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!

 

[gte447f]

Jim/James6e, all of this is to create a case study for an engineering ethics class?! 500-1000 hours invested! Sounds absurd, and I am sorry to say it, but you sound more like the engineering ethics student than the teacher.

As a side note, I have never been impressed with the NSPE Board of Ethical Review cases. You only have to read a handful of them to find some truly "interesting" conclusions and contradictory conclusions from one case to another. Luckily, this board doesn't have any standing that I am aware of.

 

[Jim6e]

gte447f
All of this effort was not due to just development of an engineering ethics case study. As noted above, I was concerned that there were ethics violations. Before asserting that as part of a formal complaint, I wanted to be careful and answer many questions that I had. Additionally, I was (and am) concerned about the impact on members of my community. So, the combination of these issues motivated the investment of significant time and effort.

I'm not sure why you felt compelled to deride me and equate me to a student instead of a teacher. I interpret that as something of a personal attack. I would hope that we could all refrain from anything approaching personal attacks if we want a forum like this to be taken seriously.

Thank you for your perspective on NSPE case studies. I will keep that in mind as I go forward.

Best regards.

 

[AZPete]

- and my findings may make the closing not happen.

Dual agency. One duty to the client, one duty to the public in the form of safety. The license is the public's grant of practice so long as it conforms to the public's interest in regards to safety. Therein lies that particular client relationship.

 

[Jim6e]

LionelHutz
You ask why I should attempt to create a new engineering ethics case study.
Part of working in the field of higher education is developing new knowledge. Ph.D. scholars and researchers seek to push forward the bounds of knowledge. That's what we do. Additionally, students often find up-to-date content more compelling. Ethics questions did not arise just in the distant past. They arise right here, right now around issues of today.

You are correct. I don't know why the federal agency accepted the report. FEMA guidelines state that changes to floodplain maps must be justified and must be documented. They (and I) use the word "must." That's what the regulations say. However, in this instance, FEMA's reviewing mapping partner failed to document the justification that may have been provided by the key engineer in this case. That is also part of this expansive case. I believe there are not only ethics problems but procedural problems by many different parties. That's also why it makes it difficult for the state licensing board to assign blame. The engineers licensed by the state are not the only parties that appear to have made mistakes here.

I have concerns about more than a single engineer. To get the remapping approved, a peer review was delivered by a second engineering firm. I have unanswered questions about that peer review. Perhaps those questions will be answered when I see the Board's case file.

I respectfully disagree with your assessment. I believe strongly that there are ethical and procedural problems surrounding this case. Again, my perspective may change when I see the Board's case file. However, at present, I have seen evidence of both ethical and procedural missteps.

In the classroom, I can present the Black's Law Dictionary without tipping my hand about whether it is appropriate or not to apply it in this situation. Then, I can encourage discussion and ask students what they think. Then, I can round out the discussion by explaining what NSPE explained to me - that the localities and FEMA are better defined as "third party beneficiaries" rather than "clients." Presentation in class, in that manner, is not personal. It's called engaged teaching and learning.

Beyond the client claim that I made, there is a second, relevant section of Virginia's Administrative Code that I also pointed to when I filed my complaint. It is under the code header of "Public Statements." The code section reads as follows:

Except when appearing as an expert witness in court or in an administrative proceeding when the parties are represented by counsel, the regulant shall issue no statements, reports, criticisms, or arguments on matters relating to professional practice that are inspired by or paid for by interested persons, unless the regulant has prefaced the comment by disclosing any self-interest and the identities of all persons on whose behalf the regulant is speaking.

So, even if I was completely off base in my understanding of the term client, I believe there was still an expectation of disclosure of self-interest. No such disclosure occurred. I will review the Board's case file to see if my understanding on this part of the code is also flawed. However, at this moment, I am not aware of why I might be mistaken.

Best regards.

 

[gte447f]

Jim6e, your latest line of reasoning, related to the code section about Public Statements, is also off base, in my opinion. I interpret the Virginia Administrative Code section that you have quoted to be in reference to public statements "relating to professional practice", as in the conduct of others engaged in professional practice (e.g., criticisms of others). I interpret that code section to be about being paid to critique the work of other engineers or other people engaged in the professional practice of engineering. That's why there is an exception for expert court testimony. In the scenario that you have presented to us, I do not believe the engineer in question has made any public statements relating to professional practice that were inspired by or paid for by interested persons.

 

[AZPete]

on matters relating to professional practice

The Code is plain in that "all matters relating to professional practice" constitutes the universe of possibilities under the practice of engineering by the licensee. So, that would be commenting on others' works as well as publishing an opinion as a matter of course in the practice.

 

[Jim6e]

gte447f
As we focus our online chat here on the Public Statements section of Virginia's code, we also shift a little bit of the focus regarding who needed to be told. I interpret that section to mean that the public needed to be informed.

This whole case revolves around a Letter of Map Revision (LOMR) that needed to be issued by FEMA. The engineer in question was the point person on the request to FEMA, asking that they issue a LOMR. Near the end of the process, FEMA was prepared to issue an updated map. Before the new map became final, FEMA instructed the engineer to place a public announcement in the local paper. The announcement states the intent of FEMA to update the map. The announcement indicates what part of the map will be updated. That public announcement is the start of an ~90 day window during which the public can review the pending map and submit a technical appeal. The ad was placed on two consecutive days in the local newspaper by the lead engineer. That public announcement does not disclose his self-interest in the project. From my perspective, that is a clear violation of the above referenced section of Virginia's Administrative Code. Sadly, I didn't point out this specific ad to the Board with my filed complaint. Thus, their decision not to take disciplinary action does not consider this specific public statement.

Best regards.

 

[LionelHutz]

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.

This case is not a situation where an engineer should be agreeing to compensation based on success, because their report could mean failure which goes against their self serving interest in making money. But, the situation could also include them coming up with ethical ways to address any issues and achieve success.

My point still stands. An engineer can work knowing their compensation level is based on their work being successful without being unethical. In this case, the engineer had already done work that lead them to believe that the floodplain mapping will change, so they purchased land with the expectation of making money on it once the change happened. Does ethical rules stop an engineer from making money based on knowledge they only possess?

Is an engineer investing their own money into something to take advantage of their knowledge unethical?

 

[gte447f]

Jim6e, forgive me if I have overlooked it, but I believe this is the first time you have provided this piece of the story about the engineer placing an announcement in the local paper about the map revision. Knowing exactly what did that public announcement say and who authored it would be prudent to the discussion I think. I do not know the procedural process for LOMR updates. It seems FEMA should be the party to have to advertise the proposed change, since they will be the entity to publish the updated map. Why should the engineer have to run the add? If not FEMA, at least it should be the engineer's client, maybe?, since the engineer's work is being performed at the behest of the client.

 

[Jim6e]

gte447f
Yes. This is the first time I've provided this bit of information. I actually only figured it out this past weekend. It clicked based upon verbal feedback that I've received from the state Board about the case. I was reflecting on what they said to me, and this announcement dawned on me.

FEMA instructed the engineer to prepare the ad. They provided example language like this:

The County of ***, in accordance with National Flood Insurance Program regulation 65.7(b)(1), hereby gives notice of the County’s intent to revise the flood hazard information, generally located between AAA and BBB. Specifically, the flood hazard information shall be revised along the CCC River from DDD to EEE.

As a result of the revision, the floodway shall not increase, but the 1% annual chance water-surface elevations shall decrease, and the 1% annual chance floodplain shall narrow within the area of revision.

Maps and detailed analysis of the revision can be reviewed at the County at [this address]. Interested persons may call FFF at 555-555-5555 for additional information from 5/16/2023to 12/01/2023.

There is then clear back and forth correspondence where FEMA is helping the engineer edit the ad. From FEMA to the engineer's firm: "I also looked at the newspaper notice and I have few corrections in the notice. I will show it to my supervisor before I email you the notice with comments." Then, after the ad appeared in the local paper, that lead engineer (the local professional engineer) wrote to the county engineer as follows, "A public advertisement has been issued at the direction of FEMA and they require a point of contact so we listed you… perhaps should have given you some more warning on that."

From my perspective: If you, as an engineer, have your hand so actively in drafting the language of a public announcement, I don't see how that does not constitute a Public Statement as per the Virginia Code. He should have disclosed self interest.

 

[gte447f]

Jim6e, thanks for providing this additional background. I see it differently. I see it as FEMA's statement and as FEMA's responsibility to advertise the proposed change, as it should be. I don't think FEMA should have involved the engineer in drafting the add at all, as it seems they (FEMA) dictated the use of their own template anyway and just substituted the location specifics. It sounds to me like the engineer in question had little to nothing to do with the "public statement" and was just being pushed through the FEMA bureaucracy, possibly unwittingly. They (FEMA) even acknowledge and apologize for listing the engineer as the point of contact without his permission. I would probably have been pissed if I were him. Also, who paid for the add to run in the paper?

 

[Jim6e]

gte447f
You've misinterpreted one item. (I wasn't clear.) The last quote was written from the local, lead engineer to the local county engineer. He, not FEMA, apologized for listing the local county engineer without confirming permission first. While I do not know who paid for the ad, I anticipate that it was the engineer. Perhaps someday we can confirm that detail.

While FEMA provides a template, they expect the template to be replaced with an accurate public notice. State code requires disclosure in such a public statement.

 

[gte447f]

Jim6e, what I'm saying is that I do not think it is the responsibility of the engineer in question to advertise the public notice, and I am not convinced, based on the information you are able to provide so far, that the public statement can or should be attributed to the engineer in question, so you have not established a cause for disclosure under the state code based on this newspaper announcement.

 

[Jim6e]

gte447f
I feel you are attempting to stake out an extreme position. Here is what FEMA guidelines state:

According to 44 CFR 65.7, floodway revisions require submitting a copy of the public notice distributed by the community, stating its intent to revise the regulatory floodway or a statement by the community that it has notified all affected property owners and affected adjacent jurisdictions. Therefore, newspaper publications notice for a floodway revision must be coordinated by or on behalf of the community.

Clearly FEMA does not do this. Rather they expect the locality / lead engineer to perform the notification and confirm such notification with FEMA. Perhaps the engineer could have asked the localities to undertake publication in the local newspaper - and kept his hands off the final publication process. However, the engineer in question wrote to the locality to say that he took the lead on publication... and now he's letting the locality know after the fact. He issued a public statement - without disclosure. That was perhaps his choice, but it was a choice he did in fact make.

Regards.

 

[gte447f]

Jim6e, OK, but once again, you let trickle out yet another detail or two of this saga that you had not previously shared with the board here, this time, "the engineer in question wrote to the locality to say that he took the lead on publication". You now seem very self assured that, "He issued a public statement - without disclosure," but you only seem to have arrived at this conclusion recently, after having abandoned the questionable avenue of insisting that FEMA should be considered the engineer's client. I am not interested in trying to piecemeal the details of this saga together any longer, but I do not think you have nearly as strong a case as you think, as should be rather obvious considering you made a complaint to the engineering board and they concluded no cause for disciplinary action.

 

[gte447f]

"The county of *Blank* hereby gives notice...". That sounds like the county has made a public statement, not the engineer in question.

 

[LionelHutz]

From what you know, the engineer helped FEMA prepare the letter. You have no idea who actually paid to publish it. Possibly the engineer let the county engineer know because FEMA didn't.

The cited code says the community must notify everyone. The engineer isn't the community so that code doesn't make the engineer responsible for the notification.

You just seem to be making up reasons as you go now.

You have not made it clear if this engineer did any additional work after purchasing the property or not. Did they submit new documents after the purchase? Did they do work for themselves or was it already done for their client?

 

[montbIanc]

I wonder how much of your time investment is because you always try to discuss in generalities (which will never yield a conclusion)? Aside from your posts on this forum, your email to the NSPE about the definition of "client" could only ever come back as "It depends..." because you didn't give them any details of the case at hand. A short, sharp "The engineer was engaged by a party that is their client in the usual sense. However, in these particular circumstances, could FEMA or the local authority also be considered clients?" would have given them a chance of providing something useful.

I also saw your other thread. Have you considered making complaints to FEMA and the local authorities that they were negligent for approving the flood maps despite apparently being aware of shortcomings in the methodology? Usually they have to respond in detail to such formal complaints.

 

[jhnblgr]

Here are the facts: the engineer used a program to model the area in question and the local jurisdiction had a qualified person verify it.

The engineer always has a self interest in a project so your conflict is always present. Now if the engineer made a mistake they are liable for that regardless of if they sold the land.

Yet again you still have not provided evidence of the error made in the report. You as a teacher should present all the facts.

Like how did you make this determination?
Did you check the original model vs the new model? What changes did you see? Did grade change, roughness or flows? Engineers must use hard numbers to justify their findings and that must be presented to the agency’s for review.

 

[Jim6e]

jhnblgr
It's more complex than you summarize. The local professional engineer (Engineer A) did model. A "staff" professional engineer for one of the localities (Engineer B) reviewed and objected in writing to his superiors and to FEMA. Engineer B listed a set of technical concerns with the work of Engineer A. Among the concerns, Engineer B listed an unjustified change of Manning's 'n' roughness values. The locality superiors subsequently cut Engineer B out of their final approval process, sending a "green light" letter to FEMA without the knowledge of their own engineering staff.

I confirmed the concerns of Engineer B by comparing the work of Engineer A with FEMA's published regulatory process, by speaking with Engineer B who had objected, and by reviewing process documentation provided to FEMA by Engineer A and Engineer B. I also opened Engineer A's model into the software so that I could see what Manning's 'n' values were used at each modeled cross section.

The original FEMA map that was being modified was published in 2005. Engineer B contacted the U.S. Army Corps of Engineers who led that 2005 study and received written confirmation from them that they had calibrated their 2005 model using historical high water mark data from the 1970's for the river section in question. That data allowed them to set the Manning's 'n' roughness values and match model with data.

FEMA regulations state: "Hydrologic and hydraulic analyses must be calibrated using data from well-documented flood events, if available."

FEMA also says that model and flood event data must agree within 0.5 feet.

For the river in question, high water mark data is available. Therefore it must be used for model calibration. It was used by the USACE in 2005. Earlier this year, FEMA appeared to confirm that they still consider that same high water mark data as valid for model calibration along our local river. How did they confirm that? FEMA has (since 2018) been working on its own, independent review of our local flood maps. Their consultants (Engineer C) have published preliminary data and opened their work to public comment / appeal. I looked at their work and pointed out that, like Engineer A, FEMA's Engineer C had failed to use the available high water mark data set from the 1970's for model calibration. FEMA responded to my technical appeal and stated that I was correct. FEMA has now asked their Engineer C to reconsider their model in light of the data set that they now know about. At the moment, I do not know how consideration of the data set will change the work of Engineer C. Based upon hydrologic study of the river (by the USACE, Engineer A, Engineer B, and Engineer C) and upon the historical data, I have a sense of where the base flood elevation will likely lie, but FEMA has not come back with new, published base flood elevation estimates. So I can't say with authority what they will determine. Time will tell.

However, when Engineer A set aside the high water mark data, that led to a reduction of the base flood elevation along the river by as much as six feet from what the USACE established in 2005. Engineer A delivered the amount of reduction that his client needed.

Recognize that, at one point in the process of reviewing the work of Engineer A, FEMA's reviewing mapping partner responded to Engineer B's technical objections by writing, “But as [Engineer A] is certifying his work so I do not want to question any further on this.” The FEMA reviewer was prepared to approve the map request in large part because Engineer A put his professional stamp on it. The FEMA reviewer said that a "professional stamp" was largely good enough. That's crazy! Engineer B thought so. As a result, Engineer B kept working and contacted the USACE. He obtained and forwarded an email from USACE to FEMA (and ultimately to Engineer A) confirming how the 2005 model had been calibrated. Yet Engineer B (and locality engineering more broadly) was cut out of final locality approval and discussion with FEMA by his superiors. FEMA approved the Letter of Map Revision request without proper calibration.

In summary, Engineer A modeled. Engineer B objected. FEMA approved the work of Engineer A after Engineer B was cut from the process by his employer, our locality.