Judges Versus Engineers
Stephen H. Unger 9/1/02

Background and Opening Round
Nuclear power plants, jet airliners, factories producing pesticides,
dangerous large dams--these are what we usually envision as background
for cases where engineers get into trouble trying to defend public
safety.  But important and interesting ethics cases can also stem from
less dramatic low technology, as is illustrated below [1].

In January, 1991, David Monts, an experienced, licensed electrical
(and nuclear) engineer, began working for the Physical Plant Services
Department (PPSD) of the New Orleans campus of the University of
Louisiana (UNO).  This department was responsible for building
construction and renovation. Monts' immediate supervisor was John
Michael Parnon, an architect, but the administrative head, Frank
Schambach, had no technical background.  On a number of occasions,
Schambach, without consulting his engineers, underestimated the costs
for certain jobs.  When these projects threatened to go over budget,
Schambach insisted on various cost-cutting measures.  In some cases,
these measures entailed improper practices that put people at risk.
There were also situations in which engineering changes were made by
people not licensed to practice in the technology involved.

Monts repeatedly objected to these tactics.  In particular, he
protested when fire alarms were deleted from plans to renovate certain
space to accommodate offices, and, in another instance, the omission
of emergency exit lights.  A less obvious hazard involved a design
with inadequate circuit overload protection.  These, and other
instances of corner-cutting, involved more than a difference of
opinion as to what was required for safety.  They violated state
building codes.

When these objections, though supported by his colleagues and
supervisor, were repeatedly ignored by Schambach, Monts went to see
the UNO attorneys.  He reported the problems and asked for help.  But
before anything came of this, and just before another conversation was
scheduled with them, in July of 1996, he was summarily dismissed in a
letter signed by Parnon and Schambach.  The stated grounds for the
dismissal were that Monts had a negative attitude with regard to his
employment and that he disrupted weekly staff meetings by complaining
and arguing about non-project related matters.

Monts asserts that the real cause was his repeated protests about the
shoddy practices mandated by director Schambach and his assistant Gus
Cantrell, a civil engineer. Apparently, his discussions with the UNO
attorneys about such matters as the building code violations
precipitated his discharge.

Monts initiated a wrongful discharge suit.  Since he was not a civil
service employee and had no written contract, he was what is legally
termed, an "at-will employee", meaning that he would have to carry a
substantial burden to win his case.  The principal ground for his law
psuit was that he was discharged for exercising free speech when he
protested to management and the UNO attorneys about the improper
practices on the projects that he was responsible for.  He argued that
engineers have an ethical obligation to speak out when they encounter
practices in their work that endanger the public.  In his case, as a
licensed engineer, this obligation was clearly spelled out in the law.

The Deposition Process Now began a long, drawn out legal process.  It
was Monts versus the UNO, so that he not only had to pay the full cost
for presenting his side of the case, but, as a taxpayer, he was
helping pay his opponents' costs.  The battle began with the taking of
legal depositions.  This went on for several years, during the course
of which, all the managers and engineers involved, except for
Cantrell, left the employ of UNO.

There seemed to be unanimous agreement that Monts was an excellent
engineer.  Even Frank Schambach admitted this.  Allen Anderson, an
experienced EE (and PE), who worked with Monts for a number of years,
characterized him as, "one of the most competent, industrious, and
conscientious Electrical Engineers I have worked with."  John Ehlers,
a licensed mechanical engineer, who also worked with Monts, concurred
with this assessment.  Both supported Monts' contention that
management often overruled the directives of the design professionals
on safety-related issues.  Anderson and Ehlers had left UNO prior to
the time they were deposed.

Regarding the grounds stated for Monts', firing, the engineers agreed
that Monts never disrupted a departmental meeting or otherwise
interfered with his co-workers performance of their duties.
Confirming this is the fact that, on Monts' employment record, there
are no negative entries of any kind (prior to the termination note),
and there are eight commendations.

A key figure in the case is architect John Parnon, Monts' supervisor.
In his deposition, his comments about Monts were, at best, ambiguous.
Subsequently, he left the employ of UNO and was then more forthcoming
with respect to what happened to Monts.  Parnon prepared a written
statement in the form of an affidavit, which provides us with a
fascinating view of the situation.  In general, his statement fully
confirms the claims made by Monts and the other engineers regarding
the behavior of management, the issue of code violations, and the
spurious nature of the charges on which the firing was based.  He
states that "David is one of the most competent, industrious, and
conscientious design professionals I have ever worked with."  Not only
did Parnon deny that Monts' complaints about management's behavior
were disruptive, he asserted that he encouraged Monts to speak out
about such matters at staff meetings and at other times, and he
expressed admiration for his courage.

How then can we account for the fact that Parnon, apparently without
protest, added his name to the letter discharging Monts?  The
explanation is in the same draft affidavit. "Had it not been for Pat
[Patrick Gibbs, Vice Chancellor for Business Affairs] and Frank
ordering me to do so, I would not have fired David". Parnon did argue
with Schambach and Cantrell about such matters as their corner
cutting, but he felt powerless to influence them.  He appears to be a
very decent, honest man, but not one willing to take risks on matters
of principle.  "I personally may have been indecisive for not taking a
more proactive approach on these issues, but...I did not want to do
anything to jeopardize my job."  Parnon explains why, in the course of
his original deposition, which took place while he was still a UNO
employee, he "was not inclined to speak volumes": "I was concerned
about keeping my job based on..." and he then lists various instances
of intimidating behavior by his UNO superiors, followed by: "I was
very close to getting a promotion from the position of Manager of
Facility Renovation and Design to the position of Director of Facility
Renovation and Design" (a promotion that did indeed subsequently
occur).  Sad to say, Parnon declined to sign the affidavit, expressing
concern that doing so might cause the university to attack his
reputation.

The Judges Take Over
In April of 2001, the trial court judge granted the defendant's motion
for summary judgment, dismissing the case with prejudice, without a
trial.  The judge stated that there was no evidence supporting Monts'
claim that he was dismissed for reporting the code violations to the
UNO attorneys.  UNO's view of the case, apparently accepted by the
judge, might be summarized by the following quotation from a letter
from defense attorney Alexander McIntyre, Jr.:
 
  "... Mr. Monts was terminated for no other reason than his inability
  to timely complete his duties and engaging in disruptive behavior.
  (For example, shortly before his termination, Mr. Monts photocopied
  and distributed a list of his co-workers salaries, with its
  concomitant negative effect on morale in the Department.)"

Note that Anderson, Ehlers, and Parnon denied that Monts was
disruptive and concurred that he " was never slower than other design
professionals at completing any task".

Based on depositions by Schambach, Cantrell, and Gibbs, the judge also
accepted the contention of the defense that those responsible for
firing Monts were not aware that he had met with UNO attorneys.  The
fact that evidence had been introduced that Gibbs had received billing
records from the attorneys dealing with interviews with Monts was not
deemed significant.  The affidavit by Parnon, which clearly
established such knowledge, was dismissed on the grounds that it was
not signed, and the sworn affidavit by Ehlers that he had overheard
Schambach "angrily telling someone on the telephone, 'Dave went to go
[sic] see an attorney'" was also not deemed sufficient proof.
Finally, as a point of law, the judge stated that there is no public
policy exception to Louisiana's employment-at-will doctrine.  That is,
in Louisiana, it is not improper to discharge an employee for acting
to protect the public interest, e.g., by pointing out a violation of a
safety code.

Monts appeal of this ruling to Louisiana's Fourth Circuit Court of
Appeal was denied on 2/27/02 in a unanimous verdict of three judges.
There are two important and interesting components of the opinion [2]
supporting this ruling.  One is that Monts' complaints about safety
issues do not constitute protected speech because he did not carry
these beyond the PPSD, except for having gone to the UNO attorneys,
which the court decided was not a factor because management stated
that they were unaware of this.  The concept embodied by this
reasoning clashes sharply with the advice generally given to engineers
to try to resolve problems internally, going outside only after
exhausting all possible internal remedies.  It puts engineers in a
catch-22 situation.  If they go outside their organizations they are
vulnerable to charges of irresponsibly impugning the reputations of
their organizations, but if they do NOT go outside, then, according to
this opinion, this may be considered as evidence that their issues are
not matters of public concern.

The other point is embodied in the following excerpt from their opinion:

"In the instant case, review of the alleged code violations with which
Monts was concerned--if they were code violations at all--cannot be
said to be major matters of public safety.  Monts complained of wire
size, plumbing, and leveling issues and the like.  It would not appear
that, even if they were present, these seemingly minor deviations from
the purest building practices suggest great threat to the public
health and safety."

This statement was lifted verbatim from the defendant's brief, where
it appears without substantiation.  It is incorrect in detail in that
Monts did not mention plumbing issues.  Most significant is that three
appeal court judges, citing no documents or expert testimony, have
decided that, contrary to the opinions of professional engineers,
building code violations (including, as mentioned above, such points
as inadequate overload protection, and the omission of fire alarms and
emergency exit lights,) are obviously of no consequence.  Note that
this is a finding by an APPEALS court, NOT based on a verdict of a
jury that heard evidence.

Two years prior to this decision, the Louisiana Engineering Society
(affiliate of NSPE) endorsed Monts' case, provided $100 support, and
requested NSPE to help Monts with money, legal support, and an amicus
brief.  An article on the case was published in the NSPE newspaper,
Engineering Times [3].  The shocking nature of the Appeal Court
opinion induced the NSPE to take action.  Arthur Schwartz, NSPE legal
counsel, filed an excellent amicus curiae brief [4] strongly
supporting Monts' appeal to the Louisiana Supreme Court.
Unfortunately, the response of that court on May 31, 2002 to Monts'
request for a hearing was very concise: "Denied".  More recently,
Monts' last effort in the legal arena was rebuffed when the US Supreme
Court declined to hear his appeal.  Rubbing salt into his wound, UNO
is now seeking about $5000 in legal cost from Monts.

Low Pay and Abuse
As in most real world cases, there are secondary issues involved in
the Monts case.  Monts' supervisor, John Parnon, felt that he and
those working under him were significantly underpaid in terms of
standards prevalent in the area, and even within the university.
Parnon's complaints to his superiors about this went unheeded.  During
the early 90's, several engineers resigned from the department on
these grounds, and efforts to recruit replacements were unsuccessful
until 1998, when salaries were significantly raised.  Monts also
protested about the low salaries, and, with the support of his
supervisor, obtained, and distributed to other interested parties,
data on University salaries.  Because of the unfilled positions, the
workload on the remaining engineers was substantially increased and
became another contentious factor.

Another problem was the overbearing attitude of Frank Schambach and
his assistant Gus Cantrell.  There were numerous incidents in which
they verbally abused subordinates, often using vulgar language.
Engineer John Ehlers was amazed when Cantrell, threatened to fire him
for wearing a vest.  On several occasions, women employees were
reduced to tears by Cantrell's bullying.  Finally, according to
Ehlers, Cantrell, while pressing for various economies that violated
good practice, insisted on the installation of a "grossly overpowered
air conditioning system" for his own offices.

Some Conclusions
The Monts case is a sad example of the failure of the courts both to
do justice to an individual, and to protect the public safety.  The
summary dismissal concept, intended to weed out frivolous cases, was
used to deprive David Monts of his right to a trial by jury (as
specified in the Seventh Amendment of the US Constitution.)  I
personally find it hard to believe that any jury would not have found
in favor of Monts.

One could always second-guess Monts' attorney and argue that he could
have done more, or that he made some mistakes.  But it should be
remembered that he had limited time and resources and did not have a
lot of experience in cases of this type.

With hindsight, one could argue that it would have been better to have
initiated action in the federal rather than in the state court system.
Another decision was not to press the issue of the code violations in
a wider arena, or to seek publicity in general.  For example, telling
UNO students about what was happening might have generated a wave of
public opinion that might have made the judges hesitate before making
rulings that would be hard to justify in a public forum.

With respect to David Monts, one can only admire his courageous
devotion to principle.  Apart from spending over $140,000 in legal
costs, he expended an enormous amount of time and energy over a period
of six years.  In September, 2002, the Board of Governors of the IEEE
SSIT voted to present him with the Carl Barus Award for Outstanding
Service in the Public Interest.

About three decades ago, the BART case [5] served to illustrate
dramatically the dilemma of employee engineers whose professional
judgments were overridden by managers placing financial considerations
above the public welfare and safety.  That case lead directly to the
formation of the IEEE Member Conduct Committee (MCC) and provisions in
the IEEE bylaws authorizing the IEEE to come to the aid of engineers
who get into trouble as a result of efforts to abide by the IEEE
Ethics Code.  Since that time the cause of ethics support has had its
ups and downs.  With respect to the IEEE, we are certainly in a "down"
mode [6].  It is interesting that, at the outset of the BART case, the
California Society of Professional Engineers began with a strong
position and then faded away under pressure from large engineering
firms, with the NSPE doing essentially nothing.  It was the IEEE that
picked up and carried the ball.  In the Monts case, to switch
metaphors a bit, it is the NSPE that stepped up to the plate, while
the IEEE left the ball park five years ago.

References (I have not listed the many documents that I used but which
are not publicly available to readers.)

1. Monts, David, "Summary of Case", 3/3/02, on line at
   http://www.cs.columbia.edu/~unger/monts/summary.html
2. Court of Appeal Opinion on Monts Case. 2/27/02 on line at
   http://www.cs.columbia.edu/~unger/monts/appCtRuling.html
3. Ganz, Jennie, "NSPE, Louisiana Society Inform Court of PE's Public
   Safety Role", Engineering Times, May 2002.  On line at
   http://www.nspe.org/etweb/15-02montscase.asp
4. Schwartz, Arthur, NSPE Amicus Curiae Brief.  On line at
   http://www.cs.columbia.edu/~unger/monts/amicus.html
5. Unger, Stephen H., Controlling Technology: Ethics and the
   Responsible Engineer, Second Ed.,Wiley, 1994, pp 20-27.
6. Unger, Stephen H., "The Assault on IEEE Ethics Support", IEEE
   Technology and Society Magazine, Spring, 1999, pp. 36-40.  On line
   at http://www.cs.columbia.edu/~unger/articles/assault.html

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