T&S Magazine Editor's Note:
Ethics is a difficult subject to discuss; putting ethics into action can be even more difficult. Everyone is "for" ethics, but tempers often flare when one gets down to the details of what this really means - just the opposite of what well-intentioned people intend.
In spite of its complexity and provocative nature, it would seem that this is an era of increased interest in professional ethics. ABET 2000 - the new undergraduate engineering program accreditation criteria - places a renewed emphasis on exposing engineering students to professional ethics. The emergence and growth of the Ethics Officer Association indicates an increased corporate interest in professional ethics. The IEEE Spectrum has recently published two roundtable discussions of engineering ethics (in June 1998 and December 1996).
Steve Unger is one of the founders of SSIT and has remained active in SSIT over the past decades. In addition to his SSIT efforts, Dr. Unger has worked diligently to make and keep IEEE the foremost champion of ethical practice of all the engineering professional societies. He played a principal role in the development of the first IEEE Ethics Code and participated in the revision of this code in the 1990s. His other activities in the ethics support area are detailed in his essay.
Dr. Unger believes that recent actions taken by the IEEE have undone most of the significant progress made over the past four years in developing mechanisms to support the ethical practice of engineering. He presents and defends his position below. We other IEEE members to comment Dr. Unger's essay and to express their own views.
We believe that ethical professional practice is a significant topic that is of great interest to most SSIT members. We hope that T&S can contribute modestly to generating a fruitful discourse about what the role of the IEEE should be in supporting ethical conduct of its members.
As a life fellow of the IEEE, I am deeply concerned over a number of recent events that I feel have had a devastating effect on IEEE ethics related activities.
1) The IEEE Executive Committee (ExCom) terminated the Ethics Hotline on what appear to be unsubstantiated grounds. This was done without giving the Ethics Committee (EC) a chance to present its case. The ExCom rejected out of hand the clear recommendation of its own specially appointed task force to reinstate the Hotline.
2) After having just been reelected by the IEEE Board of Directors (BoD) as EC chair, I was not permitted to remain in the room while the IEEE attorney presented his opinions on this matter to the ExCom.
3) I was amazed to be told that the report of the task force, which certainly does not contain any confidential information, will not be released to anybody - my requests for a copy have been to no avail.
I believe that the effect of these events has been the termination of an activity of great value to the IEEE, to its members, to our profession as a whole, to reputable employers of engineers, and to the general public. What follows is an account of what happened, along with my reasons for feeling that the ExCom's actions in the ethics area are misguided.
Origins of IEEE Ethics Activity
The event (around 1972) that motivated IEEE members to demand that the IEEE set up ethics support machinery was the Bay Area Rapid Transit System (BART) case. Three IEEE members working on the development of BART encountered a variety of unsafe and otherwise improper practices on the job. When their efforts to resolve these problems via the normal management chain were repeatedly brushed aside, they took the matter to the BART Board of Directors. Their concerns were rejected and, soon afterward, they were peremptorily fired. Subsequent investigations by various groups, fully validated the points they had made.
This led to calls for the IEEE to intervene on their behalf, and to set up mechanisms for dealing with such cases in the future. One result was an important amicus curiae brief entered by the IEEE in support of the BART engineers' wrongful discharge suit (which is credited with having precipitated an out-of-court settlement). A few years later, the Member Conduct Committee (MCC) was established, with the dual roles of initiating disciplinary proceedings against IEEE members who behave improperly, and of investigating and recommending support for IEEE members who have been punished because of their efforts to adhere to the ethics code.
Shortly after its formation in 1978, the MCC recommended support in the Virginia Edgerton case, which involved computers and New York City's 911 system. Subsequently, probably as a result of an almost complete lack of publicity about the existence of the MCC support function, this mechanism was almost dormant for 18 years. (The disciplinary function was exercised just once during this period.)
In the early 90s, the IEEE United States Activities Board Ethics Committee (USAB-EC) developed a program for enhancing IEEE ethics support activity. Consistent with repeated recommendations made by MCC review committees, the USAB-EC called for an ongoing effort to inform IEEE members about the existence of the IEEE Ethics Code and of the mechanisms for supporting it. The overwhelming majority of IEEE members were, at that time, unaware of the existence of either of these. The committee passed a resolution, subsequently endorsed by USAB, calling for a number of measures to strengthen ethics support, including the establishment of a hotline to provide ethics advice and of a support fund to provide financial assistance to those whom the MCC deemed worthy of support because of ethical stances that they had taken. This resolution was brought to the IEEE BoD. Over a two year period, the matter was reviewed extensively by the BoD, which appointed an ad hoc committee to study the proposals. This committee ultimately recommended that the IEEE proceed along the lines of the USAB resolution. In November of 1994, the BoD endorsed the report of its committee, which included the idea of distributing copies of the Ethics Code to members with their membership cards, having articles on ethics published regularly in the Institute or Spectrum, developing an ethics hotline, and developing an ethics support fund. At its January 1995 meeting, the Board voted to establish its own ethics committee (the USAB committee was terminated) to develop mechanisms for implementing the proposals.
Work of the Ethics Committee
The accomplishments of the IEEE Ethics Committee (EC) during its initial three years of operation included implementation of the distribution to members of the ethics code on an annual basis, establishment of a bimonthly ethics column in the Institute, and the development and promulgation of a set of guidelines to assist engineers (this term is intended to include all technical professionals in the areas encompassed by the IEEE) in handling ethics related disputes in a constructive manner. The internet was utilized to establish an EC web site (http://www.ieee.org/committee/ethics) and several on-line forums for discussing ethics related issues. A beginning was made on a project to develop a set of guidelines to supplement the ethics code.
Advice and information was supplied to various people both at universities and in industry who were preparing courses or presentations on engineering ethics. More recently, the EC established contact with the Ethics Officer Association (EOA), a group sponsored by industry and comprised of ethics officers of large corporations. Our objective is to find ways in which we can cooperate with the EOA in promoting and encouraging ethical behavior by engineers in industry and to explore the establishments of mechanisms for resolving problems in a cooperative, constructive manner.
A major EC activity was the development of a plan for operating an ethics hotline to provide advice and information for engineers faced with difficult ethics related situations. It was approved by the BoD in November 1995 and went into operation in August 1996. More will be said about this below. Plans for an ethics support fund were also developed to the point where they were placed on the agenda of the BoD, but then certain issues related to taxes were raised and the item was withdrawn pending a satisfactory resolution. This too will be discussed further below.
The Ethics Hotline
The basic goal of the ethics hotline was to provide immediate support for engineers seeking information, advice, or help regarding ethics related problems. In addition to supplying routine information, or general interpretations of points in the ethics code, the idea was to give engineers an opportunity to discuss ethics related problems with an experienced, sympathetic colleague who might be able to provide useful suggestions or insights. Hotline procedures were fine tuned on the basis of discussions with IEEE attorneys. It was made clear that legal advice would not be given and callers (actually most contacts were via e-mail) were never told what to do. In no case did the hotline purport to speak in the name of the IEEE. Requests of a routine nature were handled directly by IEEE staff, while other calls were routed to EC members who then responded to the callers (our goal, which we generally met, was to respond within a few days). Inquiries from outside the U.S. were generally handed over to EC members from the regions involved.
Aside from the routine questions and occasional comments (including suggestions about the code itself), there were a number of calls pertaining to problems in the publications or conference paper area. These included reports of misuse of papers by reviewers, and failures to credit people for their work. A number of serious cases involving illegalities and threats to safety were reported. Some examples follow:
- A software engineer discovered that his company was basing its products on programs owned by other companies, without obtaining licenses.
- An engineer testing computer chip wafers purchased from another company was instructed by his management to falsify test results so as to defraud the vendor.
- An engineer discovered that a respirator, produced by his company and sold for medical use by infants, had a misplaced relief valve, which, under certain conditions could expose infants to dangerously high lung pressure.
- A software engineer, working for a hospital, reported that the group working on the software interface for a patient monitoring system to be used in an intensive care unit was so far behind schedule that they planned to cut back on testing in an effort to catch up.
- An engineer in the construction and maintenance field reported that he was fired (by a non-engineer official) when he insisted on specifying the installation of emergency exit lights in a university building - which was required by law.
In some cases, after some preliminary exchanges, we advised callers to seek IEEE support via the MCC, or informed them of the possibility (if other means failed) of seeking legal counsel. In other situations, we pointed out to callers that, although they appeared to have been badly treated, the circumstances were such that making a case would be very difficult and that they would probably be better off dropping the matter and looking for other jobs. In several situations, the results of hotline suggestions resulted in satisfactory resolutions. Note that in two of the cases listed above, the hotline suggested applying for MCC support, this was done, and the results were positive recommendations by the MCC, which were subsequently approved by the IEEE ExCom. This had not happened since the 1978 Edgerton case.
To those of us involved in the operation of the hotline, it is obvious that it served a very valuable function. It provided a direct channel for IEEE members to get help when they were faced with painful professional dilemmas. Our impression is that very few members were aware of this service, but even so, the number of important cases is significant.
The Liability Issue
Total hotline activity amounted to an average of from one to two calls per week (there is some fuzziness because some queries addressed to the EC in connection with the columns that appeared in the Institute were handled via the hotline mechanism). None of these calls resulted in even the slightest hint of trouble for the IEEE. Nevertheless, about a year ago, the specter of law suits against the IEEE was raised, particularly by the IEEE's legal counsel. This issue was never brought directly to the attention of the EC by any member of the ExCom or of the BoD. When we first heard about it, via IEEE staff, we immediately took steps to deal with the problem. (Note that since I responded to many of the hotline calls, I had a special interest in this danger. I would probably be an initial target of any lawsuit and, apart from the financial aspect, I am less than eager to spend my time entangled in legal proceedings.)
We considered two questions. One is, "what is the likelihood of law suits arising from the hotline and how can it be minimized?", and the other is, "can we get liability insurance to cover this contingency?" In order to deal with the second point, we requested, through IEEE staff, a meeting with the IEEE Insurance Committee (IC). Over a period of several months, there was no response at all to this request, which was repeated a number of times.
If we ask the question, "is there any risk of being sued as a consequence of a hotline interaction?", the answer is clearly, "yes". But this answer simply reflects the fact that anybody can sue anybody else about anything. No human activity (or even inactivity!) is risk-free. Virtually everything the IEEE does carries with it some risk of legal liability. It is easy to find instances of risks incurred by IEEE activities that are significantly more plausible than those associated with the hotline. For example, an IEEE periodical might be sued by an author whose paper was rejected. Or a company might allege that sales of one of their products fell as a result of an erroneous statement in a paper published in an IEEE periodical. An IEEE member whose application for fellow status was denied might sue the IEEE for unfair treatment - perhaps based on gender or race discrimination.
A decision by an IEEE standards committee with respect to some standard might be alleged to damage unfairly the business of some manufacturer. In the "Hydrolevel Case" (1971-1983) the American Society of Mechanical Engineers (ASME) was required to pay $4.74 milion in damages and legal costs resulting from just such a situation.
The relevant question for any activity is, "what is the likelihood of a law suit?" On the basis of our experience with the hotline, our feeling was that this is not a serious risk. But, in order to obtain a more definitive answer, we consulted with a number of other organizations that have had much more extensive experience with hotline type operations. We learned that the American Institute of Certified Public Accountants (AICPA), an organization with about the same number of members as the IEEE, has, for a number of years operated an ethics hotline fielding over 7000 calls annually. No law suits against the AICPA have resulted from this activity. Their legal counsel's response when I mentioned the concerns expressed by the IEEE attorneys was, "did they cite any cases?" It is interesting that the AICPA also has a hotline to assist members on tax related questions. I was told that this service receives over 50 000 queries annually and that no lawsuits have resulted.
Another organization that we checked with is the American Association of University Professors (AAUP). Their legal counsel told us that, for many decades, a major function of the AAUP has been to provide advice to professors (not necessarily AAUP members) about job related problems. No law suits against the AAUP have resulted from this activity.
We also learned that the American Civil Liberties Union (ACLU), both through its national office and via its various state affiliates, responds to queries and gives advice to people requesting help in cases involving civil rights, free speech, etc. An attorney with that organization informed us that, although they field tens of thousands of such calls annually, the ACLU has never been sued by a caller.
I was informed that all of these organizations have reasonably priced liability insurance that covers the operations under discussion.
Which brings us back to the insurance question. One would expect that those concerned about liability risks for the IEEE ethics hotline would check carefully into the availability of appropriate insurance. In the course of our conversations with AICPA people, we learned that their insurance broker is also used by the IEEE and further, that the IEEE Insurance Committee had actually initiated inquiries about hotline coverage. For further information about this, we were referred to IEEE staff people. I checked and learned from IEEE staff that they had indeed begun negotiations to obtain such coverage. But before these negotiations, which had been proceeding routinely, were concluded, they were instructed by the IEEE ExCom to drop the matter entirely. My efforts to get an explanation of this from various ExCom members were unsuccessful - nobody seemed to know anything about it.
In the course of these conversations I learned something interesting about liability risks in another area. I was told that the standards area is considered so risky by insurance companies, that their premiums for such coverage is excessive. Thus, the IEEE standards operation is "self-insured", i.e., it is not covered at all by liability insurance. During my two years on the IEEE Board of Directors, I do not recall ever having been informed about this very real risk by the IEEE attorneys or by anybody else. (This is not to suggest that I favor terminating IEEE's standards activities, which I consider to be a very important societal service.)
Termination of the Ethics Hotline
My first communication from the IEEE Insurance Committee was a July 1997 e-mail from its staff director informing me that the IC was recommending to the IEEE ExCom that the Ethics Hotline be terminated because it was too risky. My protest that this was an inappropriate recommendation and my request for a meeting with the committee were not answered. Subsequently, at its August meeting, the ExCom accepted this recommendation and ordered that the hotline be terminated immediately. At no time was the EC asked to present arguments on this issue, or even informed (other than via the aforementioned note from the IC) that the matter was being considered. Before relating the most recent developments concerning the hotline issue, I will digress to the related issue of the ethics defense fund
Catch-22: Squelching the Ethics Support Fund
As mentioned above, during its first two years of operation, the EC developed a proposal for an ethics support fund. The idea with an Ethics Support Fund is to go beyond mere advice and, where it is felt that important issues are at stake, provide some financial support for engineers embattled on behalf of the principles underlying the IEEE ethics code. Our proposal called for this fund to be financed by voluntary contributions from IEEE members - no funding would be sought from the IEEE. We were on the verge of putting this before the BoD in 1996, when we were informed that the IEEE attorney had expressed concerns that this might jeopardize the IEEE's 501(c)(3) tax status (i.e., its status as a charitable, hence tax-exempt organization). In discussions with the attorney, we subsequently learned that the concern is based on the idea that such a fund might be considered by the IRS as a "private inurement", which is strictly prohibited for 501(c)(3) organizations. He did not think this was very likely, but the possibility was sufficient to warrant caution before proceeding. His advice was to have the IEEE seek an "advanced determination letter" from the IRS indicating that such an operation was permissible. This would take a number of months and the legal costs would be of the order of five to ten thousand dollars
On the face of it, it seemed to me that an operation designed to encourage engineers to behave ethically was so clearly in the public interest as to be at least as appropriate for a tax exempt organization as anything else that the IEEE does. But we withdrew the proposal and proceeded to check out the situation. First, we learned that the AAUP, also a 501(c)(3) organization, has had such a fund for over 40 years (as well as a second such fund for over 20 years) without ever having had its tax status called into question. We were referred to the principal legal reference book on the subject of charitable organizations. We learned that the private inurement prohibition is intended to prevent insiders from siphoning off organization funds into their own pockets through such means as the private use of organization cars or by renting property to the organization at inflated rates. It is quite clear from that book that it would be quite a stretch to construe the proposed fund as a private inurement (particularly since it would be available, not just to IEEE members, but to others in the profession).
Nevertheless, the EC agreed to delay submission of the proposal until the advanced determination letter could be obtained. And here is where Catch-22 comes in. No sooner did we agree to go along with the lawyer's proposal then we were told of a new concern: that requesting the advanced determination letter might call the attention of the IRS to the IEEE and that they might investigate other IEEE activities and find violations of the tax code entirely unrelated to the ethics support fund or any other EC activity. The IEEE lawyer concurred with this concern. When we asked him to find some solution to this impasse, his response was, "We have not been authorized to do further work on these matters".
The Ethics Task Force
At its September 1997 meeting, the IEEE ExCom appointed an ethics task force. Its mission was to review the activities of the EC, including the hotline, and to make recommendations to the ExCom early in 1998. At the February 1998 ExCom meeting, the ethics task force reported that, at the instigation of the task force, the IEEE Insurance Committee (IC) obtained bids from two of its insurance carriers for liability coverage for the hotline. The rates were quite reasonable (for example, about $5000 per year for one million dollars coverage). The report also stated that the Ethics Committee has been doing an excellent job, and the task force recommended that the hotline be reinstated immediately, with perhaps some minor changes in the guidelines.
The ExCom Treasurer then stated that he had been advised by the IC that the proffered policies were not satisfactory, though he did not explain why. He also quoted the July recommendation by the IC referred to above that the hotline be terminated and added that the IEEE's attorneys had advised that the hotline was too risky. I was permitted a brief rejoinder, in which I contrasted the actual experience of our own and of other organizations with the hypothetical arguments of the attorneys. The VP for Technical Activities suggested that the bylaw under which the EC operates may not support such an activity as the hotline. This is an interesting argument, since the hotline was explicitly approved by the same board that passed the bylaw. The only one who spoke in favor of the hotline was the IEEE USA President.
The President of the IEEE then called an executive session to hear from the IEEE attorney. He did not permit me, the newly re-elected EC chair, to remain in the room while a major activity of the EC was being discussed. Following the executive session, without much more in the way of discussion, a motion was made and passed which effectively rejected the recommendations of the ethics task force. Finally, when I later asked for a copy of the report of the Ethics Task Force, I was told that, since it was rejected by the ExCom, it in effect does not exist, and is not to be distributed to anyone.
The IEEE, the world's largest professional society for engineers has, via the action of its Executive Committee, taken a position that it will not offer even informal advice to assist engineers (members or not) in efforts to practice their profession in accordance with the ethical principles that the IEEE espouses via its ethics code. IEEE members are to be denied the opportunity to contribute voluntarily to a fund designed to help those whose careers are jeopardized by their efforts to abide by the ethics code. These actions directly contravene the intent expressed by the IEEE Board of Directors as recently as 1996. The expressed justifications for blocking these efforts to support engineering ethics seem to have no reasonable foundations in either fact or law.
Finally, the behavior of the Executive Committee in squelching proper discussion of the issues and in rejecting and then suppressing the report of its own blue ribbon committee should deeply concern all who take pride in being IEEE members.
Stephen H. Unger is Chair of the IEEE-SSIT Ethics Committee and was Chair of the IEEE Ethics Committee in 1997 and 1998. He is with the Computer Science Department at Columbia University, New York, NY. E-mail: firstname.lastname@example.org.