ETHICAL DILEMMAS - HOW WILL YOU ACT?
To stimulate debate around ethical issues, FIG's Working
Group 1.2 (Business Practices) prepared three ethical dilemmas on which
it solicited comments through a number of routes. A limited number of
responses have been received but, in the hope of encouraging further
debate in this important area, the responses already received (by the
end of 2000) are summarised below. The respondents have (deliberately)
not been identified, but response A to dilemma 1 is from the same
individual as response A to dilemma 2 (and so on).
The Working Group is now preparing a Guide to Business Practices, aiming
particularly to assist surveyors setting up in business on their own (although
the guide should be of use to all surveyors in private practice). If you
would like to be involved in reviewing the document over the coming
months, I would be very interested to hear from you.
Iain Greenway
Working Group Chair
13 Hazelbury Park
Clonee
Dublin 15
IRELAND
Fax + 353 1820 4156
email
iain.greenway@btinternet.com
 Document
in pdf -format (20 KB)
Dilemma 1 - the client and the environment
'Whilst undertaking a site survey for a private sector client, it
becomes apparent to you that the client intends to ignore potentially
serious environmental impacts of the development of the site. You
reflect on your obligations to your client and to the community. What do
you do?'
A - I point out my concerns to the client, and if I do not
receive a satisfactory explanation (bearing in mind that I might be
wrong, and Greenpeace isn't always right), I withdraw from the contract,
warning the client that only my professional services were hired, and
confidentiality clauses will only apply to technical information gained
on the job, and I reserve the right and duty to make public any
information which could have been gathered by any layman not in my
privileged position.
B - My initial judgement is to say that my contract is with
the client to supply a survey to him, not to make judgement on his
ethical values. However, we all have an obligation to 'planet earth' so
this immediately puts us in an awkward position. I would like to think
that I would probably ignore it on the basis that there are many
planning stages to go through and it would really be 'someone else's
responsibility'. Recently I priced-up and surveyed a disused farm with
barns. During my meeting with the client, he implied that he was going
to make gradual change of use of the buildings in order to make planning
easier at a later stage for major change of use. My reaction was a
raised eyebrow (which he noticed!) What he was planning was not totally
illegal as far as I know, but what did I do about it anyway? Ignored it,
as there is the possibility of more work at a later stage.
C - Advise the client of the environmental impact resulting
from the development and the consequences arising therefrom. If the
client ignores such advice, the contractual relationship with the client
would be terminated in favour of obligations to the community. If
subsequently the project proceeds, the community obligation should
extend to ensuring awareness of the environmental impacts at the
appropriate point in the planning process.
D - The situation requires further definition. (1) Technical -
what is the foreseeable impact? Sedimentation and erosion, drainage,
pollution or destruction of some sort, dislocation of wildlife and
inhabitants or threat to life? Mitigation of the impact is usually an
engineering rather than a surveying problem. (2) Legal - what are the
legal requirements of the country, state or municipality to mitigate the
impact, and what is the potential liability, to the surveyor, if the
developer fails to adhere to them? Often, everyone connected with a
project, whether liable or not, is drawn into a lawsuit. (3) Ethical -
what is the limit of the surveyor's contract? If his work does not
entail mitigation of the impact or contribute directly to it, does he
have an ethical obligation to not do the work? No. A moral obligation?
Depends on the individual.
E - As a concerned citizen, the surveyor might feel inclined
to notify the authorities of the adverse environmental impacts of the
proposed site development. But the surveyor's professional obligation
includes maintaining client confidentiality. The surveyor should warn
the client in writing that failure to meet the environmental
requirements could have most serious consequences, and should also
advise the client to take the necessary corrective action to see that
those requirements are satisfied. This written warning would serve as
evidence, if it should later be needed, that the surveyor had done all
that was reasonably possible to alert the client to the development risk.
It would also absolve the surveyor from any charge of professional
negligence.
F - I complete the report, emphasise the problem in my report
to my client, explain this is my Final Report. I do NOT communicate this
to others, although my report clearly tells the client about the
client's responsibility to the public.
And what I wrote in a paper in May 2000 on this dilemma:
'The different schools of thought all seem to point in the same
direction: Consequentialism says that consequence is all, and therefore
that significant environmental impacts should cause the surveyor to halt
work; the social contract element of Contractarianism also suggests that
work should be halted until the issue is resolved. Pluralism, with its
focus on openness and honesty, reinforces this. Even the aristocratic
tradition suggests that, given that most surveyors will be uncomfortable
in proceeding, they should not do so.
The FIG code is clear: surveyors should take environmental concerns into
account in their operations and activities; and should bring any matter
of concern relating to the physical environment and sustainable
development to the attention of their clients or employers. The Danish
code makes no explicit mention of environmental issues. The codes shy
away from saying what should happen if the client ignores the surveyor's
representations. Given the discussion in section 4 of this paper, that
is probably the appropriate place for the codes to stop.
More generally, earlier discussion has suggested that one of the
principal characteristics of professionals is that they accept duties to
society as well as to clients and employers. This introduces a specific
point of conflict into cases such as this.'
Dilemma 2 - cross-cultural issues
'As a partner in a firm of surveyors, you have successfully won a
tender for some work in a country where bribes are considered a normal
part of doing business. In your own country, bribes are illegal (or, at
the very least, not accepted practice). Will you use bribes to get the
project completed successfully?'
A - Yes, I will use bribes. When operating in someone else's
country, I obey the laws and customs of that country. It is not for me
to pass judgement on the way other people do business. Just as I do not
wear shorts or drink alcohol in public in Islamic countries, so I do
business the local way.
B - Yes, I would use bribes if that was acceptable and
standard practice in that country. In my opinion one has to work to the
standards of the country/ area that one is in. You probably would not be
competitive if you applied the ethical standards of your own country to
someone else's country - although I would draw the line at mis-treatment
of other human beings.
C - Bribes, or any other form of service payments or favours,
are rightly and almost universally considered an unacceptable practice
in the securing of contracts. However, small unofficial payments for
services rendered are a common practice in many societies. Such payments
supplement the incomes of poorly paid administrators and may be a
culturally accepted part of doing business. A distinction can be made
between small payments (or tips) to facilitate the smooth running of a
project, and bribery in the award of contracts. Therefore, where the
practice is culturally acceptable and entrenched in business life, small
payments will be made to ensure the successful completion of a contract,
but bribe payments would never be made. Definition of small - 10% of
average daily wage of administrator helping to process your
documentation quickly; 5% of value of product.
D - This situation also requires clarification. I am tempted
to fall back on Kant's categorical imperative: act in the manner you
would want everyone to act. But that is moral 'law' that is of dubious
value in this case: it applies equally well to culturally diverse
situations, each considered by itself. The way out of this dilemma is to
find some justification of the payments as a cost of doing business, as
long as the laws of one's own country are not broken. Personally, I
would find the practice odious, and simply would not do business under
those conditions.
E - If bribes are illegal in the surveying firm's home
country, the partner should not use them. If bribes are not illegal, but
are not accepted practice, the partner should consider the custom of the
host country and exercise appropriate discretion. In low-wage countries,
workers who are already paid by their employers to provide certain
services, such as the installation of telephones or electrical outlets,
may fail to do so unless they receive small bribes in advance from the
customer. Such payments, though a source of annoyance, are often
regarded locally as a legitimate income supplement, and can be treated
as a normal cost of doing business. The partner should resist demands
for bribes by, for example, senior public officials of the host country,
though there may be no objection to offering modest, non-monetary gifts
to persons who have been especially helpful to the partner.
F - No use of bribes. Issue my employees clear instructions
regarding potential problems.
And a comment from Africa: What I want to express first is
that in developing countries, corruption (bribes) is very negative
factor for professional development. In my country (Burkina Faso), Civil
Engineers Association called AITB (some surveyors are members of this
organisation) is trying to set up a code of ethic in order to give
better professional environment to practice. Poverty is not also helpful
for ethic development. So to win bribes practice, we must win poverty in
the world. If not how can a private surveyor survive if he cannot get
project? How to do if he is alone in a country where democracy is not
the usual practice? So international organisations such as FIG,
according to me, must help professionals to be strong enough to fight
bribes over the world in order to make our profession go forward.
And what I wrote in a paper in May 2000 on this dilemma:
'Thinking is more mixed here: Consequentialism suggests 'carry on'
whereas Contractarianism and pluralism suggest not proceeding, and the
aristocratic tradition leaves it with the individual.
The FIG code says: avoid any appearance of professional impropriety;
maintain the highest standards of honesty and integrity towards those
with whom you come into contact, either directly or indirectly; and
avoid associating with any persons or enterprises of doubtful character.
The Danish code is again silent on the matter, but this is perhaps not
unexpected in a national code in a western democracy.
In a wider sense, there is also confusion: McDonald (1994) found that
only 32% of the Chinese population of Hong Kong realised that the
tipping of public body employees for prompt service was illegal; and
Dierkes and Zimmerman (1994) reported that the Italian government
expects citizens to under-declare their income for tax purposes by
30-70% (the size of the bustarella (bribe) given to tax officials is an
important element in determining tax bills). The Unfair Corrupt
Practices Act 1977 in the USA prohibits the payment of bribes to foreign
government officials. The RICS Working Party recommended that the higher
standard applying in a surveyor's home country or the country of
operations should be applied. Shell (Segundo 1997) has a very strict
no-bribes policy, seeing long term gain in development associated with
this (and accepting any short-term losses).'
Dilemma 3 - commercial matters
'You have successfully tendered for a survey. Other work means that
you cannot complete by the required date, so you subcontract the work to
another surveyor who only charges you a small fraction of the fee you
have agreed with the client. What do you charge the client?'
A - I reduce my fee by the proportion of the total contract
that the subcontractor carried out, and pass on the subcontractor's
charge plus an administration fee of 15% in the normal way. Where's the
problem?
B - I would charge the client the original fee as that is what
the client had agreed to pay. This happens all the time in the survey
world as we encounter 'feast or famine' workloads. Any profit you make
on using the sub-contractor will pay for your time in setting the job up,
sorting out any imperfections in the subcontractor's work to get it to
your own standard, and for taking responsibility (i.e. payment of PII)
for any mistakes that may be found at a later date. Ethically I see no
problem in this - the client is paying to get a survey done, on time and
to your/ his normal standards. It shouldn't matter to him how the job
gets done.
C - The original tender with the client has been mutually
agreed as fair value for money for the services or products provided.
Therefore the subcontractor has made a gross error which must be brought
to his attention by requesting resubmission of subcontract fees. If
substantially unchanged, the disparity between your original fee and the
subcontractor's cost must be communicated to the client and an
adjustment negotiated.
D - Normally, the prime contractor is entitled to the agreed
upon fee, because he assumes full liability for the work. Also, he will
not want an unscrupulous pricing practice to become known. Some codes of
ethics restrict excessive pricing, but they tend to be vague and not
enforced, unless the client makes a formal complaint. If the surveyor
has a conscience, he may explain to the client that the work was not as
complicated as expected, and charge a fee more reflective of his actual
involvement and responsibility. Who will bet on that happening?
E - It is assumed that the contract permits the work to be
subcontracted. Since contracts are normally awarded partly on the basis
of competitive price, the successful tenderer has probably quoted an
appropriate fee. The principal contractor should exercise caution in
accepting the subcontractor's quotation of a very much lower fee, for a
low price may influence the quality of the work. The principal
contractor would be well advised to ask the subcontractor to review the
estimate to ensure that the work can be performed to the required
standard, for it will benefit neither party if that standard is not met.
If the subcontractor performs the work satisfactorily at the agreed fee
by the required date, then the principal contractor is under no
obligation to charge the client less than the fixed contract price, even
though the contractor makes a increased profit. It should be kept in
mind that the principal contractor remains professionally responsible to
the client for the satisfactory completion of the work, even though it
is actually performed by another surveyor as subcontractor.
F - I charge the client my tendered amount. Note: I would do
the same if the subcontracted surveyor I selected charged MORE than the
tendered amount.
And what I wrote in a paper in May 2000 on this dilemma:
'Schools of thought again give mixed advice: duty and fairness point to
disclosure whereas Consequentialism says 'no one is being harmed, so
where's the problem?'
The codes have rather more to say on pricing: 'seek remuneration
commensurate with the technical complexity, level of responsibility and
liability for the services rendered' (FIG); 'the payment must be fixed
in such a way that it is reasonable to the client in consideration of
the extent of the task' (Denmark).
The codes are therefore perhaps clearest on this dilemma: report the
issue to the client and reach agreement with him.'
Iain Greenway
28 December 2000
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