Chapter II
Right-Wrong or Better-Worse?
We might divide ethical dilemmas into two broad categories. On the one hand, many dilemmas
have solutions that are either right or wrong. “Right” means that one course of action is obligatory, and
failing to do that action is unethical (immoral). In most instances a code of ethics specifies what is clearly
required: Obey the law and heed engineering standards, do not offer or accept bribes, speak and write
truthfully, maintain confidentiality, and so forth. On the other hand, some dilemmas have two or more
reasonable solutions, no one of which is mandatory, but one of which should be chosen. These solutions
might be better or worse than others in some respects but not necessarily in all respects.
In illustrating the two types of dilemmas, we will continue discussing the requirement to hold
paramount the safety, health, and welfare of the public. We will also draw on examples from the NSPE
Board of Ethical Review (BER). This board provides the valuable service of applying the NSPE code to
cases that are fictionalized but based on actual events. The board’s rulings are published periodically in
bound volumes, and they are also available on the Internet (http://www.niee.org). Although the cases tend
to emphasize consulting rather than corporate engineering, they provide illuminating examples about how
to intelligently interpret the NSPE code. They are intended solely for educational purposes, to stimulate
reflection and discussion. Consider BER Case 93–7:
Engineer A, an environmental engineer, is retained by a major industrial owner to examine
certain lands adjacent to an abandoned industrial facility formerly owned and operated by the owner.
Owner’s attorney, Attorney X, requests that as a condition of the retention agreement that Engineer A
sign a secrecy provision whereby Engineer A would agree not to disclose any data, findings, conclusions,
or other information relating to his examination of the owner’s land to any other party unless ordered by a
court. Engineer A signs the secrecy provision.4
What is the ethical problem? Although the NSPE code does not explicitly forbid signing the
secrecy provision, it does in fact require engineers to hold paramount the public safety and, if their
judgment should be overruled in matters of public safety, to notify proper authorities. This implies that
Engineer A should not signal secrecy provision that precludes acting according to the code and Codes of
Ethics.
As the BER states, “We do not believe an engineer should ever agree, either by contract or other
means, to relinquish his right to exercise professional judgment in such matters.” The board also cites the
provisions in the code requiring confidentiality about clients, not only proprietary (legally protected)
information, but all information obtained in the course of providing professional services. Nevertheless,
the paramount clause requires that the public safety, health, and welfare be an overriding consideration.
The spirit, if not the letter, of the code indicates that it is unethical for Engineer A to sign the secrecy
provision. As it stands, the decision about whether to sign the secrecy agreement was a dilemma
involving lack of clarity about how two moral values applied in the situation: confidentiality and the
paramount responsibility to protect the public safety, health, and welfare. (Similar dilemmas arise
concerning restrictive confidentiality agreements between salaried engineers and their corporations,
although engineers and their corporations are usually granted much wider leeway in reaching
confidentiality agreements.) According to NSPE, the solution to this dilemma involves one mandatory
action: Refrain from signing the agreement.
But Engineer A does sign the secrecy agreement, and so what happens at that point? The board does not
address itself to this question, but clearly another ethical dilemma arises: A commitment and perhaps an
obligation to keep the agreement is created, but the paramount responsibility still applies. Hence, if
dangers to the public are discovered and if the client refuses to remedy them, the engineer would be
obligated to notify proper authorities. But should Engineer a go back to the client and ask to have the
secrecy provision revoked? And if the client refuses, should Engineer a break the contract, a step that
might have legal repercussions? Or should Engineer A simply hope that no problems will arise and
continue with his or her contracted work, postponing any hard decisions until later? As these questions
indicate, dilemmas can generate further dilemmas! In this instance, possibly more than one option is
reasonable—if not ideal, at least permissible.
To underscore the possibility of several solutions, no one of which is ideal in every regard,
consider another case, BER Case 96–4.
Engineer A is employed by a software company and is involved in the design of specialized
software in connection with the operations of facilities affecting the public health and safety (i.e., nuclear,
air quality control, water quality control). As part of the design of a particular software system, Engineer
A conducts extensive testing, and although the tests demonstrate that the software is safe to use under
existing standards, Engineer A is aware of new draft standards that are about to be released by a standard
setting organization—standards which the newly designed software may not meet. Testing is extremely
costly and the company’s clients are eager to begin to move forward. The software company is eager to
satisfy its clients, protect the software company’s finances, and protect existing jobs; but at the same time,
the management of the software company wants to be sure that the software is safe to use. A series of
tests proposed by Engineer A will likely result in a decision whether to move forward with the use of the
software. The tests are costly and will delay the use of the software at least six months, which will put the
company at a competitive disadvantage and cost the company a significant amount of money. Also,
delaying implementation will mean the state public service commission utility rates will rise significantly
during this time. The company requests Engineer A’s recommendation concerning the need for additional
software testing.5
Here the answer seems obvious enough. In tune with our conviction that good engineering and
ethics go together, Engineer A should write an honest report. Indeed, it might seem that there is no
dilemma for Engineer A at all because what should be done is so obvious. To be sure, the software
company faces an ethical dilemma: Is it all right to proceed without the additional testing? But that is a
dilemma for the managers, it would seem, not the engineer. The engineer should focus solely on safety
issues and fully inform management about the risks, the new draft standards, and the proposed tests. That
is what the BER concludes: “Engineer A has a professional obligation under the Code of Ethics to explain
why additional testing is required and to recommend to his company that it be undertaken. By so doing,
the company can make an informed decision about the need for additional testing and its effects on the
public health, safety, and welfare.”
In reaching this conclusion, the board suggests the engineer should focus solely on safety, leaving
consideration of other nontechnical matters (such as financial impacts) to management. Yet the board also
concludes that the recommendation should be for further testing. As authors, we do not find that
conclusion altogether obvious from the facts presented. Much depends on exactly what the risks and
circumstances are, and here we need further information. In our view, the case illustrates how there can be
better or worse decisions, both of which might be permissible in the situation. Moreover, one decision
might be better in some respects, and the other decision better in other respects.
Perhaps the public health and safety might well be served and Codes of Ethics by having the
company do the further tests even at the risk of severe economic hardship or even bankruptcy. It would be
better, however, for employees and customers that this not occurs. The paramountcy clause apparently
requires bankruptcy rather than imposing unacceptable and severe risks on the public, but it is unclear that
such risks are posed in this case. Hence, there might be two morally permissible courses of action: Do the
tests; do not do the tests. Each option might have further options under it. For example, do the tests, but
interrupt them if economic conditions worsen; or do the tests, but devise a quicker version of them; or do
the tests, but go ahead with the present sale, being willing to make modifications if the tests raise
concerns.