Teaching Engineering Ethics: A Case Study Approach   Michael S. Pritchard

 

The Engineering Accreditation Commission of the Accreditation Board for Engineering and Technology (EAC/ABET) now requires accredited engineering programs in the United States to make serious efforts to foster in their students "an understanding of the ethical characteristics of the engineering profession and practice."   In cooperation  NSF funded a 3 year project to develop case studies that can be used in meeting this requirement.  This project is one of several funded by the National Science Foundation's Ethics and Values in Science program in order to improve ethics education in engineering.  What follows is an introduction to the project--its background and rationale, and guidelines for its use.

 

As many professional engineers can testify, ethical lessons are often learned only after something has been overlooked or has gone wrong.  There is no wholly adequate substitute for actual engineering experience.  However, having students reflect on realistic case studies can provide some helpful preparation for dealing with ethical issues they are likely to face once they do enter engineering practice.

 

By requiring engineering programs to introduce students to ethical concerns, EAC/ABET is taking the position that students need to begin to think about ethical issues before things may go wrong.  In essence, EAC/ABET is advocating a kind of preventive ethics and preventive ethics tries to anticipate possible consequences of actions in such a way that more serious problems are avoided later.

 

A Calvin and Hobbes comic strip nicely illustrates the importance of thinking ahead.  As they are cascading down a

treacherous hill in Calvin's wagon they discuss their circumstance:

 

Calvin: Ever notice how decisions make chain reactions?

 

Hobbes: How so?

 

Calvin: Well, each decision we make determines the range of choices we'll face next.  Take this fork in the road for instance.  Which way should we go?  Arbitrarily I choose left.  Now, as a direct result of that decision, we're faced with another choice:  Should we jump this ledge or ride along the side of it?  If we hadn't turned left at the fork, this new choice would never have come up.

 

Hobbes:  I note with some dismay, you've chosen to jump the ledge.

 

Calvin: Right.  And that decision will give us new choices.

 

Hobbes:  Like, should we bail out or die in the landing?

 

Calvin: Exactly.  Our first decision created a chain reaction of decisions. Let's jump.

 

After crashlanding in a shallow pond, Calvin philosophizes:  "See? If you don't make each decision carefully, you never know where you'll end up.  That's an important lesson we should learn sometime."  Hobbes replies, "I wish we could talk about these things without the visual aids."  Hobbes might prefer that they talk through a case study or two before venturing with Calvin into engineering practice.

 

The classroom can provide engineering students with opportunities to absorb Calvin's lesson "without the visual aids." What should a classroom concerned with preventive ethics aim to accomplish?  After a two year study of ethics programs in higher education sponsored by the Hastings Center, an interdisciplinary group of educators agreed on five main goals:

 

  1. stimulate students' ethical imagination;

  2. help students recognize ethical issues;

  3. foster the development of analytical skills in ethics;

  4. promote a sense of responsibility;

  5. and help students deal effectively with ambiguity and disagreement about ethical matters.

 

There is not just one way in which these goals might be met.  One approach is the use of case studies.  This is the concern of our project.  We have developed case studies that can be used either as a supplement to, or as an alternative to the more standard textbook approach.  Without assuming the superiority of a case study approach over a standard textbook approach, the merits of a case study approach will now be discussed.

 

The use of case studies has a distinguished history in law and business schools, and it has been very successful in the more recent emergence of medical ethics as an area of study.  One of the major reasons the use of case studies is so successful is that ethical inquiry begins with problems that professionals can expect to have to face.  This is in contrast to beginning at a highly theoretical level and only later considering how rather general principles and rules might apply to actual situations.  By beginning with realistic cases, students can immediately appreciate the relevance and importance of giving serious thought to ethics.  Careful reflection on the cases will itself suggest the need for moving to a more theoretical level (for example, from what is fair in this situation to what fairness is).  At the same time, by keeping a steady eye on the practical context within which professionals work, theoretical reflection is undertaken with practical purpose in mind.

 

Before proceeding further into the topic of ethics in engineering, it is wise to pause for a moment to talk about ethics generally.  , as a subject of study, has traditionally been conceived as a part of Philosophy, which also studies Logic,

Epistemology, Metaphysics, Aesthetics, and the like.  Ethics is also studied in Religion. Philosophy and Religion are daunting subjects for many people.  Thus, there is a temptation for Engineering faculty and students to think that, if they have not studied Philosophy or Religion before, they are not ready to think and talk about ethics in engineering.  In fact, a young engineer interviewed in our project commented: "I don't know much about ethics. I didn't have any in college.  All I know is that I do what I'm told."

 

This comment suggests two basic confusions.  First, it expresses the idea that simply doing what one is told is a workable  . It is not--either ethically or practically.  For example, if an engineer is told by a supervisor to submit fraudulent data, is not only ethically questionable, it might well work to the disadvantage of all parties involved if the fraud is discovered by others.  Furthermore, even if one does not act contrary to what one is told, what one is told to do seldom has enough specificity to eliminate the need for individual discernment and discretion.

 

Second, the young engineer's statement suggests that, without some explicit focus on Ethics in the college classroom, one

does not know much about ethics.  This is like saying that, without explicitly studying Logic, one does not know much about logic.  But students who take classes in Logic do not enter the classroom with "blank tablets."  They have been developing and exercising their logical abilities all of their lives.  A course in Logic helps students refine and further develop these abilities by encouraging them to self-consciously articulate what they already know and subject it to critical analysis and application.  Thus, they develop a more systematic, critical understanding of what is already quite familiar to them; and they build on this.  The same is true of students who take classes in Ethics.

 

The 18th century Scottish philosopher Thomas Reid wisely insisted that morality is everyone's business, "and therefore the knowledge of it ought to be within the reach of all."  He also denies that "in order to understand his duty a man must needs be a philosopher and a metaphysician."  Some philosophical reflection may be necessary, but this is not the exclusive preserve of philosophers.  Philosophical reflection, too, is everyone's business.  Reid acknowledges that moral systems "swell to great magnitude."  But this is not because there is a large number of general moral principles. Actually, he says, they are "few and simple." Moral systems are complex because applications of moral principles "extend to every part of human conduct, in every condition, every relation, and every transaction of life."

 

A glance at the National Society for Professional Engineers' (NSPE) Code of Ethics lends some support to Reid's analysis.  Although the code applies to a broad range of professional conduct, the number of underlying, organizing principles is relatively few.  It emphasizes protection of the health, safety, and welfare of the public; competence; objectivity; truthfulness; and serving as faithful agents of their employers and clients.   There is nothing surprising in this list (although the emphasis on protection of the public is a fairly recent addition).  However, as the full body of the code reveals, the special functions of engineers in their professional life require elaborations of these basic principles in the context of engineering practice.  Furthermore, it is clear that even these further elaborations are no substitute for individual judgment or decision.  The NSPE code is not like a recipe in a cookbook.  At best, it provides a basic framework, with general guidelines, for engineers to  bear in mind when engaged in their work; and it is not self-interpreting.

 

This is why NSPE's Board of Ethical Review (BER) periodically presents cases with commentary on how the code might be used to deal with them.  This is an invaluable service to the engineering profession, providing paradigm examples of acceptable and unacceptable conduct according to the code.  The code, in turn, expresses and confirms the shared ethical beliefs and commitments of members of NSPE.  Thus, the BER serves the important function of further articulating for engineers, their employers and clients, and the public the basic ethical standards engineers should be expected to observe.

 

In striking contrast to the kinds of cases discussed by the BER are those typically presented in the media.  What examples come to mind?  There is a familiar list: Bhophal, Chernobyl, the collapse of the Kansas City Hyatt-Regency walkway, Three Mile Island, DC-10 crashes, fiery Ford Pinto gas tanks, Exxon's Valdez oil tanker spill, the space-shuttle Challenger disaster, the Tampa Bay Bridge collapse, and so on.  While important and instructive, these cases focus on extraordinary rather than ordinary situations facing engineers.  Exclusive concentration on such cases may give students a distorted picture of ethical concerns in engineering practice.  Because only a small fraction of engineers are actually involved in such newsworthy events, students may simply conclude that all they have to do is make sure they avoid such situations. However, responsible engineering surely involves more than avoiding newsworthy disasters.

 

Engineering societies, of course, are fully aware of this.  The codes of ethics do address more everyday concerns.  And a noteworthy feature of the BER case studies is that, although they are based on actual situations, few are newsworthy enough to attract the attention of the media.  Their importance for most engineers and engineering students lies precisely in their ordinariness.  These are problems that any engineer might have to deal with.  Thus, they would seem to come closer to meeting EAC/ABET concerns than the less frequent, more spectacular incidents portrayed by the media.  The BER discussions are very useful in helping engineers and students see how NSPE's Code of Ethics should be interpreted in a variety of situations  But an exclusive focus on  cases has several shortcomings.

 

First, since the case studies are designed to aid understanding of the NSPE Code of Ethics, they are essentially code driven. Analyses by the BER are quasi-legalistic in tone, mirroring the specific provisions of the code.  There is little analytical discussion of the underlying ethical principles or concepts  But codes themselves need to be evaluated.   They may include some provisions that themselves are ethically problematic.  A history of engineering codes reveals important changes over the years--ranging from striking provisions on certain forms of advertising services to adding provisions about fundamental obligations to protect public health and safety.  Also, there may be other areas of ethical concern that are either not addressed by the code at all, or only vaguely.

 

Second, BER commentaries almost always are consensus reports.  There are very few minority dissenting opinions.  Of course, it is important that students be aware of the extent to which consensus (and shared commitment) on ethical issues in engineering exists.  However, more complex ethical issues do not necessarily command consensus, and students need to see examples of reasoned disagreement as well as agreement.

 

Third, it is frequently complained that engineering codes of ethics, including NSPE's, tend to view the engineer as an independent consultant, rather than as a corporate employee who is expected to fit within a complex organizational setting. Engineers in a large corporate context typically lack the degree of autonomy that independent, consulting engineers have. They lack this both because they may not be primary decision makers themselves and because they may work in relatively isolated units that provide them with little access to the wider implications of their work.  Furthermore, the expectations of engineering codes of ethics and those of managers of the units within which engineers work may not always match.  These differences can result in serious ethical concerns that are not clearly addressed in engineering codes.  For example, a fundamental canon of the NSPE code is that engineers shall "hold paramount the safety, health, and welfare of the public in the performance of their professional duties."  Another fundamental canon is that engineers shall "act in professional matters for each employer or client as faithful agents or trustees."  The code is not specific about how to handle the conflicts that may arise between these two canons.  Whistleblowing is a major area of ethical concern among engineers.  Yet, the code offers no real guidance on this matter.  It may be that codification of such matters is either unattainable or undesirable. Still, it is important for students to reflect on circumstances in which whistleblowing may be at issue.

 

Fourth, BER cases are somewhat limited in scope. Most of the published opinions deal with issues such as advertising professional services, engineering fees, conflicts of interest, and governmental employment.  Relatively few deal with such concerns as negligence or incompetence.

 

Finally, BER cases seldom require a consideration of the likely implications of initial decisions for subsequent decision making.  However, as the Calvin and Hobbes comic strip mentioned above suggests, decisions that seem to resolve matters for the moment do have consequences that often set the stage for even greater ethical problems later.  One of the managers interviewed in Barbara Toffler's Tough Choices wisely explains how he approaches difficult situations:

 

I first play out the scenario of what would happen if I did it one way and what would happen if I did it the other way.  What would be the followup?  What would be the next move?  What would be the response back and what would be the consequences?  That's the only way you can tell if you're going to make the right move or not because I think something that instinctively may feel right or wrong, if you analyze it, may not pan out that way.

 

This procedure can be built into case studies by presenting them in several phases.  For example, the first phase of the case could describe a situation in which an engineer is tempted (or even urged by a superior) to cut corners in a design.  The next phase could describe what choices the engineer is facing once he or she has decided (to cut corners, on the one hand, or not cut corners, on the other hand).  Choices at that level, too, will have consequences. So a third phase, built from decisions made in the earlier two, can be introduced, and so on.  Having to pass through several phases is a useful reminder that what we decide now may come back to help (or haunt) us later.

 

There are other useful ways of presenting cases in phases.  For example, instead of having each subsequent phase represent a later moment in time, each phase could represent a different, but contemporaneous, perspective on the situation.  It is a common feature of human experience that we tend to interpret situations from very limited perspectives and that it takes some effort to take a more objective look.  This is what psychologists call egocentricity.  Especially prevalent in young children, egocentricity never completely leaves us.

 

Here is an example of a case designed to help us overcome our egocentric tendencies.

 

You have been assigned the position of Environmental Engineer for one of several local plants whose water discharges flow into a lake in a flourishing tourist area.  Although all the plants are marginally profitable, they compete for the same customers. Included in your responsibilities is the monitoring of water and air discharges at your plant and the periodic preparation of reports to be submitted to the Department of Natural Resources.  You have just prepared a report that indicates that the level of pollution in the plant's water discharges slightly exceeds the legal limitations.  Your boss, the Plant Manager, says you should regard the excess as a mere "technicality," and he asks you to "adjust" the data so that the plant appears to be in compliance.  He says that the slight excess is not going to endanger human or fish life any more than if the plant were in compliance.  On the other hand, he says, solving the problem would require a very heavy investment in new equipment.  He explains, "We can't afford new equipment. It might even cost a few jobs. It will set us behind our competitors.  Besides the bad publicity we'd get, it might scare off some of the tourist industry, making it worse for everybody."

 

How do you think you should respond to your boss's request?  Explain.

 

This same situation can also be viewed from several other perspectives: that of the plant manager; environmental engineers from the competing companies; plant managers from the competing companies; the Department of Natural Resources; local merchants; parents of children who may swim in the lake; tourists, and so on. When we are required to consider these other perspectives, we may see the problem take on strikingly different dimensions. Students can be asked to go through several of these perspectives sequentially and then be asked to make an "all things considered" assessment of what should be done. Or they can be divided into groups, with each group being given a different perspective to consider--after which the groups compare reflections and try to come up with an "all things considered" assessment.

 

Another way to present a case in phases is to follow an initial scenario with background information that is easy to overlook, but which might alter one's first response to the situation. For example:

 

Jack Strong is seated between Tom Evans and Judy Hanson at a dinner meeting of a local industrial engineering society. Jack and Judy have an extended discussion of a variety of concerns, some of which are related to their common engineering interests.  At the conclusion of the dinner, Jack turns to Tom, smiles and says, "I'm sorry not to have talked with you more tonight, but she's better looking than you."

 

How might this scenario lead to a discussion of ethics? Some male students might comment, "I don't see anything wrong with a little flirting. It's happens all the time, and it makes life more interesting. Besides, this was a dinner--a social event, not a business meeting." Women students might react quite differently. They need not be opposed to flirtation in general in order to object to Jack's comment on this occasion. What, they might ask, is Judy's perspective?

 

If Judy is a typical female industrial engineer, she works mainly with male engineers.   Let us now imagine that, as a younger engineer, she is anxious to be recognized first and foremost as a good engineer.  She is well aware of the stereotypical view that women are not as well suited for engineering as men.  She did not often encounter open manifestations of this attitude while in college.  More than twenty percent of her engineering classmates were women, the faculty were supportive, the male students did not make her feel she had chosen the wrong profession, and she graduated near the top of her class.

 

However, matters quickly changed on her first job.  She found that she was the only woman engineer in her division.  Now, even after a year on the job, it seems she has to struggle to get others to take her ideas seriously.  So, she enjoyed "talking shop" with Jack at the dinner.  But she was stunned by his remark to Tom, however innocently it may have been intended.  Suddenly she saw the conversation in a very different light.  Once again she sensed that she was not being taken seriously as an engineer.

 

What ethical questions does this scenario pose?  We could focus on the appropriateness of Jack's remark, as well as its possible underlying attitude.  However, equally important, we might ask what response to his remark might be appropriate. Judy is faced with a difficult situation.  If she ignores the remark, she does nothing to improve her situation--or that of other women engineers; and she may suffer diminished self-esteem.  Still, she may worry that nothing constructive will come from her making an issue of his remark.

 

However, Jack and Judy are not the only ones involved in the situation.  How should Tom respond to Jack's remark?  Does he have any special responsibility to try to discourage behavior like Jack's?  Responding with the expected chuckle would simply reinforce Jack's behavior.  Would a critical response be appropriate?  Would it be more constructive to take Jack aside later to discuss the matter privately?  Should Tom simply ignore the remark?

 

It might be objected that this little scenario is being taken too seriously.  However, this fictional situation is based on an actual situation experienced by a female engineer.  In fact, this is the first example she offered when asked about ethical problems female engineers typically face in their profession.  She and other female engineers interviewed observe that, especially early in their careers, they sense that their ideas are not taken as seriously as those of male colleagues--that they somehow have to "prove" themselves worthy of being listened to.

 

It should be noted that the main difficulties in thinking through cases like the two just presented have more to do with seeing that basic ethical considerations are relevant to the particular circumstances than with one's general understanding of those considerations.  Although the second case raises basic questions about equal opportunity and respect for others (here, women engineers), at first glance it may not be obvious (especially to men) that this is so.  Only further discussion and reflection is likely to bring this out.  Similarly, considerations of public health (unpolluted water) and fairness (among local industries in shouldering responsibility for protecting public health) are relevant in the environmental engineering case; but this may be obscured from view until different perspectives are imaginatively brought into play.

 

Thus, even if Thomas Reid is right in saying that basic principles in moral systems are "few and simple," it does not follow that it is an easy task to make use of them in practical circumstances.  Reid himself was quite aware of this. As he points out, there are many distractions:

 

There is...no branch of Science wherein Men would be more harmonious in their opinions than in Morals were they free from all biass and Prejudice.  But this is hardly the case with any Man.  Mens private Interests, their Passions, and vicious inclinations & habits, do often blind their understandings, and biass their judgments. And as Men are much disposed to take the Rules of Conduct from Fashion rather than from the Dictates of reason, so with Regard to Vices which are authorized by Fashion, the Judgments of Men are apt to be blinded by the Authority of the Multitude especially when interest or Appetite leads the same Way. It is therefore of great consequence to those who would judge right in matters relating to their own conduct or that of others to have the Rules of Morals fixed & settled in their Minds, before they have occasion to apply them to cases wherein they may be interested. It must also be observed that although the Rules of Morals are in most cases very plain, yet there are intricate and perplexed cases even in Morals wherein it is no easy matter to form a determinate Judgment.

 

So, while a well crafted code of ethics can articulate the basic "Rules of Conduct" for engineers, this is at best a beginning. Our tendency to be influenced by our passions, pressures of the moment, popular sentiments, and vested interests distorts our judgment. Adding to this that fuller understanding of the context within which judgment is needed and that some cases are genuinely "intricate and perplexed," it is clear that engineering students face no easy challenge.

 

With this in mind, let us now return to the Hastings Center's five goals and objectives for teaching ethics in higher education.  How might these be understood in the context of engineering; and, more specifically, how might the use of case studies help meet these goals and objectives?

 

1. Stimulating the Moral Imagination

 

The first teaching objective identified by the Hastings Center study is that of stimulating the moral imagination of students. Cases like the Hyatt Regency disaster, films like The China Syndrome and Silkwood, and novels like Nevil Shute's No Highway and Kurt Vonnegut's Player Piano very effectively stimulate the moral imagination.  But, as already noted, exclusive focus on exceptional circumstances is misleading.  Students also need to recognize that virtually any situation can be seen from a moral point of view.  The Hastings Center study concludes that, without some prior assistance in thinking through moral challenges, young professionals may find the consequences of their actions taking them by surprise.

 

Consider, for example, the fictional case of "The Suppressed Data."20

 

A recent graduate of Engineering Tech, you have been employed in the R & D Chemical Engineering Division of Larom, Inc. for the past several months.  You were hired because of the promising research you did with catalysts as a student at

Engineering Tech.

 

A meeting of your division is called by your supervisor, Alex Smith.  He announces that your unit must make a recommendation within the next two days on what catalyst should be used by Larom in processing a major product.  The overwhelming consensus of the engineers in your unit, based on many years of experience, is that catalyst A is best for the job.  But the research you have been conducting at Larom provides preliminary evidence that catalyst B might be more reliable, more efficient, and considerably less costly. So, you ask if the recommendation can be delayed another month to see if firmer evidence can be found.

 

Alex replies, "We don't have a month. We have two days." He then asks you to write up the report, leaving out the

preliminary data you have gathered about catalyst B.  He says, "It might be nice to do some more research on B, but we've already taken too much time on this project.  This is one of those times we have to be decisive--and we have to look decisive and quit beating around the bush.  Management is really getting impatient with us on this one.  Besides, we've had a lot of experience in this area."

 

You like working for Larom, and you feel fortunate to have landed such a good job right out of Engineering Tech. You have no desire to challenge your colleagues.  Besides you don't necessarily disagree with them about which catalyst is best.  Still, you wish you had been given more time to work on catalyst B, and you feel uncomfortable about leaving the preliminary data out of the report.  What should you do?

 

  1.Write up and sign the report as instructed.

  2.Write up the report as instructed, but refuse to sign it.

  3.Refuse to write up the report, threatening to go around Alex to the next level of management

 if a fully accurate report is not made.

  4.Other.

 

Engineering students may respond to cases like this in a variety of ways.  A rather large percentage select the first option, indicating that they really have no choice if they are to keep their jobs.  Some insist that, since they would only be following orders, they would not really be responsible if something goes wrong.  A few immediately select the third option, adding that they might make sure they have another job offer first.  What is surprising is how few select "Other."  Yet, a sensible alternative seems to be to suggest that catalyst A be recommended, but that the data about B be included.  After all, it might be argued, if the data about B has not engendered serious doubts among the experienced engineers in the unit, why should they fear that management would counter their recommendation of A?

 

For those students who favor suppressing the data, there is a second scenario, "The Suppressed Data Strike Back."

 

You write the report as instructed, and Larom proceeds with catalyst A.  Two months later Charles Trent, Vice-President for Research at Larom, learns that a major competitor has just begun using catalyst B in a similar process.  Its engineers discovered that B is ideal for this process.  It is more reliable, more efficient, and much less expensive.  Vice-President Trent is very upset that Alex Smith's unit "missed the boat," and he personally meets with the entire unit to make his irritation known.  He complains, "Larom has invested a lot of money in this process--only to find out that it's now falling behind a major competitor. It's going to cost us time and money to convert the process--and it's probably going to cost us a few customers as well."

 

At this point many students say, "Let's go back to the first situation."  The point is not that giving further thought to the initial situation will yield an obvious and unproblemmatic solution. (Any option here might have some undesirable consequences.)  It is that, through the use of moral imagination, more satisfactory alternatives may be discovered.

 

2. Recognizing Ethical Issues

 

It is not difficult to recognize that suppressing data raises ethical questions, even if deciding what to do about it is difficult.  However, the ethical dimensions of situations are not always so apparent. Consider this illustration.22 At a meeting of  engineering educators and professional philosophers an engineer briefly described a housing project. The property adjacent to the housing development was a large, heavily treed, hilly area. The engineer then asked his audience what size drainage pipe should be recommended for the sewer system.  Crude estimates were made by engineers and philosophers alike, with little consensus and much amusement.  Finally someone asked the question that no doubt was on the minds of many: What did this problem have to do with ethics?

 

The engineer replied by asking the audience to consider what the surrounding environment might be like shortly after the completion of the housing project.  Perhaps a shopping mall would replace the heavily treed, higher adjacent area -- resulting in a much greater rain water run-off problem. Should an engineer recommend a pipe size that takes into consideration such future contingencies?  What if the housing developer wants to get by with minimal costs and shows no concern for who might have to bear the expense of replacing the inadequate draining system in the near future? Who should bear the expense, and to what extent, if at all, should an engineer be concerned about such questions when making recommendations?  However these background questions are answered, they make clear that the question of what should be recommended is not just a technical one. In addition, although an engineering code of ethics might address issues like this in a very general way, it will not guide engineers to a consensus.  Only extended discussion, if anything, might result in reflective agreement.

 

3. Developing Analytical Skills

 

In one sense engineering students obviously have well developed analytical skills.  However, the technical, analytical skills essential to good engineering practice must be used with some caution in analyzing moral issues.  Sometimes they may even impede moral analysis, which requires clear thinking about concepts such as utility, justice, rights, duties, respect for persons.  These concepts are not necessarily amenable to quantitative analysis.

 

For example, suppose David Weber, a highway civil engineer (safety engineer), has to prioritize projects in a county with diverse traffic patterns.  He considers two intersections that need safety improvements.  One is an urban intersection that handles about 2400 cars per day.  The other is a rural intersection that handles about 600 cars per day.  The annual number of fatal accidents at each intersection is virtually identical (approximately 2), but the number of property damage and minor injury accidents at the urban intersection is substantially greater.  There is just enough money left in this year's budget to improve one of the intersections.  The result of the improvement at either intersection will be to cut the number of annual fatalities roughly in half. There will be a greater reduction in property damage and minor injury accidents if the improvement is made at the urban intersection.  Which improvement should be given greater priority by David Weber?

 

Versions of this case been have presented, complete with numbers, to engineering students for more than ten years. The overwhelming initial response is always that the urban intersection should take priority.  Why?  As the numbers clearly reveal, more people will be served at the urban intersection. Invariably someone will say, "It's the greatest good for the greatest number."

 

If students are asked if anyone favors the rural intersection, one or two may volunteer that, in fact, the rural intersection is  more dangerous.  Individual drivers are at higher risk of having a serious or fatal accident.  This, too, can readily be demonstrated mathematically.

 

So, what do the numbers settle in this case?  By themselves, nothing.  From a utilitarian point of view, the numbers seem to favor the urban intersection.  But the utilitarian premise itself (promote the greatest good for the greatest number) is not based on numerical analysis.  It requires philosophical support.  Considerations of fairness or respect for individual rights, on the other hand, strengthen the case for the rural intersection.  Again, while numerical analysis can be joined with considerations of fairness or individual rights, those considerations require philosophical support.  However the numbers in this case are used, we need to ask what ethical assumptions we are making about their relevance.  The temptation to take comfort in numbers may be there, but thoroughgoing ethical analysis reveals the assumptions that underlie giving in to this temptation.

 

4. Eliciting a Sense of Responsibility

 

The study of ethics should be viewed as a serious undertaking rather than a digression from the main business at hand -- namely, career preparation.  Some teachers may think it is their job to indoctrinate their students with some moral beliefs (such as those in the NSPE Code of Ethics).  This is a mistake.  Even if such indoctrination were possible, engineering students do not need the uncritically held beliefs that would result.  What they need is the opportunity to exercise and refine their critical, moral abilities.  If they are given this opportunity, they will sense that they are being respected as moral agents and thinkers in their own right.  Indoctrination has the opposite effect.

 

Most students will recognize indoctrination for what it is and simply go through the motions in order to satisfy their teachers.  Those few who do not will not be served well either, for they will be ill equipped to deal imaginatively and sensitively with  ethical issues when they are on their own.

 

If students are invited to reflect on realistic, engaging case studies in ways that respect their moral capabilities, the problem of eliciting a sense of responsibility should take care of itself. To get students to take the study of ethics seriously, they must be convinced that they are being taken seriously.  Doonesbury's portrayal of an ethics and law course is instructive:

 

Law Professor: Let me put it to you all, then -- what should a knowledge of the law tempered with a sense of morality produce?

 

[Class silence.] Why JUSTICE, of course!

 

Student: Will that be on the exam?

 

Clearly the professor has some work to do to convince this student that the course is intended to encourage genuine moral reflection rather than mere recitation.

 

5. Tolerating Disagreement and Ambiguity

 

Discussions of problems like David Weber's are often frustrating to engineering students.  Sorting out the nuances of ethical concepts reveals a certain amount of vagueness, ambiguity, and, above all, disagreement.  Lack of consensus on such cases may prove frustrating for those accustomed to technical solutions to problems.  Some may be tempted to turn to a code of ethics for bringing matters to an authoritative resolution.

 

However, as already noted, this is to expect too much from codes of ethics.  They cannot be treated as if they were recipes for action.  They are not self-interpreting. and they are not entirely free from potential, internal conflict. So, at best, an engineering code of ethics provides a framework for judgment -- certainly not a substitute for it. In the case studies that follow, it will be evident from the variety of accompanying commentaries that reasonable, thoughtful people often disagree to some extent--and sometimes rather sharply.

 

We might wish for a geometric sort of ethics, one grounded in moral absolutes orderly arranged in such a manner that

judgments about this and that can be confidently deduced from premises consisting of fundamental axioms combined with the indisputable "facts of the case."  However, ethics is not amenable to this (nor is engineering, for that matter). It is better to heed Aristotle's advice not to seek greater (or less) precision that a given subject permits.

 

What to Expect in the Ethics Case Studies

 

There are some thirty  ethics case studies presented on the internet at locations such as http://ethics.tamu.edu/pritchar/an-intro.htm.   Cases have both a software and hardcopy version.  Since many of the cases have multiple stages and present different alternatives depending on the choices made at each juncture, the software versions are often easier to follow.  It is preferable that readers look at stages one at a time, reflecting on the questions each stage poses before moving to the next stage. [This is easier to do with the software versions, since a comment box must be filled before the next stage is presented.]  This can be done alone or with others in a small group.  In commenting on various aspects of the cases, readers should try to support their conclusions with reasons; and they should try to indicate what basic ethical considerations seem most relevant to the situation described.  For example, a basic ethical consideration in the case of "The Suppressed Data" is that, essentially, you are asked to lie--an act which, in the absence of some special justification, is generally regarded as wrong. There is also a question of authority and whether an obligation to obey orders applies here. Under what circumstances is one justified in dissenting or refusing to obey? Another basic ethical consideration is loyalty--but to whom? One's supervisor and fellow engineers? One's company? Although the case is, strictly speaking, about one specific set of (fictional) events, reflection on it should bring up ethical principles, rules, and criteria that are relevant to other cases as well. So, readers should also be thinking about the extent to which one might generalize from the specific case in question to other sets of circumstances engineers may have to confront.

 

Once the reader has completed a case, he or she might wish to see how the case has been analyzed by a group of educators involved in teaching ethics. Each case is accompanied by the written refletions of several commentators (from communication, engineering, and philosophy). This should stimulate further reflection and suggest other resources that can be consulted.

 

The cases are intended to reflect ethical problems that arise frequently in engineering under rather ordinary circumstances. So, "big news/bad news" stories that one finds in the media are avoided here, although commentators often point out similarities to the more well known instances. Most of the cases are inspired by extensive interviews with more than 50 professional engineers. All cases are fictional, but an effort has been made to make them realistic. A few cases are adaptations of shorter, fictional scenarios that have appeared in textbooks and journals.

 

Although all the cases are fictional, some might wonder if this is really so. Gale Cutler, one of the commentators and someone who has himself written fictional case studies, has remarked that someone at a particular company was certain that one of his cases was based on something that had actually happened there. By substituting known names for the fictional names in Cutler's case, this person said he was able to quite accurately reconstruct an actual event. "How," he asked Cutler, "did you gain access to what went on within our company walls?" Cutler replied that he had no knowledge of anything that had happened in that company. How is such a coincidence to be explained? Cutler's answer: "The sort of thing I described in my case is quite common--it's happened in lots of places." This is the mark of a good case--it is generic, a good representation of common occurrences. Thus, cases should be examined with an eye on what can be learned, not just about the specific situation it describes, but about cases of this kind. This is the power of a good case--that it empowers us to go on to other situations, perhaps better prepared to handle the challenges they pose.

 

So, if the cases that follow are well chosen, they may seem like coincidences to many.  In this sense they will be realistic and representative. However, in at least two respects they are not. First, readers may note that a rather disproportionate number of women engineers are involved in the cases. Although the numbers of women in engineering have been increasing rapidly in recent years, it is still the case that engineering is a male dominated profession. The point of including a disproportionate number of women is not to suggest that somehow they are more likely than men to face ethical problems in engineering (or anywhere else). Rather, it is to suggest that, with the exception of those few cases designed to raise special issues facing women engineers, the question of whether the engineer is male or female (or a member of any particular racial group) should not be a crucial factor. Perhaps there will be a day when the proportion of men and women will more closely represent that in the cases--at which point no one will pay any particular attention to whether the protagonists are men or women.

 

A second respect in which these cases may seem unrepresentative is that, as two commentators have suggested, managers rather than engineers seem more often to turn out to be the "heavies." Given that it was mostly engineers rather than managers who were interviewed, this should not be surprising. It might well be true that engineers most often see themselves having ethical problems with their managers rather than with other engineers. It would have been interesting to see how managers view the engineers they supervise!

 

However, there is a further factor that should go some way toward defusing the criticism. When asked about situations in engineering that have an ethical dimension, most engineers we interviewed brought up examples of ethical conflict. This is in line with the media's focus on wrong-doing. Understandably, then, many examples involved conflicts between engineers and management. However, it does not follow from this that these engineers think that, in general, managers invite or permit unethical behavior. The engineers seemed to concentrate on those occasions when they were troubled ethically. Actually, many engineers initially had difficulty thinking of such examples. This suggests that they feel that, in general, responsible behavior is the norm.

 

Unfortunately, even at the everyday level of ethics, we tend to dwell on "bad news" stories.  What is still needed is a variety of detailed depictions of the more ordinary, ethically responsible engineering practices, along with accounts of how responsible management contributes to this.  After all, if we can understand what irresponsibility involves, this is only because we have some notion of responsibility as well.  It is hoped that reflection on the case studies that follow will encourage readers to think of responsible alternatives rather than simply to dwell on the negative.

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Ethics Case    Trees along county roads 

 

Kevin Clearing (a civil engineer) is the engineering manager for the Verdant County Road Commission (VCRC).  VCRC has primary responsibility for maintaining the safety of county roads.  Verdant County's population has increased by 30% in the past 10 years.  This has resulted in increased traffic flow on many secondary roads in the area. Forest Drive, still a two lane road, has more than doubled its traffic flow during this period.  It is now one of the main arteries leading into Verdant City, an industrial and commercial center of more than 60,000 people.

 

For each of the past 7 years at least one person has suffered a fatal automobile accident by crashing into trees closely aligned along a 3 mile stretch of Forest Drive.  Many other accidents have also occurred, causing serious injuries, wrecked cars, and damaged trees.  Some of the trees are quite close to the pavement.  Two law suits have been filed against the road commission for not maintaining sufficient road safety along this 3 three mile stretch.  Both were dismissed because the drivers were going well in excess of the 45 mph speed limit.

 

Other members of VCRC have been pressing engineer Kevin Clearing to come up with a solution to the traffic problem on Forest Drive.  They are concerned about safety, as well as law suits that may some day go against VCRC. Engineer Clearing now has a plan -- widen the road.  Unfortunately, this will require cutting down about 30 healthy, longstanding trees along the road.  Engineer Clearing's plan is accepted by VCRC and announced to the public.  Immediately a citizen environmental group forms and registers a protest.  Tom Richards, spokesperson for the environmental group, complains, "These accidents are the fault of careless drivers.  Cutting down trees to protect drivers from their own carelessness symbolizes the destruction of our natural environment for the sake of human 'progress.' It's time to turn things around.  Sue the drivers if they don't drive sensibly.  Let's preserve the natural beauty and ecological integrity around us while we can."   Many letters on both sides of the issue appear in the Verdant Press, the issue is heatedly discussed on local TV, and Tom Richards presents VCRC with a petition to save the trees signed by 150 local citizens.

 

Discuss how civil engineer Kevin Clearing should proceed at this point.

 

Commentaries

 

A.  Kenneth L. Carper

Several interesting ethical considerations are raised in this transportation engineering dilemma.  The most prominent issue is the conflict between local interests and the interests of the public at large.  Other topics that will be discussed in this commentary are: the potential value of effective organized public opposition, the role of the civil engineer in a governmental planning agency, and the emerging field of environmental ethics.

 

Transportation planners know that highways generate a great deal of local controversy, perhaps more than any other public works projects, with the exception of airports and nuclear power plants.

 

"Roads are immensely popular with all those who do not live near them."

 

Forest Drive has become a main traffic conduit.  The population of Verdant County has grown substantially, and the volume of vehicular traffic on the highway has doubled in the past ten years.  Public safety is threatened by the condition of the highway.  Thus far, however, fatalities have been limited to drivers who were exceeding posted speed limits.  The Verdant County Road Commission, motivated by concerns for public safety and liability, has decided to widen the roadway.

 

A local citizens' environmental group opposes widening Forest Drive, however, as the quality of the local environment will be diminished.  The opposition group does not wish to see a number of healthy trees sacrificed, especially when the problem appears to be driver carelessness.

 

Moral theory can be employed to support either side in this conflict.  Finding a solution entirely acceptable to both sides may not be possible, but the next step ought to be a series of public hearings in which all considerations are fully reviewed.

 

Objections, aired in appropriate public forums, can be of great value in arriving at the best planning solutions. Enlightened engineer planners will not only welcome objections, but will assist in making the objections effective. Considering opposing points of view nearly always improves the quality of reasoned judgment.  This process implies open communication and free access to relevant information by all parties.

 

Communication with the public is a difficult problem for the planner or engineer in itself, but the most important questions are:

 

a. How does a engineer planner handle a situation where his client's values are far from his own?

 

b. How is the engineer planner to comport himself when engaged on a project which may be nationally (or regionally) highly beneficial but adversely affects a particular locality?

 

c. How is the engineer planner to form and express his judgment in matters involving the aggregation of preferences.

 

In the public forum, engineer planning experts should go beyond a presentation of their recommendations.  They should be willing to fully discuss all factors considered in reaching their conclusions, and should actively listen to informed criticism.  During the discussions the engineer planner should honestly express uncertainties in planning assumptions.  The opposition will likely raise valid arguments, beyond those already presented. In this case, for example, engineer Kevin Clearing will be asked to acknowledge that improved roads generate increased traffic, and he should be willing to honestly respond to this fact.  Public hearings have little positive benefit when the opposition parties feel they have not been honestly received.

 

This raises the topic of the role of the professional engineer in a governmental agency.  Governmental bodies are generally more concerned with those issues that affect large segments of the population, and tend to be less concerned with local interests that affect few citizens.  The ethical engineer planner will maintain sufficient independence to ensure that local interests are carefully considered.  Grave injustices may otherwise be imposed on individuals for the benefit of the majority.

 

The subject of environmental ethics is also relevant to this case.  Most planning engineers are aware that their decisions are environmental experiments as well as social experiments.  Their role is as the agents of change.  Often the environmental effects of planning decisions are irreversible.

 

Environmental ethics is a relatively new field of applied ethics, at least in Western philosophy.  Western philosophers have traditionally held that humans alone have intrinsic value, and that the natural environment exists for the benefit of humankind.  Environmental ethics questions whether morality is purely anthropocentric (human centered). The environmental ethic suggests that trees (or spotted owls) may also have intrinsic value.

 

It should be noted that many environmentalists place the interests of humans far above that of objects in the natural environment and the interests of animals.  Conservation of the natural environment and its resources can be justified on the basis of concern for future generations of humans who will have intrinsic value.  This form of environmentalism is anthropocentric.  Environmental conservationists do not necessarily ascribe intrinsic value to the natural environment.

 

It is not clear from environmental group spokesperson Tom Richard's statement whether he bases his value for the threatened trees on a belief in their intrinsic value, or whether he wants to preserve natural beauty for future generations.  A careful reading of his statement suggests the latter.  However, it is likely that at least a few members of the opposition group will subscribe to the concepts of the new environmental moral theory. Engineer Kevin Clearing should be prepared to consider this viewpoint in the deliberations, which are sure to be lively and spirited.

 

Suggested Readings:

 

1. Goldstein, Alfred 1987. "The Expert and the Public: Local Values and National Choice," Business and Professional Ethics Journal, Rensselaer Polytechnic Institute, Troy, NY, Vol. 6, No. 2, pp. 2550.

 

2. Lucas, J. R. 1987. "The Worm and the Juggernaut: Justice and the Public Interest," Business and Professional Ethics Journal, Rensselaer Polytechnic Institute, Troy, NY, Vol. 6, No. 2, pp. 5165.

 

3. Martin, Mike W. and R. Schinzinger 1989. Ethics in Engineering (2nd ed), McGrawHill, Inc., New York, NY, pp. 262278.

  

 

B.  Gale Cutler

Kevin Clearing, as an engineering manager, is confronted with a situation that is typical of many situations in which engineering managers find themselves.  He is faced with trying to find a "right" answer to a problem that has no clear cut "right" answer.  The approach to such a situation is to list the possible options, consider the advantages and disadvantages of each option and select what appears, after due consideration, to be the best option. (Some engineering ethics courses develop a decision making matrix for situations like this.  Using a matrix, alternatives, selection criteria, and weighting factors are used to calculate mathematically what appears to be the optimum solution.)

 

Engineer Kevin clearing appears to have at least three options:

 

1. Maintain status quo of the roadway. Reduce the speed limit further.

 

2. Find an alternate route and eliminate the current roadway.

 

3. Widen the current roadway at the expense of the 30 trees.

 

Option #1 does not eliminate the problem because drivers are already known to violate the existing speed limit.  (The thought proposed by the environmental group to sue drivers if they don't drive sensibly is an irrational, unenforceable solution and should be rejected.)  Option #2, while it could be very effective, is probably not practical because it would involve a heavy expenditure of funds.

 

Option #3 seems to be the only workable solution and will involve engineer Kevin's convincing the environmental group that the safety of users of the road is worth the destruction of the trees.  To encourage the environmental group to withdraw their objection to this option, Kevin should develop a plan to do new tree and shrub plantings along the newly widened highway to restore its beauty and ecological integrity.

 

The citizen environmental group is a special-interest group and caution must be exercised in dealing with such a group. While special-interest groups frequently accomplish worthwhile results, they are also frequently guilty of so polarizing a situation that it is difficult to reach a rational decision.  In this case, it is unfortunate that a logical best solution was not worked out without the local media adding to the turmoil of the situation.  The special-interest group must be approached in a spirit of compromise, settling differences by mutual concessions and reconciling conflicts through adjustments in attitude and conduct.

 

C.  John B. Dilworth

Progress on this case can be speeded up by starting with a comprehensive overview, to avoid any risk of our accidentally failing to 'see the wood for the trees'.  But seriously, it is helpful to step back from the specifics of the trees and the road in this case.  Some general points about different kinds of risks, and their relation to environmental and other benefits, should help to clarify what is at stake in the case.  My main emphasis will be on the complexities of decision-making in a case such as this.

 

There is a general concern in the development of social policy to achieve an acceptable balance between risks and benefits for people.  Another way of raising the same or equivalent issues is to think of individual rights and freedoms (including the right or freedom to do things which may be risky or dangerous) as requiring to be balanced against the potential harms to oneself or to others produced by the exercise of one's freedom.

 

In balancing risks against benefits, it is useful to distinguish two different kinds or categories of risk. The first of these could be called 'inherent risks', and concerns actions, situations, devices etc. which are inherently risky or dangerous.  An extreme example would be a hand grenade which has had the pin removed and has been thrown.  Such a device is inherently dangerous to a very high degree, because it almost certainly will quickly explode and devastate everything in its vicinity, no matter what anyone tries to do to prevent it.

 

A more moderate example of inherent risk is provided by the activity of rock climbing.  It is generally agreed that rock climbing is inherently risky, because no matter how one tries to minimize the risks and maximize climber safety (through training, stronger ropes, and so on), some significant degree of risk still remains.  This is shown by the fact that good climbers are killed or injured in significant numbers every year.  The inherent nature of climbing risks has the consequence that the only way to avoid the risk of such accidents is not to climb at all.

 

Now let us look at the other basic category of risks, namely non-inherent or contingent risks.  The important point about this category is that the risk for items falling under it depends on other situational or contextual features, so that members of this category have no standard level, nor any minimum level, of risk associated with them.

 

For example, the level of risk associated with driving an automobile depends upon indefinitely many other factors, such as the age of the car and driver, the speed, the road conditions, traffic density, and so on.  Also, arguably there is no definite minimum level of risk associated with driving, that is, no inherent minimum risk associated with driving.  (Those obsessed with achieving arbitrarily low risk levels could choose to drive only very slowly on empty or private roads, for instance.)

 

The significance of the basic distinction (inherent versus contingent risks) for public policy is as follows.  With inherently risky activities, the risk is a known quantity, or at least a lower bound can be set on it, so that the activity is at least as risky as that lower bound.  (For example, perhaps the lower-bound of risk for rock-climbing is something like 1 accident for each 500 person-days of climbing.  Doubtless insurance actuaries would have precise figures on this, or at least on average risks for each activity.)

 

Given that inherent risks have a strength which is a known, relatively unchanging quantity, it is relatively straight forward to compare and balance them against the potential benefits of allowing them to take place.  For example, NASA undoubtedly has good calculations on how likely it is that a space shuttle, or an orbiting satellite, will be involved in a collision with a meteorite sufficiently large to seriously damage the space vehicle and abort its mission. (Such a risk is an inherent one because collisions occur randomly, so it is impossible to remove the risk by any alterations to the vehicle, environment or other factors.)  With a reliable estimate of the minimum risk, along with the known potential benefits of a flight, it becomes a very routine matter to make a rational 'go/no go' decision on whether to allow a given flight.

 

Another public policy example would be a decision as to whether to make an influenza vaccine available.  This is inherently risky (at a low level of risk), because an irreducible percentage of people will have adverse reactions to the vaccine.  But again, a positive or negative decision as to use can be straightforward because the standard minimum risk can easily be compared with the specific potential benefits of the treatment.

 

On the other hand, risk/benefit comparisons in the case of non-inherent, contingent risks have a fundamentally different structure.  It might be thought that their only difference from 'inherent risk' cases is that the risk is a variable quantity, with the particular amount in a given case depending on the specific situations or factors that exist.  (For example, driving an old car very fast is likely to be much more risky than driving a new car slowly.)

 

But in addition to the risk being variable, the overall decision to be made (about whether to engage in an activity, given the benefits and risks involved) is now required to be a much more comprehensive, overall decision about a whole set of risk/benefit data pairs.  Recall that for inherent risks, the only decision needed is a yes/no decision based on a single risk/benefit pair.  But with a contingent risk case, there are now many possible risks, depending on various factors (the benefits might vary also).  These many risks, along with the corresponding specific benefits, define many risk/benefit pairs which somehow must be evaluated as a group.

 

It will help to clarify things further if we re-introduce the main example from the current case, namely the risk(s) to motorists that they might crash into trees along a 3-mile stretch of Forest Drive road.  The risks are of course associated with motorists driving cars along the road. It has already been argued that driving is a contingent risk activity (the risk depending on speed, etc.)  Let us concentrate on the trees themselves as the only relevant benefit.

 

Our general question could be expressed as follows: is it worthwhile for motorists to risk crashing into the trees, given the benefits also provided by the trees?  Or, acknowledging that the trees are just one additional risk among others associated with driving, we might ask: are the additional risks of having trees (rather than no trees) fully compensated for by the additional benefits of having trees (over not having trees)?

 

If we assume that no changes to traffic regulations, etc., are to be made, the relevant risk/benefit pairs are defined by all socially possible distinct cases of 'a drive' along the road (given present conditions).  Each is distinguished on the risk side by driver factors (age, disabilities, driving record, frequency of driving,..), car factors (new/old, brand, maintenance quality, speed,..), road factors (maintenance, traffic density, time of day,..), and environmental factors (weather, immediate environment of road including trees,..).  On the benefit side, arguably this too is variable, for example because very fast trips or night versus day driving make visual enjoyment of the trees difficult or impossible.

 

Somehow, using this potentially infinite set of risk/benefit pairs, some decision must be made about the overall benefits and risks of allowing the trees to remain uncut.  One might consider calculating some sort of average or mean value for the risk and benefit, but an overall decision might be dominated by just a small group of high-risk cases. (Some unlikely situations may be so dangerous that a decision to cut the trees is unavoidable.)

 

In the current case being considered, the possibility of a successful lawsuit if there is an accident is yet another complication.  This risk is not itself involved in the initial set of risk/benefit pairs.  Rather, given a decision (based on that set) to leave the trees standing, the lawsuit is one of the risks associated with that specific decision.

 

As if things are not complicated enough already, yet another whole dimension of the problem must briefly be considered. Since we are dealing with contingent risks, it is very tempting to try to 'mould' the overall situation and the factors involved so as to make a desired outcome (e.g., leave the trees standing) highly likely.

 

For example, new traffic regulations lowering the speed limit, with automatic radar detection and photography of those violating the regulations, could presumably eliminate virtually all of the original high-risk cases associated with speeding.  Or should we use some other method instead?  What would be the risks and benefits of each?  Notice that we now are forced to somehow compare (formally speaking) the risks and benefits of different risk/benefit sets, in making such a decision.

 

It might be objected at this stage that 'molding' factors so as to get a desired result amounts to simply ignoring the original problem, which is that of which result is socially or morally most desirable.  I would concede this point, but it points us toward even greater complexity.

 

It seems that somehow we have to consider all socially possible 'moldings' of factors relevant to the situation (each with its associated set of risk/benefit pairs), whether the overall outcome for each is 'yes, cut' or 'no, don't cut'.  Then somehow (again), the overall risks and benefits of each set have to be evaluated relative to each other, so that a single winner (or group of similar winners) can be chosen.  Its (their) decision outcome, as to whether to cut down the trees or not, would finally give us what we have been searching for in this case.

 

In conclusion, it is worth noting that the complexities in decision-making we have uncovered in connection with contingent risks are particularly common in dealing with environmental public policy issues (e.g., building of condominiums versus preservation of wetlands).  Any situations involving loosely related factors and complicated tradeoffs will tend to have at least the same degree and kinds of complexity of decision-making as those discussed here.

 

D.  Joseph Ellin

I have to confess that I'm biased on this case: I like trees, and I would never hire a road engineer named Clearing.  However I don't exactly see an ethical problem either.  There's a question of balancing aesthetics and safety, a problem of values to which there's evidently no correct answer.  Clearing is an engineer who evidently favors safety over all other values, but this is not the unanimous view of the citizens of Verdant County.  It is not, it seems to me, unethical to take Clearing's position (how can it be unethical to do what you can to protect human life?), though it may very well be unwise, shortsighted, undemocratic and not for the best for the citizens of the county.

 

Law suits have been filed, and to a certain extent the courts have decided that the trees are not an unreasonable hazard with regard to excessively speeding drivers.  Evidently no law suits have been filed against the VCRC by the victims of the five or more other fatal accidents, nor by the victims of the many non-fatal accidents, which is some reason to think that, at least in the opinion of lawyers practicing law in Verdant County, the trees do not represent an unreasonable hazard.  One expedient might be to wait until the next accident and the next law suit, and let the courts decide further issues; if the County were to lose a suit on grounds that the trees should not be so close to the road, that would perhaps settle the question.  Because the County would be the defendant, they would have to defend their trees in court, and whatever arguments they use can then be used later to protect the trees should the courts rule in the county's favor.

 

There is a factual question which Clearing should clear up, namely, to what extent the trees are a safety hazard to drivers proceeding lawfully and within the speed limit.  If the risk to such drivers is small, the case for retaining the trees is proportionately greater.  There is also the question of future road traffic volume as Forest Road becomes more and more a main artery.  Some degree of volume growth will inevitably mean the end of the trees, but acting prematurely would be unfortunate.  Clearing could also research or devise possible alternative solutions, such as non-rigid barriers to deflect cars from the trees. The point is that everything ought to be done to protect the trees, within reasonable safety limits; but no one can say what these are. The emotional arguments of the environmental group, who seem ready to sacrifice real lives in order to make symbolic gestures, ought not to be taken too seriously, except as political posturing.

 

There is also the fact that a wide straight road is not necessarily safest, since drivers are encouraged to speed, beat the lights, etc.  This is especially true if there is in-coming traffic from unprotected curb cuts, which tends to create hairy battles for road space.  Furthermore, even drivers like trees, as long as they don't themselves crash into them, which they think they won't do if they drive safely (here is the factual issue Clearing could resolve).  But if the traffic on Forest Drive continues to increase, widening the road will eventually be necessary, in order to avoid traffic congestion if for no other reason.  Therefore the VCRC ought to begin planning for this.  Consult with citizens' groups to see what they want.  Find out if the drivers are willing to assume some risk in order to avoid destroying the trees.  Assign more police patrols to keeps speeds down.  Try to design a safer road which preserves natural beauty.  Be prepared to offer new trees, planted in a safe but accessible location, as a trade-off for the ones taken down.  Trees don't last forever and (as environmental groups tell you in other contexts) are renewable resources.  So sacrificing all other values (safety, speed, convenience in travel) in order to preserve specific trees is irrational.  The goal is to preserve natural beauty and other environmental values over-all, not necessarily to preserve specific trees.

 

E.  Wade L. Robison

Whenever one acts, one is acting within a context, and the context may make some options preferable to others when, all things considered, it would be better to do something else completely different.  For instance, in European countries many roadways have trees right near the road.  These were often planted, among other reasons, to form a canopy over the road, making the road less likely to be covered with snow in the winter and more likely to be cooler in the summer. No doubt accidents happen there too, but the costs of suits to the European equivalent of country road commissions has not been so great, for whatever reason, that European countries have felt moved to remove trees for safety's sake.  Indeed, even on heavily traveled roads, the autobahn's of Germany, for instance, trees are often planted in the center between the double lanes of traffic in order, among other things, to prevent traffic lights from shining into the eyes of oncoming drivers.

 

In addition, though widening roadways is the accepted procedure in this country, whenever a road becomes so heavily traveled that the incidence of traffic accidents increases, it is not necessarily the preferred solution if some things were fundamentally different.  More public transportation is available elsewhere, and that can help alleviate traffic congestion, and if Americans were willing to use such transportation, and it were cheap and readily available, such a solution might help.  In addition, one can build other roads to help alleviate traffic, another two-lane road taking the place of doubling the lanes on an existing road.  But such a solution often produces new problems--other land being condemned, other trees being cut, and so on. In addition, it is probably likely that any state or federal aid available is tied to widening existing roads--tied, that is, to what is the preferred solution in this country--rather than anything innovative.

 

So engineer Kevin Clearing's problem is that there are few choices available to him given, among other things, the state of the law in this country and the likelihood that someone, going within the speed limit, will crash, and sue, and win a large amount of money from the county. There are enormous disincentives to do anything other than widen the road, and there may be enormous incentives, in the form of support from the state or federal government, to do that. One person cannot change an entire system.

 

Clearing has been asked to come up with a solution to the traffic problem, and he has.  He has come up with one that does not try to change those features of the situation that seem to be causing the difficulties--whatever it is about the drivers and the situation that has caused one fatal accident every year and numerous other accidents, whatever is causing drivers to drive too fast on the road, whatever is causing the increased traffic on the road, whatever it is in the system that produces huge amounts of money to those who are harmed in accidents and successfully sue, and so on.

 

No doubt other options are available besides widening the road--putting speed bumps in the road to slow the traffic, putting guard rails up to keep traffic within the roadway, increasing police patrols, and so on.  Each of these options has its advantages and disadvantages, and perhaps one of them, or some combination of them, would succeed in making the road safer.

 

The decision is ultimately a decision that must be made by the road commission.  They pressed Clearing to come up with a solution, and they presumably must ask him to come up with some alternative: it is not clear, that is, that he can act on his own initiative. If not, then he must act, if he feels impelled, as a private citizen, and he will have to decide whether to bring before the road commission other options he thinks might help.  Deciding that will present some problems, for he might be perceived by the road commission as undermining the recommendation he gave them and so undermining the commission itself.  So he ought to ask them how they want him to proceed--if he thinks he can do anything further regarding the issue.

 

If engineer Clearing can proceed on his own initiative, or if the road commission asks him to proceed, he ought to present the reasons for the original solution provided--the concerns about a lawsuit, and so on--and to present alternatives, with all their attendant problems and benefits.  Clearing ought to have originally provided the reasons for whatever solution he thinks is optimal, explaining clearly how he is ranking the various values in conflict here, how, that is, he weighs safety against the concern for the environment represented by the citizens' arguing to save the trees.  If he now thinks some other solution may be preferable, he ought to present it, with its attendant benefits and burdens.  His obligation, that is, is to further an informed and intelligent dialogue among the interested parties.

 

It may be that out of that dialogue some alternative solution may emerge.  For instance, one easy way to ease the problem caused by crashes is to make it harder for motorists to hit trees, and one way to do that is not to cut down underbrush near the road, as is the preferred option among road commissions throughout the country, but to plant bushes that will absorb the impact of cars, causing minimal damage to them and to their occupants by preventing them from running into something, like a tree, that will not give upon impact.  The road would then look far different from how most American roadways look--not cleared verges, with a stand of trees beyond the grass or gravel, but densely planted verges, with bushes close to the roadway.  Whether such a dense population of plant life could be maintained in a roadway system that relies so heavily upon salt to clean off ice and snow in the winter is another issue, but the point is not that such planting is the preferred solution, but that making clear the reasons for various alternative solutions can do much to initiate an intelligent and informed dialogue about what ought to be done, about which values ought to be given prominence and which solutions are more likely to preserve those values and cause the least harm to other values at issue.

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Ethics Case -  The Masters Thesis

 

I  Dr. Nelson Nice is on the engineering faculty at State University.  Three years ago he headed a research project that involved an undergraduate student assistant.  At first Jason Smart was enthusiastic about the project.  He certainly felt honored to be selected by Professor Nice as his undergraduate assistant.  However, as time passed Jason grew impatient with the laboratory work and write-ups. Dr.  Nelson Nice found that he had to do more and more of the work himself. Eventually Jason left the project before the work was completed.

 

One year later Jason, then a graduate student at another university, wrote to Dr. Nelson Nice and asked him if he would send him a copy of the final report of the work they had done together.  Jason explained that he had matured considerably since his undergraduate days and was now working in a related area.  "Now," he said, "I think I'm ready for more serious work. It would help me a lot if I could see how things finally worked out in the project."

 

Should Dr. Nelson Nice send the report to Jason Smart?

 

II  Nelson Nice was not anxious to share the report with Jason Smart.  Disappointed with the results of the research, Nelson had turned his attention elsewhere.  As far as he was concerned, the project was dead.  He also had to admit to himself that he still was unhappy with Jason's performance on the project.  However, he was impressed with Jason's acknowledgment of his earlier immaturity and his apparent desire to do serious work.  So he decided to send it.  He pointed out to Jason that, although the research was now complete, it had not turned out as he had hoped, and he had no plans to do further work in the area.  However, he wished Jason well in his graduate work and hoped that this report might be of some help in giving him new ideas.

 

Several years later Nelson Nice discovered that Jason Smart used the report as his Master's Thesis -- adding only a couple of introductory paragraphs, a concluding section, and an updated bibliography.  No reference to Nelson Nice appeared anywhere in the thesis!

 

What should Nelson Nice now do about this?  Is there anything that he could have done earlier that might have prevented this from happening?  What might he do in the future to decrease the chances that this sort of thing will happen?

 

Commentaries

 

A. Gale Cutler

Information costs money to generate and store and has value.  Many companies consider information a form of asset. Proprietary information is information which a company or organization owns or is the proprietor of.  This term is used primarily in a legal sense, just as "property" and "ownership" are ideas carefully defined by law.  Normally it refers to new knowledge generated within the organization which can be legally protected from use by others.  A rough synonym for "proprietary information" is "trade secrets."  A trade secret can be virtually any type of information which has not become public and which a company has taken steps to keep secret.

 

Jason has no proprietary right to the information developed by Prof. Nice and in whose development he participated in a minor way.  That information is proprietary to the university or the sponsor who funded the research work.  Some agreement prior to the initiation of a research project must be developed (and adhered to) about to whom the data and information assembled during the project belong.  When Prof. Nice receives a request from Jason he must get clearance from the owner of the proprietary information before sending a copy to Jason.  The only case in which this would not be necessary is if the university/Prof.  Nice arrangement grants ownership of the information contained in the report to Prof. Nice.  Even in that case, it is unwise to send the information to Jason without a clearly defined explanation of just what Jason intends to do with the report.

 

When Prof. Nice finds out what Jason has done with the report he must admit the error he made and inform authorities at the university that granted Jason his degree of this flagrant case of plagiarism (passing off of another's work as one's own).  Hopefully, this step (which is a form of "whistleblowing") should lead to the action granting Jason a master's degree being rescinded.  Where were the university supervisors of Jason's graduate work when this plagiarism was happening?

 

A case somewhat similar to this occurred at a company for which I worked.  An employee left voluntarily to go to graduate school.  Due to some slipshod handling of his "exit procedure" by the Human Resources Department, the fact that he had taken his laboratory notebooks (containing company proprietary data) was not discovered until several weeks after his departure.  Letters asking him for his notebooks, which contained proprietary (and sensitive) data on the flammability of plastics, were ignored.  A couple of years later he received a Master's Degree in Chemistry from a reputable university.  Major portions of his thesis bore strong resemblance to the research work he had done for the company at which I worked.  We chose to take no action because we felt we could not prove his plagiarism in court if a legal action developed.

 

B.  John B. Dilworth

 

Should Nelson Nice send a report on a project to Jason Smart, who assisted on the project at one stage?  Unless Nelson has some specific reason to doubt Jason's motives, or some general reasons for restricting access to his own work, professional courtesy and the ideal of free, unregulated exchange of information would be served by sending it.

 

Note that it makes no difference whether the report has been published by Nelson Nice or not, because Nice as the head of the research project holds copyright to the report.  Hence any other use or publication of the material without Nice's permission, such as that by Jason in his plagiarized thesis, is illegal (and immoral).

 

What should Nelson Nice do when he discovers the plagiarism?  First, he would have every right to get extremely angry. Jason as a former student of his has betrayed Nelson's trust in him, and has stolen his work and passed it off as his own. Jason has also betrayed and subverted the academic standards of the institution examining him for a Master's degree.

 

After cooling down somewhat, Nelson might reflect as follows.  As well as personally being a victim of Jason's crime, he has a duty to ensure that justice is done, and that adequate steps are taken to ensure that the circumstances which made the crime possible do not occur again.  The main problem was not sending Jason the report, but Jason's dishonesty coupled with inadequate supervision by his degree committee at his new institution.  Nelson must effectively communicate all of this to the appropriate persons or institutions.

 

Next it is time for controlled paranoia to take over.  Nelson is entering the crazy, upside-down world of 'whistle-blowing', in which honest attempts to reveal wrongdoing can all too easily end in failure or even personal disaster for the initiator.  The unpleasant truth is that those corrupt enough to plagiarize, or falsify scientific reports, etc., are also corrupt (and clever) enough to prepare elaborate fall-back positions if their deceitful activities should ever be discovered.

 

For example, Jason may have kept voluminous records of his own and other student's contributions to the original project.  Then, if ever challenged on his thesis, he would claim that after all it was he, and not Nelson, who had done the work on which the report was based.  If for any reason Nelson no longer has full records of the project, Jason's ploy could well succeed.

 

Even if Jason has no such fall-back, he may well find invaluable allies in the officers and institutions of his new university.  In the face of claims by outsiders of gross academic malpractice or negligence, those involved are quite likely to 'close ranks' and attempt to cover-up the problem, rather than undergo searching and painful investigation of what went wrong in the case.  A Department whose graduate program might be seriously compromised by publicity about poor-quality advising of students is unlikely to be impartial in judging claims of plagiarism by its students.

 

So overall, Nelson Nice needs to act both cautiously and decisively, to both protect his own interests and to forestall attempts by others to 'cover-up' the problem.  As for the future, Nelson would be wise to include warnings about the evils of plagiarism and falsification of evidence in his graduate courses.

 

C.  Joseph Ellin

I   Prof. Nice is asked by a former student, Jason, to send a copy of a report they had worked on together. Should Nice comply?  Why not?  No reason is given for not sending the report: a mere question of courtesy, one would think.

 

II  We are now told that Nice doesn't like the report and doesn't much care for Jason either.  But he sends the report anyway, only to discover years later that Jason has plagiarized it for his MA thesis.  There is no problem here either: plagiarism should be investigated and punished.  Nice must initiate an investigation through the appropriate authorities at Jason's university.  As to what he could have done to prevent this from happening, there are several things.  He might have earlier protected himself a bit by indicating on the report that it had copyright protection: "Not for publication.  Do not quote without permission."  He might assure himself that his students understand what plagiarism is and why it's wrong. He might ascertain that his university has appropriate policies in place.  These are more management problems than ethical ones; the ethical point is to try to create conditions such that ethical violations such as Jason's are less likely to occur.  It means not trusting people to the extent Nice would like to; but when the protections are in place, you can then be free to trust them more.

 

D.  Carl O. Hilgarth

I  Prof. Nice, in deciding how to respond to Jason Smart's request, should have the following questions:

o Why is he requesting a copy of the final research report after losing interest in and leaving the project?

o Does his contribution to the research project merit his receiving a complete copy of the research report?

o How was my research project associated to the related area he is now working in?

o How will seeing the report and how things worked out help him?

 

Without further information about Jason's graduate work, these considerations and the fact that the research was essentially done by Nelson Nice suggest the professor write Jason and express an interest in his current graduate work, inquire who his graduate research advisor is, and how the results of his research project will help. He should include an abstract of the report and summary of the results. If Jason is serious about his work, he will respond.

 

II  Even though Prof. Nice was not anxious to share the report with Jason Smart, was disappointed with the results of the research, and unhappy with Jason's performance on the project, he responded as many of us probably would.  He sent Jason a letter pointing out that although the research was now complete, it did not turn out as he had hoped, that he had no plans to do further work in the area, enclosed a copy of the report, and wished him well.  Several years later Prof. Nice finds out that Jason used the report as his Master's Thesis - adding some a couple of introductory paragraphs, a concluding section, and an updated bibliography, but not acknowledging or citing his work.

 

Were I Nelson Nice, my first reaction would be to assume academic misconduct - plagiarism. However, before acting, it's important to check things out. Since Jason's project was in a related area it might have been based on my research and used what he did as my undergraduate assistant as the starting point. I would contact Jason, cite my report, the fact that it appeared without any reference in his thesis, and ask him how this happened. Perhaps he duplicated my laboratory work with different results, especially since he added new introductory paragraphs, a conclusion and an updated bibliography. It would be interesting to hear what he would say. A call and a "little shop talk" with his graduate faculty advisor is also appropriate to confirm Jason's explanation. I may find his impropriety in not citing my research to be an oversight on his part, perhaps due to my reluctance to share my research report because of the "disappointing results." On the other hand, I might find that his research was legitimate and might provide a new perspective to my research causing me to reconsider my decision not to de further work in this area. Under either of these conditions, my resolution would be to request that he amend his thesis to cite my prior work, even if that work led to a different conclusion.

 

Or, I might find that he is still immature and impatient with laboratory work and writeups and used my report as a shortcut. At worst, academic misconduct - plagiarism - could be the case. If this is what happened, my action would be to discuss this with the faculty at the institution that granted Jason his master's degree, citing as the reason to investigate his alleged academic misconduct the fact that his master's thesis contained my research report of work done at the institution where the student was an undergraduate laboratory assistant. I would have to present the documents, correspondence, events, and circumstances through which the student received a copy of the report. The institution granting Jason his graduate degree would be responsible for the investigation under their student code of conduct, and I would have to abide by their finding.

 

To decrease the chances this situation occurring, whenever someone requests a copy of your research, only send copies of published papers, or refer them to the appropriate journal. In other instances, to protect work you haven't published, send an abstract and a summary of the results.

 

E.  Wade L. Robison

I  Various forms of questions reflect various assumptions. That this case asks whether Nelson should send the report to Jason implies that the report has not been published in any way and that the question of whether to send the report is Nelson's to answer. If the research had been funded by an outside source, then that source might have to give its permission for the report to be circulated, and if the report had been published, Jason can track it down himself and need not be dependent on Nelson for anything other than, perhaps, the information that the report has been published. So the way the question is posed suggests that the report is Nelson's to do with what he sees fit. If he prefers that others not read it, that is for him to decide.

 

He certainly has no obligation to send it to Jason even though Jason worked on the project. Jason's leaving the project before the work was completed removes any obligation Nelson might have had.

 

But it is not obvious that any harm could come from Nelson's sending Jason a copy, and, after all, Nelson is a professor, Jason was his student, both are presumably in the same area, engineering, with Jason going on to graduate school; and so Nelson may properly feel that it would help a former student to give him a copy of the report. One may argue that one never loses a student. They can always ask a professor to write a letter of recommendation, though it may become more and more awkward the older and more removed from college they get, and so it is appropriate for Nelson to continue what part of that relationship he can by encouraging Jason. After all, it is a compliment to have a former student request a copy of something one has worked on, and since, we assume, Jason was one of Nelson's better students (for why else are we to assume he was chosen as student assistant), Nelson may properly feel that Jason would be an asset to the profession and so want to encourage him.

 

II  If Nelson later discovers that Jason has used the report for his Master's Thesis, he has an obligation to report that--to the advisor listed on the Thesis, to the chair of the Department of the university in which the thesis was given, and to the University itself. He may also have an obligation to report it to whatever legal body is responsible for ethical issues in the profession. Jason is effectively stealing someone else's work, and he has no right to do that--even if, as Nelson indicated, Nelson has no further interest in the report and so does not intend to publish it. In addition to taking Nelson's work, Jason is also misrepresenting that work as his own. He is thus effectively lying to the Department and the University and his advisor there. And, in addition, he is misrepresenting himself as someone capable of doing that sort of work--to the University and to any future employers who see that he got a Masters from that university. He may well be capable of such work, but it is not fair to those who have done the proper work for a masters to represent oneself as having done it and compete with them on an apparently equal footing for honors and jobs.

 

It is not clear what Nelson could have done to prevent this from happening. He might have put on the Report "Commonlaw copyright" and "Not for publication," but such stamps, even if duplicated at p. 100, as libraries do when they print their names on the books they purchase, would not prevent anyone from typing up the entire report again.

 

He could also refuse to circulate unpublished papers and reports, citing concerns about having his ideas taken without credit to justify this closed-door policy. What he has to weigh here is whether such a policy properly furthers knowledge. If he indeed did not intend to pursue the subject of the report, then it would have languished in his filing cabinet until he died, then, probably, to be tossed. He worked on the project and may have uncovered something he did not realize he had. Circulating one's unpublished papers has the advantage of helping to ensure that whatever goodies are buried in fact make the light of day. He also has to weigh that consideration, which is a matter of general policy about the point of doing research, against he judgment that Jason might well profit from reading the report. After all, if Jason is now having second thoughts about how he handled himself in that project, then giving him the report to read so that he can see how things turned and thus what he missed out on by not doing a better job in the project may be just what Jason needs to mature further. Cutting him off may be taken as an affront and may be unhelpful in furthering his growth as an engineer and as a person.

 

It is not obvious what answer one ought to arrive at when going through such a calculation. It is one thing to keep to oneself what papers one has that one is working on and intends to publish. Premature circulation of an idea can work against the dramatic impact of its sudden publication and risks its loss as well. But if one has decided not to pursue a project, it is not obvious that keeping a report on the project to oneself is justifiable. It would be if one knew ahead of time what Jason planned to do, but one does not.

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 Ethics Case Study  Property (ownership of technical knowledge such as computer software)

 

I  Derek Evans used to work for a small computer firm that specializes in developing software for management tasks. Derek was a primary contributor in designing an innovative software system for customer services.  This software system is essentially the "lifeblood" of the firm.  The small computer firm never asked Derek to sign an agreement that software designed during his employment there becomes the property of the company.  However, his new employer did.

 

Derek is now working for a much larger computer firm. Derek's job is in the customer service area, and he spends most of his time on the telephone talking with customers having systems problems. This requires him to cross reference large amounts of information. It now occurs to him that by making a few minor alterations in the innovative software system he helped design at the small computer firm the task of cross referencing can be greatly simplified.

 

On Friday Derek decides he will come in early Monday morning to make the adaptation.  However, on Saturday evening he attends a party with two of his old friends, you and Horace Jones.  Since it has been some time since you have seen each other, you spend some time discussing what you have been doing recently.  Derek mentions his plan to adapt the software system on Monday.  Horace asks, "Isn't that unethical?  That system is really the property of your previous employer."  "But," Derek replies, "I'm just trying to make my work more efficient.  I'm not selling the system to anyone, or anything like that.  It's just for my use -- and, after all, I did help design it.  Besides, it's not exactly the same system -- I've made a few changes."  What follows is a discussion among the three of you.  What is your contribution?

 

II  Derek installs the software Monday morning.  Soon everyone is impressed with his efficiency.  Others are asking about the "secret" of his success.  Derek begins to realize that the software system might well have company-wide adaptability.  This does not go unnoticed by his superiors.  So, he is offered an opportunity to introduce the system in other parts of the company.

 

Now Derek recalls the conversation with Horace Jones and "you" at the party, and he begins to wonder if Horace was right after all.  He suggests that his previous employer be contacted and that the more extended use of the software system be negotiated with the small computer firm.  This move is firmly resisted by his superiors, who insist that the software system is now the property of the larger firm.  Derek balks at the idea of going ahead without talking with the smaller firm.  If Derek doesn't want the new job, they reply, someone else can be invited to do it; in any case, the adaptation will be made.

 

What should Derek do now?

 

III  Suppose Horace Jones is friends with people who work at the smaller computer firm. Should Horace Jones tell his friends about Derek's use of the software system from the smaller computer firm Derek formerly worked for?

 

Commentaries

 

A.   Neil R. Luebke

The general problem area raised by this case is ownership and use of technical knowledge.  One question might be phrased, "What is the right of the individual engineer to specific items of technical knowledge which he/she came to possess because of and while in the employ of a firm?" However, there are additional, more broadly ranging, questions such as, "How, through communicating or (mis)using technical knowledge gained in a previous employment, might an engineer cause a current employer considerable trouble and expense?" and "To what extent is an engineer responsible for the firm's use of his/her technical knowledge?"  Particular cases dealing with intellectual property, as in the present instance, are often complicated by a number of legal considerations.  In any event, Derek would be well-advised to seek the counsel of his firm's lawyers before proceeding and to urge his superiors to do the same.

 

There are at least two major gaps in the case description that must be filled before concrete, detailed advice could be given to Derek.  One is the matter of ownership, and the particular type of ownership, of the innovative software system. The other is whether Derek's new firm has a license to use the original software system.  Regarding the first, the case description does not explicitly state but strongly suggest that the software system belongs to Derek's former firm.  It is said to be the commercial "Lifeblood" of the firm, Derek and other developed it while employed by the firm (presumably as past of their jobs), and Horace's remark "That system is really the property of your previous employer" is not challenged but apparently accepted by Derek.  The fact that Derek did not sign an explicit agreement with his former employer may be immaterial.  The former employer might have a company policy governing ownership.  [My university has a detailed policy governing the ownership of patents and copyrights developed by university employees.  No employee "signs" the policy and it went into effect, valid from its adoption date, years after I first joined the university faculty.]  Then, too, there are legal precedents regarding design work done by employees while under hire to do such work.  Derek's assumption that his helping to design the system gives him some sort of "right" to use it or change it may be dangerously flawed.  It is remotely possible that Derek had and retains some sort of ownership right in the system, but there is nothing positive in the case description to suggest so.

 

There is also the question of Derek's current firm's license to use the software system, for they obviously do not own the original version.  The case description suggests that the current firm has not purchased a license to use the original system, but wants Derek to replicate the whole system, with a few modifications, for extensive company use and (claimed) ownership.  Such a move would seem to be a violation of copyright by the firm. It is not clear that Derek himself has a license to use the system he may be "pirating" it.  There are situations in which a company buys a license to use a software system and, as part of the purchase, also buys access to and use of the "source code" for the system, legally permitting the company to modify the system for its own needs. If this were the caseūbut there is nothing of the sort stated or implied in the description there would be no problem in introducing the modification and the firm is fortunate to have a person with Derek's experience.  (There may still be a problem with "owning" the modified system.) More commonly, the license to use a system prohibits the licensee from modifying the system (which would at least void the warranty) or distributing it to other parties; the software supplier retains the right to service, updates, or otherwise control modifications in the system.  The user's rights and their limits are usually spelled out in legal detail in the purchase agreement and warranty.

 

As both Derek and his new employers could be exposed to a major lawsuit, Derek should insist that his superiors obtain legal counsel before the situation develops further.  Derek may already be guilty of using proprietary information.

 

[Perhaps a few background remarks are in order here concerning the topics of patents and copyrights, trade secrets, and agreements that might be signed regarding maintenance of confidentiality or other intellectual property rights. The United States Constitution, Article I, Section 8, Clause 8.  There the Constitution provides that "Congress shall have the power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."  The United States was one of the first countries to develop a patent and copyright system.  Since the country was founded at the beginning of the modern industrial revolution, there was a concern on the part of the Constitution writers that creative individuals be protected and encouraged in their efforts to develop inventions or to produce artistically.  The federal Patent Act grants a limited monopoly to a patent-holding inventor that gives him a 17-year right to exclude others from using, making, or selling his invention in the United States.  Once a patent is applied for, it becomes a form of personal property; it may be bought, sold, traded, leased, licensed for the use of others, and so on.  Not every invention is patentable; it has to meet certain standards, usually standards of novelty, utility, inventiveness, and what is sometimes called subject matter, that is, there are certain things which cannot be patented, such as mathematical formulas or managerial techniques, whereas other thingsūsuch as actual devices, designs for processes, and chemical formulasūmay be patented.  A copyright is similar to a patent in that it grants an exclusive right to the holder to publish, sell, etc., plays, music, textbooks, photographs, and other such material.  The extent of protection is usually for longer for a copyright than for a patent.  To infringe a copyright or to manufacture illegally, say, a patented device would be grounds for a lawsuit by the owner of the patent or the copyright against those who violated the right.

 

There is another category of protected information usually called "confidential information," "proprietary information," or more commonly "trade secrets."  For a variety of reasons, companies may prefer to use the trade secret route to protect information, designs, formulas, and possibly even computer programs developed within their firms.  One reason is the expense associated with patenting.  Another reason has to do with the fact that a patented or copyrighted item becomes a matter of public record and hence is publicly accessible.  While at the time of this writing there is no national trade secret law, there are a number of statutes on the books of various states and a large number of court decisions protecting the rights of a firm to maintain its own trade secrets.  Companies have successfully sued each other for trade secret theft.  (Surely they were never parties in signing any ownership agreement!)  One process by which trade secret theft sometimes occurs is the hiring of an employee from another firm and then putting that employee in a position to use specialized knowledge obtained from the previous firm.  A trade secret can be any specific piece of information a list of customers, a mathematical formula, a chemical formula, a process design, and so on that gives the company holding it a competitive advantage in the marketplace and has been identified or treated by the company as confidential.  Generalized skills that an employee may pick up on the job, such as a skill in using certain programming techniques or a skill in the conducting some type of chemical analysis, would not be regarded as trade secrets but rather as general knowledge that becomes part of the employee's overall ability.

 

In order to help the company in protecting trade secrets (an activity that is extremely important in more technological firms) as well as in alerting employees to policies governing patents and copyrights, employees are often requested to read and sign an employment agreement.  These agreements explain the company's policy regarding patents, copyrights, and trade secrets and usually call attention to the employee's obligation to continue to maintain confidentiality indefinitely, not just during the time of employments with the company.]

 

Let us suppose that the company, at Derek's insistence, does carry out negotiations with the smaller company producing the original software.  Derek's ethical commitments to his previous and his current employers would not be violated.  He will have kept faith with his previous employer, and he cannot be charged with knowingly doing anything to damage his current employer.  His current firm may be able to work out some kind of relationship with the previous employer and possibly even come to a business arrangement for the marketing of the adaptation for even more commercial profit.

 

On the other hand, let us suppose that the company does not talk with the supplier of the software and insists on going ahead with or without Derek in making the adaptations company-wide.  Let us also suppose, as is likely to be the case, that at least someone in Derek's previous company finds out about the new use of the software system. Derek's new employer, as well as possibly Derek himself, could be confronted by a lawsuit having to do with the infringement of copyright.  Even if the lawsuit is not successful, the legal action could prove costly for Derek's employer.  It certainly might besmirch his reputation, both within the company and outside of it.  Derek should at least do what he can to urge his superiors to seek legal advice in this matter.  His professional responsibilities to his current employer as well as to his previous employer would call for no less.  If his superiors are too pig-headed to seek and listen to legal counsel on this matter, Derek would probably be better off working for a more enlightened firm at least one that would not ask him to act illegally.

 

B.  John B. Dilworth

This is one of the few cases where the specific legal provisions governing the matters at issue are of primary importance in clarifying and resolving the problems.  In the case of software, some basic points about copyright law, and some related matters concerning software licensing, are vital to understanding the case, and to distinguishing it from other cases of ownership or rights as they apply to employees.  Therefore these legal provisions will be spelled out as an integral part of this commentary.

 

1. Copyright in software is treated under current U.S. law as being essentially similar to copyright in any literary or creative work. In all these cases, one acquires initial ownership of the copyright simply by being the author of the work in question. (Several persons may jointly author a work and so jointly hold copyright to it.) The government (through the Copyright Office, Library of Congress) does provide a Registration of Copyright mechanism. This does not create ownership, but instead officially acknowledges that it already exists. Typically one submits a manuscript, whether of a novel, movie script or source code for a program, as evidence of one's authorship/copyright.

 

Authorship as discussed above is subject to the following important qualification.  The author of a work might prepare it as a "Work Made for Hire" (defined as a work prepared by an employee within the scope of his/her employment), and explicitly state this on the Copyright Registration form.  In this case, the copyright statute provides that the employer rather than the employee is considered as the author (and hence as the copyright holder).  However, it is important to note that, in the absense of any such explicit acknowledgement by an author that the work was "Made for Hire", the normal assumption would be that the actual author/s hold copyright to the work, unless other substantive evidence could be produced to prove that it was "Work Made for Hire".

 

In the current case, we are explicitly told that Derek was never asked by the small computer firm to sign an agreement that software designed during his employment there becomes the property of the company.  If he signed no such agreement, nor (as we may consequently assume) specified that his work was a "Work Made for Hire" in any copyright registration application, then legally he would have a strong presumptive case that he was (and still is) the copyright owner of the software in question. (The possible complication that he was the primary, but not the only, contributor to the software will be considered later.)

 

It might be objected that in most cases of employer-employee relations, if one works for someone then they own the products of one's labor. This is broadly true, but creative works falling under the copyright laws work differently.  A familiar example in higher education is the fact that professors retain copyright in their books or papers even if they were hired to carry out such creative research.

 

In the present case, the fact that Derek was indeed working for a computer firm while preparing the program etc. is not sufficient to establish copyright ownership by the firm.  For in the case of software copyrights, there are other rights or permissions to use the software which the firm will have acquired as a result of Derek's activities, which are fully adequate for their business purposes and which justify their hiring and compensating of Derek for his work.  They get broadly what they want, but it is rights and permissions to use the software which they get, rather than ownership of it.  (Recall that they could have had ownership too, but neglected or elected not to take the necessary legal steps to secure it.)  Here is a brief discussion of rights and licensing in relation to copyright, to help clarify these matters.

 

2. Everyone is familiar to some degree with literary and movie rights, for example that a producer may have to pay a novelist a large sum to get the movie rights to a book.  These rights give the movie producer the right to produce a film version of the novel, but do not in any way transfer the copyright (or ownership) of the novel to the producer.  Similar considerations apply to software too: acquiring the right to make certain uses of software does not transfer its ownership. Derek's firm acquired rights to use his software system for customer services in virtue of his being employed by them to produce the software, but the firm does not thereby acquire property rights in the software.

 

More distant still from ownership considerations are issues about licensing.  Almost all actual software contracts involve some kind of software licensing, in which the copyright owner gives permission to one or more licensees to make certain kinds of use of the software.  Though an exclusive license is possible, most licenses are of a non-exclusive kind, so that many different licensees could make similar uses of the software without violation of their contracts.  Clearly in such cases there is no question of any transference of ownership in the legal arrangements.

 

3. In the present case we are given no specific information about what rights or licensing arrangements were in force between Derek and his original small computer firm, but these can be reasonably inferred from the conduct of the parties.  Minimally his firm needed from Derek a perpetual, non-exclusive licence to use and modify his source code for the software.  Then they could use the software indefinitely, and modify it at any time in the future as changes became desirable.  However, unless there was a written contract in existence (signed by the firm and Derek) in which Derek granted the firm an exclusive license to use the software, Derek is free at any time to license the same software (whether or not he chooses to make changes in it) to anyone else, and under any terms he wishes.

 

The implications for the present case are clear.  Derek as the copyright holder can use or modify his software for use in his new larger computer firm in any way he pleases, with or without discussing it with his former employer.  What is more, his new employer cannot claim ownership of the software, because it was developed prior to Derek's current employment rather than as part of his current design work.

 

However, Derek would certainly be wise to come to some explicit agreement with his new firm about how he would allow them to use the software. In effect, the new firm wants Derek to produce a customized version of the software for them, and he could agree to do this as part of his regular compensation, while also negotiating a monthly or yearly licensing fee in return for granting them appropriate rights to use the software.  Or to simplify things, Derek might be tempted to sell them the package outright for a suitable compensation, in which case there would be an actual transference of ownership of the package.

 

4. We are told that Derek was a "primary contributor" in the original development of the software.  This suggests the possibility that he may jointly hold the copyright to the software with one or more other designers.  How would this affect the case?  Generally, joint ownership allows each owner to exercise all rights of ownership, except for those whose exercise would materially affect the rights of the remaining owners.  (Commonplace examples include such matters as joint ownership of a home or bank account.)  In the present case, this means that Derek is free to grant non-exclusive licenses to use the software to anyone (but not to everyone), since other joint owners would not be thereby prevented from exercising similar rights.  On the other hand, Derek should refrain from attempting to grant an exclusive license, or from attempting to sell the software outright, because both of these actions would materially affect the interests of any other joint owners.

 

Does Derek have any moral obligation to contact his former employer, or his co-workers there, before exercising his legal rights as detailed above?  First, it is prudent for anyone in business to stay on good terms with both present and former associates. In the interests both of common courtesy and of safeguarding his own career, Derek would be well advised to explain his actions and his view of the case to anyone who might otherwise resent or be annoyed by them, including his former associates and friends.

 

Second, if there are indeed co-authors from his previous firm whom Derek could contact, he should do so.  A basic principle of legal ethics, assumed in contract law, is that parties who enter into a contract or agreement are thereby obligated to make a good-faith effort to carry out the terms of the contract, both explicit and implicit.  Co-authorship, as with other forms of joint ownership, could appropriately be viewed as requiring that one should keep co-authors informed of one's actions with respect to the joint property, even if this is not explicitly spelled out in a written agreement between the co-authors.

 

C.  Michael S. Pritchard

It might seem that this case is basically about law rather than ethics.  Clearly it does raise a number of legal questions. However, there is a strong ethical dimension as well.  Derek's desire to adapt the software program to his new job circumstances seems innocent enough.  But the fact that his new employer required him to sign a software agreement that what he designs becomes company property should have alerted him to a potential problem.  Although Derek did not sign a similar agreement with his previous employer, this does not conclusively settle the question of ownership. Others were involved in the initial design.

 

At the very least, Derek should have inquired about the ownership matter prior to adapting the software to his purposes.  This would not only protect his current employer from a potential law suit (should the previous employer choose to sue), it would also evidence respect for the interests of his previous associates.  Carelessly placing one's employer at legal risk is both an ethical and a legal concern.  Indifference to the interests of his previous associates is an ethical concern, unless we can assume that Derek is estranged from them (and even if he is, there might have been an implicit understanding about the disposition of the software).  After all, Derek is very possibly legally entangling the "lifeblood" of his previous employer, given his current employer's apparent desire to claim ownership of its employees' software designs.

 

It might be objected that Derek did not know that his new employer would use all means at its disposal to adapt the software system throughout the company. True, but his having to sign an ownership agreement should have put him on alert.

 

It seems clear from the case that Derek bore no special animosity against his previous employer and associates.  Now, to his regret, he has become involved a legal and ethical quagmire.  Perhaps a careful investigation of law can clarify the legal rights involved in this case, but the ethical concerns cannot be handled so readily.  So, I conclude that Derek should have proceeded with greater caution, heeding the concerns of Horace.  A call to his previous employer before adapting the system might have avoided these problems.

____________________________________________________________

 

Ethics Case Study  Pollution Concentration in Manufacturing Plant Wastewater

 

I  Marvin Johnson is Environmental Engineer for Wolfog Manufacturing, one of several local plants whose water discharges flow into a lake in a flourishing tourist area. Included in Marvin's responsibilities is the monitoring of water and air discharges at his plant and the periodic preparation of reports to be submitted to the Department of Natural Resources.

 

Engineer Marvin has just prepared a report that indicates that the level of pollution in the plant's water discharges slightly exceeds the legal limitations.  However, there is little reason to believe that this excessive amount poses any danger to people in the area; at worst, it will endanger a small number of fish.  On the other hand, solving the problem will cost the plant more than $200,000.

 

Marvin's supervisor, Plant Manager Edgar Owens, says the excess should be regarded as a mere "technicality," and he asks Marvin to "adjust" the data so that the plant appears to be in compliance.  He explains: "We can't afford the $200,000.  It might even cost a few jobs. No doubt it would set us behind our competitors.  Besides the bad publicity we'd get, it might scare off some of tourist industry, making it worse for everybody."

 

How do you think Marvin should respond to supervisor Edgar's request to adjust the pollutant concentration data.?

 

II  No doubt many people in the area besides Marvin Johnson and Edgar Owens have an important stake in how Marvin responds to Edgar's request.  How many kinds of people who have a stake in this can you think of? [E.g., employees at Wolfog.]

 

III  Engineer Deborah Randle works for the Department of Natural Resources.  One of her major responsibilities is to evaluate periodic water and air discharge reports from local industry to see if they are in compliance with antipollution requirements.  Do you think Deborah would agree with the Plant Manager's idea that the excess should be regarded as a "mere technicality"?

 

IV  Consider the situation as local parents of children who swim in the lake.

     Would they agree that the excess wastewater pollutant concentration is a "mere technicality"?

 

V  A basic ethical principle is "Whatever is right (or wrong) for one person is right (or wrong) for any relevantly similar persons in a relevantly similar situation."  This is called the principle of universalizability.  Suppose there are several plants in the area whose emissions are, like Wolfog Manufacturing's, slightly in excess of the legal limitations. According to the principle of universalizability, if it is right for Marvin Johnson to submit an inaccurate report, it is right for all the other environmental engineers to do likewise (and for their plant managers to ask them to do so).  What if all the plants submitted reports like the one Edgar Owens wants Marvin Johnson to submit?

 

VI  Now that you have looked at the situation at Wolfog from a number of different perspectives, has your view of what Marvin Johnson do changed from your first answer?

 

Commentaries

 

A.  Kenneth L. Carper

It is interesting to notice the language people use to justify unethical behavior. Plant Manager Edgar Owens refers to overlooking "mere technicalities," when he really means breaking established laws. He requests Marvin Johnson to "adjust" the report, when he really intends for Johnson to falsify scientific data.

 

The falsification of data is viewed by scientists and engineers to be an extremely serious breach of ethics.  Marvin Johnson is being asked to compromise one of the most important moral concepts in science, truthfulness in reporting of scientific measurements.  Should he consent to a false report, and should the incident come to light, his own personal career will be in grave jeopardy.  The scientific and engineering community cannot survive unless its members can trust one another to present data truthfully.

 

Yet, Marvin Johnson finds himself in a very difficult position.  His manager has raised the question of loyalty.  The implication is that truthfulness will damage the company; fellow employees will suffer.  Competitors will profit at the expense of Wolfog Manufacturing.  The arguments given by Edgar Owens can be quite persuasive, and they are all too familiar in the corporate setting (Nelson and Peterson 1982).  Regulations are often seen to be unrealistic or arbitrary. The assumption is often made that competitors must be falsifying data to meet these unrealistic expectations, so it is only wise business practice to do what everyone else is doing.

 

Much has been written about the pitfalls of misguided loyalty.  While principled loyalty can be a commendable virtue, misguided loyalty has been responsible for many, many tragic moral disasters.  When loyalty to a corporation, or a government, or an individual, requires the sacrifice of fundamental moral principles, such loyalty is not a virtue.

 

Engineers who find themselves in stressful situations like this should refer to their professional Code of Ethics.  This can be a helpful, tangible tool in negotiations with their employers. (Carper 1991, Davis 1991).  Certain fundamental ethical principles are embodied in the Codes of Ethics adopted by professional societies, and the embattled engineer can point to these principles, stating that his or her career as an engineer requires adherence to these principles.  What engineer Marvin Johnson is being asked to do is a violation of the canons of his profession.

 

The principle of universalizability is introduced in this case study. Immanuel Kant's "categorical imperative" provides this guidance:

 

Act only according to that maxim by which you can at the same time will that it should become a universal law.

 

In this case, Johnson should not write an "adjusted report" unless he is truly willing to accept similar actions by all his colleagues in the scientific and engineering community when confronted by similar situations and similar pressure from their employers.  Should engineer Johnson consent to Edgar Owens' request, later selfanalysis of his actions will bring the crisis of conscience experienced by others who have compromised their values in the interest of misguided loyalty.

 

One relevant example is the B. F. Goodrich case involving data falsification on critical brake and wheel assembly testing for Air Force attack aircraft (Martin and Schinzinger 1989, p.58).  The firsthand account provided by Kermit Vandiver, a B. F. Goodrich employee, is very enlightening (Vandiver 1972).

 

Deborah Randle, an engineer who works for the Department of Natural Resources, will most certainly evaluate reports from the various corporations with the principle of universalizability in mind.  How else can someone charged with global responsibility operate, and remain impartial?  False data will be absolutely unacceptable to engineer Randle. Again, engineers simply must be able to trust each other.

 

Should an unethical report be discovered, not only will engineer Johnson's reputation be irreparably damaged, but the impact on Wolfog Manufacturing will also be significant . The case of emissions test data falsification by the Ford Motor Company shows the damage such behavior can do to a corporation (Martin and Schinzinger 1989, pp. 163164).  A review of the Ford case illustrates the fact that compromising ethics in the interest of loyalty can actually result in great damage to the very employer one is trying to protect.

 

It seems that engineer Marvin Johnson has some thinking to do.  It is probably not yet time to "blow the whistle" publicly. There are some moral principles and procedures involved in proper whistleblowing, and Johnson has not yet exhausted his avenues within the corporation (Elliston et al 1985).  Indeed, Johnson has an excellent opportunity to provide some moral leadership to his colleagues by speaking out on the issue of scientific truthfulness.  But engineers simply must refuse to work for corporations that place profit above scientific honesty.  If Edgar Owens represents the moral stature of the Wolfog corporate management, then Wolfog Manufacturing is not a healthy environment for an honest engineer.

 

Suggested Readings:

 

1. Carper, Kenneth L. 1991. "Engineering Code of Ethics: Beneficial Restraint on Consequential Morality," Journal of Professional Issues in Engineering Education and Practice, American Society of Civil Engineers, New York, NY, Vol. 117, No. 3, July, pp. 250257.

 

2. Davis, Michael 1991. "Thinking Like an Engineer: The Place of a Code of Ethics in the Practice of a Profession," Philosophy and Public Affairs, Princeton University Press, Princeton, NJ, Vol. 20, No. 2, Spring, pp. 150167.

 

3. Elliston, Frederick, J. Keenan, P. Lockhart and J. van Schaick 1985. Whistleblowing Research: Methodological and Moral Issues, Praeger Publishers, New York, NY, pp.133161.

 

4. Martin, Mike W. and R. Schinzinger 1989. Ethics in Engineering (2nd edition), McGrawHill, Inc., New York, NY, pp. 58, 163164, 176.

 

5. Nelson, C. and S. R. Peterson 1982. "The Engineer as Moral Agent," Journal of Professional Issues in Engineering, American Society of Civil Engineers, New York, NY, Vol. 108, No. 1, January, pp. 15.

 

6. Vandiver, Kermit 1972. "Why Should My Conscience Bother Me?" from In the Name of Profit, by Robert L. Heilbroner, Doubleday and Company, Inc., Garden City, NY, pp. 331.

 

B.  Joseph Ellin

 

I  This case involves a violation of environmental regulations which may be more 'technical' than real.  Wolfog Co is faced with $200,000 unnecessary expenses to prevent small excess omissions which are not believed to be harmful to anyone but a few fish.  The obvious course here is for Wolfog to apply to the DNR for a variance.  Their lawyers can try to convince the DNR that the slight excess poses little danger.  If they don't get the variance, they'll have to conform, or go to court; though all this will probably cost Wolfog more than the cost of compliance.

 

However there's nothing to be done on an individual basis.  Manager Edgar Owens should not expect engineer marvin to 'adjust' the data and Marvin shouldn't do it.  Edgar's reasoning is self-serving:if he's worried about image and tourism he should comply with the regulations.  It may well be true that if Wolfog has to spend the $200,000 which they can't afford, they're in trouble, but the answer, if there is an answer, is not to fake data.

 

II  This might be one of those cases in which most people are better off if the law is violated rather than obeyed.  Such situations are probably more common than realized.  It's not the discharge itself which does any harm, but the fact that it's not in conformity to the regulations, because this creates the image problem and scares away the tourists.  This obviously makes an excellent case for loosening the regulations: regulations should not be more onerous than necessary to achieve their purpose.  The more people who have a stake in economic development, the more likely is this case to be heard by the authorities.

 

III  Whether Deborah, the DNR water quality engineer, would agree that the violation is a 'mere technicality,' depends on Deborah.  We don't know enough about her; if she's a radical environmentalist, she thinks zero dead fish is the only tolerable condition, and no cost is too great to achieve it.  She also may think there is no such thing as a technical violation: a violation is a violation,may be her enforcement motto.  One might take the view that if she thinks this, she shouldn't be in her position, but perhaps her boss thinks so too. Perhaps this is the motto of the entire DNR, which if it is shows something about the irrationality we've gotten ourselves into.

 

IV  Would the parents agree that the violation is merely technical?  Probably not; the local parents have been whipped up by the environmentalists and the media to think that any drop of anything is dangerous.  They want jobs, economic progress, low taxes, low prices, and a pristine environment as well, (who doesn't?) and they are not wiling or able to understand the issues involved.  And they vote.

 

V  So given this hypothetical gloomy situation, is the over-all best solution that Marvin should just fake the data?  One might make such an argument from a narrow act utilitarian point of view, but for all sorts of reasons including long-range utility it isn't right for anyone to submit a fake report, so the question whether everyone might do so is purely hypothetical.  Another question would be, if it's right to grant a variance to Wolfog, is it right to grant a variance to every plant?  And the answer would be yes, which is not an argument not to grant the variance to Wolfog, unless there is a comparable compelling reason at the other industries (for example, it might not cost everybody $200,000 to clean up). If there is, then the DNR is within its rights in denying the variance.  If all the factories together produce a total discharge that is dangerous, the situation changes by that fact.  But if there are no other plants in Wolfog's situation, then the so-called principle of universalizability should not be used as an excuse to impose hardships on one firm without any compensating gain for anyone except the few fish.

 

VI  Marvin shouldn't fake the data. The rest is up to the people at Wolfog.

__________________________________________________

 

Ethics Case Study - Borrowed Tools and Lying

(a lie is a false statement or action made with the intent to deceive)

 

XYZ Corporation permits its employees to borrow company tools.  Senior engineer Al House took full advantage of this privilege.  He went one step further and ordered tools for his unit that would be useful for his home building projects even though they were of no significant use to his unit at XYZ.  Junior engineer Michael Green had suspected for some time that Al was ordering tools for personal rather than company use, but he had no unambiguous evidence until he overheard a revealing conversation between Al and Bob Deal, a contract salesman from whom Al frequently purchased tools.

 

Michael was reluctant to directly confront Al.  They had never gotten along well, and Al was a senior engineer who wielded a great deal of power over Michael in their unit.  Michael was also reluctant to discuss the matter with the chief engineer of their unit, in whom he had little confidence or trust.

 

Eventually Michael decided to talk with the Contract Procurement Agent, whose immediate response was, "This really stinks."  The Contract Procurement Agent agreed not to reveal that Michael had talked with him.  He then called the chief engineer, indicating only that a reliable source had informed him about Al House's inappropriate purchases.  In turn, the chief engineer confronted Al.  Finally, Al House directly confronted each of the engineers in his unit he thought might have "ratted" on him.  When Al questioned Michael, Michael denied any knowledge of what took place.

 

Later Michael explained to his wife, "I was forced to lie. I told Al, 'I don't know anything about this'."

 

Discuss the ethical issues this case raises.

 

Commentaries

 

A.  W. Gale Cutler

In the publication "Common Sense and Everyday Ethics" (American Viewpoint, Inc., 1980) there is an interesting quote:

 

There is no such animal as an absolutely honest human being, and there is no perfect society.  For whatever reasons, however, it does seem that it is the compelling destiny of man to seek survival.  In the process of trying to survive under increasingly complicated demands and responsibilities, both individual man and society as a whole must strive toward perfection or slide toward destruction.

 

In this case senior engineer Al cheats his company by ordering tools for his own use, junior engineer Michael fears Al's management power over him and takes a devious route to disclose Al's dishonesty rather than confronting Al directly, and then he lies about having disclosed Al's dishonesty.

 

Lying (a lie is a false statement or action made with the intent to deceive) is an omnipresent social disease that may be endured in mild forms, but at advanced and epidemic stages can erupt to destroy the foundations of a free society.  Today many people do not consider lying dishonest!!  To them the threshold of dishonesty begins with stealing.  A significant number do not even consider stealing very dishonest, may not at all when one steals from big businesses (a large manufacturing plant, a major insurance company, a utility, etc.).  Some people feel so impersonally toward big businsess that they donot think of a big corporation as having any particular ownership.

 

The government doesn't fare any better.  The honor system of paying one's proper taxes is now eroding.  Unreported earnings from cash income taken in by various industries, services and individuals have been estimated at several hundred billion dollars annually.  This type of lyng isn't just a harmless social habit that can be tolerated ethically and morally--it's a decline in society's honesty.

 

People will claim that they lie because they do not wish to hurt someone by telling the truth.  The inescapable conclusion of this type of thinking is that it is all right to lie anytime it will benefit oneself or one's friend.  What if everyone used this standard?  Sooner or later you wouldn't be able to trust anyone.

 

Doubtless there may be times when it might seem preferable to lie rather than not lie, but if an individual must lie to save his job, then he is working for the wrong person in the wrong place.

 

In this case, Al is clearly committing a wrong act in ordering tools for his own use and, when found out, should be severely reprimanded or discharged.  Michael should either confront Al directly or when accused by Al of "ratting" say clearly that he did "rat."  If Michael has to live a lie to preserve his job, he is working for the wrong person and the wrong company.  Even if Michael lies to Al, it is probably inevitable that Al will find out who told on him.  Rather than live in dread of this, Michael should face up to Al when asked if he "ratted" and hope that management will back him in disclosing Al's wrongdoing.  If management doesn't, Michael will simply have learned that he is working for the wrong person and the wrong company.

 

B.  John B. Dilworth

This is an interesting case because it brings out the almost hypnotic (and, I shall argue, in this case myopically misdirected) power of some moral concerns about lying.  Conventional wisdom assumes that there is something morally problematic about Michael's decision to lie when confronted by Al House.

 

But such a view fails to look at the full moral context of cases such as the present one.  This is a case where illegal activity by a person (senior engineer Al House) has been discovered.  Knowing that he has been discovered, the criminal perpetrator is clearly in a malicious, destructive frame of mind, and is determined to 'get' whoever 'ratted' on him.  This is the moral framework in terms of which Michael's decision to lie must be judged.  Hence the real moral issues here are those concerning malicious questioning, rather than any concerning false answering.

 

Any other view of the matter amounts to a form of the familiar 'blame the victim' syndrome.  (For example, in many cases of wife-beating and rape the woman ends up getting blamed as much, or even more so, than the male criminal.)  Criminals rip apart the fabric of civilized life, directly or indirectly harming and twisting the actions of everyone involved.

 

It is all too easy to artificially abstract elements from such a situation and draw up a kind of 'laundry list' of morally problematic actions, which makes it look as if the victims of the situation (including those who give evidence to the proper authorities, or have to handle confrontations with the criminal) bear some some kind of moral guilt comparable to that of the perpetrator(s).  We must resist this temptation to indulge in abstract theorizing, disconnected from the realities of actual situations.

 

This is not to say that victimized people are free to do anything whatsoever to cope with their traumatic situations. But it is to say that their actions must be judged in the specific context of the real and potential actions of the criminal(s) involved.

 

In the present case, there are two aspects of Al's malicious questioning which are relevant to deciding that it is perfectly legitimate in this case for Michael to lie to Al. First, Al has no right to know who reported him.  As a general matter of business policy, those reporting problems or abuses are entitled to confidentiality, and they should especially be protected from those who caused the abuses.  Hence Michael is under no obligation whatsoever to tell Al that it was he, Michael, who reported Al.

 

It might be thought then that Michael should simply refuse to tell Al whether he, Michael, had reported Al or not.  But in this special case, a refusal to supply information would itself amount to a giving of the same information.  This is for the obvious reason that Al would instantly guess why Michael was refusing to directly admit or deny that he was the informant, namely because he really was the imformant!

 

Thus in this special case, lying is justified as the only effective method for withholding information, which information one has every right to withhold.

 

So far we have made no use of the fact that Al's questioning is done with malice in mind.  This provides us with a second, independent line of defence of lying as a defensive strategy against malicious questioning.  Even those who generally criticize lying as wrong in principle are likely to admit some cases when it is justified, such as for instance to protect innocent life.  In the case of a murderer demanding that you tell him the whereabouts of his next victim, lying may even be morally obligatory.  But if we concede this, then should we not also concede a group of related cases, in which other kinds of malicious questioning are involved, including the present case?  If someone clearly intends to cause some harm to someone, if told the truth, is it not at least morally permissible (even if not obligatory) to lie to prevent the harm from occurring?

 

Here again it is tempting to treat the lying in abstraction from the actual situation, such as in a claim that Michael's lying is morally problematic because he has self-interested reasons for doing it.  But in the context of malicious questioning, all that matters is whether someone is likely to get hurt in some way unless one lies.  Surely we have a moral duty to prevent harm to innocent people, even if it is we ourselves who are those innocent people.  So in a case such as this it is simply irrelevant whether the lying also serves self-interest.

 

Finally, a few words on the amount and severity of the harm that someone might be subjected to, who did not lie in the given situation. It is easy to assume that only embarrassment and 'bad feeling' would result from telling the truth.  But the harsh truth is that in the real world, anyone caught doing something illegal or seriously compromising is liable to behave in vicious, unpredictable ways towards their accusers.  Long-term revenge plots are a fact of life in our culture also.  Hence victims are fully justified in misleading such criminals as necessary.

 

C.  Joseph Ellin

Like many engineers written up in ethics cases, junior engineer Michael Green spends some of his time listening in on other people's conversations.  These informal investigations never prove fruitless; Michael learns that Al House is abusing his company privilege of borrowing tools.

 

Al is far senior to Mike and Mike won't confront him directly.  So he does the right thing and reports the abuse to proper authority.  Al is not impressed by Mike's loyalty to the company and decides to determine who the stoolie is.  He asks everybody directly which one 'ratted' on him.

 

Obviously XYZ company has walked into this by allowing Al to cross examine his subordinates.  Evidently XYZ is not able to deal effectively with this abuse of policy.  Al's boss should have made it clear to Al that the identity of the person who 'ratted' was confidential company information that he was not to attempt to find out; presumably Al is in enough hot water already not to want to disobey this order.  And the other engineers in Al's unit should have been notified not to cooperate with Al if he should try to question them.

 

Is XYZ company really interested in preventing abuse of privileges?  If they are, Michael would seem pretty secure in simply admitting to Al that it was he who turned him in.  What can Al do about it, since presumably Michael is protected by Al's superiors?  Any retaliation Al takes against Michael can be reported, and Al gets into deeper trouble. But if this seems too risky to Michael, he can refuse to answer, telling Al that he doesn't think it's an appropriate question to be put to a fellow engineer (which it isn't).  Al can draw his own conclusions, but since he's clever enough to figure out that one of the other engineers in the unit might have turned him in and then lied about it, Michael's refusal to answer might not only protect Mike from Al's retaliation but might earn him a couple of points in Al's mind as someone who can't be easily intimidated.  Meanwhile Michael should report Al's attempt at intimidation and make it clear that he expects XYZ to protect him if Al should retaliate.  Michael is actually in the stronger position here and should make use of his advantage.

 

Instead, Michael lies to Al. There are cases in which lying is the only way out, but this doesn't seem to be one of them.

 

D.  C.E. Harris

Lying is not always wrong.  If a deranged person wielding a knife asks me where Johnny is, indicating his intention to kill Johnny, I have every right (even an obligation) to lie to the deranged person. Lying to protect an innocent person is often morally permissible.  The present case, however, is not a paradigm case of lying to protect the innocent, because the motive of self-interest is present.  Furthermore, there might be a value to the company and an intrinsic moral value in setting an example of one who is willing to publicly take the responsibility for preventing the continuation of an action that seems clearly wrong.  There is a virtue in publicly facing up to wrongdoing.

 

Many companies have established procedures for reporting wrongdoing that allow the reporter to remain anonymous. If Michael's company had such a system and he had used it, he might have still felt that he should have had the courage to confront Al, but he probably would have felt much more comfortable about remaining anonymous. This is because anonymity would have been accepted as a legitimate aspect of reporting wrongdoing. However, Michael would still have been forced to lie to preserve his anonymity.

 

We have two basic approaches, then, to resolving the dilemma that Michael faces.  One approach is to report Al's wrongdoing but to remain anonymous, even at the cost of lying.  This solution of the problem has the virtue of both stopping the wrongdoing and protecting an innocent person, namely himself, from unjust retribution.  The disadvantage is that this approach involves telling a lie.  The other approach, confronting Al openly, has the advantage of avoiding the lie and exhibiting the virtue of open confrontation of wrongdoing, but the disadvantage of jeopardizing Michael's position in the company.

 

There are at least four crucial factual questions in this problem.  First, Michael should attempt to assess just how severe Al's retribution against him might be.  Would Michael lose his job or forego any further advancement?  Could Michael get assurance that he will be protected against Al's recrimination?  Second, Michael should attempt to assess how much sense of guilt or self-recrimination he would undergo if he lies to Al.  He might feel that he has been cowardly in not confronting Al "like a man," even if he can justify the action morally.  Third, Michael should attempt to assess the likelihood of Al's finding out that Michael informed the Contract Procurement Agent of his wrongdoing.  If Al is likely to find out about Michael's action anyhow, then Michael might as well inform Al himself.  The answers to these factual questions would probably be decisive in determining which of the two alternatives outlined above is most desirable.

 

E.  Neil R. Luebke

The main issue in "Borrowed Tools" is internal whistleblowing.  As I see it, the nasty turn this case takes near the end is not so much a result of something that Michael did but, rather, a result of the actions of the contract procurement agent.

 

Let us first look at this situation from the point of view of the XYZ Corporation. Al House is certainly abusing XYZ's generous policy concerning the borrowing of company tools.  Assuming these tools could not be used for any company project but are rather used only for his personal ends, if confronted by an officer of the corporation such as the contract procurement agent, Al would have a great deal of difficulty in explaining his orders.  We do not know how widespread in the corporation is the kind of abuse that Al engages in. Al himself seems to have little reluctance in allowing other people to know of his activities.  Apparently Bob Deal, the contract salesman, knows about it. Al's confronting the other engineers he works with suggests that they are also in a position to know about his activities.  The chief engineer of the unit and the contract procurement agent, however, seem not to know.  We do not know the dollar value of Al's orders over the period of time, but we can assume that by now they probably total several hundred dollars . There is no doubt Al is using company resources for his own purposes--in effect, stealing from the company--and his actions are, accordingly, immoral and possibly illegal. Al's actions are similar in some ways to those of a bank teller who takes home a few bills from time to time to help his own financial assets or a salesman in a men's store who might take a shirt or a tie on occasion for his own wardrobe.  Al, of course, does not keep the tools as his own; he merely "uses" them. In these latter two cases, it is difficult to imagine that, when the thieving party is confronted by the evidence, the person would insist on knowing what co-workers had "ratted" on him.

 

By contrast, no one in our story seems to focus on evidence. Michael had suspicions, and his suspicions seemed to be confirmed only by an overheard conversation.  The contract procurement agent does not seem to respond with an investigation of the record but repeats the assertion to the chief engineer.  The chief engineer does not investigate but simply confronts Al with this transmitted piece of testimony.  As the message reaches Al, it has the distinct form of an accusation made by a co-worker rather than as a charge of wrongdoing made by a company officer.

 

This unfortunate handling of the problem seems to be symptomatic of a number of things that are unfortunate about the XYZ Corporation.  For one thing, there do not seem to be appropriate personnel relationships or corporate "climate." Al and Michael do not get along; Michael has little confidence or trust in the chief engineer; both Al House and the contract salesman Bob Deal seem to think it is acceptable to steal from the company; both the contract procurement agent and the chief engineer seem to be more concerned with passing along an interesting story than in investigating the facts; and, finally, Michael, although he tells what he thinks is the truth, feels so insecure regarding his position in the company that he easily lies.

 

Although the immediate issue in this case is internal whistleblowing, the larger issue is about the corporate climate, communications, and policies involved.  Let us consider alternative actions at some of the junctures in this story.  The first juncture is when Michael's suspicions regarding Al House's activities are, at least in his own mind, confirmed by overhearing the conversation.  What should he do now?  Were he to confront Al, Al would probably claim that the tools were going to be used on some future project even if they did not have an immediate use, or else he might say, "Michael, you don't know what you're talking about!"  Before Michael goes any further, he should make sure that Al House is ordering tools for which there is not, nor will be, any use within the company.  In other words, Michael needs more than just his own impressions.  Even though Michael seems to think the chief engineer is not a person of trust, he might very well be.  Michael might, in some nonaccusatory manner, try to investigate concerning the type of order that Al was placing.  He need not start out by naming Al; rather, he might ask the chief engineer whether ordering such and such a tool would be appropriate for the activities of their unit.  In addition, there are other persons Michael might talk to for guidance, either his fellow workers or one of the officers of the local engineering society.

 

Let us suppose through one route or another Michael does come to talk with the contract procurement agent. By the time he discusses the matter with the agent, he ought to have more than a set of suspicions to back up his serious accusations. Because the contract procurement agent has access to records that perhaps Michael does not, the agent should investigate those records to find out whether the kind of abuse that Michael is describing has actually taken place over a period of time.  The contract procurement agent could then meet with the chief engineer to go over the record of tool orders.  There is no reason for the contract procurement agent to reveal that Michael or anyone else talked to him about a specific individual.  The agent's job is not to convey an accusation but to see whether abuses have taken place. If, as a matter of record, it can be shown that abuse has taken place and that Al House has been the principal party bringing about the abuse, then the job falls to the chief engineer to decide what to do regarding Al.  At this point, the chief engineer is not merely passing along a suspicion by some fellow worker; the chief engineer is confronting Al with what seems to be a violation of company policy.  Unless this task is undertaken by some other administrator, it is the chief engineer's responsibility to present Al with his alternatives. Al could claim innocence and want to have protection to show that he was innocent.  Or, even if Al did the abusive acts, company policy might permit him to get off with restitution of costs plus a letter of reprimand in his file.  At worst, Al might be threatened with legal action and with termination.

 

Finally, let us suppose the scenario goes as it does to the point of Michael being confronted by Al's charge of having ratted on him.  As intimidating as Al probably is, Michael could take the offensive, responding to Al's charge of having ratted on him with a line such as, "Well, Al, did you do it? Did you order the tools for your own use?"  If Al protests strongly that he did not, Michael may at this point wish that he had developed a better-substantiated case.  Or Al could say, "Well, yes, of course I did, but everybody does it!" Michael could then respond, "That doesn't make it right, Al!" And he could continue with something like the following: "Look, Al, at this point it doesn't make any difference who or what led the company to find out what you're doing.  As I see it, you're in serious trouble! If I were you, I wouldn't waste your time talking to us.  You probably ought to talk to the chief engineer or someone else in the company to find out how to save your job!"

 

More than anything else, this case illustrates the need for companies to be concerned with relationships among their people and with the effect of corporate policies and actions on the loyalty of those employees. If the company had an ombudsman or a clearer policy regarding internal whistleblowing, Michael might not have gone forward in such a disorganized and later fearful manner.  If there had been more concern on the part of company officials with the facts rather than the personality gossip, the story might have proceeded in a better fashion.

 

One final comment is in order. As a number of writers have asserted [for example, Richard DeGeorge in Business Ethics (New York: Macmillan, 3rd ed., 1990), pp. 212-213; or Ronald Duska in DesJardins and McCall, Contemporary Issues in Business Ethics (Belmont, California: Wadsworth, 2nd ed., 1990), p. 146], we are not usually required to be self-sacrificial moral heroes in whistleblowing cases.  Richard DeGeorge claims that one necessary condition for whistleblowing to be morally obligatory, rather than merely morally permissible, is a good reason to believe the act of whistleblowing will result in appropriate and successful corrective action. There is little in "Borrowed Tools" to confirm this condition.

 

E.  Wade L. Robison

It is wrong for Al House to order tools that had "no significant use" for his unit at XYZ in order to use them on his own home building projects. That, presumably, is a given. He is cheating the company just as surely as if he dipped into the cash drawers and took out whatever money he needed in order to purchase the tools for himself. The only possible benefit of cheating the company as he did was that other employees might also borrow the tools, and they would thus be benefitted in a way that they would not be if Al were to steal the money to buy the tools for himself.

 

The moral issue concerns what one ought to do when one knows that someone is stealing from the company for which one works. The complications arise because the person doing the stealing is in some position of power over the person aware of the cheating and because the one person within the same unit who could be talked to is thought unreliable and untrustworthy.

 

Michael Green, who knows of the cheating, is unwilling to confront Al House or inform the chief engineer. It is not obvious that either position is morally defensible or otherwise appropriate. Consider the chief engineer first. When Michael Green went to the Contract Procurement Agent, the latter talked to the chief engineer who then confronted Al. It may be that Michael thought that if he went to the chief engineer, nothing would happen and that it is the Procurement Agent's having talked to the chief engineer that made a difference. Or it may be that Michael thought that the chief engineer would tell Al that it was Michael who "ratted." In any event, from how things worked out, it looks as though all Michael had to worry about was having the chief engineer tell--since, in fact, the chief engineer did confront Al when informed of the problem. He did what he needed to do, that is. And Michael could have given him a chance to do that without seeing the Procurement Agent. If the chief engineer refused to act because it was Michael telling him rather than someone outside the unit, or higher up, then it would be time enough for Michael to go to the Procurement Agent--after informing the chief engineer that that is what he would do.

 

As it is, Michael has effectively informed the Procurement Agent--by the act of going to him first--that he does not trust anyone in power within his unit. He has also effectively informed the Agent, by asking him not to inform Al House who has told, that he expects Al to be vindictive. So he has passed on to someone outside the unit negative judgments both about Al's character--he is vindictive as well as someone willing to steal from the company--and about the chief engineer's character.

 

In addition, the result of Michael's not confronting Al up front, or telling the chief engineer and giving permission that he be named as the person who knows what is going on and is willing to talk about it, is that everyone in the unit has to confront Al House and be questioned about what he did. The effect of that sort of confrontation is, among other things, that everyone will know both that Al has stolen from the company, that Al suspects that someone in the unit knows, and that whoever knows is not willing to come forward to be identified.

 

But what were Michael's options? If he confronted Al, then what would the result be? Even if Al then and there ceased to order tools for his own use, his past misconduct would go unpunished, and Michael would risk putting his own position at some risk--at least insofar as what he did depended upon Al. So confronting Al puts Michael in an awkward position and does not seem to solve the essential problem. What, for instance, is to prevent Al from doing the same sort of thing again, this time somewhat more discreetly, making sure that whatever he orders bears some, however little, relationship to his unit's needs?

 

What is problematic about the case is that Michael faces such choices. One ought not to arrange matters in such a way as to presume that anyone is likely to cause harm to the company or any of its employees, but matters ought to be arranged so that if someone does, then an effective means of rectifying the situation exists so that neither the person bringing the complaint nor the person against whom the complaint is brought risk being treated unfairly. One needs evidence to make an accusation, but the person accused needs a chance to rebut the evidence, give, that is, their side of the story.

 

Having an ombudsman would help in such a situation--someone outside any particular unit of a company whose job it is to listen to concerns about such issues as that facing Michael. Such a person would presumably be committed to strict confidentiality, but also be committed to taking any accusation seriously enough to pursue it, to find out whether there is evidence that it is true and then, if there is, to see to whatever needs to be done given the truth of the accusation.

 

In short, what is morally problematic in the case in question is something structural within the company, namely, that Michael has so few options available to him when he wants to do what is right. Someone who is concerned to see that the company they work for is not cheated should not have to risk such harm in order to initiate whatever is necessary to rectify matters. One does not want to encourage reckless accusations, made without evidence, but one also does not want a structure that unnecessarily discourages those who would to help the company and/or its employees from being harmed by someone within the company.

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