Professional Practice and Ethics: Case Studies

Updated for 2010 Changes to the Professional Engineers Act

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enacted and pending changes due to the Open for Business Act, 2010. Note
that some changes will not be in force until proclaimed by the Lieutenant
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The second, third, and fourth questions of Part A Professional Practice and Ethics have always been case studies. The questions together with references to the appropriate sections of the Professional Engineers Act and Ontario Regulation 941 as well as sample answers are provided for the years

Remember ACE'M: Actions taken, circumstances (possibly mitigating), ethics, and misconduct.

April 1993 Question 2

TBW

April 1993 Question 4

TBW

September 1998 Question 2

TBW

September 1998 Question 3

TBW

September 1998 Question 4

TBW

April 1999 Question 2

TBW

April 1999 Question 3

TBW

April 1999 Question 4

TBW

August 2000 Question 2

TBW

August 2000 Question 3

TBW

August 2000 Question 4

TBW

August 2000 Question 2

TBW

August 2000 Question 3

TBW

August 2000 Question 4

TBW

April 2002 Question 2

TBW

April 2002 Question 3

TBW

April 2002 Question 4

TBW

December 2004 Question 2

TBW

December 2004 Question 3

TBW

December 2004 Question 4

TBW

April 2005 Question 2

TBW

April 2005 Question 3

TBW

April 2005 Question 4

TBW

December 2005 Question 2

TBW

December 2005 Question 3

TBW

December 2005 Question 4

TBW

December 2006 Question 2

TBW

December 2006 Question 3

TBW

December 2006 Question 4

TBW

April 2007 Question 2

TBW

April 2007 Question 3

TBW

April 2007 Question 4

TBW

August 2007 Question 2

TBW

August 2007 Question 3

TBW

August 2007 Question 4

TBW

December 2007 Question 2

TBW

December 2007 Question 3

The actions include:

WorldEng designed and inspected the construction of a plant for MegaChem.
MegaChem is selling the plant to BuyerCo.
BuyerCo is contracting EngInc to inspect the plant.
I work at WorldEng and work part-time at EngInc.
I have been assigned to perform the inspection in 3.

(a) Comment on the appropriateness of your employment arrangements.

By 77.5, so long as I have provided EngInc with a written statement of the nature of the practitioner's status as an employee at WorldEng and the attendant limitations on the practitioner's services to the client, I feel that the work I do at EngInc does not conflict with my duty to WorldEng, and I have informed WorldEng about my part-time employment, I am not in violation of the Code of Ethics.

By 72(2)(i), I would be guilty of professional misconduct if I ever fail to make prompt, voluntary and complete disclosure of an interest, direct or indirect, that might in any way be, or be construed as, prejudicial to my professional judgment in rendering service to the public, to WorldEng or to EngInc when contracting in my own right to perform professional engineering services for other than WorldEng.

(a) Assuming that your employment arrangements have not changed since the plant was designed and constructed, how do you respond to EngInc's request for assistance?

To avoid 72(2)(i), I would have to immediately point out my prior connection with the plant at WorldEng and indicate that this would be a direct interest which, even if I was to be professional in my conduct, would be construed as prejudicial. Depending on the size of EngInc, it may be necessary to take a voluntary leave for the duration of the inspection.

Is a P.Eng. licence sufficient to permit you to provide services to EngInc.? Explain.

This is explained clearly in the Gazette, Volume 19 No. 5 where it states: a C of A is required if you are a full-time employee, but offer engineering services directly to the public on a part-time, moonlighting, or volunteer basis.

Regardless of whether or not my colleague at EngInc is taking responsibility for my work, if my actions are in the practice of professional engineering I would require a C of A as EngInc is not my direct employer.

December 2007 Question 4

(a) Under the circumstances, is it appropriate for you to undertake the design?

To have the consulting engineer designation, I must have a Certificate of Authorization and therefore I am able to provide this service. XXX

April 2008 Question 2

TBW

April 2008 Question 3

TBW

April 2008 Question 4

TBW

August 2008 Question 2

TBW

August 2008 Question 3

TBW

August 2008 Question 4

TBW

December 2008 Question 2

Tau, the owner of a house in the City of Alpha, Ontario, was notified by the city that the condition of the foundation walls of his house violated the standards set out in the city's property standards by-law. The city, being concerned that the foundation walls had deteriorated to the point of being structurally unsafe, ordered Tau to obtain a written report by a professional engineer as to the walls' condition. Omega prepared a report stating that he had inspected the foundation and that the foundation walls appeared to be "structurally sound and capable of safely sustaining the house for many more years".

Tau submitted Omega's report to the city. In response, the city sent a letter to Tau with a copy to Omega pointing out the city's observations regarding the deterioration of the walls, including evidence of significant water permeation, together with photographs taken by the city's inspector. In the letter, the city requested the condition of the foundation be reassessed and a response be made to the city within two weeks. Tau was unaware that Omega would be waiting for authorization for him to spend more time on the project and accordingly did not contact Omega and request him to respond. Omega did not follow up with either Tau or the city.

Following a second request to Tau, copied to Omega, Omega responded by letter to the city, advising that he had never examined the interior of the walls, only the exterior and admitted the photographs provided by the city indicated that the foundation was structurally unsound.

The actions include:

Tau's house has deteriorated to the point of raising the notice of the city.
Omega prepared a report stating the foundation walls appeared to be "structurally sound".
Omega did not examine the interior walls.

(a) Comment on the engineering services provided by Omega, in relation to Regulation 941. In your answer, also discuss Omega's conduct regarding Omega's dealings with the City.

The question indicates that Omega was licenced, but it does not mention that he had a Certificate of Authorization to provide engineering services to the public. If he did not have such a certificate, one could allege professional misconduct by 72(2)(g) breach of the Act... .

By not inspecting the interior of the walls, one could allege professional misconduct by 72(2)(a) negligence as one would suspect that a professional engineer asked to inspect walls would, at the very least, inspect both sides.

By attempting to assist Tau in not repairing the walls, one could allege professional misconduct by 72(2)(b) as Omega would not be safeguarding the life of Tau and others.

The report does not state Omega's area of competence but if he not trained in civil engineering, one could allege professional misconduct by 72(2)(h) by undertaking an inspection which would fall under the specialization of a civil engineer.

By submitting a report which could have the potential of the city by-laws not being enforced in a situation where they are being contravened, one could allege professional misconduct by 72(2)(d) in attempting to allow Tau to not comply with local by-laws.

The letter from the city was in response to the report sent by Omega and as the photographs appear, by the third paragraph, to provide sufficient evidence to refute the report which was submitted and no further inspection was really required. Additionally, as a professional engineer, he was obligated by 77.6 to co-operate in working with other professionals on a project. If the inspector is also a professional engineer, he has further obligations from 77.7.i.

(b) Omega does not have a certificate of authorization. Does Omega need one under the facts described above? Explain why or why not. What are the possible consequences to a professional engineer of acting without a certificate of authorization when one is required.

As mentioned in my answer to part (a), not only could the actions taken by Omega be alleged to be professional misconduct, but he would be in violation of subsection 12(2) of the Act and under subsection 40(1), he would be guilty of an offence.

December 2008 Question 3

The actions include:

TurbCo signed a contract with PowerGen to supply a turbine guaranteed for 100 MW including technical advice, on-sight support, testing, and commissioning.
PowerGen hired MechCon to construct the plant and install the turbine.
MechCon did not have established safety procedures for the workplace.
M. Ployee overlooked the running of the tests by MechCon.

What, if any, duties does M. Ployee have under the code of ethics and the definition of professional misconduct regarding the potential dangers to MechCon's workers? Explain whether it matters to M. Ployee's duties that the unsafe practices involved work that was not relevant to the services that TurbCo was hired to perform (i.e., work on other parts of the project no related to the project itself)? Explain whether it matters to M. Ployee duties that MechCon agreed, in its contract with PowerGen, that MechCon would have overall responsibility for site safety?

Neither the Code of Ethics nor the definition of professional misconduct restricts their provisions to the services being performed by an engineer.

By 77.1.iii, the practitioner should have a devotion to high ideals and professional integrity.

December 2008 Question 4

TBW

April 2009 Question 2

Alpha, P.Eng., has been recently hired as the chief engineer of a gold mine near a remote town in norther Ontario. The mining company is the main employer in the region.

Immediately upon starting the new job, Alpha spent some time reviewing the mining company's operational procedures. Alpha discovered that for several years, tailing ponds at the mine have been releasing toxic and corrosive substances into the environment in violation of the law.

Alpha also found the company's files a recent report prepared by an engineering consulting firm in Toronto. The report concerned an economic feasibility study for updating the mine's facilities. In the report, the engineering consulting firm specifically urged the mining company to undertake a number of expensive capital improvements necessary to ensure compliance with environmental law. Alpha also learned that the mining company could not afford the necessary improvements and, if forced to implement them, might have to close.

Alpha found nothing in the mining company's files that indicate that any governmental authorities were aware of the illegal discharges.

The actions include:

The company has violated the law by allowing the release of toxic and corrosive substances from tailing ponds into the environment;
The company received a report from a engineering consulting firm from detailing actions necessary to correct the situation; and
It appears the company has not informed the government.

Additional circumstances include:

The cost of the actions in 2 is prohibitively high.

The ethical responsibilities of the engineer include:

77.1.i-ii Duties of actions of the engineer to the public and to his employer;
77.2.ii To regard the duty to the public welfare as paramount; and
77.7 The actions of another professional engineer are applicable.

It would be professional misconduct to

72(2)(a) negligently not maintain reasonable and prudent standards;
72(2)(c) not report a situation which may endanger the safety or welfare of the public;
77(2)(d) make to reasonable provision for complying with appropriate statutes; and
77(2)(j) to be disgraceful, dishonourable, or unprofessional.

(a) Discuss Alpha's obligations with respect to the mining company.

The engineer should approach his employer to discuss his findings and to determine the validity of his findings. By 72(2)(c), if there is an immediate threat to the public, the engineer should recommend that the company should report the non-compliance as soon as possible. By 72(2)(d), if, however, if it can be reasonably demonstrated that the safety or welfare of the public is not immediately endangered, the engineer must recommend taking actions to comply with the appropriate statutes. In either case, the engineer must clearly present the consequences of deviating from the recommendation. In either case, the engineer should never make public announcements but should rather, if necessary, report the situation to the Office of the Registrar of PEO.

(b) Discuss Alpha's obligations with respect to the public. What is the public interest in this case? How would the public interest be impacted by Alpha's actions? How should the potential mine closure and the resultant loss of a large number of jobs affect Alpha's professional duties?

Alpha's obligations to the public include reporting situations which endanger the safety of the public by 72(2)(c) and to ensure compliance with the statutes by 72(2)(d). If the company does not take steps towards compliance, it is the responsibility of the engineer to the public to report this to the Office of the Registrar of PEO who will then proceed with their investigation and take the appropriate actions.

The public interest in this case is both the physical health of any individuals who may be affected by the non-compliance and the economic health of the community.

Failure to report an immediate endangerment may a threat to the individual health of those in the community, failure to ensure compliance with the law may affect the long-term health of the community and the the economic value of the affected properties. Rash actions on the part of the engineer may cause the company to close the mine with significant economic impact and the bankruptcy of the company may also result in the government accepting responsibility for the clean-up.

(c) Discuss Alpha's obligations with respect to the engineering consulting firm.

Alpha is obligated to act in good faith toward the engineering consulting firm and contact them first to determine what actions they have taken by 77.7.i. If it is determined that individuals at the firm appear to be guilty of professional misconduct, it is not Alpha's duty to bring this to the public's attention by 77.7.iii, but rather should report the situation to the Office of the Registrar of PEO in compliance by 77.8.

If, as part of the compliance, Alpha is asked to review the report to determine if there are less expensive alternatives to those listed, he should inform the firm by 77.ii.

April 1993 Question 3

Prodigy is a professional engineer who is employed on a full-time basis by MajorEng, a large engineering firm. However, for a number of reasons, Prodigy is unhappy and for some time has been thinking about looking for a new job. Although Prodigy's current employment at MajorEng provides good pay and interesting work, Prodigy is finding it difficult to work with Overseer, a professional engineer who is Prodigy's supervisor at MajorEng.

Since joining MajorEng a year ago, Overseer has frequently made derogatory jokes and remarks about Prodigy's race and religion—sometimes even in meetings with other engineers and clients. On many occasions, Prodigy has informed Overseer that such remarks are offensive, hurtful, and inappropriate and has asked Overseer to stop. Overseer refuses to do so and says that Prodigy should "toughen up and learn to take a joke" if Prodigy expects to have a successful career at MajorEng.

Recently, Prodigy met with a professional engineer colleague who is a vice president at EngCo, another engineering company. Upon hearing that Prodigy was interested in considering other opportunities, the colleague offered Prodigy a part-time job to work in the evenings and on weekends on a trial basis as an engineer for EngCo. Prodigy would work under the colleague's supervision with the intent that in a few months, if Prodigy preferred working at EngCo, Prodigy would resign from MajorEng and become a full-time employee of EngCo.

The actions include:

Prodigy is employed by MajorEng.
Prodigy is being supervised by Overseer.
Overseer has made derogatory jokes and remarks about Prodigy's race and religion in private and public.
Prodigy has been offered part-time employment with EngCo.

There are no further circumstances.

The ethical responsibilities of the engineer include:

77.1.i Duties of action to his engineer to his employer and colleague;
77.5 The possibility exists for moonlighting, and
77.7 The actions of another professional engineer are applicable.

It would be professional misconduct to

72(2)(i) not make prompt disclosure of his part-time work, and
72(2)(n) harass.

(a) Comment on Overseer's conduct with respect to Ontario Regulation 941.

Overseer's jokes and remarks are not aligned with his ethical duty to act with fairness to his subordinate by 77.1.i and his actions would not appear to be treating another practitioner with what one would consider courtesy by 77.7.i.

It would appear that Overseer is possibly guilty of professional misconduct with respect to both harassment by 72(2)(n) and, as a supervising engineer, failure to maintain the Ontario Human Rights Code with respect to employment 72(2)(d).

As Prodigy has already approached Overseer on this issue, Overseer cannot claim ignorance on this matter.

(b) In relation to the regulation of the practice of professional engineering what should Prodigy consider doing about Overseer's conduct?

According to the Ontario Human Rights Code, Prodigy has the right to freedom from harassment in the workplace by another employee because of race and creed. Out of fairness to his supervisor (by 77.7.i), he should inform Overseer using an appropriate medium of the specific statutes which Prodigy believes are being violated and that he feels that they are applicable. If Overseer continues in his behaviour, Prodigy should report the situation with supporting documentation to the Human Resources department of MajorEng. If neither of these produces an appropriate result, Prodigy would be correct to file a complaint with the Complaints Committee of PEO.

(c) Specify and explain the requirements, if any, that Prodigy must satisfy in order to properly undertake such part-time employment with EngCo.

By 77.5, Prodigy has an ethical responsibility to inform EngCo in a written statement as to his current employment status, he must determine that this part-time employment will not affect his current employment, and he must inform his employer that he is taking on this part-time employment.

By 77.1.i, he must deal fairly with his current employer and therefore ensure that the part-time work does not affect his performance. By 77.1.iii, he has a duty to personal integrity in ensuring that neither his employer nor EngCo is adversely affected by his dual-employment status.

Finally, by 72(2)(i), it would be professional misconduct not not make prompt, voluntary and complete disclosure of a shared interests between the work performed by the two companies, either direct or indirect, that might in any way be, or be construed as, prejudicial to Prodigy's professional judgment to an employer or to a client without making a full disclosure. Specifically, this is very similar to 72(2)(i)4: Contracting in the practitioner's own right to perform professional engineering services for other than the practitioner's employer.

Specifically, Prodigy should ensure that any work he does for EngCo does not directly or indirectly compete with MajorEng.

April 2009 Question 4

Omega, P.Eng., as a process engineer for Universal Chemical Corporation (Universal) signed a secrecy agreement with Universal that prohibits Omega from divulging information that the firm considers proprietary. Universal Chemical developed an adaptation of a standard piece of equipment that makes it highly efficient for cooling viscous plastics slurry. The company decided not to patent the idea but to keep it a trade secret.

Omega subsequently left the employment of Universal to work for a candy processing facility that is not in any way competition to Universal. Omega soon realized that a modification similar to Universal's trade secret could be applied to a machine used for cooking fudge and at once arranged for the change to be made.

Has Omega acted unethically? Discuss the situation in relation to PEO's Code of Ethics and definition of professional misconduct. What other steps, if any, should Omega take.

The actions include:

Omega used information of a trade secret from Universal at another company.

Other circumstances (possibly mitigating) include:

The process from the trace secret was modified.

XXX

Has Omega acted unethically? Discuss the situation in relation to PEO's Code of Ethics and definition of Professional Misconduct. What other steps, if any, should Omega take?

Omega, by 77.1.i, he has a duty to act with fairness and loyalty to his former employer and by 77.3, has a duty to to regard as confidential information obtained as to the technical methods or processes of an employer.

As this is a specific process, it cannot be considered a skill of the engineer who is aware of it and therefore, by common law, Omega has a duty of confidence to his former employer.

Any process has a number of sub-processes and components associated with it. If the modification of the process used at Universal is only one sub-process uses only a relatively small number of components and it is reasonable to understand that the original process could not in any way be reconstructed from the modification, then it may be reasonable to use the modification.

If, however, the modification is only a small variation of the original process, it would be unreasonable to apply the modification without an agreement with Universal. The justification for this statement is that knowledge of the modified process may allow a third party to realize that it could have been used in a situation similar to the original purpose of the process and therefore potentially affect Universal.

If Omega had not arranged for the change yet, he should first approach his employer, indicate that there is a modification which exists which could improve upon the current processes and provide an estimate as to the savings. If his employer agrees, Omega could then act as an agent and approach Universal to determine if there are any conditions under which the trade secret could be licensed.

If Omega has already arranged for the change in such a way that others are aware of it, Omega may already be guilty of professional misconduct and his employer may be vicariously liable to Universal who may have the right to sue the company for damages. In this case, it is Omega's responsibility to inform his employer and to mitigate any potential damage caused by his actions.

April 2013 Question 2

Alpha is a P.Eng. employed by EngInc, an engineering company. As Chief Project Engineering, Alpha is in charge of a project for BigGuy, and important client of EngInc. BigGuy and Alpha have several disagreements over the design that Alpha has developed. BigGuy wants a cheaper, more conventional solution. Alpha is convinced that the design is a "masterpiece" and believes that BigGuy "doesn't have an ounce of imagination". Alpha simply shrugs off BigGuy and refuses to discuss any other alternative.

BigGuy is furious and phones Beta, P.Eng., the president of EngInc, to yell and complain about Alpha. BigGuy threatens to hire another engineering firm to complete the design according to BigGuy's wishes.

You work for EngInc as an intermediate design engineer. Beta calls you into a private office and closes the door. Beta asks you to review Alpha's design and instructs you to keep the review a secret from Alpha. Beta explains that Alpha is a senior engineer who has been with EngInc for 28 years and could be "a bit sensitive at times".

What do you tell Beta? Discuss.

Alpha is another professional engineer, and therefore it is necessary that you and Beta act at all times with fairness and loyalty (77.1.i) and with courtesy and good faith (77.7.i). In addition, as Alpha is still employed by EngInc, according to 77.7.ii, it would be unethical to accept an engagement to review the work of another practitioner for the same employer except with the knowledge of the other practitioner.

One may suggest to Beta to discuss the issues with Alpha, but not in the presence of the client, BigGuy. It should be emphasized that the purpose of providing engineering services is create a design that safeguards the economic interests, as well as others, of the client. Consequently, an unconventional design, no matter how imaginative or correct, that unnecessarily causes increased economic costs on the client should be cautioned against if there are cheaper alternatives that continue to satisfy other requirements of protecting the public welfare (77.2.i), the environment, etc.

Additionally, it may be considered to be professional misconduct to provide a design that does not make reasonable provision for safeguarding the finances of the client under 72(2)(b). If the masterpiece is unnecessarily extravagant with the sole purpose of allowing Alpha to demonstrate his abilities, this could even potentially be seen as negligence if the design would not meet the standards that a reasonable and prudent practitioner would maintain in these circumstances under 72(2)(a).

Please comment on Alpha's conduct in dealing with BigGuy. How should Alpha have responded to BigGuy's request.

By "shrugging off" the client and refusing to discuss any other alternatives, Alpha is neither acting with fairness nor with loyalty to his client. In addition to displaying hubris, a good engineering design does not require imagination. The purpose of a design is to satisfy the requirements of the client while maintain the protection of the safety and welfare of the public (77(2)(c)) and other interests as well as complying with applicable statutes, regulations, standards, codes, by-laws and rules under 77(2)(d). As the client is paying for the design, Alpha should address the concerns of BigGuy and indicate exactly why this design deviates so significantly from other conventional designs.

Additionally, as Alpha is an employee engineer of EngInc, by perhaps unnecessarily antagonizing a client, he may be threatening the relationship between EngInc and the client, and is therefore not acting with fairness to his employer under 77.1.i.

April 2013 Question 3

Omega, a P.Eng. with many years of experience and a valid Certificate of Authorization, was hired by ABC to design a fire protection system for a new building and supervise its installation. Omega produced the design and gave signed, sealed and dated copies of the final design to Theta (P.Eng.) of Faultless to install. Faultless is a contractor hired by ABC and Theta is their project manager.

Once the installation was complete, Omega provided the city with a sealed, signed and dated report affirming that the fire protection system had been installed as designed and that it met all codes and standards. Omega did not check the installation but had depended on the assurance of Theta who said that it had been installed as designed. Omega had worked with Theta and Faultless for many years and was very confident about their work.

Three months later the city conducted a building review and found twenty deficiencies in the as-built work. They issued a letter to Omega requesting that the construction be fixed to comply with the design and standards. Omega forwarded the letter to Theta and asked her to make the necessary changes. Theta made some modifications and informed Omega a few weeks later that all the changes had been made. Omega then sent the city another sealed, signed and dated report affirming that the fire protection system had been installed as designed and that it met all codes and standards.

A second building inspection by the city found that a number of significant deficiencies still remained.

Note: the description suggests that there were no issues with the original design and that the deficiencies were a result of the installation and not the design.

Discuss the conduct of Omega and identify any consequences he might face.

First, Omega is expected to regard his duty to the public welfare as paramount, under 77.2.i. He is also expected to have fidelity to public needs by ensuring that the installation is safe, under 77.1.ii. In devotion to high ideals of personal honour and professional integrity, he should not seal a report verifying that work had been performed when that work had not checked by himself, under 77.1.iii.

On two occasions, Omega acted unprofessionally by signing and sealing a report that was not actually checked by himself, under 72(2)(e). As a fire protection system is in place primarily for safeguarding the life of those using the facilities in which it is installed, checking the installation would be considered a reasonable provision the engineering should take into account, under 72(2)(b). In addition, checking the installation would also be a responsible provision for ensuring the installation complies with applicable statutes, regulations, standards, codes, by-laws and rules in connection with the work under the responsibility of the practitioner, under 72(2)(d). Finally, given that the original installation had twenty deficiencies, to verify that those deficiencies had all been corrected would be an action that a reasonable and prudent practitioner would maintain in this circumstance, and failure to do so would therefore, again, constitute negligence 72(2)(a), under the definition in 72(1). One may be able to argue that, while being unprofessional, the first lapse did not necessarily constitute negligence; however, the second lapse almost certainly does.

Discuss the conduct of Theta and identify any consequences she might face.

As Theta is overseeing the installation of a fire suppression system, she should regard her duty to public welfare as paramount, under 77.2.i. In addition, she should be faithful to the public needs in providing an environment that is safe, under 77.1.ii.

Next, Theta should act toward Omega with good faith, under 77.7.i, and this would include inspecting the installation and conveying correct information to Omega. This also applies when the deficiencies were being corrected. In addition, by not verifying—or even possibly deceiving—Omega, this does not present the loyalty one would expect to one's associate, under 77.1.i.

By not ensuring that the installation was compliant with the design on two occasions, this would constitute a failure to make reasonable provisions for safeguarding the life and health of those using the facilities, under 72(2)(d); a failure to make responsible provisions for complying with applicable statutes, regulations, standards, codes, by-laws and rules in connection with work being undertaken by the practitioner, under 72(2)(e); an act that constitutes a failure to maintain the standards that a reasonable and prudent practitioner would maintain in the position of supervision the installation, and therefore negligence under 72(2)(a), and possibly conduct that would be regarded as dishonourable or unprofessional under 72(2)(j).

April 2013 Question 4

Turbco is a company that manufactures turbines for power generating plants. Turbco recently signed a contract with an independent power producer, PowerCo. According to the contract, Turbco agreed to supply a turbine for a new power plant owned by PowerCo. Turbco guaranteed in the contract that the turbine would produce electricity at a rate of 100 megawatts. In addition to supplying the turbine, Turbco's contractual responsibilities included providing technical advice and on-site support during the start-up, testing and commissioning of the turbine.

PowerCo hired MechCo, a separate construction contractor, to construct the power plant, including installing the turbine supplied by Turbco. MechCo installed the turbine and the construction of the power plant is now almost complete. The contractor is now ready to commission the plant by running a number of tests to make sure that the turbine is working properly and producing the power at the guaranteed rate.

Turbco sent one of its employees, Juno, to the site to witness the tests and to provide technical advice to assist MechCo during the testing. Juno is a very experienced professional engineer and has worked on many different construction sites over the years. Soon after arriving at the site, it became apparent to Juno that MechCo was carrying out its work in an unsafe manner. Many of MechCo's workers were working without hardhats, eye protection or safety shoes. In fact, Juno learned that MechCo had not established any safety procedures for its crew.

MechCo completed the tests. During the testing, however, Juno noticed that MechCo's personnel did not conduct the tests in complete compliance with the official testing procedures that were established for the project. According to the tests that were actually carried out, it seemed that the turbine achieved the guaranteed rate of performance. In reality, however, the turbine only produced power at 98 megawatts. Juno realized that had the tests been conducted properly, they would have revealed the turbine's deficient power output. Juno was concerned that Turbco would be required under its contract to pay PowerCo liquidated damages as a result of the power deficiency. Juno did not say anything to anyone about the improper testing procedure. No one else noticed that the tests were not performed properly.

The actions of Juno include:

Observing but not reporting the unsafe conditions under which the employees of MechCo are working.
Observing that the tests being conducted by MechCo were not in complete compliance with the official testing procedures established for the project.

What, if any, duties does Juno have under the code of ethics and the definition of professional misconduct regarding the potential dangers to MechCo's workers? Explain whether it matters to Juno's duties that the unsafe practices involved work that was not relevant to the services that Turbco was hired to perform and whether it matters to Juno duties that MechCo agreed to have overall responsibility for site safety?

As a professional engineer, Juno must act at all times with fairness to his employees. While the employees of MechCo are not directly employed by Turbco, they are employees of a company who is under contract to MechCo in pursuit of fulfilling their obligations under the contract, and to have them working in a safe environment would be fair, under 77.1.i.

In addition, Juno must regard his duty to public welfare as paramount, under 77.2.i.

Failure to take steps to correct the situation could be considered professional misconduct under 72(2)(b) for failing to make reasonable provision for the safeguarding of the life and health of the workers who are affected by the work for which the practitioner is responsible, and under 72(2)(c) a failure to act to correct or report a situation that the practitioner believes may endanger the safety or the welfare of the public. In addition, the conduct of the workers are covered under the provisions of numerous Workplace Health and Safety statutes and regulations, and failure to make reasonable provisions for complying with these statutes and regulations in connection with the work under the responsibility of the practitioner would, again, be professional misconduct under 72(2)(d).

Comment on Juno's obligations, if any, under the code of ethics and the definition of professional misconduct regarding the test procedure and the failure of the turbine to perform at the guaranteed rate. In your answer assume that the improper testing and deficient power output create no safety risks or other dangerous situation.

As a professional engineer, Juno has a responsibility to act toward his client with fairness, and ensuring the testing procedures are followed correctly would be considered to be fair. In addition, he should have a devotion to high ideals of professional integrity, and this would require him to ensure the testing procedures are correctly followed.

A professional engineer would be negligent in not making those responsible for the testing aware of the faults. Failure to do so would be an commission in the carrying out of his work as a practitioner that constitutes a failure to maintain the standards that a reasonable practitioner would.