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!

 

[AZPete]

Latest alleged facts:

Tolerance between flood model and historical data shall be within .5 ft.
Historical data and Engineer A disagree to the tune of 6 ft.

Engineer B contested Engineer A's conclusion after consult with USACE.
FEMA openly stated that Engineer A's seal trumped Engineer B's informed rejection of A's basis of data.

Engineer A has a monetary interest in one side of a binary outcome of FEMA designation.
If locality had permit fees and property taxes hanging in the balance, then the locality can be considered an outcome-based interested party, and any collusion between A and Locality to press for one outcome vice another is not a good look.

Plenty of smoke. Probably a flame in there somewhere.

 

[Jim6e]

AZPete
Ten years passed after the USACE 2005 flood analysis before Engineer A took up their work. So, on our river, there were ten more years of peak flow data available. Using that additional bit of data did reasonably lead to a modification of the river's hydrologic study. We will need to await FEMA's final analysis, but my review suggests that Engineer A could have justified ~1.5 feet of base flood elevation reduction, not 6 feet. His client needed "three feet and a little cushion". That's what his client said in a public meeting. Otherwise, he wouldn't purchase the property in question and begin redevelopment.

Yes, there were financial implications for both localities. A reduced base flood elevation opened new properties to development, property taxes and business taxes. In fact, part of the reason that locality senior staff sidelined Engineer B was due to political pressure. Following a request from Engineer A's client, an elected official wrote to senior locality staff telling them to stop "hamstringing" the process. Basically, get bureaucratic red tape out of the way. Then, locality senior staff discussed internally, saying "does she [the politician] understand that if we approve this remapping request without resolving the technical issues, we'll have a problem?" Nonetheless, just 12 hours later, that same senior staff member drafted the "green light" letter to FEMA, asked Engineer A's client to review it, didn't share the letter with Engineer B, and subsequently sent the letter on to FEMA.

 

[montbIanc]

I think your pursuit of Engineer A is going to need to delve into the details of the analysis rather than procedural, unless you have other nuggets of information still to drip-feed. First, whether the parameters used were unreasonable. Even so, that on its own would just show error/negligence. For an ethical infraction, you need to show it was deliberate. Benefiting from the outcome doesn't prove that.

As has been pointed out already, Engineer C also not calibrating initially goes some way to demonstrating the standard of care. In this particular case, FEMA effectively granted a relaxation to Engineer A. Without taking it to court, Engineer A won't end up on the hook for this. I don't think you've said whether Engineer C's initial analysis/parameters was similar to Engineer A's?

As to Engineer A not disclosing their financial interest to FEMA/local authority, not significant IMO. Your latest post says the client was open about needing the defined flood levels to be lowered. Engineer A has to consider their client's interests, so the authorities were already effectively aware of Engineer A's motivation. We go back to my first paragraph at this point.

I still think the authorities are smelling worse from what you've said so far. The engineer doesn't wag the authorities; it's the job of the authorities to reject requests that don't tick the boxes. Having gained approval, the engineer is entitled to believe they've fulfilled the requirements (subject to the first paragraph). Having said that, there could be good reasons not to calibrate to historical. Prime amongst them the possibility that development has taken place that significantly changes the flood risks, and there hasn't been a significant flood since the development to calibrate to. The USACE analysis is now 20 years old, using data that's over 50 years old. If you haven't made formal complaints against FEMA and the local authority and received their responses, you don't have enough of the story IMO.

 

[Jim6e]

montbIanc
I appreciate your perspective. Broadly, keep in mind that this whole river flood mapping doesn't affect me directly. I don't live near the river in question. However, the actions of the engineers in question, the localities, and FEMA are all rather fascinating. As I've studied the overall situation, I see problematic elements and players all over the place. I am not suggesting for a second that Engineer A is solely to blame.

Also note that I'm not trying to "drip out" details here. Rather, this is an expansive story with lots of players and many elements. We are all just making relatively brief blog postings here. I've provided more information as individuals on the blog have probed different elements. I'm not trying to be sneaky.

I think the question of "standard of care" is an interesting one. At the outset, I agree. Engineer A exhibited the same standard of care as Engineer C. The lack of use of high water mark data at the outset is not a problem - in my opinion. Engineer A appears not to have been aware of a dataset. He did his analysis and came up with an answer for his client. Much later, Engineer C, working for FEMA, analyzed the same section of river. Engineer C also appears not to have been aware of the high water mark data. They did their analysis and came up with base flood elevations similar to those of Engineer A - in fact a bit more "aggressive" in lowering the base flood elevation. However, after that point, the actions of Engineer A and Engineer C appear to diverge. Both A and C were subsequently informed of the existence of the dataset. Engineer A made no changes to his analysis. Engineer C appears to be redoing his / their calculations. At present, I am not aware of any major developments along the river that would significantly change the river's behavior significantly. Let's wait and see what Engineer C's reanalysis shows.

Once Engineer A was informed of the existence of the data, there are two things that he did / said that I find troubling. First, Engineer B (of the locality) met with Engineer A and talked about the availability of USACE high water mark data. In response, Engineer A told Engineer B that he could not use the data because the actual physical markers placed after the floods in the 1970's were no longer in place. The telephone poles and other objects on which USACE surveyors placed tags were physically gone. The metal disks placed by USACE were gone as well. Yet... the USACE report still existed. In that report, the description of high water mark data point locations is pretty detailed. I used it when I wrote to FEMA earlier this year for my technical appeal of Engineer C's work. I identified where the data points were located along the river and pointed out how those data points at those locations did not agree with the model analysis of Engineer C. FEMA accepted my technical appeal. So, Engineer A said you can't use the USACE data because the physical markers are gone, but this year FEMA appears to say you can.

Second, once FEMA was alerted by Engineer B to the existence of the USACE data, they began to write to Engineer A and ask him to use the data or provide a justification for why the data should be set aside. After a pair of written notifications from FEMA about the existence of the USACE data, Engineer A resubmitted hydraulic analysis unchanged from his original work, without any written explanation for why he was not presenting the USACE data. Engineer B observed this. He noted to colleagues at his locality, "This is the same analysis that we've seen from Engineer A before. No changes." So, I ask, how does that reach the threshold of "standard of care?" Engineer A had been told in writing two times by FEMA - data exists; use it, or provide justification for setting it aside. Yet, Engineer A made no changes and provided no justification to the locality and FEMA for why he was making no changes to his analysis. How does that satisfy the "standard of care" expected in engineering. From my perspective, setting a dataset aside without explanation is substandard work. I see it as willful disregard for a professional process.

 

[SWComposites]

Sounds like the real ethical issues lie with the locality senior staff and elected officials. Though this kind of thing with flood maps has been going on for decades or more. No locality wants their city declared a flood zone, even after it repeatedly floods!

 

[LionelHutz]

I also agree that it sounds like there are more issues with the locality than the engineers work.

You do know that the initial analysis was reasonably sound since another engineer produced the same results. You don't know why the engineer chose to submit the same work again without changes.

You seem to have reasonable info on why it was accepted and the acceptance seems flawed, which isn't the engineers fault.

Do you know when this property was purchased and do you know if the work was changed after the purchase to benefit this property?

 

[montbIanc]

How does that satisfy the "standard of care" expected in engineering. From my perspective, setting a dataset aside without explanation is substandard work. I see it as willful disregard for a professional process.

That's fine as a general statement and aligns with the FEMA guideline. A proper case study, however, should delve into the fact that the two authorities involved both waived the requirement in this particular case.

The duty of care question is probably also a can of worms. Engineer A clearly has a duty to his client, but it often takes the courts to decide who else. Sometimes that decision is changes on appeal, so it can depend on which judge is the last to touch a case.

 

[IRstuff]

A professional engineer should be ethically bound to protect public safety, irrespective of who the client is and how much they're paying.

TTFN (ta ta for now)
I can do absolutely anything. I'm an expert!

https://www.youtube.com/watch?v=BKorP55Aqvg

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[montbIanc]

A professional engineer should be ethically bound to protect public safety, irrespective of who the client is and how much they're paying.

Sure, but as it stands there isn't proof that public safety is compromised. Even with FEMA's revised analysis (yet to be completed), there will just be two competing results that were derived using different methodologies.

 

[Jim6e]

montbIanc
I'm not sure that a new answer from FEMA would be just a competing result. FEMA has an established regulatory process for calibrating hydraulic modeling. If high water mark data is available for model calibration, the high water mark data "must" be used. One could set aside such HWM data if there have been major changes to the watershed, but otherwise the data data must be used. As I researched this case study, I read a good bit of US Army Corps documentation as well as FEMA documentation. Both indicate that high water mark data represents the best way to calibrate hydraulic modeling. Then, if such data is not available, other methods are suggested. So, the flood mapping community appears to have established a hierarchy of methodologies.

In terms of your other recent posting, I fully agree that a robust case study needs to look at the missteps of regulatory bodies.

 

[montbIanc]

We might be on the same page but I'm not 100% sure.

the high water mark data "must" be used

I think you used those quote marks to indicate a direct quote from the FEMA guideline, but they're actually ironic air quotes in this case since FEMA waived the requirement.

I fully agree that a robust case study needs to look at the missteps of regulatory bodies

This needs to be done in the consideration of Engineer A's actions, and not from a starting assumption that they were missteps.

 

[Jim6e]

montbIanc
Here are the relevant FEMA regulatory standards.

FEMA working standard #59, effective 11/1/2009: “Hydrologic and hydraulic analyses must be calibrated using data from well-documented flood events, if available.”

FEMA program standard #61, effective 11/1/2009: “Engineering analyses must be documented and easily reproducible and must include study methods, reasoning for method selection, input data and parameters, sources of data results, and justifications for major changes in computed flood hazard parameters.”

FEMA working standard #85, effective 7/31/2013: “Deviations from standards must be approved by FEMA, tracked for exception reporting, and documented.”

Critical documentation does not exist for the case discussed throughout this thread. I worked hard to extract all documentation on file with FEMA, and critical parts simply don't appear to be there. The LOMR of Engineer A made a major change to roughness coefficients (Manning's n values). FEMAs reviewing mapping partner should have required written justification / documentation for such a change from Engineer A before approving his proposed changes. The reviewing mapping partners did in fact request such justification three times, but then they approved remapping without documented justification. Additionally, there is no evidence that FEMA ever approved deviation from the standards, i.e. using available high water mark data to calibrate a hydraulic study. During my study of this case, I have not found a request to FEMA from the reviewing mapping partner, asking to deviate from the standards listed above. Over many months I requested documentation from FEMA's engineering library. I submitted additional data requests. I appealed FEMA data delivery responses until I retrieved everything that I think they have. The bottom line is that the standards listed above were not followed on this remapping.

These problems, which occurred in the 2015 - 2016 timeframe, fit with the findings of the Department of Homeland Security inspector general:

https://www.oig.dhs.gov/news/press-...s-femas-management-its-flood-mapping-programs

https://www.oig.dhs.gov/sites/default/files/assets/2017/OIG-17-110-Sep17.pdf

I do feel that FEMA's reviewing mapping partner and FEMA itself made mistakes, but do their mistakes absolve Engineer A of his professional responsibility to follow published standards intended to guide his engineering work to a quality outcome? The regulations were published. In this country we generally accept the principle that we are all bound by laws even if we don't know those laws. Engineer A should not get a free pass even if he indicates that he did not know of these published FEMA regulations. All these regulations had been on the books for years before he undertook his analysis. The regulators appear to have erred. Does Engineer A then get a free pass?

 

[gte447f]

Jim6e, you are exasperating. Be honest, what is your real beef with Engineer A? You have said that it isn't personal, but your behavior throughout this thread strongly suggests that it is. At this point, you are just throwing any idea that comes to your mind at the wall to see if it sticks. Within your posts, you have pursued multiple incoherent, off-base theories to find fault with Engineer A. You have found very little to no agreement with any of your theories from other posters in this thread , and so, each time you eventually move on to fervently pursuing a yet another theory of wrongdoing by Engineer A.

Your starting theory, that Engineer A was guilty of an ethics violation based on the premise that a third party government entity should be considered as Engineer A's client, was utterly ridiculous and asinine on it's face.

Your current argument, that Engineer A has failed in his professional duties and failed to meet the standard of care because he may or may not have incorrectly navigated a bureaucratic black hole of procedural government regulations that the actual government regulator doesn't even seem capable of navigating, also seems misguided, and even if it were the case, it would not be an ethics violation.

 

[Jim6e]

gte447f
In the Virginia Administrative Code, there is the following subsection:

Competency for Assignments
"The professional shall adhere to the minimum standards and requirements pertaining to the practice of his own profession, as well as other professions if incidental work is performed."

FEMA has published regulatory standards which Engineer A failed to follow. Beyond FEMA's standards, the science and engineering fields more generally do not support "cherry picking" of data. In science and engineering, we do not get to set aside data without justification. That is a broad, minimum standard of conduct in our fields. The available data set from the U.S. Army Corps of Engineers (1974) was deemed useful and valid by FEMA and the USACE in 2005, by Engineer B of the locality in 2015, and again by FEMA in 2024. On this very river system, those three professional engineers / sets of engineers deemed the data set to be valid. Engineer A set that data set aside without documented justification in 2014 - 2016.

Let's examine the idea that negligence by the government regulator absolves Engineer A of any responsibility to follow the Virginia Administrative Code. (Disclaimer: I provide the following two examples not to suggest in any way that these two examples occurred in this case. I do not believe that they did. Rather, I provide these two examples as extremes intended to illustrate the flaw in your logic.) Example 1: What if the government regulator offered to approve Engineer A's application if Engineer A would pay a significant financial bribe to the regulator, e.g., $10,000? Under such circumstances, would Engineer A be absolved of his duty to adhere to the Virginia Administrative Code? Example 2: What if the government regulator offered to approve Engineer A's application in exchange for sexual favors? Under such circumstances, would Engineer A be absolved of his duty to adhere to the Virginia Administrative Code?

If an engineer is aware that regulatory standards and procedures are not being followed, that engineer has a responsibility to stop moving forward on a project. Ignorance of published standards is no excuse. Regulations and standards are developed via thoughtful processes, reviewed by many and accepted by the field. Individual engineers do not have the latitude to set aside those standards, even when other engineers fail to follow the published standards. Negligence by one does not make negligence by another acceptable.

 

[AZPete]

Write an article and have it published in the NSPE journal as a live case study of ethical cloudiness. If published, forward the copy to the locality in question and place it before the homeowners in the "flood plain". Then walk away, knowing the lawyers will take care of what the engineers and bureaucrats could not.

 

[LionelHutz]

As a professional yourself, you should inform the engineer that you're reviewing their work. Did you?

Get your fire stake pit ready, only way you'll be happy is by successfully concluding your witch hunt.

 

[Jim6e]

LionelHutz
Yes. About nine months ago, I reached out to Engineer A twice by email over a week to ten days. I indicated why I was writing and asked to speak. I received no reply. I then called the office of Engineer A. I spoke to his office assistant and explained who I was and why I was calling. She went off the line for a moment and then came back to say that Engineer A could not come to the phone right now. She had my name and number as well as my reason for calling. I never heard back from Engineer A.

I wouldn't describe this as a witch hunt. I see problems all up and down the line - FEMA, FEMA's reviewing mapping partners, localities, and local engineers. I just think professionals should act professionally. In this case, it looks like multiple professionals have been unprofessional, to the detriment of innocent parties in my community. Is it actually wrong to draw attention to that and to expect accountability? As a professional engineer, I thought my paramount duty was to look out for the health, safety and welfare of the public.

 

[montbIanc]

Engineer A said you can't use the USACE data because the physical markers are gone

Assuming this reason is not valid, Engineer A nonetheless provided a reason during the approval/review process. This moves the needle from ethics to technical error IMO, with the onus on you to prove nefarious intent if you want an ethics violation to stick.

Rather, I provide these two examples as extremes intended to illustrate the flaw in your logic.) Example 1: What if the government regulator offered to approve Engineer A's application if Engineer A would pay a significant financial bribe to the regulator, e.g., $10,000? Under such circumstances, would Engineer A be absolved of his duty to adhere to the Virginia Administrative Code? Example 2: What if the government regulator offered to approve Engineer A's application in exchange for sexual favors? Under such circumstances, would Engineer A be absolved of his duty to adhere to the Virginia Administrative Code?

Despite knowing these were in no way relevant, you still chose to post them. This really casts a shadow on your private investigation, and ability to present this case study properly to the ethics class.

 

[LionelHutz]

Those stupid what if scenarios were the direct reason for my second second comment last time. Jim6e has decided the engineer is guilty. I'd put money on the case being presented in an ethics class, assuming this is actually true, in such a way that the class also comes to the same decision.