NCARB - Professional Conduct

PROFESSIONAL CONDUCT
FOREWORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i ABOUT THE AUTHOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 REGISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 COMPETENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 ACCOUNTABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25 HONESTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39 APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41 BIBLIOGRAPHY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111 QUIZ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .113
Professional Conduct
2000 by the National Council of Architectural Registration Boards (NCARB). All rights reserved. No part of this document may be reproduced, stored in a retrieval system or transmitted for reproduction without the prior permission of the publisher. National Council of Architectural Registration Boards 1735 New York Avenue, N.W., Suite 700 Washington, DC 20006 (202) 783-6500 http://www.ncarb.org ISBN 0-941575-32-2 Printed in the United States of America This monograph was published in May 2000.
FOREWORD
This is the eighth monograph in NCARBs Professional Development Program (PDP). This program is intended to help architects meet mandatory continuing education and professional development requirements of state registration boards. It is also accepted by The American Institute of Architects to meet its continuing education requirements for maintenance of membership in the Institute. NCARBs PDP Committee selects topics, reviews content and prepares quizzes for the monographs. A monograph on the proper application of built-up roofing systems on low-slope decks was recently published. A monograph on other roofing material applications for low-slope decks is now in development. Future monograph topics include sustainable design, designing within a community context and building failures. An architect must practice in accordance with the legal requirements of competence, accountability and honesty. This monograph is written so that architects, students and others can have a better understanding of these terms. NCARB welcomes your comments and questions about this monograph and about the Professional Development Program in general. Please let us know what other topics you would like to see addressed. Thank you for your participation.
ABOUT THE AUTHOR

Daniel A. Taylor is a partner of the Boston-based law firm Hill & Barlow, P.C. He practices business law, specializing in the real estate industry. He earned a bachelors degree from the University of Illinois, a masters degree from the University of California, Berkeley, and a master of laws from Harvard Law School. Taylor has served for over 15 years as counsel to NCARBs Committee on Professional Conduct. He also chairs the Greater Boston Chamber of Commerce Development and Transportation Committee and serves as a member of the New England Regional Advisory Committee for the Trust for Public Lands. He has also served as chair for the University of Massachusetts Board of Trustees, as regent for the Massachusetts Board of Regents of Higher Education and as chairman for the Massachusetts Judicial Nominating Council.
INTRODUCTION
This monograph intends to educate architects in the standards of professional conduct that they are legally obliged to follow. Architects are registered or licensed (the two words are used interchangeably) to practice in individual states. The standards of professional conduct that they must follow, therefore, differ in detail depending on the particular state. An architect runs the risk of losing the right to practice if the appropriate standards are not heeded. For the sake of simplicity, this monograph relies on NCARBs recommended Rules of Conduct as the hypothetical applicable law. NCARB, which comprises all of the architectural registration boards in the United States and its territories, has authored these rules. They reflect the consensus of all registration boards on the standards of professional conduct to which architects should adhere. Over half of the states have adopted the recommended Rules of Conduct verbatim or with only minor variations. Virtually all states proscribe the kinds of conduct made illegal by the NCARB recommended rules, although perhaps by using different words. It would be unwieldy to compile and compare over 50 versions of the applicable standards; and it would be unwise to single out any particular states standards as being the norm. While NCARBs recommended Rules of Conduct are not themselves law, they do fairly represent what is the norm. To obtain the latest information on a particular states law, contact that states board. In addition, many state boards have posted their architectural registration law and regulations on their respective sites on the World Wide Web. Addresses and links to state board web sites can be obtained through NCARBs own web site (http://www.ncarb.org). Before proceeding, the reader should carefully consider NCARBs recommended Rules of Conduct and the accompanying NCARB commentary (Item 1). ITEM 1
From NCARBs Rules of Conduct, July 1999. RULE 1 - COMPETENCE
Rules of Conduct
1.1 In practicing architecture, an architect shall act with reasonable care and competence, and shall apply the technical knowledge and skill which is ordinarily applied by architects of good standing, practicing in the same locality. Commentary Although many of the existing state board rules of conduct fail to mention standards of competence, it is clear that the public expects that incompetence will be disciplined and, where appropriate, will result in revocation of the license. 1.1 sets forth the common law standard which has existed in this country for a hundred years or more in judging the performance of architects. While some few courts have stated that an architect, like the manufacturer of goods, implies warrants that his design is fit for its intended use, this rule specifically rejects the minority standard in favor of the standard applied in the vast majority of jurisdictions that the architect need be careful but need not always be right. In an age of national television, national universities, a national registration exam, and the like, the reference to the skill and knowledge applied in the same locality may be less significant than it was in the past when
there was a wide disparity across the face of the United States in the degree of skill and knowledge which an architect was expected to bring to his or her work. Nonetheless, the courts have still recognized this portion of the standard, and it is true that what may be expected of an architect in a complex urban setting may vary from what is expected in a more simple, rural situation. 1.2 In designing a project, an architect shall take into account all applicable state and municipal building laws and regulations. While an architect may rely on the advice of other professionals (e.g., attorneys, engineers, and other qualified persons) as to the intent and meaning of such regulations, once having obtained such advice, an architect shall not knowingly design a project in violation of such laws and regulations. Commentary It should be noted that the rule is limited to applicable state and municipal building laws and regulations. Every major project being built in the United States is subject to a multitude of laws in addition to the applicable building laws and regulations. As to these other laws, it may be negligent of the architect to have failed to take them into account, but the rule does not make the architect specifically responsible for such other laws. Even the building laws and regulations are of sufficient complexity that the architect may be required to seek the interpretation of other professionals. The rule permits the architect to rely on the advice of such other professionals. 1.3 An architect shall undertake to perform professional services only when he or she, together with those whom the architect may engage as consultants, are qualified by education, training, and experience in the specific technical areas involved. Commentary While an architect is licensed to undertake any project which falls within the definition of the practice of architecture, as a professional, the architect must understand and be limited by the limitations of his or her own capacity and knowledge. Where an architect lacks experience, the rule supposes that he or she will retain consultants who can appropriately supplement his or her own capacity. If an architect undertakes to do a project where he or she lacks knowledge and where he or she does not seek such supplementing consultants, the architect has violated the rule. 1.4 No person shall be permitted to practice architecture if, in the boards judgment, such persons professional competence is substantially impaired by physical or mental disabilities. Commentary Here the state registration board is given the opportunity to revoke or suspend a license when the board has suitable evidence that the license holders professional competence is impaired by physical or mental disabilities. Thus, the board need not wait until a building fails in order to revoke the license of an architect whose addiction to alcohol, for example, makes it impossible for that person to perform professional services with necessary care.
RULE 2 - CONFLICT OF INTEREST
2.1 An architect shall not accept compensation for services from more than one party on a project unless the circumstances are fully disclosed to and agreed to (such disclosure and agreement to be in writing) by all interested parties. Commentary This rule recognizes that in some circumstances an architect may receive compensation from more than one party involved in a project but that such bifurcated loyalty is unacceptable unless all parties have understood it and accepted it. 2.2 If an architect has any business association or direct or indirect financial interest which is substantial enough to influence his or her judgment in connection with the performance of professional services, the architect shall fully disclose in writing to his or her client or employer the nature of the business association or financial interest, and if the client or employer objects to such association or financial interest, the architect will either terminate such association or interest or offer to give up the commission or employment. Commentary Like 2.1, this rule is directed at conflicts of interest. It requires disclosure by the architect of any interest which would affect the architects performance. 2.3 An architect shall not solicit or accept compensation from material or equipment suppliers in return for specifying or endorsing their products. Commentary This rule appears in most of the existing state standards. It is absolute and does not provide for waiver by agreement. 2.4 When acting as the interpreter of building contract documents and the judge of contract performance, an architect shall render decisions impartially, favoring neither party to the contract. Commentary This rule applies only when the architect is acting as the interpreter of building contract documents and the judge of contract performance. The rule recognizes that that is not an inevitable role and that there may be circumstances (for example, where the architect has an interest in the owning entity) in which the architect may appropriately decline to act in those two roles. In general, however, the rule governs the customary construction industry relationship where the architect, though paid by the owner and owing the owner his or her loyalty, is nonetheless required, in fulfilling his or her role in the typical construction industry documents, to act with impartiality.
RULE 3 - FULL DISCLOSURE
3.1 An architect, making public statements on architectural questions, shall disclose when he or she is being compensated for making such statement or when he or she has an economic interest in the issue.
Commentary Architects frequently and appropriately make statements on questions affecting the environment in the architects community. As citizens and as members of a profession acutely concerned with environmental change, they doubtless have an obligation to be heard on such questions. Many architects may, however, be representing the interests of potential developers when making statements on such issues. It is consistent with the probity which the public expects from members of the architectural profession that they not be allowed under the circumstances described in the rule to disguise the fact that they are not speaking on the particular issue as an independent professional but as a professional engaged to act on behalf of a client. 3.2 An architect shall accurately represent to a prospective or existing client or employer his or her qualifications, capabilities, experience and the scope of his or her responsibility in connection with work for which he or she is claiming credit. Commentary Many important projects require a team of architects to do the work. Regrettably, there has been some conflict in recent years when individual members of that team have claimed greater credit for the project than was appropriate to their work done. It should be noted that a young architect who develops his or her experience working under a more senior architect has every right to claim credit for the work which he or she did. On the other hand, the public must be protected from believing that the younger architects role was greater than was the fact. 3.3 If, in the course of his or her work on a project, an architect becomes aware of a decision taken by his or her employer or client, against the architects advice, which violates applicable state or municipal building laws and regulations and which will, in the architects judgment, materially affect adversely the safety to the public of the finished project, the architect shall (i) report the decision to the local building inspector or other public official charged with the enforcement of the applicable state or municipal building laws and regulations, (ii) refuse to consent to the decision, and (iii) in circumstances where the architect reasonably believes that other such decisions will be taken notwithstanding his objection, terminate his services with reference to the project unless the architect is able to cause the matter to be resolved by other means. In the case of a termination in accordance with clause (iii), the architect shall have no liability to his or her client or employer on account of such termination. Commentary This rule holds the architect to the same standard of independence which has been applied to lawyers and accountants. In the circumstances described, the architect is compelled to report the matter to a public official even though to do so may substantially harm the architects client. Note that the circumstances are a violation of building laws which adversely affect the safety to the public of the finished project. While a proposed technical violation of building laws
(e.g., a violation which does not affect the public safety) will cause a responsible architect to take action to oppose its implementation, the Committee specifically does not make such a proposed violation trigger the provisions of this rule. The rule specifically intends to exclude safety problems during the course of construction which are traditionally the obligation of the contractor. There is no intent here to create a liability for the architect in this area. Clause (iii) gives the architect the obligation to terminate his or her services if he or she has clearly lost professional control. The standard is that the architect reasonably believes that other such decisions will be taken notwithstanding his or her objection. The rule goes on to provide that the architect shall not be liable for a termination made pursuant to clause (iii). Such an exemption from contract liability is necessary if the architect is to be free to refuse to participate on a project in which such decisions are being made. 3.4 An architect shall not deliberately make a false statement or fail deliberately to disclose accurately and completely a material fact requested in connection with his or her application for registration or renewal or otherwise lawfully requested by the board. Commentary The registration board which grants registration or renews registration on the basis of a misrepresentation by the applicant must have the power to revoke that registration. 3.5 An architect shall not assist the application for registration of a person known by the architect to be unqualified in respect to education, training, experience, or character. 3.6 An architect possessing knowledge of a violation of these rules by another architect shall report such knowledge to the board. Commentary This rule has its analogue in the Code of Professional Responsibility for lawyers. Its thrust is consistent with the special responsibility which the public expects from architects.
RULE 4 - COMPLIANCE WITH LAWS
4.1 An architect shall not, in the conduct of his or her architectural practice, knowingly violate any state or federal criminal law. Commentary This rule is concerned with the violation of a state or federal criminal law while in the conduct of the registrants professional practice. Thus, it does not cover criminal conduct entirely unrelated to the registrants architectural practice. It is intended, however, that Rule 5.4 will cover reprehensible conduct on the part of the architect not embraced by Rule 4.1. At present, there are several ways in which member boards have dealt with this sort of rule. Some have disregarded the requirement that the conduct be related to professional practice and have provided for discipline whenever the architect engages in a crime involving moral turpitude.
The Committee declined the use of that phrase as its meaning is by no means clear or uniformly understood. Some member boards discipline for felony crimes and not for misdemeanor crimes. While the distinction between the two was once the distinction between serious crimes and technical crimes, that distinction has been blurred in recent years. Accordingly, the Committee specifies crimes in the course of the architects professional practice, and, under 5.4, gives to the member board discretion to deal with other reprehensible conduct. Note that the rule is concerned only with violations of state or federal criminal law. The Committee specifically decided against the inclusion of violations of the laws of other nations. Not only is it extremely difficult for a member board to obtain suitable evidence of the interpretation of foreign laws, it is not unusual for such laws to be at odds with the laws, or, at least, the policy of the United States of America. For example, the failure to follow the dictates of the anti-Israel boycott laws found in most Arab jurisdictions is a crime under the laws of most of those jurisdictions; while the anti-Israel boycott is contrary to the policy of the government of the United States and following its dictates is illegal under the laws of the United States. 4.2 An architect shall neither offer nor make any payment or gift to a government official (whether elected or appointed) with the intent of influencing the officials judgment in connection with a prospective or existing project in which the architect is interested. Commentary 4.2 tracks a typical bribe statute. It is covered by the general language of 4.1, but it was the Committees view that 4.2 should be explicitly set out in the rules of conduct. Note that all of the rules under this section look to the conduct of the architect and not to whether or not the architect has actually been convicted under a criminal law. An architect who bribes a public official is subject to discipline by the state registration board, whether or not the architect has been convicted under the state criminal procedure. 4.3 An architect shall comply with the registration laws and regulations governing his or her professional practice in any United States jurisdiction. An architect may be subject to disciplinary action if, based on grounds substantially similar to those which lead to disciplinary action in the jurisdiction, the architect is disciplined in any other United States jurisdiction. Commentary Here, again, for the reasons set out under 4.1, the Committee chose to limit this rule to United States jurisdictions.
RULE 5 - PROFESSIONAL CONDUCT
5.1 Any office offering architectural services shall have an architect resident and regularly employed in that office. 5.2 An architect shall not sign or seal drawings, specifications, reports or other professional work which was not prepared by or under the responsible control of the architect; except that (i) he or she may sign or seal those portions of the professional work that were prepared by or under the responsible control of persons
who are registered under the architecture registration laws of this jurisdiction if the architect has reviewed in whole or in part such portions and has either coordinated their preparation or integrated them into his or her work, and (ii) he or she may sign or seal portions of the professional work that are not required by the architects registration law to be prepared by or under the responsible control of an architect if the architect has reviewed and adopted in whole or in part such portions and has integrated them into his or her work. Responsible control shall be that amount of control over and detailed professional knowledge of the content of technical submissions during their preparation as is ordinarily exercised by architects applying the required professional standard of care. Reviewing, or reviewing and correcting, technical submissions after they have been prepared by others does not constitute the exercise of responsible control because the reviewer has neither control over nor detailed knowledge of the content of such submissions throughout their preparation. Any registered architect signing or sealing technical submissions not prepared by that architect but prepared under the architects responsible control by persons not regularly employed in the office where the architect is resident, shall maintain and make available to the board upon request for at least five years following such signing and sealing, adequate and complete records demonstrating the nature and extend of the architects control over and detailed knowledge of such technical submissions throughout their preparation. Commentary This provision reflects current practice by which the architects final construction documents may comprise the work of other architects as well as that of the architect who signs and seals professional submissions. The architect is permitted to apply his or her seal to work over which the architect has both control and detailed professional knowledge, and also to work prepared under the direct supervision of another architect whom he or she employs when the architect has both coordinated and reviewed the work. 5.3 An architect shall neither offer nor make any gifts, other than gifts of nominal value (including, for example, reasonable entertainment and hospitality), with the intent of influencing the judgment of an existing or prospective client in connection with a project in which the architect is interested. Commentary This provision refers to private bribes (which are ordinarily not criminal in nature) and the unseemly conduct of using gifts to obtain work. Note that the rule realistically excludes reasonable entertainment and hospitality and other gifts of nominal value. 5.4 An architect shall not engage in conduct involving fraud or wanton disregard of the rights of others. Commentary Violations of this rule may involve criminal conduct not covered by 4.1, or other reprehensible conduct which the board believes should warrant discipline. A state
board must, in any disciplinary matter, be able to point to a specific rule which has been violated. An architect who is continuously involved in nighttime burglaries (no connection to his daytime professional practice) is not covered by 4.1 (crimes committed in the conduct of his or her architectural practice). Serious misconduct, even though not related to professional practice, may well be grounds for discipline. Lawyers commenting on the rules had little trouble with the standard set in 5.4; it applies to conduct which would be characterized as wicked, as opposed to minor breaches of the law. While each board must flesh out the rule, murder, rape, arson, burglary, extortion, grand larceny, and the like, would be conduct subject to the rule, while disorderly conduct, traffic violations, tax violations, and the like, would not be considered subject to the rule. 5.5 An architect shall not make misleading, deceptive or false statements or claims. Commentary An architect who fails to accurately and completely disclose information, even when not related to the practice of architecture, may be subject to disciplinary actions if the board concludes that the failure was serious and material.
While this monograph focuses primarily on the standards of professional conduct applicable to architects, similar standards apply to engineers. The 1981 walkway collapse at the Kansas City Hyatt Regency hotel in Missouri, discussed in a subsequent chapter, involved the discipline of engineers. The legal rules under which the engineers of that project were disciplined by the state of Missouri are virtually identical to the rules applicable to architects in almost all states. The second chapter of this monograph, Registration, discusses the basic requirements and importance of licensure. The next three chaptersCompetence, Accountability and Honestyaddress the issues that are at the heart of NCARBs standards of professional conduct. Architects must design buildings that are safe for the public that will use them. The best assurance that they will do so is if the buck stops with the designer of the building who puts his or her name on the plans. Let the buyer beware standards of the marketplace are singularly inappropriate to the creation of building designs because the real parties at interest, the buildings future users, have no say in the design process. Ethics is too vague and does not fairly describe the specific kinds of minimum conduct to which architects must adhere. As a reading of the Rules of Conduct should make clear, they are well above the standards of the marketplace. Students of this monograph should understand that there are professional conduct rules in all states where they practice, and these rules have hard edges. Violations often have serious consequences and can include suspension or loss of registration. An understanding of the Rules of Conduct is useful in another way as well: While they are themselves standards of minimum conduct, they point toward higher professional aspirations.
In addition to discussing the NCARB recommended Rules of Conduct, this monograph presents real as well as fictional cases of misconduct. These scenarios ask the reader to imagine the professional in question or a member of the state registration board who must make a ruling. This case method of teaching is intended to challenge the reader: The inherently dramatic and challenging character of the case system, however, although producing anxiety and confusion for the newcomer, also arouses his [or her] deep interest and leads him [or her] to make the effort required for adjustment, states Professor Charles I. Gragg, in Because Wisdom Cant Be Told, an article describing the Harvard Graduate School of Business Administrations then pioneering case method of teaching in the Harvard Alumni Bulletin, October 19, 1940. As is often true in real life, the right answer to a scenario may not be readily apparent. This monograph aims to foster consideration of the issues raised by each scenario because that will lead to a better understanding of the professional conduct requirements all architects must follow.
REGISTRATION
All states register architects. With only limited exceptions, states only permit registered architects to practice architecture in their states. Without exception, all states limit to only registered persons the use of words like architect and the ability to promote oneself as an architect. To become registered, one typically must hold a degree in architecture from an accredited collegiate architecture program, gain experience as an apprentice to a registered architect and pass an examination prepared by NCARB. An individual is then registered by a state architectural registration board to practice architecture in that state. Each state has reciprocity laws that, if followed, allow an architect registered elsewhere to become registered in that state. (NCARB facilitates reciprocity registration by allowing architects registered in a state and maintaining an NCARB certificate to be admitted to practice in other states without reexamination.) DEFINITION OF PRACTICE Registration boards and courts take their cue about what constitutes the practice of architecture in their states from the applicable statutory definitions. NCARB recommends that states adopt the definition of the practice of architecture described in Item 2. ITEM 2
From NCARBs Legislative Guidelines and Model Law, Model Regulations, July 1999.
Practice of Architecture Defined

rendering or offering to render those services hereinafter described, in connection with the design, and construction, enlargement or alteration of a building or group of buildings and the space within and the site surrounding such buildings, which have as their principal purpose human occupancy or habitation: the services referred to include predesign services, programming, planning, providing designs, drawings, specifications and other technical submissions, the administration of construction contracts, and the coordination of any elements of technical submissions prepared by others including, as appropriate and without limitation, consulting engineers and landscape architects. The practice of architecture shall not include the practice of engineering but an architect may perform such engineering work as is incidental to the practice of architecture.
Virtually all states limit their definition of the practice of architecture to substantial buildings used by the public. They accomplish this by exempting buildings of limited scope from the definition. Such exemptions are based on factors such as cost of construction; area or volume; intended use or occupancy; number of stories or height; and number of units or occupants. NCARB recommends that unregistered individuals be allowed to design singleand two-family dwellings; farm buildings; and alterations of a building when such work does not affect safety features of the building. NCARB also recommends that unregistered individuals be allowed to produce shop drawings; equipment and material submissions incidental to the design of the entire project; and drawings under the responsible control of a registered architect. Interior design work going beyond furniture selection, layouts and color schemes frequently runs afoul of architectural practice laws where changes involve egress or construction supervision (Marshall-Schule 1987). Typically, even someone exempt from what otherwise would be violations of laws prohibiting the practice of architecture may still not hold himself or herself out as an architect. This means that the person may not refer to himself or herself as an architect on letterheads, business cards or in contracts. THE NEED FOR REGISTRATION Registration confers on registered individuals a monopoly to engage in the profession. Of course, such a status is not the reason why state legislatures have required that architects be registered. How buildings fit together and function is a body of highly specialized knowledge not readily accessible to most lay people. Only those educated, trained and tested in these knowledge areas are allowed to design the actual assembly of a building. In this sense architects are like doctors, lawyers and accountants, all of whom must demonstrate through education and examination that they have mastered the technical knowledge to carry on their professions with a minimum level of competence. However, architects, like engineers, have a special professional standing because they are relied upon by the public to an uncommon degree. While incompetence or other failures to meet applicable standards of professional conduct by doctors, lawyers and accountants can have disastrous consequences to the affected patients and clients, the effect of such failings on large numbers of people is usually limited. Even though they may be poorly armed for the task, patients and clients are at least in some position to police such failures by the doctors, lawyers and accountants who serve them. Not so with a buildings users. Sometimes the client who hires the architect may not be the best advocate for the welfare of the buildings many users over its life. Financial and time pressures often encourage the owner to seek all possible savings in costs. Lenders furnishing financing for the building may be as eager for savings as the owner since the cash not advanced on the construction loan will add an additional margin of safety against slow leasing or sale of the finished product. The public, which will use the building over many decades, is absent from the cost-saving negotiations; its interest may be represented only by the architect. That public is entitled to have as building designers only those persons who have been qualified by the education, experience and examination that registration represents.
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PENALTIES FOR UNLICENSED PRACTICE Courts have uniformly upheld the power of states to require registration before individuals may engage in the practice of architecture. Under the U.S. Constitution, states are granted broad police powers through which to regulate otherwise private affairs in order to protect the publics health, safety and welfare. In addition to the licensing of architects and other professionals, examples of such police powers by the state include sanitation and building codes, zoning and land-use laws, and the licensing of restaurants and bars serving food and beverages. State laws requiring that a person be registered in a state before practicing architecture in that state apply equally to contractors who employ draftspersons to design buildings that they build and to architects registered in other states but not the state where they seek a commission. Practicing architecture in a state without being registered there exposes the practitioner to sanctions that are often severe. All states have criminal penalties for practicing architecture without being registered. While criminal penalties are rarely invoked against architects registered in another state but not in the state where they have unlawfully practiced, civil sanctions are routinely imposed on them by registration boards. These include fines of up to several thousand dollars and orders that the unregistered person cease and desist from further practice on the job that gave rise to the violation and on any other project. This can leave the client and the project in an unhappy state of limbo. Drawings must be started afresh by another architect since, according to Rule 5.2, no architect may sign or seal drawings, specifications, reports or other professional work which was not prepared by or under the responsible control of the architect. One onerous sanction often overlooked by architects is that an unregistered practitioner may be denied the right to recover any fees for professional services rendered. An example of this is illustrated by the 1969 Vermont case of Markus & Nocka v. Jullian Goodrich Architects, in which a Massachusetts architectural firm specializing in hospital design was engaged by a Vermont architectural firm to do various special consultation work for a hospital addition in Vermont but had no members registered in that state. The Massachusetts firm was denied any fee recovery on its contract. Aiding and abetting an unlicensed practitioner, often called plan stamping, is also treated seriously by registration boards, as indicated by the Howell and Anderson case excerpts in Appendix A and the Catlin case in Appendix G. STATE BY STATE REGISTRATION REQUIRED Registration in one state confers no rights in and of itself to practice in another state. Busy practitioners have sometimes learned the hard way of the need to register in another state before offering or providing architectural services there. The case of Anthony M. Arata, found in Appendix B, illustrates this point. Although already registered in Michigan and California, Arata was fined $5,000 by the Oregon State Board of Architect Examiners for starting design work in Oregon before being registered in that state. Completing ones registration in another state should be done before the architectural commission arises. Still another level of care and attention is required of corporations and partnerships that engage in the practice of architecture in different states. Many states require that the entity itself register with the licensing board. With regard to corporations, most states require that a majority of their boards of directors or of their stock ownership, or both, be architects registered in some state.
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All states would consider the preparation of plans submitted to a building official to be the practice of architecture regardless of whether or not the plans were physically prepared in another state where the architect was registered. But at least one state, Florida, has permitted the preparation of plans in its state by a person unlicensed in that state because the building was to be built in another state (Rolls 1982). Special ambiguities exist where an out-of-state architect not registered in the state where the building is to be built associates with an in-state registered architect and together they design the building from their respective offices. California allows an out-of-state unregistered architect to contract with an in-state registered architect and lawfully provide architectural services in California provided that certain filing requirements are met (California Code of Regulations, 3135). But in most states the legality of the out-of-state unregistered architect affiliation is open to question, as the consulting Massachusetts hospital design firm in Markus & Nocka v. Jullian Goodrich Architects discovered to its regret when it tried to collect its Vermont commission. Some registration boards do not strictly apply the law if the in-state architect provides substantial services. Others require registration of the out-of-state architect unless that architect performs services under the responsible control (discussed below under Accountability) of the in-state registered architect. Cynics might suggest that all of this is but a lot of red tape designed to erect walls protecting local practitioners from outside competition. Indeed, a great number of disciplinary actions taken by the state registration boards focus on practicing before registration violations. NCARB was formed expressly to facilitate interstate practice by architects. Interstate practice is an accepted and growing fact of life throughout the United States, so local self-interest may not explain the sheer volume of practicing before registration disciplinary cases. Here is another explanation: architecture involves a sustained focus on details so that everything works as the original design intended. Architects know they do their best work when they marshal and sustain this focus. Calamity can occur when that focus is lost. So when architects sitting on state registration boards see other architects ignoring the registration laws and practicing in their state before they bother to register, it strikes them as a sign of carelessness about details or of a tendency to ignore details, either of which may hold great peril to the public. BEING A PROFESSIONAL While paying attention to details goes to the heart of what architects do, that is by no means all that is expected of them. Item 3 suggests what it means to be a professional and hold a government-sanctioned monopoly to practice a profession. ITEM 3
Professionalism and the Public Interest, by Carl M. Sapers, Esq.

In these days when the Orwellian vision of language being used to obfuscate rather than clarify has become a reality, the words professional and professionalism seem to have lost their hard edge. Once, they connoted a vocation requiring considerable education, the development of specialized skills, a position of trust and high regard in our society, and usually more than average rewards for performance. Now we live in an era in which embalmers, hairdressers, and, in the brave new
The author is Of Counsel, Hill & Barlow, P.C., and Adjunct Professor of Studies in Professional Practice in Architecture, Harvard University Graduate School of Design. From Legal Cases and Materials for the Construction Professional, 1999. Reprinted by permission.
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world of California, babysitters, require registration under professional licensing statutes. Everything which, in our grandfathers era, was a trade or occupation now lays claim to being a profession; the drycleaners, the insurance agents, the real estate brokers, the automotive mechanics, all think of themselves as professionals. It is downright undemocratic to deny any American citizen the right to call himself or herself a professional. The gap between what the law expects of the tradesmen and of the traditional professional has also narrowed. The tradition that the buyer beware in dealing with the tradesmen has been replaced by consumer-oriented laws giving the purchaser additional rights and giving the tradesmen duties of honesty and forthrightness. At the same time, some courts see the design professional (as well as the doctor, lawyer, and other members of the learned professions) as supplying a product much like the tradesmen. Having observed the confusion in our times as to who is a professional and who is not, I propose in this note to declare those hallmarks of a professional, and in particular those hallmarks characteristic of a design professional, and thereafter to deal with the terms professional and professionalism in the terms used to define them. Thus, with a sweep of the hand, I clear from the table the septic tank cleaners, embalmers, beekeepers and babysitters who, by effective lobbying of their local legislators, have had themselves declared professionals in the same way that by decree, in certain totalitarian countries, good is declared bad and night is declared day. There are three important characteristics of the design professional. First, he or she is expected to have had substantial and specialized education and training in the professional work before being permitted to practice it. Second; in his or her practice, he or she is expected to exercise discretion wisely. Third, he or she is expected to accept fiduciary responsibilities at a level well beyond the level expected of tradesmen in the marketplace. The first of these characteristics is obvious and need not be expanded on here. Subsequently, in this note, we will observe that many critics of the design professions take the view that the professional fraternities overemphasize the training aspect and neglect the other two. Exercising discretion is an essential characteristic of all of the learned professions. The auto mechanic may synthesize knowledge in order to remedy a defect in your motor. In most cases, however, there is a correct remedy and a series of incorrect remedies. The good auto mechanic always chooses the correct remedy. For the design professional, the situation is different. First, the problem is multi-faceted and light years more complex than the problem the automotive mechanic faces, but more important, there is never one remedy but a multitude of remedies and each selected solution carries with it ramifications affecting other aspects of the clients problem. (The same can be said for lawyers and doctors in their attempt to solve their clients problems.) When the client selects his design professional, he has the right to expect that the
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design professional will exercise wisely the broad discretion which has been assigned, not that he will simply catalog the choices which the owner must make in connection with his project. A fiduciary duty is the duty which a trustee has to the beneficiaries of the trust. It is characterized by loyalty and good faith. It is the opposite of an arms length relationship. The beneficiary expects the trustee to exercise the trustees skills and intelligence on the beneficiarys behalf at all times, without the necessity of skeptical oversight by the beneficiary. The beneficiary need not watch his fiduciary as the prudent meat purchaser watches the scales to be sure that the heavy hand of the butcher is not nestled in next to the beefsteak when calculating the price of the meat; it is the characteristic of the fiduciary that he puts his own self-interest to one side and considers the interest of his beneficiary paramount. It has been said that it is the design professionals obligation to prefer his clients interest over his own and, when the issues are clear, to prefer the public interest over both. As with so much in life, it is easier to state a general proposition than to apply it to the specific circumstances in the real world. Here are three examples taken from the real world: 1. Under the terms of the contract documents, the architect is to be the judge of the performance of both the owner and the contractor. In the course of construction, the window channels, already installed, are retaining water. The contractor states that the channels should have had weepholes or vent holes but that none were shown on the drawings nor specified in the specifications. The contractor says that to remedy the situation will cost the owner $50,000. The owner is taking the position that weepholes are an obvious construction method and an experienced contractor should have put them in without regard to the absence of such a requirement in the plans and specifications. The architect is called upon to render a decision in the dispute. What does the architect do? 2. An architect has designed housing using poured-in-place concrete as the structural system for a developer/owner who is building the housing with his own subsidiary construction company. In the course of a weekly inspection, he discovers that the superintendent of construction is cheating on the cement content of the concrete and that the concrete will not come up to the strength required by the specifications and by the local building code. He tells the owner about the problem immediately. The owner says Dont worry about it. Ill talk to my construction superintendent. But the architect has reason to believe that the owner knew about the cheating from the very beginning and was pleased to enjoy the money savings. The architect, by the way, is required to certify the owner/contractors requisitions before the construction lender will make payment of the monthly draws out of which the architect is paid. A requisition including the months concrete work is on the architects desk. What does the architect do?
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3. A structural engineer, responsible for the structural design of a major skyscraper in an important and densely populated American city, discovers a year after substantial completion that he made a basic error in his calculations with the result that the building will fail in a sixteen-year return wind. The hurricane season in that part of the country is two months off. The owner and chief occupant of the building is a major insurance corporation. If a sixteen-year return wind should occur, there is a high probability that portions of the building will fly off and fall to the ground within six blocks of the structure. The structure and its calculations had been approved by the building department of the city. The remedial action will cost over $2 million and take three months to complete if all parties cooperate in the work. What does the structural engineer do? Persons connected with Ralph Naders organization and their friends in government agencies like the Federal Trade Commission have, in recent years, tended to disparage the notion of professionalism. You will note that Judge Sirica in the Mardirosian case [finding that the AIAs ethical rule against supplanting another architect on a job was a violation of U.S. antitrust laws] refers to architecture as a business; we can assume that that word was used consciously as a way of saying, When push comes to shove, I know youre in it chiefly for money. Mr. Nader would observe that all this talk about professionalism is dandy, but the facts are that the profession, whenever given a chance, tightens the gate by which people are admitted to the franchise, but enforces rules of professional conduct only when they are anti-competitive in effect. To Mr. Nader and his allies the attempt of the American Institute of Architects [(AIA)] to discourage supplanting of an architect by another is consistent with the attempts by the AIA and the National Society of Professional Engineers to prevent their members from bidding for jobs on the basis of competitive fees and is closely connected to the efforts of both organizations (and other professional organizations) to establish fee schedules to which all members would adhere in seeking work. How seldom, they comment, has a design professional been called on the carpet by the profession because the professional cheated a client, bribed a public official, or did shabby work? This dispute rages. The Justice Department, the FTC, and legislative sunset commissions across the country are devoting considerable energies to the deregulation of occupations and professions. Under their view since so very little of the effects of registration protects the public and so much protects the income of professionals, it follows that the public will at least have its position improved by reducing the cost of professional services if the franchise is broadened. But there are professionals whose careers meet the standards discussed earlier. There are architects and engineers who flourish in that exacting relationship to their clients and the public described above. They have contributed honorably and significantly to our built environment. This commentator believes that if Mr. Nader and the various government agencies have their way, professionalism may not survive in America.
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Mostly, cases drawn from the annals of professional discipline feature the pursuit of self-interest over the interest of the client or the public: the rush to get started before bothering to register; easy fees earned by selling the architects seal to be stamped on plans prepared by others; the careless loss of focus allowing errors to creep in because too much business is being pursued or the fee is too low; the shortcut to a commission through bribes or gratuities. But there are singular instances of professional rectitude that exemplify the core values of competence, accountability and honesty underlying the Rules of Conduct. One such example is described in City Perils: The Fifty-Nine-Story Crisis, an article by Joe Morgenstern that first appeared in the New Yorker in 1995. It can be found in Appendix C. The subtitle to this article succinctly spells out the dilemma: Whats an engineers worst nightmare? To realize that the supports he designed for a skyscraper like Citicorp Center are flawedand hurricane season is approaching. William LeMessurier, the subject of this article, was the structural engineer who designed Citicorp Center. Says LeMessurier in the article: In return for getting a license and being regarded with respect, youre supposed to be self-sacrificing and look beyond the interests of yourself and your client to society as a whole. And the most wonderful part of my story is that when I did it nothing bad happened.
PHOTO: Mary Ann Sullivan Reprinted with permission.
COMPETENCE
The public and its representative political leaders expect that architects who practice incompetently will be disciplined and, where warranted, prohibited from inflicting their incompetence on others. Yet there is often little opportunity for registration boards to assess the competence of practitioners before a building failure occurs; most disciplinary actions based on incompetence have been handed down after a building fails. Few states today require architects to inform their respective registration boards of suits filed against them, of negligence claims reported to their professional liability insurance company or of the outcome of such lawsuits and claims. One exception is California, which requires architects, their professional liability insurers and clerks of court to report to the California Board of Architectural Examiners all settlements, awards or judgments in excess of $5,000 for fraud or negligence in practice (California Architects Practice Act, 5588, 5589 and 5590). In some states, close cooperation between architectural and engineering registration boards on the one hand and building code officials on the other has led code officials to alert the boards to practitioners submitting plans of marginal competence. ORDINARY AND GROSS NEGLIGENCE NCARBs Rule 1.1 incorporates the customary legal standard of due care widely applied in civil actions involving architects. An architect who does not practice with the reasonable care and competence and apply the technical knowledge and skill ordinarily applied by architects of good standing in that locality is practicing negligently. According to this standard of ordinary negligence, a single failure to act with the care ordinarily applied by competent architects in the locality could lead to discipline.
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In contrast, many state Boards have as a disciplinary rule that an architect shall not practice with gross negligence. According to page 1033 of the sixth edition of Blacks Law Dictionary, gross negligence is a heedless and palpable violation of legal duty respecting the rights of others Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from willful and intentional conduct which is or ought to be known to have a tendency to injure. The Missouri Supreme Court also discusses this difference in Appendix E. State registration boards using the gross negligence standard appear more forgiving of an architects minor failings. In practice, however, there is little evidence that boards have any interest in policing occasional acts of ordinary negligence. While some state boards, particularly California and New York, have accepted complaints from disgruntled clients who claimed that their architect neglected the project or failed to complete the drawings, most boards have not done so. Instead, they have left to the courts the task of settling disputes between architects and their disgruntled clients through civil lawsuits, even though those private disputes may assert that the architect was negligent or grossly negligent in how he or she handled the job. The relatively few disciplinary cases initiated by state boards that raise issues of competency usually involve substantial defects in design following serious building failures. And neither the boards hearing those cases nor the courts handling appeals by architects of what the boards have done place much emphasis on the particular wording of the states prohibition against incompetent practice. What has happened in these cases almost always could be characterized as gross negligence. PRACTICING BEYOND COMPETENCY A few state boards pay close attention to architects who seal plans for substantial buildings that include drawings for structural, electrical and mechanical systems, but who are not themselves registered engineers and do not employ registered engineers to design these systems. Frequently in these states the architects violation is characterized as practicing beyond his or her competence or as negligence. Nearly all states permit architects to do engineering incidental to the practice of architecture without also being registered as an engineer. State laws have varying requirements about sealing plans prepared by registered engineers under the architects supervision. Some require the architect to add the architects seal on to the engineers drawings and some forbid placing the architects seal on the engineers plans. The reasoning of the boards that fault architects for preparing engineering drawings usually is that engineering designs are not incidental to the architecture, and the architects failure also to register as an engineer shows a lack of qualification to do such work. LEARNING FROM KANSAS CITY Walkways in the atrium lobby of the Kansas City Hyatt Hotel collapsed in 1981, killing 114 people and injuring 186. This was the most calamitous building failure ever to occur in the United States. To learn from this disaster, readers of this monograph should review the facts: Matthys Levys and Mario Salvadoris chronicle from a chapter in their book, Why Buildings Fall Down, is reprinted in Appendix D. The Missouri Board for Architects, Professional Engineers and Land Surveyors revoked the licenses of the two structural engineers found to be at fault. In Appendix E, one
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can find out what the Missouri Supreme Court believed was the appropriate disciplinary standard to apply to these two professionals. After reading Appendices D and E, consider the view presented in Item 4. In retrospect, the essential Hyatt Regency error seems tragically obvious. In fact, many people noticed the design change and questioned the engineers before the calamity occurred. What if the architect had not only noticed the design change but had ordered reinstatement of the original onerod design instead of marking the shop drawings for the revised design approved? Should the Hyatt Regency architect be disciplined for approving the shop drawings? What do you think the architect meant by stamping the shop drawings approved? (As Appendix D notes, attorneys advise architects never merely to stamp shop drawings approved. Rather, shop drawings should be stamped to the effect that they have been reviewed and approved solely for general consistency with the overall architectural design.) Referring back to the Citicorp Center article in Appendix C, what if the engineering student who first raised the issue of a possible defective design in certain wind conditions hadnt called LeMessieur and stimulated his thinking and there had been a sixteen-year wind causing Citicorp Center to collapse? The loss of life
Walkway section of the Kansas City Hyatt Regency, taken from a second floor opening. Photo by Lee L. Lowery, Jr., Texas A&M University.
ITEM 4
The Hyatt Regency Decision: One View

by Robert A. Rubin and Lisa A. Banick
Much has been discussed and written about the 442-page administrative law judges decision recommending [to the Missouri Board for Architects, Professional Engineers and Land Surveyors] suspension or revocation of the Kansas City Hyatt engineers professional engineering licenses on the grounds of gross negligence, misconduct and fraudulent misrepresentation. The decision has been viewed differently by the various people who have read and commented upon it. Some have deemed it a travesty, others have regarded the engineers as hapless victims, scapegoats of a system they did not create, some have accepted the decision as warranted. We view the decision from the perspective of lawyers whose practice is principally devoted to construction litigation. We each also have degrees in civil engineering with structural engineering majors. The administrative law judge was invested with authority solely to determine facts and to recommend whether the engineers in question should be sanctioned. His job was not to measure the relative responsibility of the engineers in
Attorney Robert A. Rubin is a partner at Postner & Rubin in New York. Attorney Lisa A. Banick is a partner at Garrity, Avignone & Banick in Bozeman, Montana. From The Construction Lawyer, volume 6, no. 4 (August 1988). Reprinted by permission.
A third-floor walkway of the Kansas City Hyatt Regency, still hanging after the collapse. Photo by Lee L. Lowery, Jr., Texas A&M University.
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relation to the others involved in the project such as the contractor and the steel fabricator. His job was only to measure the conduct of these engineers against the standard of their professional responsibility. This was not a damage suit where everyone was sued for negligence. Perhaps other professionals should have been singled out also. There is always the possibility of injustice when one is singled out for punishment. The Judge found that the rods and the box beam hanger rod connections for each of the three walkways did not meet the design specifications of the Kansas City Building Code. The cause of the walkway collapse was the failure of the fourth floor box beam hanger rod connections. The Judges findings can be summarized as follows: 1. No original design calculations were found for the box beam that failed. 2. The engineers were aware of the change that had been made to the design of the connection, which had the effect of doubling the load on the connection that ultimately failed. 3. The detailer and the architect specifically brought the change to [the engineer] Duncans attention and asked if it was structurally safe. He assured them that it was. 4. The engineers own technician, in reviewing the shop drawings, specifically brought the change to Duncans attention. 5. Duncan personally looked at the shop drawing but did not review the box beam connection. 6. A partial structural collapse in the same atrium where the walkways were located occurred before occupancy. The engineers were paid an additional fee to review the entire structural design in the atrium. They assured the owner they had done so, including the box beam connections that ultimately failed. Our conclusions are as follows: 1. Based on the facts found by the administrative law judge regarding the events that led up to the Hyatt collapse, license revocation was more than warranted. The engineers conduct cannot be justified under any standard of professional practice. They were callously indifferent to life and safety after questions relating to the particular connection that failed were repeatedly brought to their attention. They were not hapless victims of the system in any sense. 2. It is paradoxical that while tragedies such as the Hyatt failure provide an incentive to change practices, the Hyatt failure is a poor example on which to base recommendations for change because essentially no change in practices would likely have averted the Hyatt tragedy. 3. Examination of the facts discloses an ironic twist. With all the alleged deficiencies in present practices, oddly enough Hyatt proves that the system really does
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work. The right people asked the Hyatt engineers the right questions before the collapse occurred. The design and change in design of the connection that failed did not fall through the cracks. It did not go unnoticed. Specific questions were asked on three and possibly five occasions that should have led the engineers to catch their error. Others beside the engineers can surely be faulted, particularly the fabricator, but that begs the question. These engineers were given sufficient opportunity to discover the problem. Their failure to do so is inexcusable by any standard. They deserve the strongest professional sanctions that can be imposed upon them. 4. How can their conduct be explained? An understanding of their conduct is perhaps the most important lesson that can be drawn from the Hyatt collapse because it represents, more than anything else, a human failure to which each professional is subject. Some succumb, some do not; most of us are just plain lucky in that we do not get caught. Our errors are picked up by others, or although our errors go undetected, no tragedy ensues. Complacency is a human failure. Complacency creeps into a professionals approach to practice as the newness, excitement and other early rewards of the profession fade. We become indifferent, we stop worrying, agonizing. We take shortcuts and get away with it. We then take more shortcuts. It becomes a way of life. This is human. The shock of an occasional failure brings us to our senses and forces us to reevaluate our conduct. 5. There but for the grace of God... is an appropriate response to the Hyatt failure and the engineers license revocation. But at the same time, it is inappropriate and counterproductive to blame the system, the administrative law judge, or others who also ought to have caught the error. Appropriate responses to the Hyatt failure are two-fold: 1. We must recognize the need to police our professions (law and engineers alike) and to continually punish professional misconduct. It is healthy; it is necessary. It instills public confidenceit removes from practice those who may cause loss of life, in the case of engineers, and serious economic or personal loss, in the case of lawyers. Most important, however, is its prophylactic effect on the profession. It is an effective weapon against the complacency to which we all may become subject. We must therefore acknowledge that, as painful as it is for us to participate in the process (and despite the real hardships it imposes on the few who get caught), it is as essential, if not more essential, than anything else we can do. It is more effective than any other reforms we can initiate. (Similarly, strict punishment of drunk drivers and speeders is a more effective means of reducing highway fatalities than air bags and other safety devices). 2. Hyatt collapse should be used as impetus to modify structural engineering practices in order to avert other potential tragedieseven though it is recognized their implementation might not have averted the Hyatt collapse. It is a good opportunity for reevaluation and remediation.
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would have been many, many times the 142 dead and 200 injured in the Hyatt Regency failure. Undoubtedly, LeMessieurs failure to account properly for the wind design would then have been uncovered. The cost-saving substitution of bolts for welding made by his staff, which compounded the problem, would have been detected as well. What would you do if you were a member of the registration board considering a complaint against LeMessieur after such a collapse? Suppose everything happened as described in the New Yorker article, but the hurricane that in reality turned out to sea had instead hit New York City, causing the Citicorp Center to collapse before the repairs LeMessieur initiated were complete. If LeMessieur were before you on a complaint alleging incompetence under these hypothetical circumstances, how much weight would you give to his forthrightness in blowing the whistle on himself despite his inability to cure the problem before the hurricane hit? According to the article, he and his professional liability insurer settled with Citicorp. If you were a member of the New York registration board, having just read the New Yorker article, would you now initiate a complaint against LeMessieur under a rule like Rule 1.1 even though no harm has occurred? If not, why not? CODE INTERPRETATIONS Please review again Rule 1.2 and Rule 3.3. These rules show great deference to the building codes. An architect must not knowingly design code violations. If, for example, the architects client orders a construction change that violates a building code and the change is likely to adversely affect public safety, the architect is required to blow the whistle on his or her client. The codes, of course, are notoriously opaque and different designs are subject to different code characterizations. For instance, in the Citicorp Center article in Appendix C, it is reported that the engineers characterized the chevron braces as trusses, not columns, thereby exempting their joints from the high strength requirements stipulated in an American Institute of Steel Construction specification for joints in structural columns. Architects, too, frequently face choices in characterizing design conditions for codes, often with startlingly different safety and cost effects. What considerations should properly go into the architects characterization of such conditions for code purposes? Surely its something more than making the cheapest defensible choice. If an architect selected a code characterization that led to a loss of life and you were a member of the registration board sitting on the disciplinary proceeding, what would you want to know? How is a code officials testimony that the architects choice was wrong weighed against testimony by another architect that competent architects practicing in the community could make the same choice? Would make the same choice? Had made the same choice? And what weight should be given to the architects response that, even if he or she made the wrong choice, the building officials should have caught the mistake when the plans were filed? Also, building code variances may be obtained. The Massachusetts State Building Code, for example, allows an appeal board to vary the application of any provision of the [Code] in any particular case...[if the board finds] that the decision to grant a variance shall not conflict with the general objectives set forth in the [enabling act or Code]. Most states follow similar procedures. The Brown Architects scenario in Item 5 suggests that a blind eye cannot be turned to a questionable code variance obtained by an owner.
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ITEM 5
Scenario: Brown Architects

Brown Architects is hired to design a seven-story residential condominium. After the job starts, it becomes clear that the condominium cannot be built within the budget. The owner tells Brown to change the exterior cladding from precast panel to wooden clapboard. Brown says that the building code doesnt allow for a combustible wooden exterior on a building of that class and height. The owner then tells Brown, Just make the changes on a set of plans. Ill take care of getting a code variance. As the architect has not been paid in three months, he draws the plans as directed and sends them to the owner. Three weeks later, when Brown visits the job and sees clapboards being installed, he asks the contractor what was going on and was told that the owner had gotten a code variance. Brown is surprised but keeps it to himself and says nothing. Two weeks later, the U.S. Attorney announces that the owner of the condominium project and the local building inspector had both been indicted for bribery in procuring and issuing the code variance; the new acting building inspector declares that the purported code variance is of no effect and issues a stop work order. That same day a complaint arrives from the architectural registration board charging Brown with failing to use due care in design and aiding and abetting a building code violation. The board states that Brown knew or should have known that design of wooden cladding on a seven-story residential building was incompetent, unsafe and also in violation of the building code.
You are a member of the board that hears this case. Do you vote to discipline the architect? Why or why not. If you do, what is the disciplinary measure that you favor and why?
THINK LIKE AN ENGINEER, NOT LIKE A MANAGER Safety choices made by an architect are often made in a context where the architect, the architects firm and the architects client all have similar stakes in the outcome. For example, everyone on the team may be enticed by a clever decision that ostensibly saves time or money for all parties, thereby dismissing an alternative option that adds a margin of safety but takes longer or costs more. There are no obvious checks and balances under these conditions. In addition, many safety calls are inherently ambiguous. No engineer or architect would knowingly make a decision that leads directly to death or injury. But how should an architect make the calls when safety is implicated in the choice, but only ambiguously? In a thoughtful article entitled Thinking Like an Engineer: The Place of a Code of Ethics in the Practice of a Profession, which is excerpted in Appendix F, Professor Michael Davis of the Center for the Study of Ethics at the Illinois Institute of Technology in Chicago proposes that engineers, and by extension architects, should think like an engineer instead of a manager. By this he means that an engineer should single-mindedly follow the engineering code of ethics and always make para-
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Seventy-three seconds into flight, the Space Shuttle Challenger exploded, killing all seven of its crew.
mount the safety of the public. Considerations of his or her own success, the success of the firm or the success of the client should not enter into an engineers or architects decision when safety is an issue. When such considerations are allowed to affect a decision, argues Davis, the professional is thinking like a manager. Davis believes that managerial thinking probably led to the disastrous launch of the Space Shuttle Challenger in January 1986. With good reason, the vice president for engineering at the company which designed and built the shuttle, and who had to approve the launch, feared that the O-rings sealing the shuttle segments together might fail in the unseasonably cold Florida temperature at launch time. However, the clientthe National Aeronautics and Space Administrations Space Centerwas anxious to avoid any further delays in its shuttle program and pressured the company to approve the launch. Not every designer is in the clear-cut role of final decision-maker as was this vice president who changed his mind, allowing the Challenger launch to proceed with tragic effect. Sometimes the designer plays a critical part, but his or her role as decision-maker is ambiguous, as the scenario in Item 6 suggests.
ITEM 6
From The Granite Block. Reprinted by permission from Boston Architectural Center, 1997.
Scenario: A Young Architects Dilemma

Sarah Andrews is the sole owner of a successful architectural practice in downtown Boston. She has worked hard over the last ten years to build her firm, and the effort has paid off. Andrews Architects, with a staff of 15, has carried out a number of renovations to major historic commercial buildings in the citys financial district. Sarah has been asked by Stanley Green, a developer client responsible for some of her largest commissions, to undertake a building survey. He is in the final stages of negotiating to sell The Granite Block, a handsome office building he has owned in the downtown area for many years. He is being offered top dollar for the property, but needs her help with some last-minute details. In order to fine-tune the selling price, the buyer has asked for a professional inventory of certain building elements: the windows, the suspended acoustical-tile ceiling, and the carpeting. Green and Sarah agree on a fee, a schedule for work, and procedures. They sign an agreement which contains Stanley Greens usual clause that all information discovered by the architect shall be kept in confidence and may not be disclosed to third parties without Greens prior written consent. Sarah assigns the survey work to Dan, one of her best technical hands. Work goes smoothly. The carpet and ceiling tiles are in good shape. The buildings windowsmore than 200 of themare more challenging to investigate. They appear to be in excellent condition, but with so much money at stake, Dan feels it is important to dismantle three units for a closer look. With permission for an invasive procedure from Green, he selects the first unit for review, lifts out the sash, and removes the 18-inch-wide jamb and weight shaft from one side. With a
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flashlight, he peers into the wall cavity to see how the windows are attached. A solid steel strap for anchoring the window is clearly visible. Deeper in the cavity, however, Dan sees something disturbing. The building, an early example of stone-cladding on steel-frame construction, has a three-inch granite veneer attached to the building by clip angles welded to its steel frame. The clip angles visible in the cavity appear rusted. Reaching in to see how rusted they are, he is startled as a piece of the angle comes off in his hand. He has heard stories of similar buildings where improper sealants allowed water to attack cladding connections. These kinds of problems create inordinately expensive repairs, the costs sometimes approaching the value of the building itself. Looking down from the window, he sees the immediate threat that falling cladding would pose to those on the bustling sidewalks below. A quick investigation of the two remaining windows confirms his fears. The cladding, he concludes, is more balanced on the building than attached to it. A bad storm, he fears, could create a life-threatening situation. The next day, Dan hands in his written reports dealing only with the windows, carpet and tiles. He reports orally his concern about the cladding. Sarah carries the report to her meeting with Mr. Green. She gives him the good news...and the bad. Thanks for telling me about the cladding, he says. As always, you did a really thorough job, beyond the call of duty. Luckily for both of us you were only asked to investigate windows and finishes. Your report on those subjects only will be passed on to the buyer. And with that, he ends the meeting. As Sarah walks back to the office, recollections of the meeting and Stanleys curt dismissal bother her. As soon as she arrives in her office, she closes the door behind her and calls her client. Stanley, she says, what about the cladding issue? Thats far more important than the finish and windows. Stanley sounds a bit put-upon. Look, Sarah, I appreciate your worry, but this deal is too far along. Neither party needs new information at this point. The buyer has had access to the building. He could have uncovered the cladding problem on his own. Maybe he already knows about it. If not, itll turn up in one of his periodic checks and hell fix it. Sarah, you arent naive. You understand that this building represents much of my net worth, and its leveraged to the hilt. I need this sale. Tomorrow afternoon is the drop-dead meeting for completing the deal. Hang in there one more day and well make better use of your thoroughness in the future. If you feel you need it, Id be happy to give you a confidential letter confirming that you fully informed me about the condition of the cladding. Fine, Stanley, she replies softly, although in truth she doesnt know what to say. She hangs up the receiver and stares at the door. Dan sticks his head in, asking how the meeting went. Sarah relates the events and her confusion about what to do.
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I dont know, he says, its a pretty serious situation on that building. Its your call, but Id sleep better with the sidewalks around that building closed to the public. Dont we have to tell the new owneror at least the Boston Building Department? That evening, Sarah seeks advice from her husband. There are very big stakes here for you, and the developer, he says. Going public would seriously threaten his deal and your business relationship as well. Are you really sure of the facts? Youd never get another job in the city if you stopped this deal. Maybe Dans analysis wasnt right. Withdraw your report entirely and accept no payment at all. Thats what Id do. Pull away from the situation firmly but quietly, without supporting either side. No one wants an architect who is a loose cannon. By withdrawing your report and accepting no payment, you can eliminate your obligations in the situation and live to do more good work for other clients.
What should Sarah do?
ACCOUNTABILITY
One hopes that all participants in the design of a building, from the draftspersons to the principal-in-charge, are competent. But the buck legally must stop someplace. Virtually all states place responsibility and liability for design errors on the architect who signs or seals the drawings. Mr. Anderson in Appendix A ran afoul of the South Carolina registration laws for signing plans enabling Howell to engage in unlicensed architectural practice. The Missouri Supreme Court in Appendix E also emphasized the Hyatt Regency engineers responsibility under Missouris licensing scheme. According to the Missouri Court: The thrust of these [registration] requirements is professional accountability by a specific individual certified engineer. These requirements establish the public policy of the state for the protection of the public. They require that plans for construction of structures in this state which require engineering expertise be prepared by or under the direct supervision of a specified certified engineer and that that engineer bear personal and professional responsibility for those plans. In language that makes some design professionals shudder, the Court continued: The affixing of his seal on the plans makes him responsible for the entire engineering project and all documents connected therewith unless he specifically disclaims responsibility for some documents relating to or intended to be used for any part of the engineering project. Remember that in the Hyatt Regency example, the engineers had originally designed a single-rod support system but the steel fabricator subsequently changed this to a two-rod system in the shop drawings. In Appendix E, the Missouri Supreme Court found the project engineer, Duncan, and the engineer in overall charge, Gillum, both guilty of gross negligence. The project engineer had immediate charge of the job but had not sealed the original engineering plans. The engineer in overall charge had sealed the original plans but apparently knew nothing of the change from a single-rod support system to a two-rod system. According to the Court, responsibility for the design of the connections could not be passed off by either of these
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engineers to the steel fabricator who actually made the change. The project engineer ignored the change to a two-rod support system and, when the architect raised a question, gave assurances although he had performed no safety tests or calculations. The engineer who sealed the plans was held to be responsible for the failings of the project engineer because he had sealed the original plans. Fixing responsibility for plans on the sealer of those plans is one side of the coin of accountability. The other side of the coin is the insistence in Rule 5.2 that the architect sealing the plans must pay attention to the details and choices being made throughout the design process by either directly preparing the plans or being in responsible charge of their preparation. Even if the architect is willing to bear the legal responsibility that runs with placing his or her seal on the plans, Rule 5.2 prohibits plan-stamping. In 1992, NCARB issued the Report Respecting the Signing and Sealing of Technical Documents, which addresses two of the reasons for having a rule of conduct such as 5.2. Excerpts from this report are contained in Item 7. ITEM 7
Report Respecting the Signing and Sealing of Technical Documents

The first [reason NCARB opposes plan-stamping] derives from the design process itself. An architect furnishes professional services to solve a clients needs; the architect does not sell a product. There is never a single right answer to a clients design requirements. Aesthetic, economic and technological considerations impact the design of each element in a building, and the design of each element influences the design of all other elements. A registered architect takes all of these considerations into account and weighs them against the safety of the final product. The way materials respond to each other, the tolerance of a particular design in predictable climatic and other conditions and the ways in which users of the building will react to the space are all considerations that the public expects its registered architects to include in the choices the architect makes in composing a total design. Architects, like the rest of mankind, deal with an imperfect world that constrains those choices and compels compromise, but the architect who performs in accordance with professional standards makes certain that the final result meets at least minimum standards of health, safety and welfare. Theoretically, an architect could take technical submissions prepared by another, minutely dissect them, review all of the calculations involved and put the intricate parts back together with such care that the public could rely on the final product to the same extent as it could if the architect had prepared the technical submissions himself or herself from the beginning. In reality, however, that care is seldom taken: first, it is improbable that a client would pay for a process which is no doubt more expensive than engaging an architect to perform the conventional design services and second, it is improbable that an architect with the choice of either devoting his talent, time and energy to a design of his own creation, or dissecting, recalculating and reassembling the work of another, would choose the latter course. In the real world, the architect may review the work of another and reach a general conclusion that the design works but does not attempt to recreate the process, understand the intricate parts and the constraints, and review and weigh all the choices. Thus, the public is less well-
From NCARBs Report Respecting the Signing and Sealing of Technical Documents, dated February 1992.
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served by the architect who merely reviews the work of another. The second reason NCARB opposes plan-stamping has already been alluded to: what kind of architect prefers plan-stamping the work of another to creating his own design? No one who has observed the practice of architecture in the United States would challenge the conclusion that the plan-stampers are marginal practitioners. Architects who are unable to obtain their own commissions are the architects who are willing to seal the work of others. NCARBs Professional Conduct Committee has had many plan-stamping disciplinary cases before it over the years; its experience confirms that plan-stampers are most often in marginal practices, that they are paid such nominal sums for their services as to preclude any detailed inquiry into the work they are asked to seal and that they, in fact typically give the work only perfunctory review. Thus, as a pragmatic judgment, NCARB has concluded that plan-stamping does not afford the public the protection it needs. A regulation to protect the public should always be based on a reasonable evaluation of the probable consequences in the absence of such regulation. It does not weaken the propositions set out above to observe that there may have been a case in which a plan-stamping architect took all the necessary steps to protect the public safety before sealing the technical submission. Regulation deals with probabilities not with unique exceptions. The foregoing discussion assumes that the original work was prepared by an unlicensed person and submitted to the plan-stamper in order to file the technical submissions with the building inspector or another public agency requiring an architects seal on the technical submissions. Some may argue that a different policy should be developed when the original work was prepared by a person registered in another jurisdiction but without registration in the jurisdiction in which the building will be built. After all, the original work was prepared by an architect; that person simply was not an architect registered in the state having jurisdiction over the project. If a local architect is willing to review the out-of-state architects work, seal it, and take responsibility for it, isnt the public adequately protected? NCARB believes that the argument in favor of the second seal does not survive careful analysis. Each state has the sovereign power to decide who may practice architecture within its borders. That power is delegated to the state registration board, composed of persons, typically appointed by the states governor, to carry out the public trust. They set standards of education, training and examination that an applicant for registration must meet. The argument that a local architect may review and seal the work of a registrant from another state substitutes for the state registration board the judgment of a registered architect who holds no public office, has never assumed a public trust, and who need not answer to the other members of a board or the state authorities who oversee the board. In short, the plan-stamper has arrogated himself the authority to determine the qualification of the out-of-state practitioner to meet the local standards for registration.
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It may be argued that the marked trend toward uniform registration standards (viz. a national exam, the degree requirement, etc.) has virtually eliminated distinctions among the standards of each state. NCARB has, of course, worked hard to persuade its member boards to adopt similar standards, but even its remarkable success in this effort has not entirely eliminated distinctions from state to state; therefore the NCARB Certificate is the key to reciprocal registration in every United States jurisdiction. And it is precisely because the Certificate is available to every architect who meets the uniform standards, that every qualified architect may be admitted to practice in all U.S. jurisdictions. Thus, engaging a local planstamper cannot be justified as a means of practice for an out-of-state architect. RESPONSIBLE CONTROL OVER PLAN PREPARATION State laws prohibiting plan-stamping are frequently attacked by the plan stamper, but these laws have almost always been upheld. One such case involved a Massachusetts architect who challenged his suspension and probation by the Massachusetts Board of Registration of Architects up to the Supreme Judicial Court of Massachusetts. Excerpts from the decision of the Court upholding the Massachusetts Boards action are reproduced in Appendix G. When the matter is regarded as serious, as plan-stamping usually is, disciplinary action taken by one state can be the basis, in and of itself, for disciplinary action by another state. Such a situation is exemplified by two disciplinary decisions, excerpts of which are reprinted in Appendix H: The first is the Kentucky State Board of Examiners and Registration of Architects Settlement Agreement and Order with Kenneth L. Butts. The second is the Wyoming Supreme Courts opinion upholding the Wyoming State Board of Architects and Landscape Architects suspension of Butts registration in Wyoming based solely on his registration suspension in Kentucky. Note that Wyomings suspension was upheld even though the Settlement Agreement and Order between Butts and the Kentucky Board states that [Butts], for the purposes of this settlement agreement and order, neither admits nor denies the truthfulness of the allegations. Prior to 1996, NCARB had recommended in its Rules of Conduct that an architect not directly preparing plans be allowed to sign only plans prepared under the architects direct supervision. Moreover, the activity of preparing plans by unregistered persons under such direct supervision was permitted only to employees of the architect. By 1997, NCARB had rewritten these rules so that the requirement of direct supervision became the requirement of responsible control, which now appears in Rule 5.2. This was done to accommodate the increasing use of technology that now allows drafting to be conducted any place in the world with the electronic results appearing on a computer monitor or printer as though they were done in the adjoining office cubicle. This change in NCARB rules removed the requirement that only unregistered employees could prepare plans under the architects oversight. The rule now provides that architects exercising responsible control over unregistered preparers not regularly employed in the architects office must maintain records for at least five years demonstrating the nature and extent of the architects control over and detailed knowledge of the plans throughout their preparation. The key words in the definition of responsible control are control over and
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detailed knowledge of the content of technical submissions during their preparation. These concepts were elaborated in a series of examples and commentary included in NCARBs Report of the Electronic Technology Task Force to the 1997 NCARB Annual Meeting. A portion of that report is reproduced in Appendix I. This same Task Force considered the question of how so-called prototype building designsstandard designs intended to be replicated on multiple sites, such as for fast-food chainsshould be handled for registration law purposes. Its conclusions are printed in Item 8. ITEM 8
From NCARBs Report of the Electronic Technology Task Force, 1997.
Prototype Building Design

The [Electronic Technology] Task Force throughout its deliberations faced a dilemma. On the one hand, many of its members believed that responsible practitioners can incorporate prototype building designs into plans for which they take responsibility without any diminution to the publics health, safety and welfare if they carefully review and adapt the prototype designs to local conditions. These members think that prototype users are entitled to express their requirements in the form of detailed plans and to compel these requirements to be redrawn may be wasteful and unnecessary. On the other hand, all members believe that plan stamping, or afterthe-fact review even with corrections of a non-registrants plans by an architect who then affixes his or her seal, presents serious dangers. The seriousness of the latter so outweighed the value of permitting the former that the Task Force is unwilling at this time to make any recommendation that might open the door to plan stamping. To resolve this dilemma, the Task Force considered two related approaches that a few jurisdictions have taken.1 First, it considered the feasibility of allowing an architect to seal prototype plans so long as the preparer of the prototype plans was known to be an architect registered in some jurisdiction if the plans had been appropriately reviewed and adapted by the sealing architect. (NCARB now recommends in its Model Law that an architect be permitted to seal plans prepared by another architect licensed in the same jurisdiction if the plans have been appropriately reviewed and adapted.) The Task Force noted that although NCARB provides a ready means for prompt reciprocity registration, some states impose additional local requirements for registration. The burdens of having the prototype architect register in all jurisdictions where the prototype is to be constructed were thought sufficiently great as not to warrant such a requirement. Disciplinary jurisdiction will exist over the local sealing architect sufficient to uphold the purposes of the registration laws. However, following this approach requires reaching a satisfactory definition of prototype buildings, and the Task Force did not have the time to develop such a definition. While a few states have drafted exceptions for prototype plans, none of the definitions are satisfactory. In fact, none attempt to define prototype plans at all other than by using words like prototype design, standard design or model design without elaboration. Because the circumstances of prototype designs are so varied, the Task Force was left with similar vague definitions like a building design substantially similar to designs used previously in multiple locations, which could well mean similar building designs used two or three times before. The Task Force was unwilling to rest a major depar-
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ture from the long-standing principle that the sealing architect must control the design throughout the design process on such a weak foundation.
1 North Carolina, for example, provides as follows: Standard design documents prepared by architects who are registered in this state or in their state of origin may be sealed by a succeeding licensed architect registered in North Carolina provided: (1) the seal of the original architect appears on the documents to authenticate authorship; (2) the words standard design document be placed on each sheet of the documents by the original architect; (3) the succeeding North Carolina architect clearly identifies all modifications to the standard design documents; (4) the succeeding North Carolina architect assumes responsibility for the adequacy of the design for the specific application in North Carolina and for the design conforming with applicable building codes; and (5) the succeeding North Carolina architect affixes his seal to the standard design documents and a statement substantially as follows: These documents have been properly examined by the undersigned. I have determined that they comply with existing local North Carolina codes, and I assume responsibility for the adequacy of the design for the specific application in North Carolina. N.C. Admin. Code, Title 21.0206(b)(1996).
Clients are rarely disinterested observers of how their architects meet the requirement to exercise responsible control over the preparation of plans. Often they are active advocates of doing whatever it takes to get a set of plans sealed and to the building department. Consider the two scenarios in Item 9 and Item 10. ITEM 9
Scenario: Jefferson
Jefferson and her firm were hired to design a St. Louis tennis club with eight indoor courts, a fitness center, locker rooms, and a clubhouse bar and restaurant. The relationship was rocky from the start. The client, Jarvis, complained that the design was too complex and costly to build. Jefferson complained that Jarvis had a complicated program and on top of that kept changing his mind. Architectural fees mounted and payments slowed to a trickle. Jefferson told Jarvis that she would not seal the working drawings so that the building permit could be obtained until she was paid in full for her work to date. Jarvis hit the roof, saying Jefferson knew she had him over the barrel because his loan commitment was expiring. Jarvis then went to McCarthy, an old friend from the army who had just moved back to the area and was re-establishing his architectural practice. By working for 48 straight hours McCarthy and his draftsmen were able to redraw the plans and make what later proved to be 99 changes, including moving 15 doors. McCarthy said that eight of these changes corrected code violations. They were able to do this by scanning Jeffersons drawings into McCarthys new state-of-the-art CAD system. The building inspector complemented McCarthy and Jarvis on the excellent plans, the loan closed the next day and Jarvis told Jefferson he would pay her when Hell freezes over. She filed a complaint with the Missouri Architectural Registration Board against McCarthy for plan-stamping.
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What should the Board do?
In considering this scenario, would it matter what the Jefferson-Jarvis architectural agreement said about plan ownership? AIA B141-1997 says that
drawings, specifications and other documents, including those in electronic form, are owned by the architect who prepared them and that the owner is granted a nonexclusive license to use them for the particular project so long as the owner meets all of the owners obligations. These obligations include prompt payment of all sums due the architect. What if Jefferson was in breach of her agreement with Jarvis when she refused to seal the plans? What if Jarvis was in breach for failing to pay her? Would it matter if McCarthy could show that Jefferson was spending most of her time on a hotel project while a young associate of hers just out of architecture school was essentially designing and running the tennis club project? What if McCarthy had missed the code violations when he re-drew the plans? What if the Board didnt believe these were code violations at all but just one persons way of applying the code?
ITEM 10
Scenario: Livingston
After a vigorous design competition in which Livingston was chosen over two more experienced competitors who had previously designed other Montana prisons, Livingston was engaged by the State of Montana to design a new prison. As the project moved on to the design development phase, the Associate Prisons Commissioner and Livingston grappled with the layout of cells, the design of cell block doors and the vertical tiering of cell blocks. The Associate Commissioner finally said to Livingston, Blackstones recent jails in Missoula and Butte seem to be the standard we should follow because they work so well. Lets go with how those jails handle these issues, and he gave Livingston two rolls of plans for the two prisons. Livingston duly reported the conversation to the project architect, who in turn told a 25-year-old draftsperson to incorporate the Missoula and Butte cell layouts, door and tiering designs. The draftsperson traced the one bunk and two bunk cell layout and door details directly from Blackstones plans. The tiering design was also taken from Blackstones plans but the hallways were made one foot wider. Blackstones plans had the windows at a height which did not meet the Federal Bureau of Prison standards followed by Montana but that placement error was caught in construction of both the Missoula and Butte prisons although not in the draftspersons tracings. Blackstone saw Livingstons plans for the new prisons when they were put out for bid and filed a complaint with the Montana Board of Architectural Registration.
Assuming you are Livingston, what is your defense? Assuming you are a member of the Montana Board, how do you vote on whether or not Livingston violated the law? Would it matter if the state of
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Montana did not follow AIA B141-1997s position on plan ownership (noted in Item 9) but instead had inserted the following clause in both Blackstones and Livingstons design contracts: All right, title and interest in all designs, drawings and plans prepared for the State of Montana shall immediately become the sole and absolute property of the State of Montana to use on this or any other project as it sees fit? After you have decided the Jefferson and Livingston cases, the board administrator calls you. She says that an architect and owner have just called on a conference call to ask if the architect can complete the last 10 percent of plans, which remain unfinished due to the untimely death of a solo practitioner whom the owner had previously hired. What should she tell the architect and owner? Start over? Just finish them? Trace the plans? Something else?
DETAILED KNOWLEDGE DURING PLAN PREPARATION Accountability is best achieved through rigorous enforcement of the laws stipulating who can seal plans and what oversight must be exercised before architects may seal plans they have not personally prepared. It is a necessary handmaiden to competence. The devil is in the details and cannot possibly be uncovered unless the designer has detailed knowledge of the content of the plans during their preparation. Designers must exercise their professional judgment when making choices that bear on safety. These choices range from the characterization of an assembly for code purposes, like the chevron braces on the Citicorp Center, to go forward/dont go forward decisions like the one the vice president of engineering had to make in approving the Challengers launch. But, unless the designer has detailed knowledge of the content of the plans during their preparation, he or she cannot possibly exercise wise professional judgment to make sound choices. Reviewingeven carefully reviewingcompleted plans cannot substitute for a sustained focus on the details or for the sound exercise of professional judgment in making choices throughout the design process. If completed plan review alone were sufficient to ensure the publics safety and welfare, we could dispense entirely with registration and simply improve the quality of building permit review. No one advocates such a regime. In fact, because of local budget cuts, inadequate professional training and increasingly complex designs, building departments rely more than ever before on the skill and integrity of architects and engineers. The December 21, 1997, New York Times article reprinted in Appendix J describes this situation.
HONESTY
It is a worthy goal for an architect to be thoroughly honest in all his or her endeavors. Within the Rules of Conduct, however, honesty is defined by specific actions. For example, an architect must blow the whistle on a client who, against the architects advice, decides to violate a building code requirement that could adversely affect the publics safety (Rule 3.3), and on another architect who violates the Rules
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of Conduct (Rule 3.6). An architect must disclose all conflicts of interest that would influence professional judgment (Rules 2.1 and 2.2), never accept compensation from vendors for specifying or endorsing their products (Rule 2.3), act impartially when interpreting drawings and specifications (Rule 2.4), never make bribes to private clients (Rule 5.3) or public officials (Rule 4.2), and accurately represent his or her scope of responsibility for previously designed work (Rule 3.2). Because not all bad conduct can or should be specified, the rules also prohibit the knowing violation of any state or federal criminal law in the conduct of the architects practice (Rule 4.1) as well as any conduct involving fraud or wanton disregard of the rights of others (Rule 5.4). The Matter of James D. Dodds, excerpted in Appendix K, illustrates how architects can be drawn into a web of financial deceit. That case involved false certifications of requisitions and other matters to a lender. It is a reminder of the importance which others frequently place on the architects honest actions. CONFLICTS OF INTEREST Rules 2.1 and 2.2 say that an architect shall not, without full disclosure, accept compensation from more than one party on a project or have business or financial interests substantial enough to influence his or her judgment. Rule 2.3 says categorically that an architect shall not accept compensation from suppliers for specifying their products. It is different from Rules 2.1 and 2.2 in being absolute; it doesnt allow an architect to accept such compensation even if the facts are fully disclosed. Sometimes the boundary lines are not all that clear, as the scenario in Item 11 suggests. ITEM 11
Scenario: R&R Plant Visit

Your firm was visited about five years ago by a new and very effective salesman for R&R Roofing, an up and coming manufacturer of a new kind of rubber roofing that was said to be very effective on flat roofs in cold climates. The firms president specified the roof as one of three equals on a small job and was surprised at its low cost and easy application. Five years later it, and all the other R&R roofs used by contractors on your firms jobs, seem to be holding up well. In fact your firm was so pleased with this roof that about three years ago it started specifying just this roof. The general conditions still had the boilerplate requirements about allowing equals, but special conditions added in the roof spec say Any contractor wishing to substitute another roofing product for that specified shall provide the certifications of three engineers warranting that the substitute shall perform without defect or failure for at least 20 years. A few contractors grumbled, but since they, too, had had good results they didnt press anyone. You have recently been hired as the firms chief spec writer and learn all of this from colleagues. Today an invitation arrives in your mail inviting you to tour R&Rs San Diego facility this coming February. The plant visit will be from 9 to 12 Friday morning. R&R has made arrangements for you and your spouse, at their expense, to fly to San Diego on Thursday, stay at the Hotel Del Coronado from Thursday night through Sunday night, enjoy golf on Coronado
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Island on Friday afternoon, travel to Tijuana on Saturday and sail in San Diego harbor on Sunday. You mention the invitation to the firms president who tells you, Ive enjoyed that trip for the last three years. I hope you go.
What should you do? Would it make a difference if others from your firm had also been invited? Would it matter if this were a tour for all chief spec writers of the major architectural firms in the Midwest where your firm is located? Would it matter if the roof system had a checkered reputation instead of a good one?
GRATUITIES, BRIBES AND EXTORTION All state laws as well as federal law outlaw bribery. The courts have ruled that someone can be convicted for bribery if it can be demonstrated that the alleged giver or receiver of a bribe had the intent of influencing or of being influenced in performing an official governmental act. Federal law, and the laws of most states, also prohibit the giving of gratuities for or because of an official act. Gratuities laws allow prosecutions to occur based on more limited evidence linking by circumstances a gift to a public official to some particular act by that public official. The federal gratuity law, 18 U.S.C. 201(c), was interpreted in this way by the U.S. Supreme Court in the 1999 case of United States v. Sun-Diamond Growers of California. A Massachusetts State Ethics Commission decision in Appendix L illustrates how broadly state gratuity laws have been interpreted: The Massachusetts Insurance Commissioner agreed that the meals, theater tickets and Red Sox tickets she had accepted from industry sources were illegal gratuities. Extortion is the flip side of bribery. If an individual offers to pay a public official for giving the individual a contract or some other governmental benefit and the public official goes to the police before the payment is made, bribery would be the criminal charge against the individual. If a governmental official demands a payment in exchange for giving a contract and the individual from whom the payment was demanded goes to the police before the payment is made, extortion would be the criminal charge against the official. However, when no one goes to the police in advance, as was the case described below involving Vice President Sprio T. Agnew, both bribery and extortion have been committed to various degrees. The Agnew Saga One of the nations most highly publicized corruption cases was exposed on October 10, 1973, in a Baltimore federal courthouse. On that day, U.S. Attorney General Elliot Richardson filed one of the most extraordinary documents ever presented to the courts of the United States. At the same time, Vice President Spiro T. Agnew admitted to one count of tax evasion in exchange for an agreement by federal prosecutors not to press
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more serious charges. He also delivered a resignation note to the Secretary of State. While the detailed extent of a modern Vice Presidents involvement in public corruption may be unprecedented, the combination of corrupt designers, corrupt government officials, intermediaries and plenty of cash is unfortunately not unprecedented. An excerpt of this court presentation, reproduced in Item 12, details the corruption casewhich was never prosecutedagainst a Vice President who had railed loudly and long against corrupting tendencies in America. For architects pushing hard toward success, the Agnew story is instructive. Agnew did not hold political office of any kind until 1957, when he obtained a modest appointment to the Baltimore County Zoning Board of Appeals. But, barely five years later, he had become Chief Executive of the County, the first Republican to hold that office in half a century. Four years later he was elected Governor of Maryland and then was tapped to become Richard M. Nixons running mate for the second highest office in the land. He was, in short, a living testament to the American success story. But that story is often only a myth, and the longing to quickly seize opportunity and acquire wealth is a continuing source of downfall. A prominent Baltimore architect was also caught up in the Agnew web. He, too, was disciplined by the Maryland Board of Architectural Registration, notwithstanding his cooperation with the Department of Justice in its investigation of Agnew. ITEM 12
From court records filed October 10, 1973, in the U.S. District Court of Maryland.
Exposition of the Evidence Against Mr. Agnew

Green admitted that his principal purpose in making payments to Governor Agnew was to influence him to select Greens company for as many state roads contracts as possible. Based upon his many years of experience, it was his belief that such payments would probably be necessary and certainly helpful in obtaining substantial amounts of State Roads Commission work. Mr. Agnew never expressly stated to Green that there was any connection between the payments and the selection of the Green company for State contracts. According to Green, the understanding was a tactical one, based upon their respective positions and their mutual recognition of the realities of the system; their relationship was such that it was unnecessary for them to discuss openly the understanding under which these payments were given and received. The circumstances were that Green gave Governor Agnew cash payments in substantial amounts and asked for contracts. From time to time, Governor Agnew told him that contracts would be awarded to the Green company. Green paid Governor Agnew approximately $11,000 in each of the years he served as Governor of Maryland (1967 and 1968). Green generated the necessary cash to make these payments through his company by various means that violated the Internal Revenue Code and that were designed to obscure the purpose for which the cash was used. Green continued to make cash payments to Mr. Agnew after he became Vice President. Payments were made three or four times a year and were personally delivered to Mr. Agnew by Green either in the Vice Presidents office in the
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Executive Office Building in Washington, or at his apartment in Sheraton Park Hotel in Washington. Green made his last payment during Christmas season in December of 1972. As Green recalls it, these payments invariably amount to $2,000 each. As before, money was always in a plain envelope, and the two men were always alone when the payment was made.
Item 13 describes another corruption case, this time fictitious. After reading it, consider what you would do as a member of an architectural registration board if the same facts were presented to you. Some architects practice internationally and the local customs and rules abroad are sometimes quite different from those in this country. The U.S. Foreign Corrupt Practice Act, 15 U.S.C. A. 789 dd-1 generally prohibits U.S. citizens and companies from making gifts to foreign government officials or political parties to influence actions. A U.S. architect can be criminally prosecuted in the United States for bribing a foreign official in a foreign country in connection with an architectural commission in that country. A fictitious scenario that involves international dealings can be found in Item 14.
Scenario: Brown & Zacharias

Brown and Zacharias were partners in a large Atlanta architectural firm. Zacharias told Brown that he, Zacharias, had just paid $10,000 to Hilliard, a county commissioner who had first demanded $30,000 but reduced his demand to $20,000. Hilliard said, and Zacharias believed, that he, Hilliard, was the tie-breaking vote between one commissioner who wanted to scrap a new courthouse project and another who favored it. Zacharias said that, since they were partners, Brown should make the second $10,000 payment due the night of the vote. Brown refused, saying he would have no part of it. Zacharias then made the second payment himself. Hilliard cast the tie-breaking vote and the project went forward. The FBI learned of the payment from a disgruntled employee who had left the architectural firm, and Hilliard was charged with extortion. Zacharias was granted immunity from prosecution and, largely on his helpful testimony, Hilliard was convicted. The newspapers had a field day with the case and the Board learns of these facts. Its investigative staff charges both Zacharias and Brown with violations of the Boards professional conduct rules. What should the Board do about Zacharias? What about Brown? Should the Board view matters differently if, instead of threatening to stop the project, Hilliards extortion had consisted of threatening to have Zacharias young daughter kidnapped? What if Brown had resigned from the firm, but still not blown the whistle on Zacharias?
ITEM 13
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ITEM 14
Scenario: Turnbull
Turnbull has been engaged to design a general hospital for the Kingdom of Kuwait in Kuwait City. The work is being done at Turnbulls Los Angeles office. The government has quibbled about some aspects of the working drawings and, using those quibbles as an excuse, has held back on a payment of $1.3 million due Turnbull when working drawings were approved. Sheik Mawadi, a member of the ruling family of Kuwait, visits Turnbull in Los Angeles. He says he has heard of the payment problem but believes his stepbrother, the Minister of Health, will withdraw the Ministrys objections if Mawadi asks the Minister to do so. At lunch, Mawadi tells Turnbull that he wants a new villa at the beach similar to the one Turnbull designed for his cousin two years before. If Turnbull will design the beach villa without charge, Mawadi is confident that the Minister of Health will come around. Turnbull, desperate because there is a fall-off in local work, agrees. In the course of the villa design, it is clear that Mawadi and his stepbrother, the Minister, intend to share the beach villa, which incidentally will cost $3.5 million to build. Turnbull gets his fee paid. Your firm in San Diego had actually done preliminary studies for Mawadis beach villa and you are angered to learn that you have lost the commission to Turnbull. When you learn the details, do you file a complaint with the California Board? If you were not involved but were on the California Board when a complaint was filed, what would you do and why? Does it matter to you whether the beach house was to be built in San Diego or Kuwait?
Private Bribes Bribing public officials is clearly improper conduct. What about architect A making a $1,000 cash gift to intermediary B in order to influence client C to retain A, when A, B and C are all in the private sector? Rule 5.3 prohibits private bribes as well: An architect shall neither offer nor make any gift, other than gifts of nominal value (including, for example, reasonable entertainment and hospitality), with the intent of influencing the judgment of an existing or prospective client in connection with a project in which the architect is interested. Private bribes generate many of the same concerns raised in public bribes. Isnt Intermediary B really stealing something of value from client C when he takes the architects $1,000 gift in order to influence the client to hire the architect? If C ends up hiring architect A, then C will, of course, make payments to A, and part of that payment could be said to defray the cost of the architects gift to intermediary B.
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Would we feel differently if the money went directly to client C by means of a $1,000 reduction in the architects fee? In that circumstance, who is hurt? All of the other architects vying for the commission (who didnt know that this particular architect was prepared to obtain the commission by, in effect, giving back part of his fee) would claim to be injured parties. Is such a give-back only another version of a consumer benefit produced by fee competition among architects? Free sketches Is it impermissible conduct for an architect to supply a free conceptual design to a client before he has been engaged as the architect? The registration board for the state of Oklahoma has construed Rule 5.3 to include giving free sketches to a prospective client in order to secure the work. NCARBs Professional Conduct Committee, at about the same time, concluded that free work was not a violation of Rule 5.3. WANTON DISREGARD Note that Rule 4.1 requires that an architect not knowingly violate criminal laws in the conduct of his or her architectural practice. Rule 5.4, however, is not limited just to the architects practice. It forbids any conduct involving fraud or wanton disregard of the rights of others. Such a definition could encompass a variety of crimes. A member of a state board would have little difficulty understanding the meaning of this rule when reviewing cases representing the extreme ends of the spectrumfor example, a reprehensible act of murder, on the one hand, and a more innocuous tendency to speed on the other. But, as the scenario in Item 15 suggests, conduct falling within the more murky middle ground may be harder to judge. ITEM 15
Scenario: Maxwell
Maxwell practiced for a number of years in New York City following his graduation from the Harvard Graduate School of Design. He worked with a number of prominent architects and was generally accredited as a distinguished design architect himself. As he and his wife approached the end of their thirties, they suffered a mid-life crisis. Unable to have children, there were various strains on the marriage. They decided that living in New York City was a strain they could alleviate and so moved to rural New Hampshire, where he re-established a practice with an old school chum. Maxwell became infatuated with the 15-year-old daughter of next door neighbors. A sexual relationship ensued. Soon realizing this was wrong, Maxwell broke off the relationship; both agreed it would be best to seek counseling separately. At her first visit to the counselor, the girl learned that New Hampshire law would require the counselor to report Maxwell to the authorities if she told his name. She left in haste. Maxwell then turned himself in so the girl could receive counseling. He pleaded guilty to the felony of sexual assault, which New Hampshire law defined as any sexual act with a person under the age of 16. On his next annual registration renewal form to the New Hampshire
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Architectural Licensing Board, Maxwell truthfully answers Yes to the question: Have you been convicted of a felony within the last 12 months? What should the New Hampshire Board do? Does it matter that Maxwells crime had no connection with practicing architecture? What else would be wanton disregard of the rights of others? What serious crimes would not be wanton disregard? What divides serious from non-serious crimes?
CONCLUSION
The Rules of Conduct are, like criminal laws, standards for minimum acceptable conduct. By considering them, as we have in this monograph, in the context of actual and hypothetical circumstances, the reader can more fully understand them. If practitioners decide to conduct their businesses according to higher standards, so much the better. Most architects can fairly easily meet most of the Rules of Conduct by acting on a common sense understanding of right and wrong. Its right to speak up when a client violates a law that will endanger public safety. Its wrong to give or take kickbacks. Its right to register in another state before starting a commission there. Its wrong to sell your seal and stamp plans prepared by a contractor. And so forth. But how can a conscientious architect be assured that he or she is practicing competently? Recall that a focus on details was missing in both the Hyatt Regency and Citicorp Center cases, with the latter having a happy ending because of a belated focus and the highest sense of professional responsibility in blowing the whistle on oneself. Staying focused on the details is the best assurance an architect has that he or she will get it rightthat the proper design decisions will be made. But we all lose focus sometimes, so there must be more. Again, the Hyatt Regency and Citicorp Center cases suggest the answer: careful listening. As Item 4 notes, on at least three and perhaps as many as five occasions, specific questions about the connections between the box beams and hanger rods were asked of the Hyatt Regency engineers, but they paid no attention. Contrast that with the Citicorp Center engineer who took a call from a unknown student who was questioning the engineers design in a paper he was writing for school. This set wheels turning for the engineer and, ultimately, led to remedial action before harm occurred. All professionals would do well to become good listeners. They might catch unnoticed losses of focus before it is too late.
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APPENDIX CONTENTS
Appendix A State of South Carolina v. George L. Howell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 Richard N. Anderson v. State Board of Architectural Examiners . . . . . . . . . . . . . . . . . . . . . . . . . . . .45 State ex rel. Howard G. Lowe v. George L. Howell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47 Appendix B Matter of Anthony M. Arata and Architects Pacifica, Ltd., Board of Architect Examiners of the State of Oregon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49 Appendix C City Perils: The Fifty-Nine-Story Crisis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53 Appendix D The Worst Structural Disaster in the United States: Chapter 15 of Why Buildings Fall Down . . . . . .65 Appendix E Duncan et al. v. Missouri Board for Architects, Professional Engineers and Land Surveyors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .71 Appendix F Thinking Like an Engineer: The Place of a Code of Ethics in the Practice of a Profession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .77 Appendix G Catlin v. Board of Registration of Architects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89 Appendix H In Re: License of Kenneth L. Butts Settlement Agreement and Order. Before the Commonwealth of Kentucky State Board of Examiners and Registration of Architects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91 Butts v. Wyoming State Board of Architects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .93 Appendix I Excerpt from NCARBs Report of the Electronic Technology Task Force . . . . . . . . . . . . . . . . . . . . . .95 Appendix J New York City Relies on the Construction lndustry to Police Itself. . . . . . . . . . . . . . . . . . . . . . . . . .99 Appendix K Matter of James D. Dodds. Louisiana State Board of Architectural Examiners . . . . . . . . . . . . . . . .103 Appendix L Matter of Katherine Doughty. Disposition Agreement. Commonwealth of Massachusetts State Ethics Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .109
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APPENDIX A
THE STATE OF SOUTH CAROLINA IN THE SUPREME COURT State of South Carolina, . . . . . . . . . . . . Appellant v. George L. Howell d/b/a George L. Howell & Associates, . . . . . . . . . . . . . . Respondent. ________________________ Heard February 6, 1985 - Filed March 6, 1985 REVERSED and REMANDED LITTLEJOHN, C.J.: In this contempt action, the South Carolina State Board of Architectural Examiners appeals an order which found no violations of two earlier injunctions issued by the Court of Common Pleas and found no contemptuous conduct by the respondent, George L. Howell, d/b/a George L. Howell & Associates. We reverse the ruling of the trial court. Howell is a draftsman engaged in furnishing architectural designs and related services to the general public. He is not, nor has he ever been, licensed to practice architecture in South Carolina. In 1979, the Board of Architectural Examiners sought an injunction to prohibit Howell from practicing architecture, or in any manner holding himself out as an architect to the general public. A permanent injunction was issued on November 24, 1981, prohibiting him from practicing architecture, offering commercial architectural services, or using the tile of architectural designer or other such title which would lead the public to believe that he was a duly registered architect. The validity of the permanent injunction was upheld by this Court in an earlier appeal . . . . Since the date of the injunction, Howell has continued to use letterhead, business cards, and checks with the logo George L. Howell & Associates/Architectural Designers. Howell attempted to legitimize his continuing patters of operation by employing three different architects. He hired Eric McClanahan, a licensed architect, in June 1980. Howell terminated McClanahan in June 1981. In October 1981, he secured the services of architect Harry Payne, an elderly retired man from Greenville who was terminally ill. In February 1982, Payne notified the Board of the conclusion of his relationship with Howell on all future projects. In early May 1982, Howell employed Richard Anderson, a licensed architect from Darlington, South Carolina. At oral argument, counsel for Howell conceded that the relationship between Howell and each of the three architects was that of employer-employee. In each instance, Howell hired the architect to work for him. It is inescapable that these three architects were mere puppets in the hands of Howell. None of them worked in Howells Myrtle Beach office. In fact, each of them worked at some distance from Howells office. These three individuals were hired for the exclusive purpose of signing architectural plans completed and supervised by Howell so as to give them an appearance of legitimacy. Howells hiring of architects is analogous to a Notary Public employing a lawyer to sign
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pleadings and thereby make them appear authentic. If the notary prepared the documents and the lawyer does nothing more than blindly endorse them and lacks any control over the drafting or use of the documents, the notary would be engaged in the unauthorized practice of law and clearly would be subject to appropriate sanctions. In addition to using the architectural designer title, Howell continued to sign various documents in blanks provided for the architect and continued to perform duties appropriate for architects. He consistently issued orders for the contractors to proceed, authorized change orders and payment orders, tabulated bids, etc. None of the architects were in fact in responsible charge of the projects they supposedly approved. We hold that George L. Howell was in contempt of court. The trial judge should have do held. The case is remanded to the trial court not for the purpose of determining whether Howell was in civil contempt but for the purpose of imposing sanction. It is apparent that Howell will not respond to the mere dictates of the court. The trial judge has full authority to imprison him or fine him or both or close up his entire business operation if necessary to assure full compliance with the injunctive orders heretofore issued by the Court of Common Pleas.
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STATE OF SOUTH CAROLINA
) ) IN THE COURT OF COMMON PLEAS
COUNTY OF RICHLAND Richard N. Anderson, Jr., Plaintiff, vs State Board of Architectural Examiners, Defendant. _____________________________ ) ) ) ) ) ) ) ) )
Case No. 86-CP-40-0546
ORDER
Plaintiff, Richard N. Anderson, Jr., has brought this action. seeking judicial review of the Order of the State Board of Architectural Examiners, dated January 15, 1986. The Board issued its Order finding Plaintiff guilty of dishonest practice and unprofessional conduct by violating state registration laws, rules and regulations, which govern the practice of architecture in South Carolina. The Board indefinitely suspended Plaintiff Andersons license to practice architecture but provided that the suspension could be terminated after five years if certain conditions are met. Plaintiff was employed by George L. Howell, d/b/a George L. Howell & Associates and Coastal Design Associates, Inc., on May 13, 1982, and continued to work for him until March 1985. He was paid a weekly salary which totaled... ($30,000.00) per year. During the approximate three (3) years of employment by George L. Howell, Plaintiff sealed twenty-six (26) sets of architectural plans for projects for which Coastal Design Associates, Inc., d/b/a George L. Howell & Associates, had contracted to provide architectural services. George L. Howell, George L. Howell & Associates and Coastal Design Associates, Inc. have never been licensed to perform architectural services in South Carolina, and Plaintiff was aware of that fact at the time of his employment. Prior to Plaintiffs employment, Mr. Howell, d/b/a George L. Howell & Associates, had been enjoined from practicing architecture. Despite the injunctive order, Mr. Howell continued his illegal practice, and on February 26, 1982, the State filed a contempt action against him. Several months before the contempt hearing, Howell employed Plaintiff to seal the architectural plans of Howells firms. Plaintiff admitted that he worked daily with George L. Howell, claimed that he was president, managing officer, responsible architect and stockholder of their firm, Coastal Design Associates, Inc., knew that Coastal Design Associates and George L. Howell & Associates were not licensed to practice architecture in South Carolina, and yet he sealed plans for projects of those firms which, as held by the Supreme Court, enabled George Howell and his firms to continue an illegal practice of architecture in violation of the injunctive order of November 24, 1981. Plaintiff contends that the Board erred in concluding that he knowingly violated R 11-12, South Carolina Code of Laws (1976), because he had filed with the Board his name, architectural registration certificate number, and written evidence of authority to serve as the responsible individual for Coastal Design Associates, Inc. R 11-12, as in effect in 1982, provided:
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Each firm, corporation or partnership engaged in the practice of Architecture shall register with the State Board of Architectural Examiners on or before the first day of January in each year and upon payment of the annual fee and the submission of the information required on Board application forms shall be issued a certificate or registration for the practice of Architecture in this state. Failure to notify the Board of any changes affecting this above information shall be grounds for revocation of its right to practice architecture in this state. This provision clearly requires an architectural license to practice as a firm, corporation or partnership. The Plaintiff was obviously aware of this requirement, since he made the necessary application for a license in July 1982. However, the corporation had already commenced its architectural practice prior to the application being made and continued its practice of architecture while the application was pending and after it had been denied by the Board. The Board was correct in concluding that Plaintiff had knowingly violated its registration laws and regulations, which required a license to engage in a corporation architectural practice. ORDERED that the Decision and Order of the State Board of Architectural Examiners, dated January 15, 1986, [of indefinite suspension] be, and hereby is, affirmed.
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APPENDIX A
STATE OF SOUTH CAROLINA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
IN THE COURT OF COMMON PLEAS Civil Action No. 86-CP-26-33
COUNTY OF HORRY State of South Carolina, Petitioner, Ex Rel: Howard G. Lowe, Secretary-Treasurer of the South Carolina State Board of Architectural Examiners, Relator. vs. George L. Howell, d/b/a George L. Howell & Associates, Respondent. ______________________________
ORDER
This matter is before the Court on remand from the South Carolina Supreme Court for the purpose of imposing a sanction for contempt in accordance with the Courts opinion in State ex rel. Love vs. Howell, Opinion No. 22253 (filed March 6, 1985, withdrawn and refiled March 26, 1985). This Court notes that the initial action was commenced against the Respondent in 1979 and the Respondent has continued his practice of architecture since that date. The State has established that even after the issuance of the Supreme Courts Order on March 6, 1985, Howell has filed with local building inspectors two sets of plans to obtain building permits for the construction of two architectural projects. In addition, Respondent Howell entered into discussions on April 3, 1985, with a professional engineer to provide engineering services to Howell on future architectural projects. This strongly indicates to the Court that Howell intends to continue in his illegal practice in the future. As noted by the Supreme Court in its Order, Howell did not respond to the mere dictates of the Court.... IT IS ORDERED, that the Respondent, George L. Howell, be confined in the custody of the South Carolina Department of Corrections until such time as he purges himself of his contempt by performing the following acts: 1. Permanently dissolves George L. Howell & Associates and Coastal Design Associates, Inc.; 2. Agrees never to accept employment in any architectural firm in any capacity, including, but not limited to, employee, draftsman or consultant; 3. Permanently terminates employee Richard Anderson and any other architects or draftsmen in his employ; 4. Agrees to have no further business relationship with Richard Anderson as their
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employee, consultant or draftsman in an architectural practice; 5. Permanently terminates his business relationship with all professional engineers...where the professional engineer would provide him with engineering services on an architectural project; 6. Ceases any involvement, including but not limited to designing, planning, specifying, consulting, inspecting, coordinating of consultants, or administering of contracts, on commercial, townhouse or condominium building projects, or any architectural project; 7. Ceases drawing or supervising the drawing of architectural plans, except for unattached, single-family house plans; 8. Delivers to the Attorney Generals Office for destruction, all stationery, blue print paper, and any other forms or documents bearing the title block George L. Howell & Associates, Coastal Design Associates, Inc., or Architectural Designer; 9. Delivers to the Attorney Generals Office for destruction, any AIA forms in his possession and agrees never again to use such forms; 10. Agrees to make quarterly reports for the next five (5) years to the Court of Common Pleas for Horry County and the Attorney General, under oath, indicating that he is not practicing architecture, that he is not employed by an architectural firm, and providing the following information: (a) Name of the persons with whom he has done business, their address and telephone number; (b) A full description of the business transaction and place where the transaction took place; (c) Amount of gross income and sources for that income. 11. Pays to the State of South Carolina attorney fees of Eleven Thousand Four Hundred Twenty-three and 75/100 ($11,423.75) Dollars and costs Six Thousand Six Hundred Six and 82/100 ($6,606.82) Dollars to compensate the State for the costs of this enforcement proceeding. George L. Howell shall not be released from jail except by order of this Court, given only after the State, through its attorneys, had had notice and opportunity to be heard upon this matter. IT IS FURTHER ORDERED, that Richard N. Anderson...hereby are permanently and perpetually enjoined from designing, planning, reviewing, stamping and consulting for architectural projects, or otherwise assisting the Respondent, George L. Howell, in engaging in an architectural practice. IT IS FURTEHR [sic] ORDERED, that Richard N. Anderson is permanently and perpetually enjoined from employing the Respondent, George L. Howell, as a draftsman or in any other capacity to engage in the practice of architecture. AND IT IS SO ORDERED. __________________ PRESIDING JUDGE Conway, South Carolina April, 1985.
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APPENDIX B
BEFORE THE BOARD OF ARCHITECT EXAMINERS OF THE STATE OF OREGON
In the matter of Assessment of a Civil ) Penalty against ANTHONY M. ARATA and ) FINAL ORDER ARCHITECTS PACIFICA, LTD. ) ........................................................................ FINDINGS OF FACT 1. Arata is not now and never has been licensed to practice architecture in the State of Oregon. Arata was registered initially to practice architecture in the State of Michigan (1975) and subsequently in the State of California (1989). 2. Arata filed an application for registration by reciprocity in Oregon on October 15, 1991. Aratas law and rules analysis was found to be inadequate and his registration was delayed, as a result of Board action on November 6, 1991, while awaiting his submittal of an acceptable, rewritten analysis. 3. Arata is certified by the National Council of Architectural Registration Boards (NCARB) and had his NCARB Council Record (Blue Cover) forwarded to this Board. The Council Record was received by this Board on October 14, 1991. 4. The California corporation, Architects Pacifica, Ltd., does not qualify under ORS 671.041 to practice architecture in the State of Oregon. 5. Arata is Vice President of Architects Pacifica, Ltd. 6. Arata prepared the construction documents for the Montgomery Ward Store proposed to be constructed in Medford, Oregon, an act done at some time prior to his application for registration in Oregon and done prior to October 22, 1991. 7. Arata wrote a letter to Norm Abplanalp of Montgomery Ward on October 14, 1991 advising him that he was applying for an application for registration as an architect in Oregon, and that he could not commence the project until registration was granted. 8. The construction documents were submitted by Architects Pacifica, Inc. to the City of Medford Building Department on October 22, 1991. 9. The City of Medford Building Department did not issue a building permit on the construction documents. The Department advised Architects Pacifica, Inc. that an Oregon registered architects stamp and signature must appear on all drawings and the title page of the specifications prior to the issuance of a building permit. 10. An Oregon registered architect from Medford, Oregon telephoned the Board office on November 20, 1991 to alert the Board that he had been contacted by Tom Bond of Architects Pacific, Inc. and asked to stamp Aratas plans. 11. Arata fully understands the laws governing the practice of architecture in the State of Oregon. OPINION ORS 671.020 (1) states that In order to safeguard life, health and property and to eliminate unnecessary loss and waste in this state, no person shall practice the profession of architecture or assume or use the title of architect, or any title, sign cards or device indicating, or tending to indicate, that such person is practicing architecture or is an architect, or represent in any manner that such person is an architect, without first qualify-
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ing before the board and obtaining a certificate or registration as provided by ORS 671.010 to 671.220. Further, ORS 671.020 (2) states that No person shall practice or attempt to practice the profession of architecture, or assume the title of architect, or use in connection with the business of such person any words, letters or figures indicating the title architect without first complying with ORS 671.010 to 671.220. As architectural project of the size and complexity of the Montgomery Ward Store would take considerably more than seven (7) days to plan and design and to prepare the construction documents. Arata filed his application for registration by reciprocity with this Board on October 15, 1999, seven days prior to the plans being submitted to the City of Medford Building Department by Architects Pacifica, Ltd. It is clear that Arata and/or Architects Pacifica, Ltd. began the practice of architecture in Oregon at some point well in advance of Arata filing for registration in this state. Not only had Arata prepared a written analysis of the statutes and rules governing the practice of architecture in Oregon, he also wrote to a Montgomery Ward executive advising he could not commence the project until he was registered. The Board has no doubt that Arata was well aware he was violating the laws governing the practice of architecture in Oregon at the time the construction documents were prepared. ORS 671.020(3) states, in part, that the stamp of an architect shall constitute certification that the architect has exercised the requisite professional judgment about and made the decisions upon all matters embodied within those construction documents, that such documents were prepared either by the architect or under the direct control and supervision of the architect and that the architect accepts responsibility for them. When Arata and Architects Pacifica, Ltd. learned they could not proceed with the project until construction documents which bore the stamp and signature of an Oregon registered architect were received by the City of Medford Building Department, they attempted to remedy the situation by contacting Oregon registered architects to obtain their professional stamp and signature on Aratas documents. Even though Arata knew he was violating the law, a deliberate attempt was made by either Arata or members of his firm, or both, to circumvent the law. Based on the record, the Board concludes that Arata and Architects Pacifica, Ltd. knowingly sought to cover their violation of the statutes. The Board is unsure as to whether or not Arata may have violated the law involuntarily through the unsupervised actions of his employees responding to pressure from Montgomery Ward. However, when Arata became aware that he was in violation of the law by practicing architecture in Oregon without the benefit of registration, he should immediately have stopped the project. Instead, he or employees of Architects Pacifica, Ltd. sought to have the unlawfully prepared plans given the imprimatur of a registered architect. CONCLUSION OF LAW ANTHONY M. ARATA and ARCHITECTS PACIFICA, LTD. Violated ORS 671.020 (1) and (2) when they planned, designed and prepared the construction documents for the
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Montgomery Ward Store to be constructed in Medford, Oregon without first qualifying and becoming registered to practice architecture in Oregon.
ORDER NOW, THEREFORE, IT IS HEREBY ORDERED THAT Anthony M. Arata and Architects Pacifica, Ltd. shall forfeit and pay to the Board of Architects Examiners a penalty of $5,000 pursuant to ORS 671.220. The full amount paid within ten (10) of this Order becoming final.
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APPENDIX C
CITY PERILS THE FIFTY-NINE-STORY CRISIS Whats an engineers worst nightmare? To realize that the supports he designed for a skyscraper like Citicorp Center are flawedand hurricane season is approaching. BY JOE MORGENSTERN On a warm June day in 1978, William J. LeMessurier, one of the nations leading structural engineers, received a phone call at his headquarters, in Cambridge, Massachusetts, from an engineering student in New Jersey. The young man, whose name has been lost in the swirl of subsequent events, said that his professor had assigned him to write a paper on the Citicorp tower, the slash-topped silver skyscraper that had become, on its completion in Manhattan the year before, the seventh-tallest building in the world. LeMessurier found the subject hard to resist, even though the call caught him in the middle of a meeting. As a structural consultant to the architect Hugh Stubbins, Jr., he had designed the twenty-five-thousand-ton steel skeleton beneath the towers sleek aluminum skin. And, in a field where architects usually get all the credit, the engineer, then fifty-two, had won his own share of praise for the towers technical elegance and singular grace; indeed, earlier that year he had been elected to the national Academy of Engineering, the highest honor his profession bestows. Excusing himself from the meeting, LeMessurier asked his caller how he could help. The student wondered about the columnsthere are fourthat held the building up. According to his professor, LeMessurier had put them in the wrong place. I was very nice to this young man, LeMessurier recalls. But I said, Listen, I want you to tell your teacher that he doesnt know what the hell hes talking about, because he doesnt know the problem that had to be solved. I promised to call back after my meeting and explain the whole thing. The problem had been posed by a church. When planning for Citicorp Center began, in the early nineteen-seventies, the site of choice was on the east side of Lexington Avenue between Fifty-third and Fifty-fourth Streets, directly across the street from Citicorps headquarters. But the northwest corner of that block was occupied by St. Peters Church, a decaying Gothic structure built in 1905. Since St. Peters owned the corner, and one of the worlds biggest banking corporations wanted the whole block, the church was able to strike a deal that seemed heaven-sent: its old building would be demolished and a new one built as a freestanding part of Citicorp Center. To clear space for the new church, Hugh Stubbins and Bill LeMessurier (he pronounces his name LeMeasure) set their fifty-nine story tower on four massive, ninestory-high stilts, and positioned them at the center of each side, rather than at each corner. This daring scheme allowed the designers to canti-lever the buildings corners seventy-two feet out over the church, on the northwest, and over a plaza on the southwest. The columns also produced high visual drama: a nine-hundred-and-fourteen-foot monolith that seemed all but weightless as it hovered above the street. When LeMessurier called the student back, he related this with the pride of a master builder and the elaborate patience of a pedagogue; he, too, taught a structural-engineer-
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ing class, to architecture students at Harvard. Then he explained how the peculiar geometry of the building, far from constituting a mistake, put the columns in the strongest position to resist what sailors call quartering windsthose which come from a diagonal and, by flowing across two sides of a building at once, increase the forces on both. For further enlightenment on the matter, he referred the student to a technical article written by LeMessuriers partner in New York, an engineer named Stanley Goldstein. LeMessurier recalls, I gave him a lot of information, and I said, Now you really have something on your professor, because you can explain all of this to him yourself. Later that day, LeMessurier decided that the information would interest his own students; like sailors, designers of tall buildings must know the wind and respect its power. And the columns were only part of the towers defense against swaying in severe winds. A classroom lecture would also look at the towers unusual system of wind braces, which LeMessurier had first sketched out, in a burst of almost ecstatic invention, on a napkin in a Greek restaurant in Cambridge: forty-eight braces, in six tiers of eight, arrayed like giant chevrons behind the buildings curtain of aluminum and glass. (Im very vain, LeMessurier says. I would have liked my stuff to be expressed on the outside of the building, but Stubbins wouldnt have it. In the end, I told myself I didnt give a damn - the structure was there, itd be seen by God.) LeMessurier had long since established the strength of those braces in perpendicular windsthe only calculation required by New York Citys building code. Now, in the spirit of intellectual play, he wanted to see if they were just as strong in winds hitting from forty-five degrees. His new calculations surprised him. In four of the eight chevrons in each tier, a quartering wind increased the strain by forty percent. Under normal circumstances, the wind braces would have absorbed the extra load without so much as a tremor. But the circumstances were not normal. A few weeks before, during a meeting in his office, LeMessurier had learned of a crucial change in the way the braces were joined. The meeting had been called, during the month of May, to review plans for two new skyscrapers in Pittsburgh. Those towers, too, were designed by Hugh Stubbins with LeMessurier as structural consultant, and the plans called for wind braces similar to those used in Citicorp Center, with the same specifications for welded joints. This was top-ofthe-line engineering; two structural members joined by a skilled welder become as strong as one. But welded joints, which are labor-intensive and therefore expensive, can be needlessly strong; in most cases, bolted joints are more practical and equally safe. That was the position taken at the May meeting by a man from U.S. Steel, a potential bidder on the contract to erect the Pittsburgh towers. If welded joints were a condition, the project might be too expensive and his firm might not want to take it on. To reassure him, LeMessurier put in a call to his office in New York. I spoke to Stanley Goldstein and said, Tell me about your success with those welded joints in Citicorp. and Stanley said, Oh, didnt you know? They were changedthey were never welded at all, because Bethlehem Steel came to us and said they didnt think we needed to do it. Bethlehem, which built the Citicorp tower, had made the same objectionwelds were stronger than necessary, bolts were the right way to do the job. On August 1, 1974, LeMessuriers New York officeactually a venture in conjunction with an old-line Manhattan firm called the Office of James Rudermanhad accepted Bethlehems proposal. This news gave LeMessurier no cause for concern in the days immediately following the meeting. The choice of bolted joints was technically sound and professionally correct. Even the failure of his associates to flag him on the design changes was justifiable;
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had every decision on the site in Manhattan waited for approval from Cambridge, the building would never have been finished. Most important, modern skyscrapers are so strong that catastrophic collapse is not considered a realistic prospect; when engineers seek to limit a buildings sway, they do so for the tenants comfort. Yet now, a month after the May meeting, the substitution of bolted joints raised a troubling question. If the bracing system was unusually sensitive to quartering winds, as LeMessurier had just discovered, so were the joints that held it together. The question was whether the Manhattan team had considered such winds when it designed the bolts. I didnt go into a panic over it, LeMessurier says. But I was haunted by a hunch that it was something Id better look into. On July 24th, he flew to New York, where his hunch was soon confirmed: his people had taken only perpendicular winds into account. And he discovered another subtle conceptual error, as he calls it nowone that threatened to make the situation much worse. To understand why, one must look at the interplay of opposing forces in a windblown building. The wind causes tension in the structural membersthat is, it tries to blow the building down. At the same time, some of that tension, measured in thousands, or even millions, of pounds, is offset by the force of gravity, which, by pressing the members together, tends to hold the building in place. The joints must be strong enough to resist the differential between these forces - the amount of wind tension minus the amount of compression. Within this seemingly simple computation, however, lurks a powerful multiplier. At any given level of the building, the compression figure remains constant; the wind may blow harder, but the structure doesnt get any heavier. Thus, immense leverage can result from higher wind forces. In the Citicorp tower, the forty-per-cent increase in tension produced by a quartering wind became a hundred-and-sixty-per-cent increase on the buildings bolts. Precisely because of that leverage, a margin of safety is built into the standard formulas for calculating how strong a joint must be; these formulas are contained in an American Institute of Steel Construction specification that deals with joints in structural columns. What LeMessurier found in New York, however, was that the people on his team had disregarded the standard. They had chosen to define the diagonal wind braces not as columns but as trusses, which are exempt form the safety factor. As a result, the bolts holding the joints together were perilously few. By then, LeMessurier says, I was getting pretty shaky. He later detailed these mistakes in a thirty-page document called Project SERENE; the acronym, both rueful and apt, stands for Special Engineering Review of Events Nobody Envisioned. What emerges from this document, which has been confidential until now, and from interviews with LeMessurier and other principals in the events, is not malfeasance, or even negligence, but a series of miscalculations that flowed from a specific mind-set. In the case of the Citicorp tower, the first event that nobody envisioned had taken place when LeMessurier sketched, on a restaurant napkin, a bracing system with an inherent sensitivity to quartering winds. None of his associates identified this as a problem, let alone understood that they were compounding it with their fuzzy semantics. In the stiff angular language of Project SERENE, consideration of wind from non-perpendicular directions on ordinary rectangular buildings is generally not discussed in the literature or in the classroom.
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LeMessurier tried to take comfort from another element of Citicorps advanced design: the buildings tuned mass damper. This machine, built at his behest and perched where the bells would have been if the Citicorp tower had been a cathedral, was essentially a four-hundred-and-ten-ton block of concrete, attached to huge springs and floating on a film of oil. When the building swayed, the blocks inertia worked to damp the movement and calm tenants queasy stomachs. Reducing sway was of special importance, because the Citicorp tower was an unusually lightweight building; the twenty-five thousand tons of steel in its skeleton contrasted with the Empire State Buildings sixty-thousand-ton superstructure. Yet the damper, the first of its kind in a large building, was never meant to be a safety device. At best, the machine might reduce the danger, not dispel it. Before making a final judgment on how dangerous the bolted joints were, LeMessurier turned to a Canadian engineer named Alan Davenport, the director of the Boundary Layer Wind Tunnel Laboratory, at the University of Western Ontario, and a world authority on the behavior of buildings in high winds. During the Citicorp towers design, Davenport had run extensive tests on scale models of the structure. Now LeMessurier asked him and his deputy to retrieve the relevant files and magnetic tapes. If we were going to think about such things as the possibility of failure, LeMessurier saysthe word failure being a euphemism for Citicorp towers falling downwe would think about it in terms of the best knowledge that the state of the art can produce, which is what these guys could provide for me. On July 26th, he flew to London, Ontario, and met with Davenport. Presenting his new calculations, LeMessurier asked the Canadians to evaluate them in the light of the original data. And you have to tell me the truth, he added. Dont go easy if it doesnt come out the right way. It didnt, and they didnt. The tale told by the wind-tunnel experts was more alarming than LeMessurier had expected. His assumption of a forty-percent increase in stress from diagonal winds was theoretically correct, but it could go higher in the real world, when storms lashed at the building and set it vibrating like a turning fork. Oh, my God, he thought, now weve got that on top of an error from the bolts being underdesigned. Refining their data further, the Canadians teased out wind-tunnel forces for each structural member in the building, with and without the tuned mass damper in operation; it remained for LeMessurier to interpret the numbers meaning. First, he went to Cambridge, where he talked to a trusted associate, and then he called his wife, at their summerhouse in Maine. Dorothy knew what I was up to, he says. I told her, I think weve got a problem here, and Im going to sit down and try to think about it. On July 28th, he drove to the northern shore of Sebago Lake, took an outboard motorboat a quarter of a mile across the water to his house on a twelve-acre private island, and worked through the wind-tunnel numbers, joint by joint and floor by floor. The weakest joint, he discovered, was at the buildings thirtieth floor; if that one gave way, catastrophic failure of the whole structure would follow. Next, he took New York City weather records provided by Alan Davenport and calculated the probability of a storm severe enough to tear that joint apart. His figures told him that such an event had a statistical probability of occurring as often as once every sixteen yearswhat meteorologists call a sixteen-year storm. That was very low, awesomely low, LeMessurier said, his voice hushed as if the horror of discovery were still fresh. To put it another way, there was one chance in sixteen
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in any year, including that one. When the steadying influence of the tuned mass damper was factored in, the probability dwindled to one in fifty-fivea fifty-five-year storm. But the machine required electric current, which might fail as soon as a major storm hit. As an experienced engineer, LeMessurier liked to think he could solve most structural problems, and the Citicorp tower was no exception. The bolted joints were readily accessible, thanks to Hugh Stubbins insistence on putting the chevrons inside the buildings skin rather than displaying them outside. With money and materials, the joints could be reinforced by welding heavy steel plates over them, like giant Band-Aids. But time was short; this was the end of July, and the height of the hurricane season was approaching. To avert disaster, LeMessurier would have to blow the whistle quicklyon himself. That meant facing the pain of possible protracted litigation, probably bankruptcy, and professional disgrace. It also meant shock and dismay for Citicorps officers and shareholders when they learned that the banks proud new corporate symbol, built at a cost of a hundred and seventy-five million dollars, was threatened with collapse. On the island, LeMessurier considered his options. Silence was one of them; only Davenport knew the full implications of what he had found, and he would not disclose them on this own. Suicide was another, if LeMessurier drove along the Maine Turnpike at a hundred miles an hour and steered into a bridge abutment, that would be that. But keeping silent required betting other peoples lives against the odds, while suicide struck him as a cowards way out andalthough he was passionate about nineteenth-century classical musicunconvincingly melodramatic. What seized him an instant later was entirely convincing, because it was so unexpectedan almost giddy sense of power. I had information that nobody else in the world had, LeMessurier recalls. I had power in my hands to effect extraordinary events that only I could initiate. I mean sixteen years to failurethat was very simple, very clear-cut. I almost said, Thank you, dear Lord, for making this problem so sharply defined that theres no choice to make. At his office in Cambridge on the morning of Monday, July 31st, LeMessurier tried to reach Hugh Stubbins, whose firm was upstairs in the same building, but Stubbins was in California and unavailable by phone. Then he called Stubbins lawyer, Carl Sapers, and outlined the emergency over lunch. Sapers advised him against telling Citicorp until he had consulted with his own companys liability insurers, the Northbrook Insurance Company, in Northbrook, Illinois. When LeMessurier called Northbrook, which represented the Office of James Ruderman as well, someone there referred him to the companys attorneys in New York and warned him not to discuss the matter with anyone else. At 9 a.m. on Tuesday, in New York, LeMessurier faced a battery of lawyers who, he says, wanted to meet me to find out if I was nutty. Being lawyers, not engineers, they were hard put to reconcile his dispassionate tone with the apocalyptic thrust of his prophecy. They also bridled at his carefully qualified answers to seemingly simple questions. When they asked how big a storm it would take to blow the building down, LeMessurier confined himself to statistical probabilitiesa storm that might occur once in sixteen years. When they pressed him for specific wind velocitieswould the wind have to be eighty miles per hour, or ninety, or ninety-five?he insisted that such figures were not significant in themselves, since every structure was uniquely sensitive to certain winds; an eighty-five-mile-per-hour wind that blew for sixteen minutes from the northwest might pose less of a threat to a particular building than an eighty-mile-per-hour wind that blew for fourteen minutes from the southwest.
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But the lawyers certainly understood that they had a crisis on their hands, so they sent for an expert adviser they trusted: Leslie Robertson, an engineer who had been a structural consultant for the World Trade Center. I got a phone call out of the blue from some lawyer summoning me to a meeting, Robertson says. Whats it about? Youll find out when you get there. Sorry, I have other things to doI dont attend meetings on that basis. A few minutes later, I got another call, from another lawyer, who said thered been a problem with Citicorp Center. I went to the meeting that morning, and I didnt know anybody there but Bill. He stood up and explained what he perceived were the difficulties with the building, and everyone, of course, was very concerned. They then turned to me and said, Well? I said, Look, if this is in fact the case, you have a very serious problem. The two structural engineers were peers, but not friends. LeMessurier was a visionary with a fondness for heroic designs, though he was also an energetic manager. Robertson was a stickler for technical detail, a man fascinated by how things fit together. LeMessurier, older by two years, was voluble and intense, with a courtly rhetorical style. Robertson was tall, trim, brisk and edgily funny, but made no effort to hide his impatience with things that didnt interest him. In addition to his engineering expertise, Robertson brought to the table a background in disaster management. He had worked with such groups as the National Science Foundation and the National Research Council on teams that studied the aftermaths of earthquakes, hurricanes, and floods. (In 1993, he worked with the F.B.I. on the World Trade Center bombing). For the liability lawyers, this special perspective enhanced his stature as a consultant, but it unsettled LeMessurier from the start. As he remembers it, Robertson predicted to everybody present that within hours of the time Citicorp heard about this the whole building would be evacuated. I almost fainted. I didnt want that to happen. (For his part, Robertson recalls making no such dire prediction.) LeMessurier didnt think an evacuation would be necessary. He believed that the building was safe for occupancy in all but the most violent weather, thanks to the tuned mass damper, and he insisted that the dampers reliability in a storm could be assured by installing emergency generators. Robertson conceded the importance of keeping the damper runningit had performed flawlessly since it became operational earlier that yearbut, because, in his view, its value as a safety device was unproved, he flatly refused to consider it as a mitigating factor. (In a conversation shortly after the World Trade Center bombing, Robertson noted dryly that the twin towers emergency generators lasted for fifteen minutes.) One point on which everyone agreed was that LeMessurier, together with Stubbins, needed to inform Citicorp as soon as possible. Only Stubbins had ever dealt directly with Citicorps chairman, Walter B. Wriston, and he was flying home that same day from California and still didnt know his building was flawed. That evening, LeMessurier took the shuttle to Boston, went to Stubbins house in Cambridge, and broke the news. He winced, I must admithere was his masterpiece, LeMessurier says. But hes a man of enormous resilience, a very grown man, and fortunately we had a lifelong relationship of trust. The next morning, August 2nd, Stubbins and LeMessurier flew to New York, went to LeMessuriers office at 515 Madison Avenue, put in a call to Wriston, but failed to penetrate the layers of secretaries and assistants that insulated Citicorps chairman from the outside world. They were no more successful in reaching the banks president, William I. Spencer, but Stubbins finally managed to get an appointment with Citicorps executive vice president, John S. Reed, the man who has now succeeded Wriston as chairman.
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LeMessurier and Stubbins went to see Reed at the banks ornate executive offices, in an older building on Lexington Avenue, across the street from Citicorp Center. LeMessurier began by saying, I have a real problem for you, sir. Reed was well equipped to understand the problem. He had an engineering background, and he had been involved in the design and construction of Citicorp Center, the company had called him in when it was considering the tuned mass damper. Reed listened impassively as LeMessurier detailed the structural defect and how he thought it could be fixed. LeMessurier says, Id already conceived that you could build a little plywood house around each of the connections that were critical, and a welder could work inside it without damaging the tenants space. You might have to take up the carpet, take down the Sheetrock, and work at night, but all this could be done. But the real message I conveyed to him was I need your helpat once. When Reed asked how much the repairs would cost, LeMessurier offered an estimate of a million dollars. At the end of the meeting, which lasted half an hour, Reed thanked the two men courteously, though noncommittally, and told them to go back to their office and await further instructions. They did so, but after waiting for more than an hour they decided to go out to lunch. As they were finishing their meal, a secretary from LeMessuriers office called to say that John Reed would be in the office in ten minutes with Walter Wriston. In the late nineteen-seventies, when Citicorp began its expansion into global banking, Wriston was one of the most influential bankers in the country. A tall man of piercing intelligence, he was not known for effusiveness in the best of circumstances, and LeMessurier expected none now, what with Citicorp Centerand his own careerliterally hanging in the balance. But the banks chairman was genuinely proud of the building, and he offered his full support in getting it fixed. Wriston was fantastic, LeMessurier says. He said, I guess my job is to handle the public relations of this, so Ill have to start drafting a press release. But he didnt have anything to write on, so someone handed him a yellow pad. That made him laugh. According to LeMessurier, All wars, Wriston said, are won by generals writing on yellow pads. In fact, Wriston simply took notes; the press release would not go out for six days. But his laughter put the others at ease. Citicorps general was on their side. Within hours of Wristons visit, LeMessuriers officer arranged for emergency generators for the towers tuned mass damper. The bank issued beepers to LeMessurier and his key engineers, assuring them that Reed and other top managers could be reached by phone at any hour of the day or night. Citicorp also assigned two vice-presidents, Henry DeFord III and Robert Dexter, to manage the repairs; both had overseen the buildings construction and knew it well. The next morning, Thursday, August 3rd, LeMessurier, Robertson, and four of LeMessuriers associates met with DeFord and Dexter in a conference room on the thirtieth floor of Citicorp Center. (The decision to hold the initial meeting near the structures weakest point was strictly coincidental.) LeMessurier outlined his plan to fix the wind braces by welding two-inch-thick steel plates over each of more than two hundred bolted joints. The plan was tentatively approved, pending actual examination of a typical joint, but putting it into effect depended on the availability of a contractor and on an adequate supply of steel plate. Since Bethlehem Steel had dropped out of the business of fabricating and erecting skyscraper structures, Robertson suggested Karl Koch Erecting, a New Jersey-based firm that had put up the World Trade Center.
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Two more contracts were drawn up before the end of the following day. One of them went out to MTS Systems Corporation, the Minneapolis firm that had manufactured the tuned mass damper. MTS was asked to provide full-time technical supportin effect, around-the-clock nursesto keep its machine in perfect health. The company flew one of its technicians to New York that night. Four days later, in a letter of agreement, MTS asked Citicorp to provide a long list of materials and spare parts, which included three buckets, a grease gun, rags, cleaning solvent, and 1 Radio with weather band. The other contract engaged a California firm, also recommended by Robertson, to fit the building with a number of instruments, called strain gaugespieces of tape with zigzag wires running through them. The gauges would be affixed to individual structural members, and electrical impulses from them would be funneled to an improvised communications center in Robertsons office, eight blocks away, at 230 Park Avenue; like a patient in intensive care, the tower would have every shiver and twitch monitored. But this required new telephone lines, and the phone company refused to budge on its leisurely installation schedule. When Robertson voiced his frustration about this during a late-night meeting in Walter Wristons office, Wriston picked up the phone on his desk and called his friend Charles Brown, the president and chief operating officer of A.T.&T. The new lines went in the next morning. A different problem-solving approach was taken by Robertson during another nighttime meeting in Citicorps executive suite. Wriston wanted copies of some documents that Robertson had shown him, but all the secretaries had gone homethe only people on the floor were Wriston, Robertson, and John Reedand every copying machine was locked. Im an engineer, Robertson says, so I kneeled down, ripped the door off one of the machines, and we made our copies. I looked up at them a little apologetically, but what the hellfixing the door was a few hundred bucks, and these guys had a hundred-and-seventy-five-million-dollar building in trouble across the street. Robertson also assembled an advisory group of weather experts from academia and the governments Brookhaven National Laboratory, on Long Island, and hired two independent weather forecasters to provide wind predictions four times a day. What worried us more than hurricanes, which give you hours and days to anticipate, were unpredictable events, Robertson says. From time to time, weve had small tornadoes in this area, and there was a worry that a much bigger one would come down and take hold. Then Robertson raised an issue that LeMessurier had dreaded discussing. In a meeting on Friday that included LeMessurier, Robertson told Citicorps representatives, DeFord and Dexter, that they needed to plan for evacuating Citicorp Center and a large area around it in the event of a high-wind alert. During the first week of August, discussions had involved only a small circle of company officials and engineers. But the circle widened on Monday, August 7th, when final drawings for the steel plates went out to Arthur Nusbaum, the veteran project manager of HRH Construction, which was the original contractor for Citicorp Center, and Nusbaum, in turn, provided them to Koch Erecting. And it would widen again, because work could not go forward, as Robertson reminded the officials, without consulting the citys Department of Buildings. Citicorp faced a public-relations debacle unless it came up with a plausible explanation of why its brand-new skyscraper needed fixing. That night, DeFord and Dexter, following Robertsons advice, met with Mike Reilly, the American Red Crosss director of disaster services for the New York metropolitan area. They laid out the dilemma, and it was clearly an ominous event, Reilly recalls. From that
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first meeting, which was attended by Robertson but not by LeMessurier, and from half a dozen subsequent working sessions with other disaster agencies, came plans for joint action by the police and the mayors Office of Emergency Management, along with the Red Cross. In the event of a wind alert, the police and the mayors emergency forces would evacuate the building and the surrounding neighborhood, and the Red Cross would mobilize between twelve hundred and two thousand workers to provide food and temporary shelter. Hal DeFord was the banks point man for all this, Reilly says. The anxiety was so heavy on him that we wondered if he was going to make it. On Tuesday morning, August 8th, the public-affairs department of Citibank, Citicorps chief subsidiary, put out the long-delayed press release. In language as bland as a loan officers wardrobe, the three-paragraph document said unnamed engineers who designed the building had recommended that certain of the connections in Citicorp Centers wind bracing system be strengthened through additional welding. The engineers, the press released added, have assured us that there is no danger. When DeFord expanded on the handout in interviews, he portrayed the bank as a corporate citizen of exemplary cautionWe wear both belts and suspenders here, he told a reporter for the Newsthat had decided on the welds as soon as it learned of new data based on dynamicwind tests conducted at the University of Western Ontario. There was some truth in all this. During LeMessuriers recent trip to Canada, one of Alan Davenports assistants had mentioned to him that probable wind velocities might be slightly higher, on a statistical basis, than predicted in 1973, during the original tests for Citicorp Center. At the time, LeMessurier viewed this piece of information as one more nail in the coffin of his career, but later, recognizing it as a blessing in disguise, he passed it on to Citicorp as the possible basis of a cover story for the press and for tenants in the building. On Tuesday afternoon, at a meeting in Robertsons office, LeMessurier told the whole truth to New York Citys Acting Building Commissioner and nine other senior city officials. For more than an hour, he spoke about the effect of diagonal winds on the Citicorp tower, about the failure of his own office to perceive and communicate the danger, and about the intended repairs. In the discussion that followed, the city officials asked a few technical questions, and Arthur Nusbaum expressed concern over a shortage of certified welders who had passed the citys structural-welding test. That would not be a problem, the representatives from the Department of Buildings replied; one of the areas most trusted steel inspectors, Neil Moreton, would have the power to test and immediately certify any welder that Citicorps repair project required. Nusbaum recalls, Once they said that, I knew we were O.K., because there were steamfitter welders all over the place who could do a fantastic job. Before the city officials left, they commended LeMessurier for his courage and candor, and expressed a desire to be kept informed as the repair work progressed. Given the urgency of the situation, that was all they could reasonably do. It wasnt a case of We caught you, you skunk, Nusbaum says. It started with a guy who stood up and said, I got a problem, I made the problem, lets fix the problem. If youre gonna kill a guy like LeMessurier, why should anybody ever talk? Meanwhile, Robertsons switchboard was besieged by calls. Every reporter in town wanted to know how come all these people were in our office, Robertson says. Once the meeting ended, the Building Commissioner returned the reporters calls and, hewing to Citicorps line, reassured them that the structural work was only a prudent response to new meteorological data.
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As a result, press coverage in New York City the next day was as uninformative as the handout: a short piece in the Wall Street Journal, which raised no questions about the nature of the new data, and one in the News, which dutifully quoted DeFords remark about belts and suspenders. But when LeMessurier went back to his hotel room, at about 5 P.M. on Wednesday, he learned from his wife, who had come down from Cambridge to join him, that a reporter from the Times had been trying to reach him all afternoon. That worried him greatly; being candid with city officials was one thing, but being interrogated by the Times was another. Before returning the call, LeMessurier phoned his friend Carl Sapers, the Boston attorney who represented Hugh Stubbins, and mixed himself a martini. Sapers understood the need for secrecy, but he saw no real choice; talk to them, he said, and do the best you can. Two minutes after six oclock, LeMessurier called the Times switchboard. As he braced himself for an unpleasant conversation, he heard a recording. The Times, along with all the major papers in the city, had just been shut down by a strike. Welders started work almost immediately, their torches a dazzlement in the night sky. The weather was sticky, as it had been since the beginning of the monthNew Jerseys tomato crop was rotting from too much rainand forecasts called for temperatures in the mid-eighties the next day, with no wind; in other words, a perfect day for Citicorp Center. Yet tropical storms were already churning the Caribbean. Citicorp pushed for repair work around the clock, but Nusbaum refused to allow welding during office hours, for fear that clouds of acrid smoke would cause panic among the tenants and set off every smoke detector in the building. Instead, he brought in drywall crews and carpenters to work from 5 P.M. to 8 P.M., putting up plywood enclosures around the chevrons and tearing down Sheetrock; welders to weld from 8. P.M. until 4 A.M., with the buildings firealarm system shut off; and then laborers to clean up the epic mess before the first secretaries arrived. The welders worked seven days a week. Sometimes they worked on unoccupied floors; sometimes they invaded lavish offices. But decor, or the lack of it, had no bearing on their priorities, which were set by LeMessurier. It was a tense time for the whole month, he says. I was constantly calculating which joint to fix next, which level of the building was more critical, and I developed charts and graphs of all the consequences: if you fix this, then the rarity of the storm that will cause any trouble lengthens to that. At Robertsons office, a steady stream of data poured in from the weather forecasters and from the building itself. Occasionally, the strain-gauge-readings jumped, like spikes on an electrocardiogram, when the technicians from MTS Systems exercised their tuned mass damper to make sure it was working properly. One time, the readings went off the chart, then stopped. This provoked more bafflement than fear, since it seemed unlikely that a hurricane raging on Lexington and Fifty-third Street would go otherwise unnoticed at Forty-sixth and Park. The cause proved to be straightforward enough: When the instrumentation experts from California installed their strain gauges, they had neglected to hire union electricians. Someone heard about it, LeMessurier says, went up there in the middle of the night, and snipped all the wires. For most of August, the weather smiled on Citicorp, or at least held its breath, and the welders made steady progress. LeMessurier felt confident enough to fly off with his wife for a weekend in Maine. As their return flight was coming in for a landing at LaGuardia Airport Sunday night, they looked out across the east River and saw a pillar of fire on the Manhattan skyline. The welders were working up and down the building, fixing
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the joints, LeMessurier recalls. It was an absolutely marvelous thing to see. I said to Dorothy, Isnt this wonderful? Nobody knows whats going on, but we know and we can see it right there in the sky. A great deal of work remained. Robertson was insisting on a complete re-evaluation of the Citicorp tower: not just the sensitivity of the chevrons to quartering winds but the strength of other skeletal members, the adequacy of braces that kept the supporting columns in plumb, and the rigidity of the buildings corrugated metal-and-concrete floors, which Robertson feared might be compromised by trenches carrying electrical connections. His insistence was propersettling for less would have compromised Robertsons own position. It amounted to a post-construction autopsy by teams of forensic engineers. For LeMessurier, the re-evaluation was harrowing in the extreme; every new doubt about his design for Citicorp Center reflected on him. In one instance, Robertsons fears were unwarranted: tests showed that the tower floors were entirely soundthe trenches were not a source of weakness. In another, Robertson, assuming the worst about construction tolerances, decided that the columns might be slightly, even though undetectably, out of plumb, and therefore he ordered the installation of supplemental bracing above the fourteenth floor. Shortly before dawn on Friday, September 1st, weather services carried the news that everyone had been dreadinga major storm, Hurricane Ella, was off Cape Hatteras and heading for New York. At 6:30 A.M., an emergency-planning group convened at the command center in Robertsons office. Nobody said, Were probably going to press the panic button, LeMessurier recalls. Nobody dared say that. But everybody was sweating blood. As the storm bore down on the city, the banks representatives, DeFord and Dexter, asked LeMessurier for a report on the status of repairs. He told them that the most critical joints had already been fixed and that the building, with its tuned mass damper operating, could now withstand a two-hundred year storm. It didnt have to, however. A few hours later, Hurricane Ella veered from its northwesterly course and began moving out to sea. LeMessurier spent the following night in Manhattan, having cancelled plans to spend the Labor Day weekend with his family in Maine. But the hurricane kept moving eastward, and daybreak dispelled any lingering thoughts of evacuation. Saturday was the most beautiful day that the worlds ever seen, LeMessurier says, with all the humidity drawn away and the skies sunny and crystal clear. Alone in the city, he gave himself a treat hed been thinking about for yearshis first visit to the Cloisters, where he basked in an ineffable calm. The weather watch ended on September 13th. That same day, Robertson recommended terminating the evacuation plans, too. Welding was completed in October, several weeks before most of the citys newspapers resumed publication. No further stories on the subject appeared in the wake of the strike. The building, in fact, was now strong enough to withstand a seven-hundred-year storm even without the damper, which made it one of the safest structures ever builtand rebuiltby the hand of man. Throughout the summer, Citicorps top management team had concentrated on facilitating repairs, while keeping the lawyers on the sidelines. That changed on September 13th, when Citicorp served notice on LeMessurier and Hugh Stubbins, whose firm held the
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primary contract, of its intention to seek indemnification for all costs. Their estimate of the costs, according to LeMessurier, amounted to $4.3 million, including management fees. A much higher total was suggested by Arthur Nusbaum, who recalled that his firm, HRH Construction, spent eight million dollars on structural repairs alone. Citicorp has declined to provide its own figure. Whatever the actual cost, Citicorps effort to recoup it was remarkable free of the punitive impulse that often poisons such negotiations. When the terms of settlement were first discussedwithout lawyersby LeMessurier, on one side, and DeFord and Dexter, on the other, LeMessurier spoke of two million dollars, which was the amount that his liability insurer, the Northbrook Insurance Company, had agreed to pay. DeFord and Dexter said, Well, weve been deeply wounded here, and they tried to play hardball, LeMessurier says. But they didnt do it with much conviction. After a second meeting, which included a Northbrook lawyer, the bank agreed to hold Stubbins firm harmless and to accept the twomillion dollar payment from LeMessurier and his joint-venture partners; no litigation ever ensued. Eight years ago, Citicorp turned the building into a condominium, retaining the land and the shops, but selling all the office space, to Japanese buyers, at a handsome profit. The crisis at Citicorp Center was noteworthy in another respect. It produced heroes, but no villains; everyone connected with the repairs behaved in exemplary fashion, from Walter Wriston and his Citicorp management team to the officials at the citys Department of Buildings. The most striking example, of course, was set by LeMessurier, who emerged with his reputation not merely unscathed but enhanced. When Robertson speaks of him, he says, I have a lot of admiration for Bill, because he was very forthcoming. While we say that all engineers would behave as he did, I carry in my mind some skepticism about that. In the last few years, LeMessurier has been talking about the summer of 1978 to his classes at Harvard. The tale, as he tells it, is by turns painful, self-deprecating, and self-dramatizingan engineer who did the right thing. But it also speaks to the larger question of how professional people should behave. You have a social obligation, LeMessurier reminds his students. In return for getting a license and being regarded with respect, youre supposed to be self-sacrificing and look beyond the interests of yourself and your client to society as a whole. And the most wonderful part of my story is that when I did it nothing bad happened.
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WHY BUILDINGS FALL DOWN

How Structures Fail
MATTHYS LEVY and MARIO SALVADORI
Illustrations by KEVIN WOEST W W NORTON & COMPANY New York London
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Chapter 15
THE WORST STRUCTURAL DISASTER IN THE UNITED STATES The bad end unhappily, the good unluckily. Tom Stoppard, Rosenkranz and Guildenstern are Dead
In July 1980 the plushiest and most modern hotel in Kansas City, Missouri, the Hyatt Regency, was ready for occupancy after two years of design and two more years of construction. Kansas Citys first citizen, Donald Hall, of Hallmark greeting cards fame, bought it from the developers, and his management company started one of the most ambitious and popular programs to be found in an American deluxe hotel. Service in the 750 rooms and suites was refined and fast, food in the many restaurants exquisite, and the tea and dinner dances in its grandiose atrium were soon attended by elegant crowds. The Hyatt Regency complex consists of three connected buildings: a slim reinforced concrete-tower on the north end, housing the guests bedrooms and suites; a 117 by 145 ft. (34 x 44 m) atrium with a steel and glass roof 50 ft. (15 m) above the floor; and at the south end a four-story reinforced concrete function block, containing all the service areas - meeting rooms, dining rooms, kitchens, etc. (Fig. 15.1). The tower was connected to the function block by three pedestrian bridges, or walkways, hung from the steel trusses of the atrium roof: two, one above the other, at the second and fourth-floor levels near the west side of the atrium and one at the third-floor level near the east side of the atrium (Fig. 15.2). Restaurant service was available at a bar set under the two stacked walkways on the west side of the atrium. The main purpose of the walkways was to permit people to pass between the tower and the function block without crossing the often crowded atrium. At 7:05 P.M. on Friday, July 17, 1981, the atrium was filled with more than sixteen hundred people, most of them dancing to the music of a well-known band for a tea dance competition, when suddenly a frightening, sharp sound like a thunderbolt was heard, stopping the dancers in mid-step. Looking up toward the source of the sound, they saw two groups of people on the second- and fourth-floor walkways, observing the festivities and stomping in rhythm with the music. As the two walkways began to fall, the observers were seen holding on to the railings with terrified expressions on their faces. The fourth-floor walkway dropped from the hangers holding it to the roof structure, leaving the hangers dangling like impotent stalactites. Since the second-floor walkway hung from the fourthfloor walkway, the two began to fall together. There was a large roar as the concrete decks of the steel-framed walkways cracked and crashed down, in a billowing cloud of dust, on the crowd gathered around the bar below the second-floor walkway. People were screaming; the west glass wall adjacent to the walkways shattered, sending shards flying over 100 ft. (30 m); pipes broken by the falling walkways sent jets of water spraying the atrium floor. It was a nightmare the survivors would never forget. The following day the press mentioned 44 dead and 82 injured, but the last victim to be reached alive, a World War II navy pilot who was in a wheel chair on the second-floor
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walkway, succumbed from chest injuries five months later. The final count reported 114 dead and over 200 injured, many maimed for life. It was indeed the worst structural failure ever to occur in the United States. The plaintiffs claims, also the largest ever in a structural failure case, amounted originally to more than three billion dollars. Donald Hall settled more than 90 percent of these claims out of a sense of duty and social responsibility. Within a few hours of the accident rumors about the cause of the failure began to fly. As usual, the general contractor and his subcontractors were the first to be suspected of malfeasance and malpractice. Then technical opinions blossomed. Since the people on the two walkways were stomping in rhythm with the music, obviously, the up-and-down vibrations of the walkways must have had exactly the same rhythm; technically, they were in resonance with the impacts of the stomping people, and, as everybody knows, continued resonance can quickly destroy even a sound structure (see p. 272). Then engineers and laypeople began suspecting the quality of the materials used in the walkways (everybody knows that weaker materials are cheaper than good materials) or the skills of the workers who welded and bolted them together (everybody knows that skilled workers demand higher salaries than unskilled ones). For a relatively long time the only unsuspected members of the construction team were the architects and the design engineers. The management company of the hotel was the first to take action. It asked the design team of the hotel to prepare the drawings for a second-floor walkway supported by columns and authorized its immediate construction. Simultaneously it entrusted to Weidlinger Associates a most thorough analysis and check of the entire structure of the hotel complex (except the walkways), from the rotating restaurant at the top of the tower to the spiral canti-levered stairs connecting the upper three floors of the function block with the atrium floor, to the foundations of the three components of the complex. Shortly thereafter, at the request of the Kansas City mayor, the federal government authorized the National Bureau of Standards to perform an official investigation with the objective of determining the most probably cause of the collapse. E. O. Pfrang and R. M. Marshall of the bureau, two well-known and highly respected engineers, performed an in-depth investigation, using theoretical calculations and experimental verification of the walkways components, and issued an official report in 1981. As is its custom, the bureau did not assign blame to any party but made it clear the responsibility for the collapse could mainly be attributed to the structural engineers, who eventually lost their licenses in the state of Missouri. How could this tragedy have occurred in the year 1981 in the most advanced technical country in the world and after two years of design and two of construction? In order to clarify this mystery, we must understand how the walkways were originally designed and how they were eventually built. The two walkways on the west side of the atrium involved in the collapse (the third-floor walkway that was separately hung remained in place) consisted of four 30 ft. (9 m) long spans on each side, consisting of two longitudinal wide-flange steel beams each 16 in. (400 mm) deep. The four 30 ft. (9 m) beams were connected by steel angles bolted to the upper flanges at the beams ends, thus spanning the 120 ft. (36 m) atrium width (Fig. 15.2). The south ends of the walkways were welded to plates in the floors of the function block, and their north ends were supported on sliding bearings in the floors of the tower. The purpose of the sliding supports was to allow the beams to expand or contract with temperature changes without giving rise to thermal stresses (see p. 274). Intermediate supports of the walkways at each end of the 30 ft. (9 m) beams consisted of transverse box beams, fabricated by butt welding along their entire length two 8
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in. (200 mm) deep channels (Fig. 15.3). In the original working drawings (the last engineering drawings submitted to the contractor and the architects by the design engineers) each box beam had single holes at both ends of the flanges (Fig. 15.4), through each of which was threaded a single 1 1/4 in. (32mm) steel rod that served as hanger for both the second- and fourth-floor walkways. In this design, the load of both walkways was supported every thirty feet by means of nuts screwed into a single rod on each side of the walkways at the level of the second-floor and the fourth-floor box beams. Thus the single rods hung from the steel trusses of the atriums roof supported the weights of both walkways, but the box beams of each walkway supported only the loads on that single walkway. In the shop drawings (the final drawings submitted by the contractor to the design engineers and the architects) each end of the fourth-floor box beams had two holes through both flanges, one at 2 in. (50 mm) from the end and the other at 6 in. (150mm) from the end (Fig. 15.3). Two upper hangers, ending at the fourth-floor level and consisting of 1 1/4 in. (32mm) rods, went through the outer hole in each box beam of the fourth floor and supported the fourth-floor walkway only by means of nuts and washers at their lower endi.e., below the box beams of the fourth-floor walkway. Two separate lower rod hangers, starting at the fourth-floor level, went through the inner hole of each fourth-floor box beam, supported by a nut and washer at their upper endsi.e., above the fourth-floor box beamand supported at their lower ends the second-floor walkway. His design was a change suggested by the contractor in the shop drawings and stamped Approved by the architects and Reviewed by the structural engineers. (Design engineers are advised by their attorneys never to stamp the contractors shop drawings Approved.) In the final contractors design the loads of both walkways was transmitted to the roof trusses by the shorter upper rods, which passed through only the fourth-floor box beams and supported the second-floor walkway by two additional shorter rods hanging form the fourth-floor box beams. Thus in this design the fourth-floor transverse box beams supported the loads of two walkways, rather than the one of the original design. At this point the reader will probably think: By now I know why the tragedy occurred. The box beams of the fourth-floor walkway were designed to carry the load of one walkway and instead had to carry twice that load. No wonder they failed! That would not be wrong, but neither would that be completely right, as the in-depth investigation of the National Bureau of Standards proved to laypeople and engineers alike. The job of Pfrang and Marshall might be thought relatively simple: to determine whether the rods and the box beams of the final design could resist the tension in the rods and the bending in the box beams from the hanging walkways. For this purpose they determined the dead load of the walkways by taking from engineering manuals the weight of each walkway component and adding them up. But they also weighed the components recovered from the collapse and found that the dead load was actually 8 percent higher than the computed load, because the deck of the walkways consisted of a corrugated steel deck and 3 1/4 in. (82 mm) of concrete, plus a cement topping not shown on the drawings but authorized in the specifications (the written document describing each component of the project accompanying the final engineering drawings). The live load was required by the Kansas City Building Code to be 100 lb. / sq. ft. (5 kN / m2) or a total of 72,000 lb. (3,200 kN) for each walkway. By mere chance a videotape of the tea dance competition was being made on that memorable day, and it showed that there were sixty-three people on the two walkways, mostly concentrated on the south half and east side of the secondfloor walkway, from which they had a better view of the band and the dance contestants. The actual live load, 9,450 lb. * (420 kN), was thus a small fraction of the live load required by the code. (63 people @ 150 lb. each = 9,450 lb.)
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Pfrang and Marshall realized immediately that the weak elements in the chain of structural elements were the box beams of the fourth floor. But since the stress analysis of the complex beams could not be accurately obtained by theoretical calculations, they tested in the laboratory both brand-new duplicates of the box beams and some of the undamaged actual box beams. They also computed and tested the ultimate strength of the hanger rods. They could thus prove the real cause of the walkway collapse. The six upper hanger rods, carrying the load of the walkways and thus supporting 24,000 lb. (1,066 kN) each, pulled up on the thin lower flanges of the fourth-floor box beams through a single nut and bolt connection. Under this load (twice the design load), the bolt first bent the lower flange of the box beams, then broke through the lower hole in it, pulled out of the hole in the upper flange, and became disconnected from the box beam (Fig.15.5). This first happened at the midspan upper hanger rod; the remaining upper rods, incapable of taking over the load unsupported by the failed rod, pulled out of their holes, and both walkways fell down. The walkway system not only was underdesigned but also lacked redundancy (see pg. 55), a most prudent reserve of strength in structures in public places. The dangerous suggestion of the contractor, aimed at simplifying the construction of the walkways, was fatal because it went unnoticed by the design engineers. We can do better than report in abbreviated form the conclusions of the National Bureau of Standards report: 1. The walkways collapsed under loads substantially less than those specified by the Kansas City Building Code. 2. All the fourth-floor box beam-hanger connections were candidates for initiation of walkway collapse. 3. The box beam-hanger rod connections, the fourth-floor-to-ceiling hanger rods, and the third-floor walkway hanger rods did not satisfy the design provisions of the Kansas City Building Code. 4. The box beam-hanger to rods connections under the original hanger rod detail (continuous rod) would not have satisfied the Kansas City Building Code. 5. Neither the quality of workmanship nor the materials used in the walkway system played a significant role in initiating the collapse. The National Bureau of Standards reports adds: The ultimate capacity actually available using the original connection detail would have been approximately 60% of that expected of a connection designed in accordance with the specifications of the Kansas City Code. Since 60% = 0.60 is equal to 1/1.67, and 1.67 is an average coefficient of safety for steel structures, the above statement is equivalent to saying that under the original engineering design of the connections which did not satisfy the code, the walkways might not have collapsed under the actual loads on them on July 17, 1981. Who is to blame for the tragedy? The Missouri licensing board and the Missouri Court of Appeals found fault with the design engineers because they did not notice the essential difference between their original design and the design suggested by the contractor that they acknowledged reviewing. The National Bureau of Standards made it clear that even the original walkway design did not satisfy the Kansas City Building Code provisions but also stated, although indirectly, that the original design might not have caused a collapse under the minor live load present on that fatal day. From a human point of view, the original design, although illegal, might have avoided the tragedy.
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Legally, the principal and the project manager of the structural firm responsible for the design had their Missouri engineers licenses revoked. The attorney who represented the state licensing board, Patrick McLarney, added, It wasnt a matter of doing something wrong, they just never did it at all. Nobody ever did any calculations to figure out whether or not the particular connection that held the skywalks up would work. It got built without anybody ever figuring out if it would be strong enough. It just slipped through the cracks.
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Daniel M. Duncan, Jack D. Gillum and GCE International, Inc. v. Missouri Board for Architects, Professional Engineers and Land Surveyors Supreme Court of Missouri 744 S.W.2d 524 (Mo, 1988) SMITH, J. On July 17, 1981, the second and fourth floor walkways of the Hyatt Regency Hotel in Kansas City collapsed and fell to the floor of the main lobby. The walkways together weighed 142,000 pounds. One hundred and fourteen people died and at least 186 were injured. In terms of loss of life and injuries, the National Bureau of Standards concluded this was the most devastating structural collapse ever to take place in this country. In February 1984, the Missouri Board for Architects, Professional Engineers and Land surveyors filed its complaint seeking a determination that the engineering certificates of registration of Daniel Duncan and Jack Gillum and the engineering certificates of authority of G.C.E. International were subject to discipline pursuant to Sec. 327.441 RSMo 1978. The [Administrative Hearing Commissioner], after hearing, found that such certificates were subject to suspension or revocation. Upon remand for assessment of appropriate disciplinary action, the Board ordered all three certificates revoked. Upon appeal the trial court affirmed. We do likewise. G.C.E. is a Missouri corporation holding a certificate of authority to perform professional engineering services in Missouri. Gillum is a practicing structural engineer holding a license to practice professional engineering in Missouri. He is president of G.C.E. Duncan is a practicing structural engineer holding a license to practice professional engineering in Missouri and is an employee of G.C.E. The structural engineer, G.C.E., was part of the Design Team which also included the architect, and mechanical and electrical engineers. Gillum was identified as the individual personally in charge of and supervisory of professional engineering activities of G.C.E. in Missouri. His professional seal was utilized on structural engineering plans for the Hyatt. Duncan was the project engineer for the Hyatt construction in direct charge of the actual structural engineering work on the project. He was under the direct supervision of Gillum. Duncan was found [by the Commission] to have been guilty of gross negligence in the preparation and completion of a structural drawing (S405.1, Sections 10 and 11); and in failing to review shop drawings of the Hyatt project (in particular Shop Drawing 30 and Erection Drawing E3). He was further found guilty of misconduct in misrepresenting to the architects the safety of a connection (the double hanger rod-box beam connection) when he was ignorant of the safety due to a failure to perform engineering tests and calculations to determine such safety. Gillum was found vicariously liable and responsible for the acts and omissions of Duncan which liability and responsibility he assumed by affixing his professional engineering seal on the structural drawings. He was further found grossly negligent in failing to himself review or assure that someone had reviewed drawing S405.1 before affixing his seal thereto. Gillum was also found to have engaged in unprofessional conduct in failing and refusing to take responsibility for the entire engineering project as,
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the Commission concluded, is required by [Missouri law]. Finally, Gillum was found guilty of misconduct for his failure to perform a review of the Hyatt atrium design following specific request by the architect for such review, and for continuing misrepresentations to the owner and architect concerning such atrium design review. G.C.E. was found vicariously liable and responsible for the acts and omissions of Duncan and Gillum . The Commission utilized a definition recognizing that gross negligence is different in kind from ordinary negligence . The Commission defined the phrase in the licensing context as an act or course of conduct which demonstrates a conscious indifference to a professional duty. This definition, the Commission found, requires at least some inferred mental state, which inference may arise from the conduct of the licensee in light of all surrounding circumstances It imposes discipline for more than mere inadvertence and requires a finding that the conduct is so egregious as to warrant an inference of a mental state unacceptable in a professional engineer. The statutory provisions make clear that Missouri has established a stringent set of requirements for professional engineers practicing in the state. The thrust of those requirements is professional accountability by a specific individual certified engineer. These requirements establish the public policy of the state for the protection of the public. They require that plans for construction of structures in this state which require engineering expertise be prepared by or under the direct supervision of a specified certified engineer and that that engineer bear personal and professional responsibility for those plans. The affixing of his seal on the plans makes him responsible for the entire engineering project and all documents connected therewith unless he specifically disclaims responsibility for some document relating to or intended to be used for any part of the engineering project. It would be difficult to imagine statutory language more clearly evidencing the total responsibility imposed upon the engineer, and accepted by him when he contracted to provide his services. The statutory statement that the right to engage in the profession is a personal right based upon the individuals qualifications in no way impacts upon the responsibilities imposed upon an engineer. Rather the assessment of the individual qualifications of the engineer include his willingness and ability to accept the responsibilities imposed on him by the statutes. The statutory level of responsibility impacts directly on several contentions of respondents. Of greatest importance are the contentions concerning custom within the profession and the imposition of vicarious liability on Gillum and G.C.E. As to custom, [the appealing engineers] assert that reliance upon fabricators to design certain structural steel connections is the custom and practice within the profession and appellants reliance thereon is not negligence. The thrust of Duncan and Gillums defense was that it was expected by them, in keeping with custom and practice, that [the fabricator] would design the connections and they are not and should not be responsible for [the fabricators] failures or the errors in [the fabricators] shop drawings or design.1 The law in this state is clearly stated
Gillums testimony included the following: Q. Mr. Gillum, do you consider the seal you placed on your drawing relating to your structural engineering design made you responsible for this later drawing prepared by somebody else on behalf of the steel fabricator? A. No, sir. Q. Why not, sir? A. First of all, the employees of the companies that prepared that were not under my personal direction, and therefore I had no authority over these employees, and without authority and ability to direct them in how they are preparing that drawing, I cannot accept the responsibility for anything that they do.
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Where established customs and practices are challenged and found to run counter to plain and unambiguous language of controlling regulatory statutes such customs and practices must give way to the law, which this court must declare as it is and not as some would prefer that it had been written. It is self-evident that a custom or usage repugnant to the express provision of a statute is void. If as a matter of public policy it is desirable that project structural engineers be authorized to rely upon connections requiring engineering expertise designed by certified or non-certified engineers, or laymen, employed by a fabricator having neither contractual nor statutory responsibility for the structural engineering of the project, the legislature can provide. It has not done so and we have no authority, nor inclination, to establish a public policy contrary to that established by the General Assembly. Design of connections is, on the facts of this record, a matter requiring engineering expertise. The statute imposes on the project engineer the responsibility for the design of such connections whether he in fact designs them himself or not. The statute specifically exempts from certification, and therefore from the rigors of licensing and Board discipline, employees of steel fabricators. Given the rigorous responsibilities imposed on engineers by the statute it is inconceivable that the legislature contemplated relieving certified engineers of responsibility for engineering decisions made by non-certified engineers or laymen. Design of connections is, under the statute, a matter for which the engineer is responsible. Custom, practice, or bottom line necessity cannot alter that responsibility. Gillum and G.C.E. have challenged the imposition of vicarious liability for the failures of Duncan. Not all of the charges found against Gillum are based upon Duncans failings but relate also to Gillums own acts or omissions. However, some of the conduct for which Gillum was disciplined, and all of the conduct of G.C.E. for which discipline was imposed, arose under a vicarious liability theory. Vicarious liability has been defined as based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of policy that one person should be liable for the act of the other. Its true basis is largely one of public or social policy under which it has been determined that, irrespective of fault, a party should be held to respond for the acts of another. The purpose of disciplinary action against licensed professionals is not the infliction of punishment, but rather the protection of the public. Chapter 327 has established the responsibility a certified engineer bears when he undertakes a contract in his professional capacity. Sec. 327.191 authorizes non-certificated engineers to perform engineering work under the direction and continuing supervision of and is checked by a certificated engineer. It is a misdemeanor for a certified engineer to affix his seal to plans which have not been prepared by him or under his immediate personal supervision. Sec. 327.201. A corporation may engage in engineering activities if it has assigned responsibility for proper conduct of its professional engineering to a registered professional engineer. Sec. 327-401. Gillum was the engineer designated by G.C.E. as having that responsibility. An engineer affixing his seal to plans is personally and professionally responsible therefor. Sec. 327.401 Affixing his seal to plans imposes upon the engineer responsibility for the whole engineering project unless he, under seal, disclaims such responsibility. Gillum made no such disclaimer here. The entire thrust of Chapter 327 is to place individual personal and professional responsibility upon a known and identified certificated engineer. This is the responsibility the engineer assumes in exchange for the right to practice his profession. It is the assumption of this responsibility for which he is compensated. The statutory framework is established to protect the public and to hold responsible licensed
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engineers who fail to afford that protection. It is clear that the statute expresses the intent to impose disciplinary sanctions on the engineer responsible for the project whether the improper conduct is that of himself or attributable to the employees or others upon whom he relies. This case differs, therefore, from the cases relied upon by Gillum and G.C.E. where the statute did not impose such non-delegable responsibility. The Commission did not err in finding that Gillum and G.C.E. were subject to discipline for the acts or omissions of Duncan. We look first to Duncan. He was the project engineer for the Hyatt and as such had primary responsibility within his company for designing and approving those aspects of the Hyatt which required structural engineering expertise. The design of the connections in the walkways themselves were included in that responsibility. The walkways were intended to carry pedestrian traffic. They were suspended above the main lobby of the hotel, recognized to be the main point of congregation within the hotel. The walkways each weighed approximately 35 tons and comprised heavy and largely non-malleable materials such as steel, concrete, glass and wood. The connections in the walkway were non-redundant so that if any one within a single walkway failed they all would fail and the walkway would collapse. Duncan had never designed a system similar to the Hyatt walkways. It is self-evident that the walkways offered a potential of great danger to human life if defectively designed. The Commission could properly consider the potential of danger in determining the question of gross negligence. That which might constitute inadvertence where no danger exists may well rise to conscious indifference where the potential danger to human life is great. This is simply to say that the level of care required of a professional engineer is directly proportional to the potential for harm arising from his design and as we have previously stated indifference to harm and indifference to duty are closely related if not identical. The structural drawings of Duncan furnished to the fabricator contained several serious errors. Under standard engineering practice Duncan could either design the box beam-hanger rod connections or cause the drawings to reflect his intention that they be designed by the fabricator. These drawings did neither. They appeared to be connections fully designed by the engineer and were reasonably so interpreted by the fabricator. Duncan testified that he intended the fabricator to design the connections. The drawings did not contain information indicating that the connections were to be designed by the fabricator and omitted important engineering load calculations necessary to enable the fabricator to design the connections. The drawings failed to properly identify the type of weld required, the need for bearing plates and/or stiffeners, and erroneously identified the hanger rods as standard rather than high-strength steel. The box beam-hanger rod connections and the hanger rods themselves on all three walkways, as shown by the structural drawings, did not meet the design specifications of the Kansas City Building code. That Code is intended to provide a required level of safety for buildings within the City. It is difficult to conclude that gross failure to comply with that Code can constitute other than conscious indifference to duty by a structural engineer. Because of certain difficulties in fabrication [the fabricator] requested a change to the double rod configuration. This request was transmitted to Duncan who approved it and verified its structural soundness and safety to the architect. He did so without having conducted all necessary engineering tests and calculations to determine the soundness and safety of the double rod arrangement. His concern was with its architectural acceptability not its structural acceptability. The result of this change was to double the load on the fourth floor walkway and impose a similar increase on the connections which were already substantially below Code requirements.2 [The fabricator] supplied Duncan with its shop
The National Bureau of Standards found as originally designed the connection capacity was 60 percent of that required by the Building Code; as ultimately constructed the capacity was 31 percent of Code requirements.
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drawings. Under the contract, and under the statute, review and approval of the shop drawings is an engineering function. [The appealing engineers] normal in-house procedures called for detailed check of all special connections during shop drawing review. Duncan was aware of the change to the two-rod system but did not review the box beamhanger rod connection on the fourth floor walkway. Duncan did not, as is standard practice, look for an assembled detail of the connection and did not assemble the components, either in his mind or on a sketch, to determine what the connection looked like in detail. The shop drawings did not reflect the use of stiffeners or bearing plates necessary to bring the connections within Code requirements. No review was made nor calculations performed to determine whether the box beam-hanger rod connection shown on the shop drawings met Code requirements. Shop drawing review by the engineer is contractually required, universally accepted and always done as part of the design engineers responsibility. The box beam-hanger rod connections and the hanger rod shown on the shop drawings did not meet design specifications of the Code. Following the atrium roof collapse [the appealing engineers] were requested by the architect and owner to recheck all the steel in the atrium. They reported that they had done so and included in that report was the statement we then checked the suspended bridges and found them to be satisfactory. In fact [the appealing engineers] did not do a complete check of the design of all steel in the atrium and did not do a complete check of the suspended bridges i.e. walkways. As finally built, the hanger rods and the box beam hanger rod connections did not meet the requirements of the Code. The walkway collapse was the result of the failure of the fourth floor box rod connections. The third floor walkway, which did not collapse, had a high probability of failure during the life of the building. The determination of conscious indifference to a professional duty, i.e., gross negligence, is a determination of fact. The conduct of Duncan from initial design through shop drawing review and through the subsequent requested connection review following the atrium roof collapse fully supports the Commissions finding of conscious indifference to a professional duty. The responsibility for the structural integrity and safety of the walkway connections was Duncans and that responsibility was non-delegable. He breached that duty in continuing fashion. His reliance upon others to perform that duty serves as no justification for his indifference to his obligations and responsibility. The findings of the Commission as to Duncans gross negligence are fully supported by the record. The Commission also found Duncan subject to discipline for misconduct in misrepresenting to the architects the engineering acceptability of the double rod configuration when he performed no engineering calculations or other engineering activities to support his representation. The Commission found such representation to have been made either knowing of its falsity or without knowledge of the truth or falsity. The Commission found Duncans misrepresentation to be the willful doing of an act with wrongful intention which it had defined as misconduct. We find no error in either the factual finding or legal conclusion of the Commission. Duncans representation to the architect concerning a material fact, without a basis for knowledge of its truth or falsity, could properly be viewed as either misconduct as an engineer or gross negligence. In either event it subjected Duncan to disciplinary action. The Commission further found Gillum to be subject to discipline for unprofessional conduct and gross negligence in his refusal to accept his responsibility as mandated by Chapter 327 and his denial that such responsibility existed. All of these findings arise from the same basic attitude of Gillum that the responsibility imposed by Chapter 327 is not in keeping with usual and customary engineering practices and that that responsibility did not mandate his personal involvement in the design of the Hyatt. In essence he placed the
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responsibility for the improper design of the connections on [the fabricator] and took the position that the structural engineer was entitled to rely on [the fabricators] expertise. What we have heretofore said in regard to the requirements of Chapter 327 and the responsibility imposed upon an engineer thereby sufficiently deals with Gillums contentions. His argument here that utilization of his seal without disclaimer could not impose responsibility upon him for the shop drawings of another entity prepared after impression of the seal is clearly rejected by the language of the statute. By section 327.411.2 the owner of the seal is responsible for the whole engineering project when he places his seal on any plans unless he expressly disclaims responsibility and specifies the documents which he disclaims. The shop drawings were part of the documents comprising the engineering project and were intended to be used for any part or parts of the engineering project Gillum was by statute responsible for those drawings and he accepted such responsibility when he entered into the contract and utilized his seal. His refusal to accept a responsibility so clearly imposed by the statute manifests both the gross negligence and unprofessional conduct found by the Commission. These findings are further bolstered by the evidence of Gillums participation in the misrepresentations concerning, and non-performance of, a review of the atrium design upon direct request of the architect and owner. Appellant G.C.E. is, for reasons heretofore stated, subject to discipline for the conduct of its employees and particularly for the conduct of the engineer assigned the responsibility for the proper conduct of all its professional engineering in this state
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Thinking Like an Engineer: The Place of a Code of Ethics in the Practice of a Profession* By Michael Davis
Most discussions of engineering ethics dismiss the idea of codes of ethics from the outset. Codes are described as self-serving, unrealistic, inconsistent, mere guides for novices, too vague, or unnecessary.1 I will not do that here. Instead, I will argue that a code of professional ethics is central to advising individual engineers how to conduct themselves, to judging their conduct, and ultimately to understanding engineering as a profession. I will begin with a case now commonly discussed in engineering ethics, finding my general argument in a detailed analysis of a particular choice. While I believe the analysis to be applicable to all professions, I shall not argue that here.
I. THE CHALLENGER DISASTER2 On the night of 27 January 1986, Robert Lund was worried. The Space Center was counting down for a shuttle launch the next morning. Lund, vice-president for engineering at Morton Thiokol, had earlier presided over a meeting of engineers that unanimously recommended against the launch. He had concurred and informed his boss, Jerald Mason. Mason informed the Space Center. Lund had expected the flight to be postponed. The Centers safety record was good. It was good because the Center would not allow a launch unless the technical people approved. Lund had not approved. He had not approved because the temperature at the launch site would be close to freezing at lift-off. The Space Center was worried about the ice already forming in places on the boosters, but Lunds worry was the O-rings sealing the boosters segments. They had been a great idea, permitting Thiokol to build the huge rocket in Utah and ship it in pieces to the Space Center two thousand miles away. Building in Utah was so much more efficient than building on-site that Thiokol had been able to underbid the competition. The shuttle contract had earned Thiokol $150 million in profits. But, as everyone now knows, the 0-rings were not perfect. Data from previous flights indicated that the rings tended to erode in flight, with the worst erosion occurring on the coldest preceding lift-off. Experimental evidence was sketchy but ominous. Erosion seemed to increase as the rings lost their resiliency, and resiliency decreased with temperature. At a certain temperature, the rings could lose so much resiliency that one could fail to seal properly. If a ring failed in flight, the shuttle could explode. Unfortunately, almost no testing had been done below 40F. The engineers scarce time had had to be devoted to other problems, forcing them to extrapolate from the little data they had. But, with the lives of seven astronauts at stake, the decision seemed clear enough: Safety first.
...................................................................................................... e.g., John Ladd, The Quest for a Code of Professional Ethics: An Intellectual and Moral Confusion, In AAAS Professional Ethics Project, ed. Rosemary Chalk, Mark S. Frankel, and Sallie B. Chafer (Washington, D.C.: American Association for the Advancement of Science, 1980), pp. 154-59; Samuel Florman, Moral Blueprints, Harpers 257 (1978): 30-33; John Kultgen, The Ideological Use of Professional Codes, Business and Professional Ethics Journal 1 (1982): 53-69; and Heinz C. Luegenbiehl, Codes of Ethics and the Moral Education of Engineers, Business and Professional Ethics Journal 2 (1983): 0-61. Note also how small a part codes have in a text on engineering ethics, such as Mike Martin and Roland Schinzinger, Ethics in Engineering, 2d ed. (New York: McGraw-Hill, 1989), esp. pp. 86-92, 103-4.
1See, 2The
following narrative is based on testimony contained in The Presidential Commission on the Space Shuttle Challenger Disaster (Washington, D.C.: U.S. Government Printing Office, 1986), esp. 1:82-103.
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Or so it had seemed earlier that day. Now Lund was not so sure. The Space Center had been surprised, even appalled, by the evidence on which the no-launch recommendation had been based. They wanted to launch. They did not say why, but they did not have to. The shuttle program was increasingly falling behind its ambitious launch schedule. Congress had been grumbling for some time. And, if the launch went as scheduled, the president would be able to announce the first teacher in space as part of his State of the Union message the following evening, very good publicity just when the shuttle program needed some. The Space Center wanted to launch. But they would not launch without Thiokols. approval. They urged Mason to reconsider. He reexamined the evidence and decided the rings should hold at the expected temperature. Joseph Kilminster, Thiokols vice-president for shuttle programs, was ready to sign a launch approval, but only if Lund approved. Lund was now all that stood in the way of launching. Lunds first response was to repeat his objections. But then Mason said something that made him think again. Mason asked him to think like a manager rather than an engineer. (The exact words seem to have been, Take off your engineering hat and put on your management hat.) Lund did and changed his mind. The next morning the shuttle exploded during lift-off, killing all aboard. An O-ring had failed. Should Lund have reversed his decision and approved the launch? In retrospect, of course, the answer is obvious: No. But most problems concerning what we should do would hardly be problems at all if we could foresee all the consequences of what we do. Fairness to Lund requires us to ask whether he should have approved the launch given only the information available to him at the time. And since Lund seems to have reversed his decision and approved the launch because he began to think like a manager rather than an engineer, we need to consider whether Lund, an engineer, should have been thinking like a manager rather than an engineer. But, before we can consider that, we need to know what the difference is between thinking like a manager and thinking like an engineer. One explanation of the difference stresses technical knowledge. Managers, it might be said, are trained to handle people; engineers, to handle things. To think like a manager rather than an engineer is to focus on people rather than on things. According to this explanation, Lund was asked to concern himself primarily with how best to handle his boss, the Space Center, and his own engineers. He was to draw upon his knowledge of engineering only as he might draw upon his knowledge of a foreign language, for example, to help him communicate with his engineers. He was to act much as he would have acted had he never earned a degree in engineering. If that explanation of what Mason was asking of Lund seems implausible (as I think it does), what is the alternative? If Mason did not mean that Lund should make his knowledge of engineering peripheral (as it seems Mason, himself an engineer, did not when he personally reexamined the evidence), what was he asking Lund to do? What is it to think like an engineer if not simply to use ones technical knowledge of things? That is a question engineers have been asking for almost a century. Answers have often been expressed in a formal code of ethics. That may seem odd. What business, it may be asked, do engineering societies have promulgating codes of ethics? What could they be thinking? Ethics is not a matter for majority vote but for private conscience, or, if not for private conscience, then for experts; and the experts in ethics are philosophers or clergy, not engineers. Such thoughts make any connection between engineering and ethics look dubious. So, before we can say more about what Lund should have done, we have to understand the connection.
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II. THE POSSIBILITY OF ENGINEERING ETHICS A code of (professional) ethics generally appears when an occupation organizes itself into a profession. Usually, the code is put in writing and formally adopted. Even when formalization is put off, however, the code may still be a subject of frequent reference, whether explicitly, as in our code of ethics, or implicitly, as in, That would not be proper for one of us. Why this connection between codes of (professional) ethics and organized professions? Several explanations have been offered over the years.3 But, for our purposes, the most helpful is that a code of ethics is primarily a convention between professionals.4 According to this explanation, a profession is a group of persons who want to cooperate in serving the same ideal better than they could if they did not cooperate. Engineers, for example, might be thought to serve the ideal of efficient design, construction, and maintenance of safe and useful objects. A code of ethics would then prescribe how professionals are to pursue their common ideal so that each may do the best she can at minimal cost to herself and those she cares about (including the public, if looking after the public is part what she cares about). The code is to protect each professional from certain pressures (for example, the pressure to cut corners to save money) by making it reasonably likely (and more likely than otherwise) that most other members of the profession will not take advantage of her good conduct. A code protects members of a profession from certain consequences of competition. A code is a solution to a coordination problem. According to this explanation, an occupation does not need societys recognition in order to be a profession. It needs only a practice among its members of cooperating to serve, a certain ideal. Once an occupation has become a profession, society has a reason to give it special privileges (for example, the sole right to do certain work) if, but only if, society wants to support serving the ideal in question in the way the profession has chosen to serve it. Otherwise, it may leave the profession unrecognized. A profession, as such, is like a union in that it is organized to serve the interests of its members, and unlike a charity or government, which is organized to serve someone elses interests. But professions differ from unions in the interests they are organized to serve. Unions are, like businesses, primarily organizations of self-interest. They exist for the benefit of their members, just as businesses exist for the profit of their owners. A profession, in contrast, is organized to help members serve othersaccording to a certain ideal expressed in its code of ethics. In this sense, professions are organized for public service. That, I think, is true by definition. But it is not a mere semantic truth. When a group of individuals constitute themselves as a profession they explicitly invoke this way of understanding what they are up to. They invite examination according to the standards proper to such an undertaking. They give what they do a distinct context. Understanding a code of (professional) ethics as a convention between professionals, we can explain why engineers cannot depend on mere private conscience when choos-
See, e.g., Robert M. Veatch, Professional Ethics and Role-Specific Duties, Journal of Medicine and Philosophy 4 (1979): 1-19; Benjamin Freedman, A Meta-Ethics for Professional Morality, Ethics 89 (1978): 1-19; and Lisa Newton, The Origin of Professionalism: Sociological Conclusions and Ethical Implications, Business and Professional Ethics Journal 1 (1982): 33-43. For more on this explanation, see my The Moral Authority of a Professional Code, NOMOS XXIX: Authority Revisited, ed. J. Roland Pennock and John W. Chapman (New York: New York University Press, 1987), PP. 302-38; The Use of Professions, Business Economics 22 (1987): 5-10; Professionalism Means Putting Your Profession First, Georgetown Journal of Legal Ethics 2 (1988): 352-66; and The Ethics Boom: What and Why, Centennial Review 34 (1990): 163-86
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ing how to practice their profession, no matter how good that private conscience, and why engineers should take into account what an organization of engineers has to say about what engineers should do.5 What conscience would tell us to do absent a certain convention is not necessarily what conscience would tell us given that convention. lnsofar as a code of professional ethics is a kind of (morally permissible) convention/it provides a guide to what engineers may reasonably expect of one another, what (more or less) the rules of the game are. Just as we must know the rules of baseball to know what to do with the ball, so we must know engineering, ethics to know, for example, whether, as engineers, we should merely weigh safety against the wishes of our employer or instead give safety preference over those wishes. A code of ethics should also provide a guide to what we may expect other members of our profession to help us do. If, for example, part of being an engineer is putting safety first, then Lunds engineers had a right to expect his support. When Lunds boss asked him to think like a manager rather than an engineer, he should, as an engineer, have responded, Sorry, if you wanted a vice-president who would think like a manager rather than an engineer, you should not have hired an engineer.6 If Lund had so responded, he would, as we shall see, have responded as the rules of the engineering game require. But would he have done the right thing, not simply according to those rules but all things considered? This is not an empty question. Even games can be irrational or immoral. (Think, for example, of a game in which you score pointsby cutting off your fingers or by shooting people who happen to pass in the street below.) People are not merely members of this or that profession. They are also persons with responsibilities beyond their professions, moral agents who cannot escape conscience, criticism, blame, or punishment just by showing that they did what they did because their profession required it. While we have now explained why an engineer should, as an engineer, take account of his professions code of ethics, we have not explained why anyone should be an engineer in this sense. Let me put the point more dramatically. Suppose Lunds boss had responded to what we just imagined Lund to say to him: Yes, we hired an engineer, butwe supposedan engineer with common sense, one who understood just how much weight a rational person gives a code of ethics in decisions of this kind. Be reasonable. Your job and mine are on the line. The future of Thiokol is also on the line. Safety counts a lot. But other things do, too. If we block this launch, the Space Center will start looking for someone more agreeable to supply boosters. If acting as ones professional code requires is really justified, we should be able to explain to Lund (and his boss) why, as a rational person, Lund should support his professions code as a guide for all engineers and why, even in his trying circumstances, he cannot justify treating himself as an exception.
5 Here, then, is an important contrast between my Position and the personal analysis of professional duties one finds, for example, in Thomas Shaffer, Advocacy as Moral Discourse, North Carolina Law Review 57 (1979): 647-70; or Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, Yale Law Review 85 (1976)- 1060-89. Unlike these others, I do not treat professional activity as primarily involving a relation between one person with an important skill (the professional) and a series of others (the client, patient, or whatever). The appeal of the personal analysis probably comes from focusing too much on professions, like law and medicine, that have a clearly defined client. One feature of engineering that should make it more interesting to students of professional ethics than it has been is the absence (or relative unimportance) of individual clients. In this respect, engineering may represent the future of law, and perhaps even of medicine.
6 Cf. my The Special Role of Professionals in Business Ethics, Business and Professional Ethics Journal 7 (1988): 83-94.
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III. WHY OBEY ONES PROFESSIONAL CODE? The question now is why, all things considered, an engineer should obey her professions code. We should begin by dismissing two alternatives some people find plausible. One is that Lund should do as his profession requires because he promised, for example, by joining an engineering society having a code of ethics. We must dismiss this answer because it is at least possible that Lund never did anything we could plausibly characterize as promising to follow a formal code. Lund could, for example, have refused to join any professional society having a code (as perhaps half of all U.S. engineers do). Yet, it seems such a refusal would not excuse him from conducting himself as an engineer should. The obligations of an engineer do not seem to rest on anything so contingent as a promise, oath, or vow. So, the convention between professionals (as I called it) is not a contract. It is more like what lawyers call a quasicontract or a contract implied in law; that is, an obligation resting not on an actual agreement (whether express or tacit) but on what it is fair to require of someone given what he has voluntarily done, such as accepted the benefits that go with claiming to be an engineer. The other plausible alternative we can quickly dismiss is that Lund should do as his profession requires because society says he should. We may dismiss this answer in part because it is not clear that society does say that. One way society has of saying things is through law. No law binds all engineers to abide by their professions code (as the law does bind all lawyers to abide by theirs).7 Of course, society has ways of saying things other than by law, for example, by public opinion. But it seems doubtful that the public knows enough about engineering to have an opinion on most matters of engineering ethics. And, even on the matter before us, can we honestly say that society wants engineers to do as their code requires (treat safety as paramount, as explained below) rather than (as most people would) treat safety as an important consideration to balance against others? However that question is answered, it seems plain that neither public opinion nor law should decide what it is rational or moral to do. After all, there have been both irrational laws (for example, those requiring the use of outmoded techniques) and immoral laws (for example, those enforcing slavery). The public opinion supporting such laws could not have been much less irrational or immoral than the laws themselves. The two answers we have now dismissed share one notable feature. Either would, if defensible, provide a reason to do as ones profession requires quite independently of what in particular the profession happens to require. The answers do not take account of the contents of the code of ethics. They are formal. The answer we shall now consider is not formal. It is that supporting a code of ethics with a certain content is rational because supporting any code with a content of that sort is rational. Consider, for example, the code of ethics drafted by the Accreditation Board of Engineering and Technology (ABET) and adopted by all major American engineering societies except the National Society of Professional Engineers and the Institute of Electrical and Electronic Engineers. The code is divided into fundamental principles, fundamental canons, and (much more detailed) guidelines. The fundamental principles simply describe in general terms an ideal of service. Engineers uphold and advance the integrity, honor and dignity of the engineering profession by: 1. using their knowledge and skill for
7
Some engineers, so-called Professional Engineers (PEs). are bound by law In exactly the way lawyers, doctors, and other statelicensed professionals are. But most engineers in the United Statesnearly 90 percentare not so licensed. They Practice engineering under the manufacturers exemption. They can practice engineering only through a company with a PE, who must ultimately sign off on their work.
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the enhancement of human welfare, 2. being honest and impartial, and serving with fidelity the public, their employers and clients [and so on]. What rational person could object to others trying to achieve that ideal? Or at least, what rational person could object so long as their doing so did not interfere with what she was doing? Surely every engineerindeed, every member of society is likely to be better off overall if engineers uphold and advance the integrity, honor, and dignity of engineering in that way. Below the fundamental principles are the fundamental canons. The canons lay down general duties. For example, engineers are required to hold paramount the safety, health and welfare of the public, to issue public statements only in an objective and truthful manner, to act in professional matters for each employer or client as faithful agents and trustees, and to avoid all conflicts of interest. Each engineer stands to benefit from these requirements both as ordinary person and as engineer. The benefits for an engineer as ordinary person are obvious: As an ordinary person, an engineer is likely to be safer, healthier, and otherwise better off if engineers generally hold paramount the public safety, only make truthful public statements, and so on. How engineers stand to benefit as engineers is less obvious. So, let us try a thought experiment. Imagine what engineering would be like if engineers did not generally act as the canons require. If, for example, engineers did not generally hold paramount the safety, health, and welfare of the public, what would it be like to be an engineer? The day-to-day work would, of course, be much the same. But every now and then an engineer would be asked to do something that, though apparently profitable to his employer or client, would put other people at risk, some perhaps about whom he cared a great deal. Without a professional code, an engineer could not object as an engineer. An engineer could, of course, still object personally and refuse to do the job. But if he did, he would risk being replaced by an engineer who would not object. An employer or client might rightly treat an engineers personal qualms as a disability, much like a tendency to make errors. The engineer would be under tremendous pressure to keep personal opinions to himself and get on with the job. His interests as an engineer would conflict with his interests as a person. That, then, is why each engineer can generally expect to benefit from other engineers acting as their common code requires. The benefits are, I think, clearly substantial enough to explain how an individual could rationally enter into a convention that would equally limit what he himself can do. I have not, however, shown that every engineer must benefit overall from such a convention, or even that any engineer will consider these benefits sufficient to justify the burdens required to achieve them. Professions, like governments, are not always worth the trouble of maintaining them. Whether a particular profession is worth the trouble is an empirical question. Professions nonetheless differ from governments in at least one way relevant here. Professions are voluntary in a way that governments are not. No one is born into a profession. One must claim professional status to have it (by taking a degree, for example, or accepting a job for which professional status is required). We therefore have, good reason to suppose that people are engineers because, on balance, they prefer to have the benefits of being an engineer, even given what is required of them in exchange. If, as we shall now assume, the only way to obtain the benefits in question is to make it part of being an engineer that the public safety, health, and welfare come first, every engineer, including Lund, has good reason to want engineers generally to adhere to something like the ABET code. But why should an engineer adhere to it himself when, as in Lunds case, it seems he (or his employer or client) stands to benefit by departing from it?
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If the question is one of justification, the answer is obvious. Lund would have to justify his departure from the code by appealing to such considerations as the welfare of Thiokol and his own self-interest. An appeal to such considerations is just what Lund could not incorporate into a code of ethics for engineers or generally allow other engineers to use in defense of what they did. Lund could not incorporate such an exception into a code because its incorporation would defeat the purpose of the code. A code of ethics is necessary in part because, without it, the self-interest of individual engineers, or even their selfless devotion to their employer, could lead them to harm everyone overall. Lund could not allow other engineers to defend what they did by appeal to their own interests or that of their employer for much the same reason. To allow such appeals would be to contribute to the breakdown of a practice Lund has good reason to support. I take this argument to explain why, all things considered, Lund should have done as his professions code requires, not why he should have done so in some pre-moral sense. I am answering the question Why be ethical? not Why be moral? I therefore have the luxury of falling back on ordinary moral principles to determine what is right, all things considered. The moral principle on which this argument primarily relies is the principle of fairness. Since Lund voluntarily accepts the benefits of being an engineer (by claiming to be an engineer), he is morally obliged to follow the (morally permissible) convention that helps to make those benefits possible.8 What I have been at pains to show is how that convention helps to make those benefits possible, and why, even now, he has good reason to endorse the convention generally. I have been assuming that engineers do in fact generally act in accordance with the ABET code, whether or not they know it exists. If that assumption were mistaken, Lund would have had no professional reason to do as the code requires. The code would be a dead letter, not a living practice. It would have much the same status as a model statute no government ever adopted, or the rules of a cooperative game no one plays. Lund would have had to rely on private judgment. But relying on private judgment is not necessary here. Lunds engineers seem to have recommended as they did because they thought the safety of the public, including astronauts, paramount. They did what, according to the code, engineers are supposed to do. Their recommendation is itself evidence that the code corresponds to a living practice.9 So, when Lunds boss asked him to think like a manager rather than an engineer, he was in effect asking Lund to think in a way that Lund must consider unjustified for engineers generally and for which Lund can give no morally defensible principle for making himself an exception. When Lund did as his boss asked (supposing he did), he in effect let down all
I hope this appeal to fairness will raise no red flags, even though the principle of fairness has been under a cloud ever since the seemingly devastating criticism It received in Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974). 1 have, it should be noted, limited my use to obligations generated by voluntarily claiming benefits of a cooperative practice that are otherwise not available. Most attacks on the principle of fairness have been on the Involuntary benefits version. See, e.g., A. John Simmons, Moral Principles and Political Obligations (Princeton, N.J.: Princeton University Press, 1979). pp. 118-36. And even those attacks are hardly devastating. One can either refine the principle, as Richard Arneson has done In The Principle of Fairness and Free-Rider Problems, Ethics 92 (1982): 616-33; or, as in my Nozicks Argument for the Legitimacy of the Welfare State, Ethics 97 (1987): 576-94, show that Nozicks original criticism, and most subsequent criticism, depends on examples that, upon careful examination, fail to support the criticism. I am not claiming that the engineers treated safety as paramount because they knew what the ABET code said. When you ask a lawyer about a professional code, she is likely to tell you she studied the ABA code in law school and, claiming to have a copy around, will produce It after only a few minutes of searching her desk or bookshelves. When you ask an engineer the same question, he is likely to tell you that his profession has a code while admitting both that he never studied it and that he has none around to refer to. Yet, anyone who has spent much time with working engineers knows they do not treat safety In the same way managers do (hence Masons plea to take off your engineering hat). The engineers code of ethics seems to be hard-wired into them. Interestingly, engineers are not the only professionals for whom the written code seems to play so small a part. For another example, see my Vocational Teachers, Confidentiality. and Professional Ethics, International Journal of Applied Philosophy 4 (1988): 11-20.
9
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those engineers who helped to establish the practice that today allows engineers to say no in such circumstances with the reasonable hope that the client or employer will defer to their professional judgment, and that other engineers will come to their aid if the client or employer does not defer. Lund could, of course, still explain how his action served his own interests and those of Thiokol (or, rather, how they seemed to at the time).10 He could also just thumb his nose at all talk of engineering ethics, though that would probably lead to the governments barring him from working on any project it funds, to fellow engineers refusing to have anything to do with him, and to his employers coming to view him as an embarrassment. What he cannot do is show that what he did was right, all things considered. This conclusion assumes that I have not overlooked any relevant consideration. I certainly may have. But that is not important here. I have not examined Lunds decision in order to condemn him but in order to bring to light the place of a code of ethics in engineering. There is more to understand.
IV. INTERPRETING A CODE OF ETHICS So far we have assumed that Lund did as his boss asked, that is, that he thought like a manager rather than an engineer. Assuming that allowed us to give a relatively clear explanation of what was wrong with what Lund did: Lund acted like a manager when he was also an engineer and should have acted like one. We must, however, now put that assumption aside and consider whether engineering ethics actually forbids Lund to do what it seemed he did, that is, weigh his own interests, his employers, and his clients against the safety of the seven astronauts. Ordinary morality seems to allow such weighing. For example, no one would think you did something morally wrong if you drove your child to school, rather than letting him take the bus, even if your presence on the road increased somewhat the risk that someone would be killed in a traffic accident. Morality allows us to give special weight to the interests of those close to us.11 If engineering ethics allows that too, then Lundwhatever he may have thought he was doingwould not actually have acted unprofessionally. Let us then imagine Lunds reading of the ABET code. What could he infer? Of the codes seven fundamental canons, only two seem relevant: (1) [holding] paramount the safety, health and welfare of the public and (4) [acting] in professional matters for each employer or client as faithful agents or trustees. What do these provisions tell Lund to do? The answer is not all that clear. Does public include the seven astronauts? They are, after all, employees of Thiokols client, the Space Center, not part of the public as are, say, those ordinary citizens who watch launches from the beach opposite the Space Center. And what is it to be a faithful agent or trustee of ones client or employer? Is it to serve all the interests of a client or employer, or only the financial ones? And how is one to determine even those? Does the client or employer have the final word, or may an engineer make an independent assessment? After all, the actual result of Lunds decision was a disaster for both employer
10
I do not claim that he would explain his decision in this way. Indeed, I think his explanation would be quite different, though no less troubling. See my Explaining Wrongdoing, Journal of Social Philosophy 20 (1989): 74-90.
11
Here, then, is why I reject the universalistic interpretation of engineering ethics in, e.g., Kenneth Alpern, Moral Responsibility for Engineers, Business and Professional Ethics Journal 2 (1983): 39-48.
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and client, though one both employer and client may have thought themselves justified in risking. And what is Lund to do if the public welfare requires what no faithful agent or trustee could do? Does holding paramount the public welfare include sometimes acting as a faithful agent or trustee would not act? These questions are surprisingly easy to answer if we keep in mind the connection between professions and codes of ethics, remembering especially that a code is not a stone tablet inscribed with divine wisdom but the work of engineers, a set of rules that is supposed to win the support of engineers because the rules help engineers do what they want to do. The language of any document, codes included, must be interpreted in light of what it is reasonable to suppose its authors intend.12 For example, if bachelor appears undefined in a marriage statute, we interpret it as referring to single males, but if the same word appears in directions for a colleges graduation ceremony, we instead interpret it as referring to all students getting their baccalaureate, whether male or female, single or married. That is the reasonable interpretation because we know that marriages usually involve single males (as well as single females) rather than people with baccalaureates while just the reverse is true of graduation ceremonies. So, once we figure out what it is reasonable to suppose engineers intend by declaring the public safety, health, and welfare paramount, we should be able to decide whether interpreting public so that it includes employees is what engineers intend (or at least what, as rational persons, they should intend) and also whether they intend the paramountcy requirement to take precedence over the duty to act as a faithful agent or trustee. The authors of a code of engineering ethics (whether those who originally drafted or approved it or those who now give it their support) are all more or less rational persons. They differ from most other rational persons only in knowing what engineers must know in order to be engineers and in performing duties they could not perform (or could not perform as well) but for that knowledge. It is therefore reasonable to suppose that their code of ethics would not require them to risk their own safety, health, or welfare, or that of anyone for whom they care, except for some substantial good (for example, high pay or service to some ideal to which they are committed). It also seems reasonable to suppose that no code they authored would include anything people generally consider immoral. Most engineers are probably morally decent people, unlikely to endorse an immoral rule. But what if that were not true? What if most engineers were moral monsters or just self-serving opportunists? What then? Interpreting their code would certainly be different, and probably harder. We could not understand it as a professional code. We would have to switch to principles of interpretation we reserve for mere folkways, Nazi statutes, or the like. We would have to leave the presuppositions of ethics behind. But, given those presuppositions, we can easily explain why a code of engineering ethics would make holding the public safety paramount a duty taking precedence over all others, including the duty to act as a faithful agent or trustee. Rational engineers would want to avoid situations in which only their private qualms stood between them and a use of professional knowledge they considered morally wrong or otherwise undesirable. Each would, as we saw, want to be reasonably sure that the knowledge of other engineers would serve the public, even when the interests of the public conflicted with those of employer or client. Given this purpose, what must public mean?
12 I am not here committing the originalist fallacy common a few years back in debates over how to interpret the U.S. Constitution. Though the first codes of ethics for American engineers were adopted early in this century, all have undergone radical revision within the last two decades. More importantly, as will be made plain below, I use authors to Include all those who must currently support the code. My notion of interpretation is therefore much closer to that found in Ronald Dworkin, Laws Empire (Cambridge, Mass.: Harvard University Press, 1986).
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We might interpret public as equivalent to everyone (in the society, locale, or whatever). On this interpretation, the public safety would mean the safety of everyone more or less equally. A danger that struck only children, or only those with bad lungs, or the like, would not endanger the public. This interpretation must be rejected. Since few dangers are likely to threaten everyone, interpreting public to mean everyone would yield a duty to the public too weak to protect most engineers from having to do things that would generally make life for themselves (and those they care about) far worse than it would otherwise be, even allowing for the occasional benefit they might obtain as individuals. We might also interpret public as referring to anyone (in the society, local, or whatever). On this interpretation, public safety would be equivalent to the safety of some or all. Holding the public safety paramount would mean never putting anyone in danger. If our first interpretation of public made provisions protecting the public too weak, this second would make them too strong. For example, it is hard to imagine how we could have electric power stations, mountain tunnels, or chemical plants without some risk to someone. No rational engineer could endorse a code of ethics that made engineering virtually impossible. We seem, then, to need an interpretation of public invoking some more relevant feature of people, rather than, as we have so far, just their number. I would suggest that what makes people a public is their relative innocence, helplessness, or passivity. On this interpretation, public would refer to those persons whose lack of information, technical knowledge, or time for deliberation renders them more or less vulnerable to the powers an engineer wields on behalf of his client or employer. An engineer should hold paramount the public safety, health, and welfare to assure that engineers will not be forced to give too little regard to the welfare of these innocents. On this third interpretation, someone might be part of the public in one respect but not in another. For example, the astronauts would be part of the public with respect to the 0-rings because, not knowing of the danger, they were in no position to abort the launch to avoid the danger. The astronauts would, in contrast, not be part of the public with respect to the ice forming on the boosters because, having been fully informed of that danger, they were in a position to abort the launch if they were unwilling to take the risk the ice posed. This third interpretation of public thus seems to be free of the difficulties that discredited the preceding two. We now seem to have a sense of holding the public safety paramount that we may reasonably suppose rational engineers would endorse. On this interpretation, the engineers code of ethics would (all else equal) require Lund either to refuse to authorize the launch or to insist instead that the astronauts be briefed in order to get their informed consent to the risk. Refusing authorization would protect the public by holding the safety of the astronauts paramount. Insisting that the astronauts be briefed and decide for themselves would hold the safety of the public paramount by transferring the astronauts from the category of members of the public to that of informed participants in the decision. Either way, Lund would not, under the circumstances, have had to treat his own interests, those of his employer Thiokol, or those of his client the Space Center as comparable to those of the public (assuming, of course, what is not true, that we have considered all the public interests relevant here). Is this the correct interpretation of public? It is if we have taken into account every relevant consideration. Have we? There is, of course, no way to know. But there is good reason to think we have. We can easily show that the only obvious alternative is wrong. That alternative is that public refers to all innocents except employees of the
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client or employer in question. Employees are to be excluded because, it might be said, they are paid to take the risks associated with their job. On this interpretation Lund would not have to hold the safety of the astronauts paramount, since they would not be part of the public. What is wrong with this fourth interpretation of public? Earlier, we understood innocents to include all persons whose lack of information, training, or time for deliberation renders them vulnerable to the powers an engineer wields on behalf of his client or employer. An employee who takes a job knowing the risks (and is otherwise able to avoid them) might be able to insist on being paid enough to compensate for them. She could then truly be said to be paid to take those risks. She would not be an innocent. But she would, under our third interpretation, also not in that respect be part of the public to which an engineer owed a paramount duty. She would have given informed consent to the risk in question. So, the third and fourth interpretations would not differ concerning such an employee. On the other hand, if the employee lacked the information to evaluate the risk, she would be in no position to insist on adequate compensation. She could not be said to be paid to take those risks. She would, in other words, be as innocent of, as vulnerable to, and as unpaid for the risks in question as anyone else in the public. Since nothing prevents an engineer, or someone for whom an engineer cares, from being the employee unknowingly at risk, engineers have as much reason to want to protect such employees as to protect the public in general. Public should be interpreted accordingly; that is, according to our third interpretation.
V. PROFESSIONAL RESPONSIBILITIES Given the argument developed so far, engineers clearly are responsible for acting as their professions code of ethics requires. Do their professional responsibilities go beyond the code? The answer, I think, is clearly yes. Engineers should not only do as their professions code requires, but should also support it less directly by encouraging others to do as it requires and by criticizing, ostracizing, or otherwise calling to account those who do not. They should support their professions code in these ways for at least four reasons: First, engineers should support their professions code because supporting it will help protect them and those they care about from being injured by what other engineers do. Second, supporting the code will also help assure each engineer a working environment in which it will be easier than it would otherwise be to resist pressure to do much that the engineer would rather not do. Third, engineers should support their professions code because supporting it helps make their profession a practice of which they need not feel morally justified embarrassment, shame, or guilt. And fourth, one has an obligation of fairness to do his part insofar as he claims to be an engineer and other engineers are doing their part in generating these benefits for all engineers.
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414 Mass 1 JOHN CATLIN v. BOARD OF REGISTRATION OF ARCHITECTS Supreme Judicial Court of Massachusetts, Suffolk. Argued Nov. 2, 1992, Decided Dec. 23, 1992. Architect disciplinary proceeding was brought. The Board of Registration of Architects ruled that architect had improperly affixed his seal to plans not prepared by himself or his subordinates and placed architect on probation for two years. Architect appealed. The Supreme Judicial Court, Suffolk County, OConnor, J., reserved and reported case to full Court. The Supreme Judicial Court, Nolan, J., held that: (1) architect did not prepare final drawings to which he affixed his seal within meaning of statute governing revocation and suspension of architects certificate of registration; (2) assuming failure of Board to review transcript from related federal trial which was part of architects brief, such error was harmless; and (3) Boards reading of statute did not violate commerce clause. Affirmed.
Before LIACOS, C.J., WILKINS, NOLAN, LYNCH, & GREANEY, JJ. Nolan, Justice The board suspended for six months Catlins registration to practice architecture in the Commonwealth, but stayed the suspension and placed Catlin on probation for two years. Pursuant to G. L. c. 112, 64 (1990 ed.), Catlin appealed from the boards decision. A single justice of this court reserved and reported the case to the full court on the administrative record. After reviewing the record, we conclude that there was no error in the boards decision. The facts of this case are undisputed. On March 7, 1986, Ziegler Cooper, Inc. (Ziegler Cooper), an out-of-State architectural firm with no member of its staff registered in Massachusetts, contracted with the owners of the Border Cafe Restaurant in Cambridge to provide schematic designs, design development, interior architectural design, and furnishings selection services for a proposed renovation of the restaurant. According to the contract, Ziegler Cooper was to coordinate with a local architect regarding site investigations and existing conditions and to confer with regulatory authorities to ensure that the design was in compliance with local building codes. The restaurant owners retained their rights to final review and approval of the designs. Ziegler Cooper submitted completed plans and drawings to the designated local architect on or about June 3, 1986. A dispute subsequently arose between the restaurant owners and the local architect over whether the plans were in compliance with local codes. The local architect was fired, and Ziegler Cooper eventually contracted with another registered architect, John Catlin. The terms of that agreement provided that Ziegler Cooper was to prepare construction documentation for the project, and that John Catlin & Associates
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would be responsible only for permitting and coordination with local authorities [and] [a]ny necessary field verification and coordination with structural or [mechanical, electrical, and plumbing] engineers for the purpose of completing the construction documentation. Ziegler Cooper informed the restaurant owners of its proposed agreement with Catlin and also informed them that Catlins seal would appear on the drawings submitted for final permit approval. Catlin reviewed at least two progress sets of drawings, made onsite evaluations, met with local building code authorities, and noted revisions in the plans which would be necessary to satisfy the building code. Ziegler Cooper then revised the plans in accordance with Catlins notations. Catlin affixed his seal on the final drawings which were submitted to the Cambridge building department for approval on October 14, 1986. There is no evidence that either Catlin or his associates drafted any part of the construction documents. Error of law. The heart of this dispute is the proper interpretation of the word prepared in G. L. c. 112, 60G (e). The statute authorizes the board to revoke, suspend or annul the certificate of registration or otherwise discipline a registrant, upon proof satisfactory to the board (e) that the holder of such certificate of registration has permitted or suffered his official seal to be affixed to any plans, specifications or drawings not prepared by him or under his personal supervision by his regularly employed subordinates (emphasis added). Catlin argues that his actions were proper because he prepared the plans within the plain meaning of the statute. He urges that the proper interpretation of prepared would include any acts which adapted, qualified, or made ready the plans for use. See Blacks Law Dictionary 1182 (6th ed. 1990) (To provide with necessary means; to make ready. ); Websters New Intl Dictionary 1952 (2d ed. 1959) (To fit, adapt, or qualify beforehand for a particular purpose ). Read in conjunction with other provisions in the statute, prepared in 60G excludes the actions taken by Catlin in this case. First, 60F, which parallels 60G, provides that [a] registered architect shall impress his seal on any plans or specifications only if he was the author of such plans and specifications or in responsible charge of their preparation (emphasis added). The seal is meant to show authorship of or responsibility for the plans. Catlin was not the author of the plans, nor did he produce the plans in this case; he reviewed not the work of his regularly employed subordinates in his normal place of business, but rather plans drawn by an independent architectural firm based outside Massachusetts. Supervision is not enough. The board reads its statutory mandate to require a greater degree of involvement by a registered Massachusetts architect to ensure the safety of the people of the Commonwealth. Thus, without sufficient evidence that the boards interpretation of prepared in 60G is inconsistent with its statutory authority, we defer to the boards judgment.
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BEFORE THE COMMONWEALTH OF KENTUCKY STATE BOARD OF EXAMNERS AND REGISTRATION OF ARCHITECTS
IN RE: THE LICENSE OF KENNETH LEROY BUTTS, #3219 SETTLEMENT AGREEMENT AND ORDER
WHEREAS, the KENTUCKY STATE BOARD OF EXAMINERS AND REGISTRATION OF ARCHITECTS (hereinafter BOARD) has filed and properly served notice of an administrative complaint and hearing against registered architect KENNETH LEROY BUTTS (License No. 3219) (hereinafter RESPONDENT) alleging violations of the statutes or regulations controlling the practice of architecture in Kentucky; and, WHEREAS, the parties desire to informally resolve the complaint in an expeditious manner, without a formal hearing; IT IS HEREBY STIPULATED AND AGREED between the undersigned parties that this matter shall be settled and resolved upon the following terms: The RESPONDENT, for the purposes of this settlement agreement and order, neither admits nor denies the truthfulness of the allegations set forth in the complaint on file against him. The RESPONDENT submits and agrees to the imposition of a civil penalty in the sum of One Thousand Dollars. Upon acceptance of the settlement agreement by the BOARD, RESPONDENTs license to practice architecture in the Commonwealth of Kentucky shall be suspended for the remainder of the current licensure period, which ends June 30, 1994. RESPONDENT agrees further, that following this period of suspension, that he will not renew his license or certificate of registration.
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Kenneth Leroy BUTTS, Appellant (Petitioner), v. WYOMING STATE BOARD OF ARCHITECTS, Appellee (Respondent). No. 95-106. Supreme Court of Wyoming. Feb. 26, 1996.
Butts was previously licensed to practice architecture in all fifty states. He made his living reviewing architectural plans for stores in malls across the country and reviewing plans for prototypical buildings erected by major franchises. Butts faced disciplinary action in Kentucky before the Kentucky Board of Examiners and Registration of Architects (Kentucky Board) for plan stamping in violation of K.R.S. 323.120(1)(f). Butts and the Kentucky Board entered into a settlement agreement and order in November, 1993. Butts did not admit or deny the truthfulness of the allegations or that his conduct was inappropriate in the settlement agreement and order. However, Butts agreed to suspension of his license until the end of his current licensure period, which ended June 30, 1994, agreed not to attempt to renew his license in Kentucky, and was fined one thousand dollars. The National Council of Architectural Registration Boards revoked its certification of Butts due to the Kentucky suspension and notified the Wyoming Boards administrator of the disciplinary action taken in Kentucky. Having heard of the Kentucky action, the administrator asked for and obtained certified copies of the notice of hearing, investigation memorandum and the settlement agreement and order for the Kentucky action. Based on the information from Kentucky, the Board filed a formal complaint against Butts, charging him with violating WYO.STAT. 33-4-115(a)(v) and (vii).2 The Board noticed and held a hearing based on the charges against Butts in Wyoming. The Board received into evidence a certified copy of the Kentucky settlement and order, an investigation memorandum from Kentucky, several exhibits presented by Butts in mitigation of the Kentucky plan stamping charge and testimony from Butts and one of his colleagues in Kentucky. The Board suspended Butts architect license in Wyoming until December 31, 1995, and ordered that his license not be considered for reinstatement for a minimum of three years from that date. An agencys factual finding will be set aside if it is not supported by substantial evidence.
WYO.STAT. 33-4-115(a)(v) and (vii) Supp. 1995) provide: (a) the board may take disciplinary actions, singularly or in combinations, against a licensee upon finding of: (v) Affixing, or permitting to be affixed, a seal upon a document which the architect or landscape architect was not responsible for preparing; (vii) Suspension or revocation of licensure by another state....
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The party challenging the sufficiency of the evidence has the burden of demonstrating the agencys decision is not supported by substancial evidence. Despite Butts exhortations to the contrary, the Boards decision was based on its finding of a violation of WYO.STAT. 33-4-115(a)(vii), not (v). The copy of the settlement agreement, which suspended Butts license in Kentucky, provided sufficient evidence that Butts license was suspended in Kentucky. Butts contends the Board is required to substantiate the underlying basis for the suspension of his license in Kentucky before it revoked his license based on a reciprocal statute. The statute providing for reciprocal suspension or revocation of an architect license is not ambiguous. The terms are not vague or subject to different interpretations. If another state revokes or suspends licensure, the board may take disciplinary action. The Board in this case gave Butts notice of the complaint against him, held a hearing and found that Butts license to practice architecture was suspended or revoked in Kentucky. The Board then imposed sanctions pursuant to WYO.STAT. 33-4-115 (b). Nothing in the statute requires the Board to prove the underlying basis for Kentuckys action against Butts. Further, due process rights are not violated when the Board considers a sister states revocation or suspension of an architects license as long as the Board meets requirements of notice and a hearing. The Wyoming State Board of Architects and Landscape Architects acted within its authority when it suspended Butts architect license based on a suspension or revocation in another state. Affirmed.
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Remote Plan Preparation: The Electronic Technology Task Force made a case before the 1996 Annual Meeting that technological innovations permit work to be done in other than the traditional office setting, but nonetheless enable the registered architect to exercise control over and have detailed knowledge of the work. Based on this premise the following case studies outline both proper and improper applications of Responsible Control. 1A: Outsourced Construction Documents Properly Supervised. Assume the Architect engaged an unregistered person (Technician) to prepare construction documents for a 20,000 sq. ft. office building from design drawings the Architect has prepared.1 The Architect posts the design drawings on the Architects world wide web site for the Technician to copy and download, asking the Technician to post the Technicians progress prints weekly for the Architects review, critique and approval. Based on the above circumstances the Architect would have responsible control over the construction documents and could sign and seal them and the Technician would be exempt from registration since the Technicians preparation of the documents would be under the Architects responsible control. Commentary Case Study 1A In this example, all of the elements of responsible control are present. The Architect has detailed the design concept sufficiently so that he or she thoroughly understands the design and has furnished the necessary guidance to the Technician. Because the Architect both prepared the design drawings and reviewed and critiqued progress prints of the construction documents weekly, the Architect has detailed knowledge of the construction documents during their preparation. The Architect has engaged the Technician and thus has control over the Technicians work. Whether the Technician is an independent contractor to the Architect or a full or part-time employee no longer has any bearing on the issue; a contractual relationship establishing the Technician as an independent contractor to the Architect will give the Architect the legal means to exercise control over the Technician throughout the Technicians work. Whether the Technician worked in the Technicians office, at home or in another office, even if that office is in a different state or country, also has no bearing on the issue so long as the Architect has detailed knowledge of and control over the plans during their preparation. Weekly review and critique of the progress of construction documents for an office building of this size would satisfy the professional standard of care. Review may need to be more or less frequent to meet the professional standard of care depending on the complexity of the building type.
Meaning drawings of the kind referred to as design development documents in AIA B141.
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1B: Outsourced Design Drawings Improperly Prepared. Assume in the same circumstances as case study A that the Architect had prepared only schematic designs and engaged the Technician to develop these sketches into completed design drawings which the Architect would then review, critique and approve. The Technician alone would have been in control of the preparation, therefore the Architect could not sign and seal the resulting plans. Commentary Case Study 1B While the Architect would have furnished general guidance to the Technician about the intended design drawings, the detailed knowledge the Architect brought to bear through schematic designs alone would not in and of itself have been sufficiently detailed to furnish the necessary guidance to the Technician in elaborating these into design drawings. As a result, the Architect would not have had either control over or detailed knowledge of the plans during their preparation, i.e., their elaboration from the schematic designs into the fully developed design drawings. Therefore responsible control would not have been exercised. 1C: Outsourced Construction Documents Improperly Prepared. Assume that the Architect prepared detailed design drawings but engaged the Technician to prepare the construction documents and submit them to the Architect for review, critique and approval at completion. While the Architect in this case would have detailed knowledge of the project through the design stage, because the Architect only reviewed the construction documents at the end the Architect would not have the detailed knowledge of the construction documents during their preparation. Thus the Architect could not sign and seal the construction documents. 1D: Outsourced Design Drawings Properly Prepared. Assume that through frequent sketches, mark-ups and other instructions the Architect continuously directs the elaboration of the design from the initial schematic designs into the completed design drawings. In this case the Architect would have had both control over and detailed knowledge of the elaboration of the design even though the Architect didnt personally execute the actual drawings. Wherever the Technician is physically located, the Architect, not the Technician, would have made the choices in the exercise of his or her professional judgments to solve the clients needs. The Architect could sign and seal the construction documents 1E: Outsourced Technical Submissions Must By Performed Under A Contractual Relationship. Assume that the Architect prepared the design drawings and periodically oversaw their elaboration into final construction documents by the Technician, but the clients contractor engaged the Technician directly. If the Technician is not a registered Architect, the Architect could not sign and seal the plans because the Architect would not have had control over the plans during their preparation Thus the Architect could not sign and seal the resulting plans.
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Commentary Case Study E Because the Architect had no contractual relationship with the Technician (in this example the contractor engaged the Technician), the Architect did not have sufficient control over the preparation of the plans to meet the required professional standard of care. Architects practicing with the required professional standard of care must enter into some form of written contractual relationship with the person preparing the plans so they have the means to exercise control over and give direction to that person. Relying on the contractual relationship of another, here the contractors engagement of the Technician, would not give the Architect sufficiently direct means to control the work of the Technician. In this case the Technician, and perhaps the Technicians employer and the client would be engaging in the unlawful practice of architecture. 1F: Design Build Assume DesignBuilder, Inc., a firm not having in its employ an architect registered in the jurisdiction, has been hired by a client to provide design and construction of a project. The DesignBuilder engages the Architect under an agreement specifically providing that the Architect will have responsible control over the preparation of all plans and specifications for the project through the DesignBuilders employees. In particular, the agreement provides that the Architect will direct development of the design and oversee implementation of the design into construction documents, with the right at all times to review, critique and reject any matter. The Architect issues frequent sketches and instructions to DesignBuilders employees throughout both the design and the construction documents phases. In this example, the Architect could sign and seal the construction documents because the Architect exercised responsible control over their preparation. Commentary Case Study F Although the Architect was engaged by the DesignBuilder, the Architect had a written contractual relationship with DesignBuilder giving the Architect the means for exercising control over the unlicensed plan preparers and, in fact, exercised such control. The DesignBuilders preparation would not constitute the unlawful practice of architecture because the preparation would have been under the Architects responsible control exercised through the contract between the DesignBuilder and the Architect. However, the DesignBuilder would have unlawfully offered architectural services unless, under provisions similar to Section 11 (8) of the Model Law2, (1) the
2Nothing
in this chapter shall be construed to prevent: . . . 8. a partnership (including a registered limited liability partnership), limited liability company or corporation (including a professional corporation) from offering a combination of (i) services involved in the practice of architecture and (ii) construction services; provided that (a) a registered architect or person otherwise permitted under paragraph 9 of this Section to offer architectural services participates substantially in all material aspects of the offer; (b) there is written disclosure at the time of the offering that a registered architect is engaged by and contractually responsible to such partnership, limited liability company or corporation agrees that the registered architect will have responsible control of the work and that such architects services will not be terminated without the consent of the person engaging the partnership, limited liability company or corporation; and (d) the rendering or architectural services by such registered architect will conform to the provisions of the chapter and the rules adopted hereunder.
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Architect substantially participated in all material aspects of offering the architectural and construction services to the client, (2) there was written disclosure to the client of the Architects contractual status with the DesignBuilder at the time of the offering, and (3) the agreement between the Architect and the DesignBuilder, in addition to providing that the Architect will have responsible control of the work, also provided that the Architects services cannot be terminated without the clients consent. 1G: Signing Plans Prepared By Another Architect Registered in the same Jurisdiction. Assume that a owner engages a Design Architect who is a registered architect in the jurisdiction in which the project is planned to prepare the design drawings for a project to be built in that jurisdiction. The client (having a right with the Design Architect to do so) then takes a Design Architects drawings and gives them to a Production Architect, who also is a registered architect in the jurisdiction, to prepare construction documents. In this example, because the Production Architect reviewed the work of another architect registered in the same jurisdiction and incorporated it into the Production Architects work, the Production Architect could sign and seal the construction documents.
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New York Report
Sunday, December 21, 1997
The New York Times

New York City Relies on the Construction Industry to Police Itself
After building mishaps, questioning the wisdom of untangling red tape. By Randy Kennedy Over the last two decades, driven by budget cuts and what it calls the impossibility of overseeing the citys vast construction projects, New York City has largely handed over the regulation of the building industry to the industry itself. Asserting that licensed architects and engineers hired by developers are more qualified than municipal inspectors to insure the safety of everything from singe-family homes to skyscrapers, New York City has now moved further than any other large American city in allowing licensed professionals to approve their own blueprints, inspect work at construction sites and conduct regular follow-up examinations of buildings, according to officials. Bur recent problems at two buildings have renewed questions about whether too much regulatory responsibility has been vested in builders, especially in a city with so many huge, fast-paced construction jobs and aging buildings. In the most recent case, in which a ton of bricks rained from the wall of an office tower on Madison Avenue, the structural problems that caused the bricks to come loose were described in a long-running lawsuit that began in the mid-1970s. But the city was never told of the defects because no one was required to do so. In 1982, a privately hired inspector also found minor cracks and shifting in one wall, which he reported to the citys Buildings Department. But the law did not require the department to send its own inspectors to the site, and so it did not. In the second case, in early November, on Donald J. Trumps 18-building Riverside South project on the Upper West Side, five batches of weak concrete were found to have been poured on one floor of a high-rise and 15 floors then erected atop it, even though a private engineer had rejected the concrete. The contractor apparently ignored the engineers judgments, the engineer was not required to report the problem to the city and a city inspector learned of the problem only by accident. In both cases, there is no guarantee that city inspectors would have caught the problems even if they had been authorized to inspect walls or construction sites. But critics of the current system say that the cityin its rush to untangle the legendary red tape that has hindered constructionhas all but abandoned its independent oversight role and now relies heavily on architects and engineers to police the very people who write their paychecks.
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It has gotten to the point where it seems the citys only enforcement responsibilities come after something has fallen or someone has been hurt, said Councilwoman Ronnie M. Eldridge, who recently introduced a bill to require concrete testing labs to inform the city of weak samples. It seems to me that even in a city this big, it is not a challenge beyond the powers of government to put a system in place that enforces the laws better than this, Ms. Eldridge said. City officials concede that there are inherent conflicts in the system and that there is a chance that professionals can cheat. You always have a few rotten apples, said Richard C. Visconti, the deputy buildings commissioner. Thats human nature, unfortunately. But officials say the public is protected because architects and engineers know they risk losing their licenses if they cut corners. We believe very strongly that we license trades, and the state licenses professionals, specifically to insure public safety, Mr. Visconti said. And they have a personal stake in it: their livelihoods. Shortcuts or omissions like those apparently taken on the 39-story tower at 540 Madison are extremely, extremely rare, he said. The problems there include the failure to install many of the ties holding the brick facade to the inner structural wall. Furthermore, city officials and engineers say licensed professionals can do the job better and faster than the staff of about 60 municipal construction inspectors, whose chief job requirement is five years experience in a construction trade. Frank J. Lorenz, president of the New York Association of Consulting Engineers, said most of the construction inspectors dont have any strict professional training. He compared the experience of being supervised at a job site by a city inspector to going for your college exam and having a high-school student grade you on it. Over the years, city officials say, dozens of inspectors have also been arrested for accepting bribes to pad their salaries (about $50,000 a year including benefits, for construction inspectors). But an underlying question remains about the self-policing system: Does it employ enough checks and balances to catch unscrupulous professionals, or even honest mistakes? Although the city performs audits on a certain percentage of other self-certified jobslike boiler and plumbing inspections and building plan approvalsit has not performed spot checks on construction sites since at least 1985, city inspectors say. It also never audits facade inspections, a program under which owners of buildings seven stories or higher must hire engineers or architects to regularly examine walls facing public streets and sidewalks. The law was passed after a Barnard College freshman was killed in 1979 by a falling chunk of terra cotta. City inspectors recall that shortly after that measure took effect, they made it an informal practice to go out occasionally with binoculars to check on some self-inspected walls, especially those examined by professionals who performed hundreds of facade inspections the same year.
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But the law did not require the checks, and they continued only about three months. There werent enough of us to do it anyway, said one veteran Manhattan inspector, who spoke on the condition that his name not be used. It is unclear how aggressively the city pursues the professionals if it does catch them breaking the rules. Since 1990, the Buildings Department has filed complaints with state licensing officials against 33 architects and engineers. But because 30 of the cases resulted in no disciplinary action or are still being pursued, the records are sealed, making it impossible to tell whether they concern possible lies about whether a project complied with codes. Of the remaining three cases, two involve improper asbestos removal, and the third involves an engineer who certified that construction was following an approved plan when the plan had not yet been approved. The engineer, whose name was kept confidential as part of a kind of plea agreement, was fined $500, one of the least severe penalties. Although provisions for self-regulation have existed at least since the citys 1938 building code, the roots of the present system can be traced to the fiscal crisis two decades ago. In 1975, with the city inspection staff cut back significantly, the Buildings Department changed rules so that engineers, architects, plumbers and electricians could approve their own plans and conduct inspections on minor jobs, such as renovations. By 1985, the real-estate industry was pushing hard for greater freedom. In fact, the Real Estate Board of New York even offered to build 3,000 apartments on a nonprofit basis if the city would eliminate barriers to development, including much of the inspection system. Depending on which administration you were in and what cutbacks might have been made, you might have had to stop your job and wait on approval for days, Steven Spinola, president of the board, said in an interview last week. You cant do work like that in this city. But at the time, many people in the building trades opposed the idea. Joseph Margolis, then the executive vice president of the New York City Builders Association, said that without inspectors, people would be more tempted to cut corners because were always fighting the clock. And more troubling questions were raised about the system in 1990, after a ceiling in a croissant shop on the Upper West Side collapsed and killed a woman. Relying on a professional certification, the city had made only a cursory review of plans for work on the ceiling, which was weakened by holes for pipes and electrical lines. Despite the incident, the city made many of the changes sought by the real estate industry. And in 1994, under Buildings Commissioner Joel A. Miele, who came to head the department from a private civil engineering practice, even greater strides were made toward self-regulation, allowing architects and engineers to approve their own blueprints for new construction and to make inspections even on major jobs and new construction. Municipal buildings inspectors say their power has been diluted to the point that they now only respond to complaints or conduct quick inspections of new buildings after they are finished. In new buildings, for example, an inspector walks through with a set of plans, making sure stairs are wide enough or fire doors are where they should be before issuing a certificate of occupancy, the final document tenants need.
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But we cant tell how well the walls are made or anything about the structure, the Manhattan inspector said. Its just a safety inspection. Its kind of a joke. In interviews last week, engineers in several other large cities said they were surprised by how far New York has moved toward self-regulation. I dont know of any jurisdiction in the sate of California that would allow that kind of certification by an engineer with no city input, said Pat Buscovich, head of the Structural Engineers Association of Northern California, based in San Francisco. The whole idea of a thing like a plan check is that youre getting an independent, third-party review by somebody who has no vested interest. John C. Pistorino, a consulting engineer in Miami, said Above everything else, engineers are supposed to hold public safety the highest. But Ive run across too many who dont. I mean, we wouldnt have city building departments if there werent some problems in the industry. There wouldnt be a need for a building code.
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LOUISIANA STATE BOARD OF ARCHITECTURAL EXAMINERS PARISH OF EAST BATON ROUGE STATE OF LOUISIANA IN THE MATTER OF JAMES D. DODDS FINDINGS OF FACT AND CONCLUSIONS OF LAW A. INTRODUCTION On October 12, 1989, the full board conducted a hearing for the purposes of determining whether the certificate of registration or license, or both, of James D. Dodds (Dodds) should be revoked, rescinded, or suspended for any or all of the following reasons: (1) Certifying false information to Sun Belt Federal Bank (Sun Belt) about the progress of construction on the Jefferson Lakes apartment project (Jefferson Lakes) on Old Jefferson Highway in Baton Rouge, Louisiana, resulting in George Bonfanti (Bonfanti) and Gerald Fackrell, Jr. (Fackrell) obtaining more than $600,000.00 from the bank for non-existent work at the site in violation of La. R.S. 37:153(A) (1), La. R.S. 37:153(A) (5), La. R.S. 37:153(A) (6), and Board rule 1701(P). 2) Certifying or participating in the certification of documents to Sun Belt about the architectural fees due and owing on Jefferson Lakes, in violation of La. R.S. 37:153(A) (1), La. R.S. 37:153(A) (5), R.S. 37:153(A) (6), and Board rule 1701(P). (3) Signing a lease for 6,807 sq. ft. of office space in Essen Center which was 5,256 sq. ft. more than Dodds intended to lease, in violation of La. R.S. 37:153(A) (1), La. R.S. 37:153(A) (5), R.S. 37:153(A) (6), and Board rule 1701(P). Based upon the testimony of Dodds, Thomas Russell Iglehart, and William Brockway and the exhibits, the Board makes the following Findings of Fact and Conclusions of Law. B. FINDINGS OF FACTS (1) By virtue of a verbal agreement with Bonfanti-Fackrell, Dodds served as architect for Jefferson Lakes. Bonfanti-Fackrell was both the contractor and the owner. The lender was Sun Belt. (2) By his verbal agreement Dodds was not required to inspect the project, but only required to do the construction documents, perform progress reviews on the draw requests, and issue a certificate of occupancy for the City. Dodds lived in close proximity to the project and visited the project on an almost daily basis. (3) Dodds had a ten year relationship with Fackrell which had been very satisfactory. Dodds testified that Fackrell had never previously asked him to do anything wrong and that Fackrell was one of Dodds best friends. (4) The total hard costs on the project were approximately $7,000,000.00 and the total soft costs were approximately $4,000,000.00 - $5,000,000.00 (5) The Contract Document prepared by Dodds included the AIA 201 General Conditions (1976 edition).
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(6) Contractors Request for Payment No. 1 dated 09/04/84 stated that $1,200,450.00 of work had been performed and requested payment for $1,143,528.00. This hard draw request was signed by Dodds on 09/07/84 indicating his approval thereof. (7) Dodds testified that Fackrell first presented this draw request to him about two weeks before 09/07/84. Initially Dodds refused to sign the request. Dodds knew that the amount of work set forth in the draw request allegedly performed was not in fact performed and that the amount of the draw request was inaccurate and false. By observations in the field Dodds estimated the amount of excess in the first draw request was approximately $600,000.00 (8) Dodds further knew that the AIA General Conditions prohibited an architect from certifying this draw request. Fackrell claimed that GC 9.3.2 was applicable. GC 9.3.2 provides: Unless otherwise provided in the Contract Documents, payments will be made on account of materials or equipment not incorporated in the work but delivered and suitably stored at the site.... (9) Fackrell claimed that the loan agreement between Bonfanti-Fackrell and Sun Belt was part of the Contract Documents, that the first draw request was part of the loan agreement, and that this first draw contained more money than justified by the work performed because the bank was to use the excess for some other purpose. Fackrell promised a letter from Sun Belt explaining the excess draw. (10) Dodds project diary for 09/04/84 states: Gerry explains that the bank had to do it. Draw will catch up later. (11) On or about 09/07/84 Dodds testified that the bank had the letter ready and that Fackrell would bring the letter back with the signed draw request. (12) Dodds was aware of the significance of the draw request as far as the bank was concerned, but believed that the bank was aware that the draw request was inflated. (13) Fackrell never furnished the promised letter. As soon as Dodds did not get the letter, he knew something was wrong. On the second and later draw request Dodds testified that he started cutting the draw significantly, but no documentary evidence to support this testimony was produced. Dodds further testified that by the end of the job the draw requests were within $100,000.00 or so of the actual work performed. (14) Dodds never spoke to anybody at the bank about the promised letter. Introduced in evidence was an Affidavit from Patricia S. Dees, Fackrell secretary, stating that Dodds came to Fackrells office and asked whether a letter had come for him from Sun Belt regarding the First Hard Cause Draw Request. (D-10) (15) Dodds testified that he was duped and taken in. (16) Dodds admitted that what he had done with respect to the first request was totally wrong. (17) On April 8, 1985, Dodds signed a lease agreement with BFC 8, Inc. Limited for 6,807.69 sq. ft. on the fifth floor of the Essen Centre Building in Baton Rouge at a time when he did not intend to occupy that space.
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(18) Dodds testified that Fackrell had promised a counterletter that Dodds would only be responsible for a maximum of 1,500 sq. ft. rather than the 6,807.69 sq. ft. stated in the lease. A draft of this counter letter was furnished to Dodds. Dodds testified that Jimmy Stewart, an attorney, explained to him that a counterletter in Louisiana was legal. (19) At that time Dodds knew that banks normally require a certain amount of the building to be leased before approval of financing. At that time Dodds was actually occupying approximately 1,800 sq. ft. which he leased from Bonfanti-Fackrell. (20) Dodds knew that the lease agreement that he signed would be presented to the bank. (21) Dodds never notified the bank that he did not intend to occupy all of the space mentioned in the lease, or that he was seeking a counterletter from the lessor. (22) Dodds fee for the project was $100,000.00. Dodds testified that about four or five months after the project was underway he learned that Bonanti-Fackrell was representing to the bank that the architectural fees were $195,000.00, but Fackrell explained that they owed a fee to an architectural firm in Houston and also had a clerk of the works. Dodds felt this was a plausible explanation. (23) Formal charges were filed against Fackrell and Bonanti in connection with this false draw request; no formal charges were filed by the federal government against Dodds. Dodds cooperated with the federal government in its successful prosecution of Bonfanti and Fackrell. (24) Dodds cooperated with and provided assistance to the subcontractors in completing the project.
C. CONCLUSION OF LAW (25) La. R.S. 37:153 provides that the Board shall revoke, rescind, or suspend the certificate of registration or the license, or both, of an architect found guilty of any of the following: (1) Gross incompetence, dishonesty, or gross negligence in the practice or architecture. (5) Willfully misleading or defrauding any person employing him as an architect, and (6) Willfully violating the provisions of this Chapter or any lawful rule or regulation adopted by the Board pursuant to law. (26) Board Rule provides: An architect shall not engage in conduct involving fraud or wanton disregard of the rights of others. (27) Dishonesty within the meaning of La. R.S. 37:153 is a broad term which includes any conduct which lacks honesty, wants of integrity, or breaches a trust. Conduct which involves a disposition to deceive or fraud is also dishonesty. (28) Knowingly certifying for payment work not actually performed in draw request is dishonesty in the practice of architecture within the meaning of La. R.S. 37:153.
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Regardless of motive, certifying incomplete work as complete on a draw request is an intentional misrepresentation. Such certification can have a disastrous effect upon bankers, subcontractors, sureties, owners, and others involved in a construction project. (29) The Board concludes that the knowing certification by Dodds of $600,000.00 in work not performed was dishonesty within the meaning of La. R.S. 37:153. His conclusion is supported by the testimony of Dodds own expert. (30) Such conduct is also a violation of La. R.S. 37:153(6) in that it is a violation of Board Rule 1701(P). Dodds testified that he was aware of such Rule at the time he certified the draw request. (31) In defining the negligence of an architect, Louisiana cases have held that an architects conduct is to be measured by the standard of skill and care exercised by other professionals in the same locality. (32) In the area of certifying draw requests the duty of an architect extends to persons other than the owner, including sureties, lenders, and subcontractors. (33) The Board recognizes that there is a difference between the ordinary professional negligence involved in a civil suit and the gross negligence mentioned in La. R.S. 37:153. Gross negligence differs from ordinary negligence in degree; gross negligence is negligence substantially and appreciably greater than ordinary negligence. (34) Since the board has concluded that Dodds knowing and intentional certification of non-existent work in the draw request was dishonesty, it is unnecessary for the Board to decide whether Dodds conduct in certifying the false draw request would also be gross negligence within the meaning of La. R.S. 37:153. (35) Gross incompetence within the meaning of La. R.S. 37:153 connotes such an extreme deficiency on part of a professional in the basic knowledge and skill necessary that one may reasonably question his ability to practice that profession at the threshold level of professional competence. The issue of gross incompetence is not involved herein. (36) Finding Dodds did not certify or participate in the certification of documents to Sun Belt about architectural fees due and owing on Jefferson Lakes, and further finding that Dodds did not receive any of the excess architectural fees, the Board concludes that Dodds did not violate the Licensing Law or these Rules insofar as any certification of documents to Sun Belt concerning architectural fees. (37) Finding that Dodds signed the lease agreement after he knew that Fackrell had not told him the truth about the first draw request, the Board is concerned about Dodds signing a lease for more office space than he intended to lease when he knew that this lease would be furnished to and relied upon by the bank. Nonetheless, the Board finds it unnecessary to decide whether this conduct would be a violation of the Licensing Law or its Rules. (38) La. R.S. 37:153 provides that the Board shall revoke, rescind, or suspend the certificate of registration or License, or both, if it finds an architect guilty of the conduct described therein.
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(39) Although Dodds is guilty of conduct prohibited by the licensing law, extenuating circumstances in Dodds favor are: the contractor and the owner were the same entity; Dodds did not receive any excess funds paid as a result of the wrongful certification; the unfavorable publicity which has already damaged Dodds; Dodds attempted to correct the excess draw by cutting subsequent draws; Dodds recognized the wrongful and serious nature of his conduct; Dodds voluntarily assisted subcontractors in completing the project, and Dodds cooperated with federal officials in the criminal proceedings against Bonfanti and Fackrell. (40) Dodds false certification of unperformed work in draw request No. 1 has caused unfavorable publicity to the architectural profession. ORDER For the foregoing reasons: IT IS ORDERED that Dodds license to practice architecture be suspended for a period of six (6) months; however, due to the extenuating circumstances mentioned herein the imposition of this six month suspension is hereby withheld and Dodds is placed upon unsupervised probation for a period of one (1) year subject to the following conditions: (1) Dodds shall refrain from violating any rules or regulations of the board; and (2) Dodds shall immediately notify the board of any complaints or claims against him which arise out of his practice of architecture. If either of the aforesaid conditions are violated, the probationary period shall be immediately revoked and the aforesaid suspension shall take effect beginning with the date of this revocation.
107
108
APPENDIX L
COMMONWEALTH OF MASSACHUSETTS STATE ETHICS COMMISSION IN THE MATTER OF KATHERINE DOUGHTY DISPOSITION AGREEMENT
This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and Katherine Doughty (Doughty) pursuant to Section 5 of the Commissions Enforcement Procedures. The Commission and Doughty now agree to the following facts and conclusions of law: (1) Doughty served as Insurance Commissioner from July 1991 until June 1993. The Insurance Commissioner is appointed by the Governor. (2) The Insurance Commissioner has overall responsibility and authority concerning regulation, recommendations and enforcement of all applicable statutes pertaining to entities engaged in insurance or insurance-related enterprises. The Insurance Commissioner is the appointing authority for the Division of Insurance, the agency responsible for regulating every facet of insurance business transacted within the Commonwealth of Massachusetts. The Division of Insurance is contained within the Consumer Affairs Secretariat. This Secretariat has as its primary function the protection of the consumer and the regulation of certain industries doing business within the Commonwealth. The objective of the Secretariat is to strike a fair balance between consumer protection and the fostering of a beneficial business climate. (3) As the Insurance Commissioner, Doughty regularly participated in meetings with insurance company lobbyists and other representatives and employees of insurance companies having an interest in matters before the Division of Insurance. (interested parties). (4) In addition to meetings held at the Division of Insurance office, Doughty regularly met with interested parties outside of the office at restaurants and at entertainment events (entertainment activities). Such entertainment activities included meals at restaurants such as the Parker House, The Bay Tower Room, The Four Seasons and Biba. In addition, Doughty attended with interested parties performances of The Phantom of the Opera, Les Miserables, a Boston Red Sox game and a concert at Tanglewood. (5) Doughty attended entertainment activities with interested parties, on average, approximately three times a week. The interested parties routinely paid for Doughtys expenses.1
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(6) According to Doughty, who relocated to Massachusetts from Texas in order to take the position of Insurance Commissioner, the entertainment activities listed above had both a social and business purpose. (7) At all relevant times, Doughty knew that the interested parties paying her expenses had interests in matters before the Division of Insurance. (8) Doughty did not disclose in writing to her appointing authority that interested parties were paying on a regular basis for her expenses associated with the entertainment activities. (9) General laws. C. 268A, 23(b)(3) prohibits a public employee from knowingly, or with reason to know, acting in a manner which would cause a reasonable person having knowledge of the relevant circumstances to conclude that anyone can improperly influence or unduly enjoy her favor in the performance of her official duties. It shall be unreasonable to so conclude if the public employee has disclosed in writing to her appointing authority the facts which would otherwise lead to such a conclusion. (10) By engaging in a practice of accepting benefits in meals and entertainment on a regular basis from individuals who had an interest in matters before the Division of Insurance, all while Doughty was in a position to take official action which could benefit the givers, and without notifying her appointing authority, Doughty acted in a manner which would cause a reasonable person knowing all of the facts to conclude that the interested parties can improperly influence her in the performance of her official duties. In so doing, she violated 23(b)(3). In other words, when interested parties who have business pending before the Division of Insurance invite the Insurance Commissioner to attend entertainment events with them on a regular basis and where the interested parties pay for the Insurance Commissioner to attend such events, a reasonable person would conclude that such interested parties can unduly enjoy the Insurance Commissioners favor in the performance of her official duties when matters concerning the interested parties come before the Division of Insurance. Therefore, a written public disclosure of these facts to Doughty appointing authority pursuant to 23(b)(3) was required. (11) Doughty cooperated with the Commissions investigation. (12) In view of the foregoing violations of G.L. c.268A by Doughty, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings, on the basis of the following terms and conditions agreed to by Doughty: (1) that Doughty pay to the Commission the sum of two thousand dollars ($2,000.00) as a civil penalty for her course of conduct in violation of G.L. c. 268A, 23(b)(3) by attending entertainment activities as the guest of interested parties under the circumstances described above without disclosing in writing such activity to her appointing authority.
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BIBLIOGRAPHY
BOOKS Levy, Matthys and Mario Salvadori. 1992. The Worst Structural Disaster in the United States. In Why Buildings Fall Down. New York: W.W. Norton & Company.
ARTICLES Davis, Michael. 1991. Thinking Like an Engineer: The Place of a Code of Ethics in the Practice of a Profession. Philosophy and Public Affairs. (Spring): 150-167. Gragg, Charles I. 1940. Because Wisdom Cant Be Told. Harvard Alumni Bulletin. 19 October. Morgenstern, Joe. 1995. City Perils: The Fifty-Nine-Story Crisis. New Yorker. 29 May. Rubin, Robert and Lisa Banick. 1988. The Hyatt Regency Decision: One View. The Construction Lawyer. 6, no. 4 (August).
NEWSPAPERS Kennedy, Randy. 1997. New York City Relies on the Construction Industry to Police Itself. New York Times. 21 December, 41.
DOCUMENTS FROM EDUCATIONAL AND PROFESSIONAL ORGANIZATIONS The American Institute of Architects. 1997. AIA Contract Document B141. Washington, DC: AIA. Boston Architectural Center. 1997. The Granite Block. Unpublished teaching material. National Council of Architectural Registration Boards. 1999. Legislative Guidelines and Model Law, Model Regulations. Washington, DC: NCARB (July). _____. 1999. Rules of Conduct. Washington, DC: NCARB (July). _____. 1997. Report of the Electronic Technology Task Force. Presented at the 1997 Annual Meeting. _____. 1992. Report Respecting The Signing and Sealing of Technical Documents. Washington, DC: NCARB (February). Sapers, Carl M. 1999. Legal Cases and Materials for the Construction Professional. Unpublished teaching material for Harvard Graduate School of Design in Cambridge, MA.
LEGAL CASES Richard N. Anderson v. State Board of Architectural Examiners. Butts v. Wyoming State Board of Architects, 911 P. 2d 1062 (WY 1996). Catlin v. Board of Registration of Architects, 604 N.E. 2d 1301 (MA 1992). Duncan et al. v. Missouri Board for Architects, Professional Engineers and Land Surveyors, 744 S.W. 2d 524 (MO 1988).
111
BIBLIOGRAPHY
Markus & Nocka v. Jullian Goodrich Architects, Inc., 127 VT 404 (1969). Marshall-Schule Assocs. v. Goldman, 137 Misc. 2d 1024, 1026-7 (NY 1987). Rolls v. Bliss & Nyitray, Inc., 408 So. 2d 229,235-7 (FL App. 1981), appeal dismissed, So. 2d 1359 (1982). State ex rel. Howard G. Lowe v. George L. Howell, d/b/a George L. Howell & Associates, 281 S.C. 463, 316 S.E. 2d 381 (1984). State of South Carolina v. George L. Howell, d/b/a George L. Howell & Associates. United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999).
ADMINISTRATIVE DECISIONS Matter of Anthony M. Arata and Architects Pacifica, Ltd. Before the Board of Architects Examiners of the State of Oregon. January 21, 1992. In Re: License of Kenneth L. Butts Settlement Agreement and Order. Before the Commonwealth of Kentucky State Board of Examiners and Registration of Architects. November 19, 1993. Matter of James D. Dodds. Louisiana State Board of Architectural Examiners. November 3, 1989. Matter of Katherine Doughty. Disposition Agreement. Commonwealth of Massachusetts State Ethics Commission. February 9, 1995.
FEDERAL STATUTES 15 U.S.C.A. 789 dd-1 (U.S. Foreign Corrupt Practice Act). 18 U.S.C. 201(c) (U.S. Gratuity Law).
STATE STATUTES California Architects Practice Act, 5588, 5589 and 5590.
STATE REGULATIONS California Code of Regulations, 3135. NC Admin. Code, Title 21.0206(b)(1996). 780 Code of Massachusetts Regulation 122.4.2.
OTHER LEGAL DOCUMENTS Blacks Law Dictionary. 6th edition. St. Paul, MN: West Publishing Co., 1990. Exposition of the Evidence Against Mr. Agnew as of October 10, 1973. U.S. Department of Justice. U.S. District Court of Maryland, October 10, 1973. Web Sites Online Ethics Center for Engineering and Science (http://onlineethics.org/) 112
P R O F E S S I O N A L D E V E L O P M E N T P R O G R A M
PROFESSIONAL CONDUCT QUIZ
113

True These questions assume that the applicable professional conduct requirements are those set forth in the recommended Rules of Conduct in Item 1. QUESTION 1 An architect may accept referral fees from subcontractors on a project without disclosing these to the owner as long as the fees are reasonable. An architect with knowledge that another architect has engaged in unlawful plan stamping is required to report this to that states architectural registration board. An architect need not disclose to the owner the architects fathers 75% silent financial interest in the construction company he/she has recommended that the owner engage. An architect may accept compensation from equipment suppliers in return for specifying their products as long as the architect does not solicit the compensation from the suppliers. Even if an architect has been given immunity from prosecution for the violation, it is a breach of the architects professional responsibility obligations to violate criminal laws in the conduct of the architects practice. In interpreting contract documents, an architect must render decisions impartially if the architect has agreed to do so under the architects contract, even if that may mean that the architect jeopardizes his/her chances of receiving future commissions from the owner. An architect may claim credit for designing any building so long as the architect has spent at least forty hours working on the building, even under someone elses supervision. An architect need not worry about registering as an architect in other states if the architect incorporates and practices in the other states through the corporation. False
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(B)
QUESTION 2
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(B)
QUESTION 3
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QUESTION 4
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QUESTION 5
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QUESTION 6
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QUESTION 7
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QUESTION 8
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115

True QUESTION 9 If an architect knows that his/her client is refusing against the architects advice to correct a building code violation that makes the building unsafe, the architect must report the decision to the code authority having juridiction. An architect practicing out of state and disciplined there for a violation of that states rules of conduct is not subject to discipline in the architects home state under similar rules of conduct because his/her home state registration board cannot look beyond its borders in meting out discipline. An architectural firm offering architectural services through multiple offices must have a registered architect regularly employed in each of the offices. In connection with seeking commissions, an architect may give substantial gifts to prospective clients as long as none of the clients are government officials. Even though an architect may be registered in many states, an architect may not practice architecture in a state in which he or she is not registered. To exercise responsible control over plan preparation, an architect must have control over and detailed knowledge of the content of the plans during their preparation. If work such as designing a single-family residence is exempted from a states definition of the practice of architecture, anyone can design such exempted buildings. If an unregistered person is permitted to design a building that is exempt from a states definition of the practice of architecture, that person may refer to himself as an architect of that category of exempted buildings. Architects may not be legally able to collect fees for architectural services rendered in states where they are not registered. False
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QUESTION 10
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QUESTION 11
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QUESTION 12
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QUESTION 13
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QUESTION 14
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QUESTION 15
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QUESTION 16
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QUESTION 17
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116

True QUESTION 18 An architect with an office in State A, where all of the plans are prepared, can submit those plans to a building official in State B without the architect registering in State B because the plans were physically prepared in State A. In most states it is acceptable for architects to sign a contract to provide architectural services and to design a project to the point of submitting building permit drawings before registering in the state. In most states, when making public statements on architectural issues, an architect need not disclose any economic interest the architect has in the issue. An architect is not subject to discipline for incompetence unless there is an actual building failure. An architect charged by an architectural registration board with incompetence because of instances of numerous code violations in his/her plans may avoid discipline by showing that the building code officials reviewing the plans missed the violations. An architect may not deliberately make a materially false statement on his/her registration renewal. An architect may be in responsible control of the preparation of plans if the architect does nothing more than carefully review the plans at the end for code compliance and then seal them. An NCARB certificate entitles an architect to practice in any US state without necessarily needing to be registered in that state. False
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(B)
QUESTION 19
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QUESTION 20
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QUESTION 21
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QUESTION 22
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QUESTION 23
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QUESTION 24
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QUESTION 25
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117

True The next four questions refer to the discussion of a housing project with a poured-in-place concrete structural system found on page 14. QUESTION 26 The architects professional conduct responsibilities are fully discharged if the architect simply tells the owner that the concrete fails to meet strength tests. The architect will fully discharge his/her professional conduct responsibilities by simply sending a memo to the structural engineer, noting that the structural engineer should review recent concrete tests. The architect should order additional testing of the concrete to verify its strength. The architect should rely on the owner to resolve the problem. The next two questions refer to the discussion of the R & R Plant Visit Scenario found on page 33. QUESTION 30 Excessive trip benefits beyond ordinary hospitality give the appearance of compensation in return for specifying the product. A plant trip is a legitimate means of investigating a product. In the Scenario regarding Brown Architects, the architectural registration board has no jurisdiction in the matter because of its criminal nature. False
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QUESTION 27
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QUESTION 28
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QUESTION 29
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QUESTION 31 QUESTION 32
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118

True The next two questions refer to the discussion of A Young Architects Dilemma Scenario found on page 23. QUESTION 33 Sarah should write to her client stating what she found in her inspection concerning the granite veneer and recommend the owner report the problem to the building department. The recommended Rules of Conduct require Sarah to identify the problem and then notify the buyer. The next three questions refer to the discussion of the Brown & Zacharias Scenario found on page 36. QUESTION 35 Zacharias, the architect who made the payments to the county commissioner, is not subject to discipline by the states architectural registration board because the county commissioner engaged in extortion. Brown has no obligation under the recommended Rules of Conduct to report Zacharias payments to the states architectural registration board even though he knows them to be wrong. Assume that Zacharias had provided the county commissioner with free working drawings for his Big Sur beach house instead of cash. Under these facts, the states architectural registration board could properly discipline Zacharias. False
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QUESTION 34
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QUESTION 36
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QUESTION 37
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True The next two questions refer to the discussion of the Jefferson Scenario found on page 30. QUESTION 38 Copyright issues and plan ownership issues are civil issues that fall outside the jurisdiction of an architectural registration board. The contractual dispute between Jefferson, the original architect, and her client, Jarvis, is a matter an architectural registration board would likely take jurisdiction of and seek to resolve under the recommended Rules of Conduct. Questions 40 through 44 refer to the scenario presented below: An architect is hired to design a medical clinic whose design and construction will incorporate a great deal of cabinetry. The architect prepares construction documents in order to bid the project. The specifications supporting the drawings and details for the cabinetry call for the construction and installation of all millwork to be a deduct alternate. The project is bid and a general contractor is selected to begin construction. The architect prepares the contract for the owner to execute with the general contractor, but recommends to the owner a millwork contractor who he believes will construct and install the cabinets for less than $100,000. By deleting this work from the general contractors contract, the architect saved the general contractors markup while the architects fee remains the same for providing design and specifications for the cabinetry. The owner accepts the architects recommendation and agrees to sign the contract without the cabinetry being the general contractors responsibility. The architect provides the owner with a separate agreement between the owner and Ajax Millwork, Inc. to construct and install of the cabinetry in accordance with the construction documents for $90,000, or a savings of $10,000 for the owner. The owner does not know that the architects spouse is a partner and part owner in the Ajax Millwork, Inc., company. False
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QUESTION 39
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120
True QUESTION 40 QUESTION 41 The architect should ask Ajax Millwork for a referral fee. The architect should avoid any direct communication with Ajax Millwork. The architect should approve the contractors request for a markup on Ajax Millworks contract. The architect should offer a reduced fee for design of cabinetry. The architect should have informed the owner that the architects spouse is a partner in Ajax Millwork earlier, and should have done so before the agreement with Ajax Millwork is signed. Questions 45 through 48 refer to the scenario presented below: An architect was approached by a developer/contractor to design an apartment complex. The architect was unable to perform this work due to prior time commitments. The developer/contractor hired a drafting service without a registered architect to prepare plans. After the plans were completed, the developer/contractor returned to the architect and asked the architect to review and make necessary modifications and then seal the plans. The architects project schedule now permits the architect to fulfill this request. After the architects review of the plans the drafting service makes some modifications recommended by the architect, the architect seals the plans and they are submitted to the local code authority for permitting. As construction began a complaint was brought to the states architectural registration board alleging plan stamping, and you are a member of the board. (A)
False (B)
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QUESTION 42
(A) (A)
(B) (B)
QUESTION 43 QUESTION 44
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True QUESTION 45 The architect did not have responsible control over preparation of the drawings and should not seal them. The architect should have sealed the plans with a note on the plans that the architect is only responsible for the modifications made to the plans. The drafting service is guilty of practicing architecture without a license. If the architects reduces his fee he may seal the plans prepared by others as long as he confirms the plans are accurate and complete. Questions 49 through 52 refer to the scenario presented below: An architect from State A gets a call from a college classmate who has successfully built several housing developments in State B. The developer says that he has two new projects underway, that his regular architect in State B can only handle one of them and that he would like the college classmate (the State A registered architect) to handle the second project. QUESTION 49 If the architect is already registered in State B, the architect can start the project immediately. If the architect is not registered in State B, the architect can do all the work in his home state and have the developers State B architect stamp the plans. If the architect is not registered in State B, but holds an NCARB certificate, the architect can do the work in either State A or B without registering in State B. If the architect is not registered in State B, but holds an NCARB certificate, the architect should ask NCARB to transmit the architects record to State B and ask the State B architectural resgistration board to consider his registration promptly. False
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QUESTION 46
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QUESTION 47
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QUESTION 48
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QUESTION 50
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QUESTION 51
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QUESTION 52
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122

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PROFESSIONAL CONDUCT

ABOUT THE AUTHOR

RULE 2 - CONFLICT OF INTEREST

Practice of Architecture Defined

Professionalism and the Public Interest, by Carl M. Sapers, Esq.

The Hyatt Regency Decision: One View

Scenario: Brown Architects

Scenario: A Young Architects Dilemma

What should Sarah do?

Report Respecting the Signing and Sealing of Technical Documents

Prototype Building Design

What should the Board do?

Scenario: R&R Plant Visit

Exposition of the Evidence Against Mr. Agnew

Scenario: Brown & Zacharias

STATE OF SOUTH CAROLINA

) ) IN THE COURT OF COMMON PLEAS

Case No. 86-CP-40-0546

IN THE COURT OF COMMON PLEAS Civil Action No. 86-CP-26-33

WHY BUILDINGS FALL DOWN

The New York Times

PROFESSIONAL CONDUCT QUIZ

PROFESSIONAL CONDUCT QUIZ

PROFESSIONAL CONDUCT QUIZ

PROFESSIONAL CONDUCT QUIZ

PROFESSIONAL CONDUCT QUIZ

PROFESSIONAL CONDUCT QUIZ

PROFESSIONAL CONDUCT QUIZ

PROFESSIONAL CONDUCT QUIZ

PROFESSIONAL CONDUCT QUIZ

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