Who constitutes a client of a professional engineer? 13

[Jim6e]

Can anyone tell me where the term "client" is formally defined in the engineering profession? I am an engineer, and I am grappling with a specific case where the meaning of that term is in dispute. Here is the specific example.

A licensed professional engineer provides a locality with his signed and sealed request to modify local flood maps. The request includes engineering analysis (civil engineering stuff). The engineer was not hired by the locality for this work but rather by a separate, private client. Is there any "official" guidance that would define the locality as a client of the engineer's work in this instance?

Here is a parallel example from the legal profession. "Generally, the relation of attorney and client exists, and one is deemed to be practicing law whenever he furnishes to another advice or service under circumstances which imply his possession and use of legal
knowledge or skill."

So, if we bring that legal definition back to engineering, the professional engineer in question has mapped the local floodplain. He has used his engineering knowledge and skill to complete the task. Now, he furnishes his completed flood map to the locality. Does that establish an engineering professional - locality client relationship?

I'm not looking for individual opinion. I'm looking for a credible reference (perhaps an engineering ethics case study or a state engineering regulator document) that would allow one to reasonably answer yes or no to my question.

Thanks!

 

[phamENG]

You need to be very careful about your next steps. Unless you have solid, incontrovertible evidence that this engineer willfully submitted erroneous documents so they could profit from the results and, in doing so, directly or indirectly harmed others, any suggestion that he/she did so could land you in a lot of trouble. Given the board's lack of willingness to investigate the issue, I doubt you have much proof.

Also, do you have proof that it was never disclosed? He may have disclosed it, or mentioned it in a meeting but somebody told him not to worry about it. May not be the right way to handle it, but it doesn't mean it didn't happen.

What is your area of expertise? Your tag says you're a materials engineer. How does a materials engineer come to develop mastery of civil engineering and floodplain mapping? As a structural engineer working on the design of structures in and around floodplains for my entire career, I wouldn't dream of trying to perform the analysis necessary for a flood map revision. I don't do that kind of work and don't have any professional training in it. So, you have some work cut out for you proving that you have the credibility to bring a complaint on technical grounds.

The other issue you're going to run into is the standard of care. If he didn't do something in the analysis but it was accepted, and then another engineer/engineering firm performed a similar but independent analysis and arrived at similar results using a similar method, you're well on your way to establishing a standard of care there. Of course, a court would have to determine if it's within the standard of care or not, but it sounds like you'll have an uphill climb there.

So, if you want to continue down this road, this is what I see as your best bet:

1) Hire a consultant with experience and expertise in floodplain mapping. Engage them to review the area and determine what the maps should be.
2) If they agree with the other engineer, you might want to accept defeat. If they don't, then you can take that to the non-profits and the homeowners there and show them the issue.
3) If they are all on board, you can find some more experts that can perform independent analyses and, if enough agree, then they could potentially sue the first engineer for damages stemming from their error.

But if that was already confirmed by an independent third party, they may be off the hook anyway and the whole thing could backfire - the first engineer doesn't have to pay anything while the homeowners suddenly end up in a flood zone with rates they can't afford and find themselves foreclosed on.

In any case, you need to consult with an attorney to find out the best steps forward, and talk with those who have actually been harmed. There are risks to seeking any sort of compensation, and they may not be worth it to them.

 

[AZPete]

Duty.

How about duty to homeowner public that may be living in a flood plain? Since no one knows at this point, but informed multiples suspect/opine, it seems clear that a non-professional, courtesy heads-up is in order to the homeowning/landed parties that something MAY be amiss here and it's on THEM to pursue to any finality.

Once warned/tipped, they can hire an expert and off they go. If they find they are in the clear, great all around. If they find out they are in a flood plain, then this OP saved someone's bacon from a potential, future disaster. That seems to be in accordance with duty to public safety.

 

[gte447f]

Sorry, I have not read this entire thread, because it seems unnecessary, because the original question seems simple enough to answer. The answer is: the paying client is the client. The authority having jurisdiction (AHJ) is not a client. If it were, then the building permit department AHJ for practically every building ever built would become the client of the design professionals (e.g. architects and engineers) when stamped plans were submitted for review as a condition for issuance of a building permit, which is ridiculous.

 

[gte447f]

OK, I have now read the entire thread (time I will never get back unfortunately). I stand by my statements about the definition of "client". The AHJ is not a client, so any part of your argument or case or whatever you want to call it that relies upon the definition of client being extended to the AHJ is unfounded in my opinion.

Now, on the face of it, it does seem like an obvious conflict of interest that the engineer's conclusions could stand to greatly increase the value of real estate to which the conclusions would apply and in which the engineer had a vested financial interest. This looks especially bad since the engineer seems to have intentionally purchased his ownership stake in the subject real estate only after he learned of the potential/likely windfall. However, I still do not know whether the engineering rules/laws in Virginia would have required him to disclose his conflict of interest to anyone other than his client.

 

[Jim6e]

phamENG
I agree that great care is needed vis-a-vis next steps. My goal is not to slander anyone. Rather, I want to protect my community and profession. How can one shrink from moving forward if there appears to be real, unrealized danger for citizens locally? Our paramount duty is to the public.

I'm not asserting that the engineer willfully submitted erroneous documents so that he might profit. As you likely know, there are different levels of negligence (certainly in Virginia) - 1) ordinary or simple, 2) gross, and 3) willful and wanton. My current sense is that this case falls into either category #1 or #2.

Regarding proof in hand, this thread is not the forum to review that evidence. However, I have examined this case since November 2021, investing 500 to 1000 hours. My work includes repeated document requests to local government and federal entities (including freedom of information act requests), personal interviews with locality engineers, and meetings with engineers skilled in the art of floodplain mapping to check my understanding. When I have communicated with state investigators and with FEMA, I have clearly identified the limits of my expertise. Yet, I possess bachelors, masters, and Ph.D. degrees in engineering. I have over twenty five years of work experience in the field. I am a licensed PE. I continue my education and have taught myself much (but certainly not all) about floodplain analysis.

Regarding disclosure by the engineer, I asked. The engineers of one locality stated unequivocally that he never explained his financial interest. The federal engineers claimed not to remember the details of the case - "We work on too many to remember such details." There clearly are no written records of disclosure. No emails. No official correspondence.

Regarding my credibility, I would point to the technical appeal I filed with FEMA in February of this year. I identified and correctly explained the technical gap in their work. They confirmed that my understanding and technical explanation is correct. I did not attempt to complete new calculations, but my understanding appears sufficient to identify mistakes in existing calculations.

You raise a great point about standard of care. I have thought a lot about that. Consider that FEMA's recent draft maps were wrong. I pointed out the mistake. FEMA is now correcting their mistake. In contrast, the engineer in question was wrong. He was informed three times in writing by FEMA that he was wrong. There is no evidence that he ever corrected his mistake. I argue that there is a difference between the standard of care exhibited by FEMA and the engineer.

Based on my appeal to FEMA, they are now generating revised maps of the local floodplains. Rather than hire consultants with my own money, I eagerly await updated number crunching from them.

I agree that consultation with legal counsel is warranted at this juncture. Thank you for reinforcing that thought.

Best regards.

 

[EnzoAus]

James,

I'm in a different country in a different engineering profession, but have previously taken on several challenges to correct perceived "wrongs"; both professionally and otherwise. Whilst I had some wins I have come to recognise that my crusades required at least some obsessiveness which took a personal toll.

It seems to me that you have acted in accordance with the professional ethics and advised the AHJ of the problem. If it is appropriate, you could also advise the relevant professional engineers registration board of your concerns. Of course, if you can have a colleague check your assessment and support your correspondence, even better for your credibility. Both the AHJ and PE board have official responsibilities to protect the public and the necessary insurances to fend of any challenges to any further action they take.

As for those people who have purchased this overvalued land, it seems to me that you have no easy choice. Advise them of your concerns and you will probably create anxiety, risk repercussions on you and create an opportunity for new buyers to be duped by existing landholders who do not tell the full story when offloading their properties. Leave them be and they will at least enjoy their homes in the meantime.

It seems a no win scenario that you are best leaving to the authorities. Once you have notified them, keep the correspondence in case you are later proven correct and then you will have the evidence to go to the media to support any claims for victims' compensation. The media probably won't be interested beforehand. In the meantime, at least be alert to the risk of a possible personal cost of your pursuing an "injustice" that presumably will at least not cost any lives.

 

[MintJulep]

Engineers submit calculations, plans, etc. to government agencies for review all the time. It never makes the government agency the engineer's client. Why would this case be different.

 

[Jim6e]

Yesterday I had the chance to speak to a knowledgeable individual at NSPE and describe the particular situation that I have encountered. In response, they described the localities and the federal government as "third party beneficiaries" rather than "clients."

The reason I wondered if the localities and federal government might be clients is because of the reach of the particular project in question. The engineer in question undertook floodplain analysis on behalf of a paying, private client. However, the analysis did not encompass just the property in question. Rather, to obtain an answer for his client, the engineer remapped many miles of river across the locality. Thus, in my mind, the situation is not perfectly analogous to the one that many of you on this forum have pointed to, i.e., review of submitted plans for a specific building project.

I asked the question initially because it was a position that I staked out - based on the Black's Law Dictionary definition given earlier in this thread. It is not a position to which I am wedded. I actually think there are other sections of Virginia's Administrative Code that would ethically obligate the engineer in question to disclose his financial interest to the localities and federal government. Thus, from my perspective, the obligation to disclose or not disclose does not hinge solely upon the meaning of the word client.

I thank everyone who has posted to this thread in the last several days. Your inputs have been super helpful. Personally, I don't anticipate posting to this thread again. However, related to the case in question, I may start another thread on this forum. I have found many of the comments given to be tremendously helpful as I work through a challenging situation in my community.

Best regards.

 

[LionelHutz]

I'm curious, why have you invested 500-1000hrs on this?

 

[NOLAscience]

I think it goes without saying that the provision of the NSPE code quoted below would apply to any governmental agency RELYING ON the engineer's work that was presented to the governmental agency. The engineer and his client should have stated, "Mr Smithson, here, owns 55 acres in this basin, Lots XY12 through XZ15". The agency could have told the client to get another engineer to provide a new report or have Mr Stmithson unburden himself of the property before the agency rendered judgment.
NSPE Code: "Engineers shall act for each employer or client as faithful agents or trustees.
Engineers shall disclose all known or potential conflicts of interest that could influence or appear to influence their judgment or the quality of their services."

If I had bought property from that engineer, I would be furious. The level of flood risk is one of my highest concerns when buying a house or other property.

 

[gte447f]

NOLAscience, I tend to agree with you that the engineer should have disclosed his conflict of interest, but whether he was legally required to by the engineering laws and rules in his state, I don't know. I don't believe the NSPE ethics code has any legal standing.

In my home state we have this requirement which is legally binding:

"The engineer or land surveyor shall avoid conflicts of interest. The engineer or land surveyor shall conscientiously avoid conflict of interest with his/her employer or client, but, when unavoidable, the engineer or land surveyor shall forthwith disclose the circumstances to his employer or client."

The first part of it seems pretty straight forward, "The engineer or land surveyor shall avoid conflicts of interest." However, the second part talks about disclosing conflicts to clients and employers. I'm sure a lawyer representing and engineer accused of a conflict of interest would probably argue that the first part of the requirement and the second part of the requirement go together, and thus as engineer only has a duty to disclose the conflict to his client/employer.

There may be other areas of the law aside from engineering licensure laws that apply in this situation. I don't know.

 

[jhnblgr]

By this theory an engineer would have to work free of charge since compensation is a conflict of interest. In my experience for modifying flood maps you have to provide models to the government agency to verify along with a written report.

What is the historical data you talk of? Typically the model is of the whole drainage basin and should be fairly accurate. How did the engineer modify the model? This would be a pretty drastic change.

 

[Smoulder]

"I'm curious, why have you invested 500-1000hrs on this?"

Someone else made a profit while the undevelopable land over his back fence now has neighbours on it.

 

[Jim6e]

Smoulder
I feel compelled to correct your flawed hypothesis. I do not live in the area covered by the situation discussed in this blog posting. My home is several miles away. I do not own land in that region. I have never contemplated purchasing land in that area. I am not upset about new neighbors over my back fence. The work of the engineer in question does not impact me directly. LionelHutz's question is reasonable. Your hypothesis is incorrect.

I invested so much time because I work in higher education, and I teach engineering ethics. The situation which is described in this posting will become part of an engineering ethics case study in the undergraduate engineering classroom, at my institution and perhaps more broadly. I did not intend initially to invest so much time. However, as I dug into the situation, I found more and more elements that were unsettling. I realized there was an engineering ethics situation of substance staring back at me. I invested time as I sought to exhibit a "standard of care" that I would hope others might also exhibit. I wanted to make certain that I had my facts straight as I spoke with students in the classroom about the situation. This is also the reason I posted here. Before posting, I had an apparently incorrect understanding of the term client. My understanding fits with the broad Black's Law Dictionary definition. However, client, as used in the field of engineering practice, is regularly defined in a narrower manner. I understand that now. Yet, this will be a perfect classroom discussion with students. I can lay out the facts of this case before them. I can present them with the section of Virginia's Administrative Code that lays out the requirement of disclosure to a client. I can present students with the Black's Law Dictionary definitions related to client. I can ask them if this engineer was required by that code section to disclose his interest to the localities and FEMA. I can teach students more professionally. That is a key reason why I have invested 500 - 1000 hours on this case so far.

Separately, I have invested so much time because I sincerely believe that engineers involved with this case have acted unprofessionally, contravening Virginia's Administrative Code. As a professional engineer myself, their actions hurt my profession. Additionally, and more importantly, the actions of the engineers in question have likely placed members of my community in harms way. Those community members currently do not understand their risks. At the moment, the harm appears to be solely financial. However, should their homes and businesses flood unexpectedly, the impacts will be even greater. Some of those who have likely been harmed include low income homeowners. So, I have been motivated in part to spend so many hours on this because I feel a duty to look out for vulnerable individuals in my community, the types of individuals often harmed by our system when it does not function properly and professionally.

Best regards.

 

[LionelHutz]

I'm not sure you should be teaching students how an engineer has acted unethically when no-one with any authority over the matter has found that to to be the case.

Working for a client or working for themselves, an engineer still has a vested interest in a project that they work on.

I don't agree that the engineer has any clients besides the ones with a signed contract that are paying them, and of course themselves. An engineer doesn't have a locality as a client because they submit documents to the locality. An engineer doesn't have the court as a client because they testify as an expert witness. That's simply not how it works.

Are you sure it's not personal at some level?

Have you contacted your board about this? If you have, what have they done? If you have not, why not?

 

[Jim6e]

LionelHutz,
Thanks for your most recent comment. Teaching students about an active ethics issue in engineering is not unethical. I would start by pointing you to this NSPE engineering ethics case study:

https://www.nspe.org/resources/ethi...w-cases/public-statements-engineering-society

As in that case, the current case represents a "legitimate issue of public policy and professional concern." Such issues can be discussed publicly, in academic settings, especially since I refrain from identifying the engineers in question. I am not making merely “ad hominem” attacks here.

Additionally, as recommended by others on this forum, I have conferred with legal counsel in regards to my actions and public statements on this matter. My legal counsel has stated that my actions appear to be "in bounds" so far. He has not recommended any "course correction" on my part.

Let me be clear, I am not arguing that the localities or FEMA represent clients of the engineer. I may have started this blog posting ten days ago with that mindset. However comments here and discussions I have had elsewhere have convinced me that my perspective on "client" was outside the norm. That's why posting here has been valuable. Individuals here and elsewhere have helped me to better understand engineering ethics. That is a reason why it is appropriate to communicate and discuss, respectfully.

No, this is not personal on some level. I have never met the engineers in question. I am not aware that they have ever undertaken engineering (or other) projects that have impacted me in any way. At the same time, I have seen many, many people in my community express strong concern about the work of these engineers. As a "professional" engineer, I have sought to support members of my community by lending my engineering expertise to exploration of their concerns. As an engineer, I possess some knowledge beyond that of a lay person, and so I have sought to bring my subject matter knowledge to bear, on behalf of my community. Rather than being criticized for doing so, it would be nice for some to acknowledge the responsibility associated with my actions. I care about my community, and I won't apologize for doing so.

I have contacted my Board about this. They have recently elected to take no disciplinary action. In a few weeks I should be able to request and review their case file. At this time, I simply know that they have elected to take no disciplinary action. I will be interested to see what they say there. I should be able to see the case file before my next offering of engineering ethics occurs. I will be certain to adjust my instructional comments to take into account the Board's report.

Now, before you or anyone else point to the Board's decision as an indication that I am "all wet" on this issue, let me note that there are various reasons that the Board might have elected to take no disciplinary action. For instance: 1) They may have concluded that I had no standing to bring a complaint; 2) They may have concluded that the alleged misconduct occurred too long ago to be disciplined; 3) I may not have articulated the violations effectively; I may have failed to bring forward the right evidence and argument of a code violation. The Board's decision does not conclusively demonstrate that my concerns are without merit.

Best regards.

 

[AZPete]

Sounds like it could elicit some interesting responses from the students. They would represent the viewpoint of the layperson, the public, in this instance. Given that licensure and ethics within it both exist for the exclusive benefit of the public, it only stands to reason that it matters how they see the issue. If nothing else, if their assessment stands opposite that of the board's, well, that would be an interesting development.

 

[Smoulder]

Cool. I was curious where you stood and you were being cagey.

 

[LionelHutz]

That case is backed with a board ruling. This case is not. There are more than enough ethics violation with judgements which could be used as case studies. Why create one?

You're discussing an engineering report that was submitted to and accepted by a national government authority. You have no idea why it was accepted. Yet, you're talking about engineers violating their ethics. How many did exactly?

Can engineers be ethically employed where the compensation level is dependent on positive results for the client? If yes, they they can ethically work for themselves on a project where their final compensation hinges on positive results.

Working for themselves doesn't require disclosure to the locality any more than working for a client would.

Your case could at best be discussed as a chain of engineering errors, not as an ethics violation.

I have seen many, many people in my community express strong concern about the work of these engineers.

It sounds personal. You tried to create a case for the locality being a client of the engineer just to be able to clearly claim an ethics violation by the engineer. Your previous answer just said you're still going to present that definition and ask if disclosure to the locality was required, even though you keep saying that you were in error about it.

If nothing else, if their assessment stands opposite that of the board's, well, that would be an interesting development.

I'd bet money it could be presented in such a way to ensure that result.

 

[phamENG]

Can engineers be ethically employed where the compensation level is dependent on positive results for the client? If yes, they they can ethically work for themselves on a project where their final compensation hinges on positive results.

I think the answer to this is highly dependent upon the situation. Two examples with differing answers:

1) A mechanical engineer designing a product for market. They must develop a workable product that will be prototyped and tested. Payment based on success is reasonable and ethical - there is little risk to the public should it fail since it won't make it to market. The interests of the client and the interests of the engineer are aligned.

2) A structural engineer is engaged by a building owner to assess a structure they are trying to sell. If payment hinges on a positive result, the interests of the two parties may not be aligned. The building owner wants a 'clean bill of health' to get top dollar from the sale, but the engineer needs to truthfully report all defects they find. This would not be an appropriate place to have payment predicated on success. This is why I typically require payment at time of site visit for assessment, before the report is issued for this type of work. I never agree to be paid from the escrow account as that would only happen on closing - and my findings may make the closing not happen.