firm and principals decide that we're sufficiently covered and have met our reporting obligations according to our ethical standards, and I go rogue to send a letter to the Mayor, I would be immediately fired. This is not a time for that if I have several people senior to me saying not to do that. I will bring this up as a possible response by our firm. I would prefer to have an anonymous way to personally report it independent of the firm's decision if I need to act on it.

BA I hear what you are saying but I'm not going to explain to the AHJ how to make their half-baked solution "less shitty". They need to put up proper protection, not have a handyman throw up some fenceposts on sandbags.

 

[throwaway69]

Josh - agreed. Typically this is handled by passing it off to the AHJ for a determination (which can be done anonymously). I'm optimistic I can find a similar avenue to escalate this.

 

[r13]

I am more with JoshPlum on this.

 

[JAE]

If you are a licensed engineer in the US, you have a primary duty to the public safety and welfare.

This duty is
1. Independent of whether your client is private or a public agency.
2. Required even if you get sued or lose your job.

(see almost every professional ethics guidance)

That said, you also have a duty to be fair to your client and truthful, accurate and professional.
It sounds like you have been to date.
I think the mayor/city council idea has merit assuming you are truthful, accurate, etc.

Finally - I'm not sure I'd do more than you have done UNTIL they actually take down the barriers and expose the public to the danger.
If you jump the gun on this before the barriers come down and you notify mayor, newspapers, etc., they can always say that they were "just about to have someone look at it"

 

[Ron]

I am a bit concerned about the professional (and possible ethical) implications of signing my name to something that deliberately acts against the interests of my client.

Your obligation is first to protect the health, safety and welfare of the public, not the single interests of your client. You've informed them (an ersatz informing of the public); however, they have elected to ignore your warnings. As long as you're on solid ground with respect to the reality of a life safety issue, then you can and should carry it further. Yes, you might lose a client. So what. I assume they are not your only client.

You might also have an obligation to report the AHJ to your engineering board if your state law has a provision whereby an engineering decision is overruled by an unqualified lay person. My state has that and I've had to use it before. I had an engineering decision overruled by a town council once. I was compelled by law to write a letter to my state board outlining the engineering decision and their overruling.

If the AHJ is also a licensed engineer, you might be obligated to report him to the state board for negligence in engineering.

 

[Craig_H]

mmmm, ethics

Lots of good recommendations thus far, but let's take a step back for a moment, and go through the typical resolution to an ethical issue:
1. Consult your code(s) of ethics. In my areas (Alberta and BC, Canada), our regulators have codes of ethics that we are bound to. Note that you may be bound to more than one code of ethics if you are licensed in more than one state/province. These codes of ethics, in my experience, can solve 95% of my own ethical struggles. In my case, the standard verbiage about "holding paramount the health and safety of the public" would be applicable to this one. To me, "holding paramount" doesn't end with telling the AHJ that there's an issue, it involves following the issue through to resolution so that the public is kept safe.
2. If the code of ethics can't solve the issue (which I think it could), then you have an actual ethical dilemma. I was taught to solve these by considering four approaches to the problem. These are the approaches of four philosophers: Virtue Based (Aristotle), Rights Based (Locke), Duty Based (Kant), and Utilitarian (Stuart).

This is my own perspective from a different side of the continent; perhaps the situation is different in your area (New York State?)

If you have to dive down the rabbit hole of #2, I'd recommend using an ethical textbook to help. The study material for my ethics exam included Canadian Professional Engineering and Geoscience: Practice & Ethics by Gordon C. Andrews. Maybe there's an American equivalent?

 

[rb1957]

I wonder if you could sneek onto the site in the night and cause the damaged facade to fall away ? ell, no, not really !??

I think you still feel a moral obligation to the public. I think (given the litigious society you're living in) you could be hauled into court and under intense questioning ("I want the truth") your feeling of near certainty of a future "disaster" (or personal injury or worse) would come out, despite the actions you've taken.

I think you need to consider acting as a whistle-blower, or maybe an anonymous social media source ? (go on twitter, "hey, does anyone notice this problem ?" … getting this retweeted to the Mayor (and his opponent) may get action ?

another day in paradise, or is paradise one day closer ?

 

[EdStainless]

I can tell you that if I were a person injured in this case I would of course go after the owners of the building, but your firm is committing ethical violations as well. Just because you have notified your client (and this may shield you from physical liability issues) as a firm you have not acted to protect the public. You can't put your client ahead of the public. What happens when someone is hurt and your principle engineer is called up on gross ethics violations? How does that impact the firm?
I worked for a structural who turned away a client when he found out that they weren't installing the erection bracing as indicated on his drawings (to address stability during erection). They tried to explain it away and weasel anyway that they could, but when my boss said that they had already been reported to OSHA (that is how he heard of it) they realized the problem that they had created.

= = = = = = = = = = = = = = = = = = = =
P.E. Metallurgy

 

[oldestguy]

Your comment.
BA I hear what you are saying but I'm not going to explain to the AHJ how to make their half-baked solution "less shitty". They need to put up proper protection, not have a handyman throw up some fenceposts on sandbags.

Has any one taken down the fence and are folks now walking there? Probably not, which means it is working.

Think about what this situation may have on your future? "Busybody?", "Valuable person?", "time waster?" ????

 

[r13]

Our firm has covered our asses and informed the prime consultant in writing on at least 4 occasions and the municipality directly at least once.

1) IMO, you and your firm are free of any liability shall a law suit arise, because the hazardous situation wasn't created by you and your design.
2) You and your firm did not commit ethic violation, as the hazardous situation/condition was properly addressed in letters to the owner and his primary consultant. You did not intentionally hide the findings to benefit anybody.
3) Before escalate the issue, please make sure that:
a) the primary consultant did not make effort to convey your concerns to the owner;
b) the owner didn't address these concerns at all and have a plan ready to resolve these matters (note that there may exist funding, budget restraints), and
c) there are no inspection report done by others that contradict your claims.

When I send a job-relate/technical letter out, I will demand response. I wonder have you done that, and getting anything back.

 

[throwaway69]

There's a few things that should probably have been in the first post but I'll take a moment to clarify.

- I am a mid-level practicing engineer and this is a project with several other licensed professionals involved, both within our firm and with the prime consultant.
- I work for a mid-size national firm and accordingly we have protocols and technical advisory panels, such as a risk management committee and possibly one for professional ethics. I am fortunate to have many resources at my disposal, internally, as far as a response from the firm is concerned. This is my primary avenue for an appropriate response.
- The ultimate client has not exposed anyone to anything at this time and accordingly I cannot in good faith say there is a hazard present.
- I don't care if I lose a client or two (both the prime consultant and the AHJ client in this case). I don't want to lose my job, but if I was convinced my ethical obligations necessitated going out on a limb, then so be it. I haven't yet arrived at that conclusion though. I do not value my job or career over someone else's life.
- I am generally satisfied with my firm's response thus far and hope this will reach a satisfactory conclusion internally if the client does not act appropriately.

Onto the issue at hand. First off, I'll say again... the way I would otherwise handle this with a private client is make an anonymous complaint to the AHJ so they could make the necessary enforcement / life safety determination. In every jurisdiction I have practiced in, the AHJ is the authority on a hazardous condition vs a potentially hazardous condition. Private engineers do not unilaterally make that determination. The option of formally registering a complaint with the AHJ may still be on the table - especially as there may be a concurrent jurisdiction on this particular building. We've been working with the AHJ from the back door, maybe this needs to come through the front. This could be done formally with the help of the firm, or (hopefully) anonymously if the firm believes we have met our obligations.

Second, Ron, having divergent engineering opinions of a condition - even a potential life safety one - is not negligence as-of-right. It is negligence if their engineer has had their judgement compromised to maintain their job. If that was the case, I would have no choice but to bring it to the state, with or without my firm, because it is direct knowledge of an ethical violation of our practice. However I do not know that to be the case or even reasonably suspect it, which is what that ethical statute requires. It is possible their engineer is incompetent, but it is also equally possible he has reviewed the condition carefully and determined no action was necessary until the stucco was removed during the course of repairs. Again, disagreement is not inherently an ethical, moral, or professional violation and escalating a simple disagreement exposes me to all the liabilities everyone else has described.

NSPE says on the matter: "If engineers' judgment is overruled under circumstances that endanger life or property, they shall notify their employer or client and such other authority as may be appropriate." We have touched all the bases there. It also states that engineers employed by the AHJ are authorized to review our recommendations in the course of their official duties, but it otherwise ethically limits the ability for non-governmental engineers to audit others. It is a one-way street in this case, meaning, as far as a technical dispute goes, it gives an enormous advantage to the judgement of the AHJ as they are doing so ethically within their official capacities, and by second-guessing another engineer, I am not. I do not think it is wise to make this a dispute over ethics.

So it looks like the options are:
- Make a complaint to the AHJ and concurrent AHJ, with the help of the firm, or anonymously, for them to make an official determination on whether the condition is a hazard or not. This is almost certainly step 1.
- Make a complaint to the state board against a licensee. I do not know who I would make this complaint about as I do not know who is responsible for the inaction. This also cannot be done anonymously, and I am not satisfied that this determination was made unethically. Again, I do not think this should be an argument over the ethics of this decision or non-decision, as I believe I would lose.
- File a complaint with the Board of Standards and Codes stating the AHJ did not apply the building code to their own structures. This cannot be done anonymously but my information is redacted for purposes apart of the investigation. I believe I would need an explicit code reference, which I don't have offhand, but I would think I could find.
- Go to the mayor / town. The firm would have to do this. I do not think I would be acting ethically if I did this on my own, as it relied on information obtained in the course of my duties with my firm and on behalf of my client, but was subsequently reported as a private individual. The firm should be making those recommendations.

I am increasingly of the opinion that my route here is to ensure a complaint is formally registered with the AHJ and concurrent AHJ and then filing with BSC if they do not do anything. And obviously my firm has to see firsthand that our guidance was not adhered to, and the area was opened to the public. Certainly as a firm we have not exhausted our internal options, e.g. formal letters and so forth.

 

[r13]

I work for a mid-size national firm and accordingly we have protocols and technical advisory panels, such as a risk management committee and possibly one for professional ethics. I am fortunate to have many resources at my disposal, internally, as far as a response from the firm is concerned. This is my primary avenue for an appropriate response.

I guess your concerns have already upheld by your firm, otherwise it wouldn't issue the letters, but obviously it has different interest in how far it willing to go on this matter, legally and ethically speaking. Be careful, and good luck.

 

[throwaway69]

Boy lots of replies since I started typing this morning:
- Craig: Thanks. I've already been reviewing the NSPE stuff for the US and am reviewing the laws of professional ethics for the state. I still need more time with them.
- rb this thought occurred to me, like, "I wonder if a 12 gauge with beanbag rounds at 3 AM could get this to come down". Sadly I think the shooter would have to be too close to the impact zone. I realize I just wrote the above post, but given that I understand they fenced off the area, there is no immediate hazard at the moment that would necessitate escalating this.
- Ed, I'm not going to agree our firm has done anything ethically wrong. We informed our client last year that the condition was bad. When we went back after the thaw this year and found the condition was worse we escalated it. We directly informed the representative of the jurisdiction that owns the building and another of their outside consultants - in addition to the prime consultant. The area has been fenced off and the facility where this walkway would typically be used is closed. What is our ethical violation?
- oldest - I hear you and agree, but we made our recommendation to protect the public, and fencing wasn't it... it's too temporary and can be moved. I really don't want to make other recommendations that sound like a tacit endorsement of their solution, but that's not to say this isn't generally viable as a temporary solution. As to personal/professional issues, I am unlikely to face any blow-back from within our firm if I limit myself to handling this within our firm. They know I do not bring frivolous issues to a company level unless it is serious, and my entire career is built around dealing with distressed and at-risk buildings. I regularly deal with buildings that are leaning 8-12" and handle the issue within my office, bringing things to a corporate level would be taken very seriously.
- retired - the primary consultant did convey them, as did our firm. Maybe not on letterhead, and we do not have a written response from the owner/AHJ (though directing the fencing to be moved to the area certainly suggests that. The municipality also is not our client, (the prime consultant is) so I have to think about how we would do what you're suggesting. I agree that turning this into a media spectacle is not the way to have this handled, as it relies on a lot of assumptions, such as "no one else has looked at this."