Ethics Around the Country Anna Breinich, AICP Benjamin Frost, Esq., AICP Dwight Merriam, Esq., FAICP
Ethics Around the Country Anna Breinich, AICP Benjamin Frost, Esq., AICP Dwight Merriam, Esq., FAICP Providence October 21, 2011
Roadmap for Today
AICP Code of Ethics and Professional Conduct
Ethical Codes of other professions
State statutory code examples
Questions (welcome throughout)
“ Always do right. This will gratify some people and astonish the rest.“
“ Ethics are what you do when no one is looking.”
-George Bernard Shaw
"Whenever you do a thing, act as if all the world were watching."
“ The standards that govern the conduct of a person, especially a member of a profession.”
Ethics for Planners
Planners should just apply common sense
Ethical problems are seldom clear cut – rich in ambiguity
Planners must be aware of local ethics standards
“ Those who practice planning need to adhere to a special set of ethical requirements that must guide all who aspire to professionalism.”
Ethical Principles in Planning
The AICP Code
Code of Ethics and Professional Conduct
2005 Update; similar to previous code
Rules of Conduct
Automatic suspension for serious crimes (2009)
Our Overall Responsibility to the Public
“ Our primary obligation is to serve the public interest and we, therefore, owe our allegiance to a conscientiously attained concept of the public interest that is formulated through continuous and open debate.”
“ We shall seek social justice by working to expand choice and opportunity for all persons, recognizing a special responsibility to plan for the needs of the disadvantaged and to promote racial and economic integration. We shall urge the alteration of policies, institutions, and decisions that oppose such needs.”
Our Responsibility to Our Clients and Employers
“ We owe diligent, creative, and competent performance of the work we do in pursuit of our client or employer’s interest. Such performance, however, shall always be consistent with our faithful service to the public interest.”
“ We shall avoid a conflict of interest or even the appearance of a conflict of interest in accepting assignments from clients or employers.”
Our Responsibility to Our Profession and Colleagues
“ We shall contribute to the development of, and respect for, our profession by improving knowledge and techniques, making work relevant to solutions of community problems, and increasing public understanding of planning activities.”
“ We shall describe and comment on the work and views of other professionals in a fair and professional manner.”
“ We shall contribute time and effort to groups lacking in adequate planning resources and to voluntary professional activities.”
Rules of Conduct
“ We adhere to the following Rules of Conduct, and we understand that our Institute will enforce compliance with them. If we fail to adhere to these Rules, we could receive sanctions, the ultimate being the loss of our certification.”
“ We shall not perform work on a project for a client or employer if, in addition to the agreed upon compensation from our client or employer, there is a possibility for direct personal or financial gain to us, our family members, or persons living in our household, unless our client or employer, after full written disclosure from us, consents in writing to the arrangement.”
“ We shall neither deliberately, nor with reckless indifference, misrepresent the qualifications, views and findings of other professionals.”
In brief, our Code Procedures
1. Describe the way that one may obtain either a formal or informal advisory ethics ruling, and
2. Detail how a charge of misconduct can be filed, and how charges are investigated, prosecuted, and adjudicated.
Informal and Formal Advice
Only the Ethics Officer, who is the APA Executive Director
Formal Advice: Findings within 21 days
Forwarded to the Ethics Committee
Ethics Cases During 2009
11 Total Cases
9 Cases Resolved
4 Cases Dismissed
1 Charge Withdrawn
2 Respondents' Membership Lapsed
2 Appealed Case Dismissals Upheld
2 Cases Pending
1 Charge Under Review
1 Complaint Under Review
Ethics Committee Actions
Upheld Dismissals of 2 Appealed Cases
Requests for Formal Advice
Michael Schuler and Amon Browning have created sets of AICP ethics flash cards, very clever, available at:
...and for all others...
Ethical Principles in Planning
(As Adopted May 1992)
Codes of Other Professions
American Institute of Architects
American Society of Landscape Architects
National Society of Professional Engineers
American Bar Association
AIA Code of Ethics
Similar principles and structure compared with AICP Code, but a different perspective – private sector
Same structure and private sector perspective as AIA Code
Greater emphasis on environment
Recognition of public sector employment, but only in reference to conflicts of interest
Honesty, dignity, integrity, fair dealing
ASLA Code: http://www.asla.org/nonmembers/CODE499.htm
Code of Ethics for Engineers
Same sorts of considerations as AIA and ASLA Codes (do you see a pattern…?)
III.2.d. Engineers are encouraged to adhere to the principles of sustainable development in order to protect the environment for future generations.
Ban on competitive bidding struck down by US Supreme Court in 1978 (old Code 11(c) – Engineers “shall not solicit or submit engineering proposals on the basis of competitive bidding. …”)
Ban was defended by NSPE as a means of preventing engineers from making deceptively low bids; hiring of engineers should be done on the “traditional” basis of qualifications
Held to be a violation of the Sherman Antitrust Act
Act does not require competitive bidding; only prevents NSPE from prohibiting it
National Society of Professional Engineers Code: http://www.nspe.org/Ethics/CodeofEthics/index.html
ABA Model Rules
Typically…lawyers aren’t planners and planners aren’t lawyers…but when they are…there can be conflicts…
Beware: What You Say to Your Government Lawyer May Not Be Confidential Government Lawyer-Client Confidentiality Special Thanks to Patricia E. Salkin Raymond & Ella Smith Distinguished Professor of Law, Albany Law School
Uncertainty as to existence of privilege in the government context – circuit courts in conflict
Politicizing attorney professionalism
ABA Task Force on Attorney-Client Privilege
ABA Adopts 2005 Resolution
Resolved, That the ABA supports the preservation of the attorney-client privilege and work product doctrine as essential to maintaining the confidential relationship between client and attorney required to encourage clients to discuss their legal problems fully and candidly with their counsel so as to
(1) promote compliance with law through effective counseling,
(2) ensure effective advocacy for the client,
(3) ensure access to justice, and
(4) promote proper and efficient functioning of government.
Three Distinct Areas of Law/ Regulation
Common-law privilege of confidentiality from an evidentiary line of cases
Common-law (then codified) attorney work-product doctrine (not being discussion today)
Attorney codes of conduct and professionalism
In what manner do each of these areas of the law protect attorney-client conversations and information gleaned from the attorney-client relationship?
Are the government attorney and his/her client(s) afforded the same protections and burdened with the same mandates as non-government attorneys and clients?
Should the application of these rules be the same whether the attorney works for the public or for the private sector?
Issue #1 – Attorney Ethics A Lawyer’s Responsibility to Protect Client Confidences
Model Rules Preamble
“ A lawyer should keep in confidence information relating to the representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.”
“ A lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private.”
Lawyers must zealously protect and pursue client interests
Model Rule 1.6
“ A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted…to prevent reasonable certain death or bodily harm…”
Rule 1.6(b)(6) acknowledges that a court may order disclosure
Comment 13 to Model Rule 1.6
Acknowledges that a lawyer may be ordered by a court or governmental entity to disclose, but states that the lawyer should use all non-frivolous means to prevent the revelation of secret or confidential information.
Issue #2 – The Privilege of Confidentiality
Defining The Privilege
Wigmore on Evidence Defines the Privilege as Follows:
- where legal advice of any kind is sought
- from a professional legal adviser in his capacity as such,
- the communication relating to that purpose,
- made in confidence
Defining The Privilege
- by the client,
- are at his instance permanently protected
- from disclosure by himself or by the legal adviser,
- except where the client waives the protection
Reasons Favoring A Government Lawyer-Client Privilege
Ensuring full and frank communication between lawyer and client
Public officials would shy away from legal counsel which could lead to corruption
Lack of legal counsel could hamper the implementation of government programs
Reasons Against a Government Lawyer-Client Privilege
Client is the public
Public entitled to truth
Higher duty in the public law context
Public officials are not the same as ordinary citizen-clients
Following FOIL, there should be no secrets in government
Government officials (lawyers) often have a duty to disclose wrongdoing – fraud, corruption, abuse
Differences Between the Work Product Doctrine and the A-C-P
Work product doctrine seeks to protect the interests of the attorney and the client
Both attorney and client must agree to waive
Attorney-client privilege belongs to the client alone
Unlike the attorney-client privilege, the work-product privilege is typically not waived when information is shared with third parties
Proceed with caution...don’t assume you are protected from disclosure…
Public Ethics Laws
Statutory standards for public officers and employees at all levels of state government
Anti-nepotism (thorough but limited definition of “relative”), no gifts whatsoever, and of course no influence peddling
But it’s 59 pages long!
Florida Commission on Ethics – “guardian of the standards”: http://www.ethics.state.fl.us/
2010 Statewide Grand Jury convened to investigate “…ongoing harm caused by crimes committed by local and state public officials while acting in their official capacity. Public officials have abused their powers gained by virtue of their position.”
How does Code B.5 apply to private sector planners? (i.e., “We shall not, as public officials or employees; accept from anyone other than our public employer any compensation, commission, rebate, or other advantage that may be perceived as related to our public office or employment.”)
Too Good to Be Ethical?
For many years, a local retailer has given 15% discounts for all municipal employees to “give back” to the community. The retailer is now expanding and applies for a waiver of impact fees, which requires a staff recommendation. The planning director’s husband is an employee of the retailer. The director and all other staff members are recipients of the discount. What should the town do?
You are a consultant. To get a project approved in a particular Council District, you are told to hire a certain firm to “manage” the project through the approval process. While the extra fee is substantial and you suspect kickbacks to a Council Member is involved, your client says it’s worth it. What do you do?
The Devil You Know…
A local developer wants to rehab a derelict structure in an historic district. You know him and like him; he has a spotless reputation. But what he wants to do requires a “creative” zoning interpretation. Without that, the historic structure will be demolished. What should you do?
How about a few real cases from the courts?
Is there an ethics problem where a city council enters into a development agreement with a developer where a council member is married to a lawyer who represents the developer on unrelated matters?
The city council could enter into a development agreement with the developer despite the fact that one of the city council members was married to a lawyer whose firm represented the developer on unrelated matters.
Is it unethical for the board chairperson to write a letter to the Mayor supporting both the rezoning and the project, noting that she “would really like to see new housing available to [her] should [she] decide to sell [her] home and move into something maintenance free[.]”?
That this constituted the appearance of bias and actual bias, requiring annulment of the planning board’s site plan approval. although the actions did not technically violate the General Municipal Law sections dealing with conflicts of interest for municipal officials, the actions nonetheless warranted annulment of the decision. See also, NASHA, LLC v. City of Los Angeles , 22 Cal. Rptr.3d 772 (Cal. Ct. App. 2004) (finding impermissible bias where a commissioner wrote a newsletter article advocating a position against the proposed project).
Schweichler v. Village of Caledonia , 45 A.D.3d 1281, 1283-1284 (N.Y.App.Div. 2007); See also, NASHA, LLC v. City of Los Angeles , 22 Cal. Rptr.3d 772 (Cal. Ct. App. 2004)
Just hope this isn’t your board
Does the following exchange create any ethics problems: A member of a Commission engages in the following dialogue with an applicant’s engineer: “[s]ome Italians are wopsided.” The engineer replied “Lopsided?” and the commissioner said “Wopsided.” The engineer replied: “Wopsided, yes, O.K. got you.”
The Court found the exchange indicated lack of impartiality.
Pirozzilo v. Berlin Inland Wetlands and Water Courses Com’n , 32 Conn. L. Rptr. 103 (Conn. Super. Ct. 2002).
All in the family
Is it a conflict of interest for a board member to vote on an application involving a shopping center to be located in close proximity to where his/her parents live?
A board member voted on the siting of a shopping center to be located near his elderly parents’ home. Neighbors opposed to the project alleged the board member had a conflict of interest because if the shopping center were to be built there, the board member would not have to do the grocery shopping for his parent. The court found no prohibited conflict of interest and noted that there was no evidence that the board member even did grocery shopping for his parents.
Lincoln Heights Ass’n v. Township of Cranford Planning Board , 714 A.2d 995 (N.J. Super. Ct. Law Div. 1998). But, see Care of Tenafly v. Tenafly Zoning Bd. of Adjustment , 704 A.2d 1032 (N.J. Super. A.D., 1998) (the court found a prohibited conflict of interest where a board member voted on a variance request that would impact his 83-year-old mother’s commercial interest in a strip mall based upon the “potential for psychological influences” because his mother needed the income to subsist).
The honeymoon is over
Is it ethical for a council member to cast the deciding vote to reappoint her recently wed spouse to a new term on the planning board, where he served for 15 years prior to the marriage?
After a 3 to 2 vote to reappoint the planning board member, the Court determined that in casting the deciding vote for her husband’s reappointment, the council member violated the State ethics law as this created at least a perception of a conflict of interest. Noting that a familial relationship does not always create a per se conflict, the Court said that “when a family member’s vote results in another family member obtaining a position in a government agency, as in the situation before us, a conflict is usually present.” Although the council member asserted that her spouse was well qualified on the merits, the Court said that although he may well have been an ideal candidate, “in the eyes of the public, the personal involvement…might reasonably be expected to impair her objectivity or independence of judgment.” Noting too that since the spouse cast the tie-breaking vote, the matter did not “resound with political consensus,” the Court concluded that “marriage is a direct personal involvement which might be reasonably expected to impair objectivity or independence of judgment within the meaning of” the statute.
May Village Trustee vote on a special use permit and variance application to allow a historical society to locate their new office in a residential district where the spouse of the trustee had represented the society in the sale of the residential property in question, and received a commission as a result of her involvement?
The Illinois Appellate Court held that a spouse’s financial interest in a venture does not necessarily disqualify a decision maker, and found no evidence here that the Board Member’s vote “was influenced or tainted by his wife receiving the commission.” Since the Historical Society did not apply for the permit and variance until after they had already purchased the property, the Court stated that in this instance, the commission that the spouse received was not in any way contingent upon the granting of the requested relief. Furthermore, the Court noted that the Trustee disclosed his wife’s involvement as a real estate broker for the Society at a public meeting, and that the Plaintiff had simply failed to show any evidence that the Council’s determination was impacted by a conflict of interest.
Lapp v Village of Winnetka, 359 Ill. App. 3d 152, 833 N.E.2d 983 (2005
Dollars and Sense?
Is it a prohibited conflict of interest where a member of a local Board of Commissioners, which had voted to rezone a tract of land, was also a vice president of a local bank that had participated in financing the acquisition of the land by the county redevelopment authority?
The Georgia Court held that absent more evidence that the rezoning directly and immediately affected his pecuniary interest, there was merely a remote and speculative allegation that failed to make a case of a prohibited conflict.
White v Board of Commissioners on McDuffie County, 252 Ga. App. 120, 555 S.E.2d 45 (2001), cert. denied (March 25, 2002).
You are a planner for a jurisdiction home to a popular college football team. The
university offers several members of the planning staff hard to get tickets to a sold
out game. Recognizing the conflict, your boss and colleagues decide to pay for
their tickets outright, thus absolving the question of whether or not the tickets were
a gift. Is there still an ethical conflict?
Two planners work together at a private developer for several years before both
joining the planning department in a large city. After two years at the department,
one of the planners returns to private sector development. How does this change
the personal and professional relationship of the two planners? Does the scenario
change if the planners are working in a city with a small, resource-strapped
Fencing with the neighbors
You are a planner with responsibility for code enforcement. You own a home in a planned unit development (PUD) and notice that several of your neighbors have erected fences that extend their backyard into the shared greenway – essentially privatizing public land. How would you handle this situation? Do conflicts arise between your roles as property owner, neighbor, and public servant?
An offer you can’t refuse?
You are a public sector planner working with a consulting firm in your community on a redevelopment plan. After several weeks, based on the quality of your work, the head of the firm offers you a position within the firm. Are there ethical considerations that would prevent you from accepting this position?
Consulting on consultants
A developer asks you, as a public sector planner, to help him select the team of
lawyers and architects that you would recommend, since you are familiar with who
is good in your community. How do you respond? If you decide that giving advice on a team is not ethical, are there other ways you can assist?
You are working for a consulting firm that completes a master plan for a new community airport. After the master plan is completed, the community releases an RFP for engineering services based on recommendations from the plan. Do you foresee any conflicts?
Resources for Information on Ethics
American Planning Association (APA) Ethical Principles of Planning www.planning.org/ethics/ethicalprinciples.htm
American Institute of Certified Planners (AICP) Code of Ethics & Professional Conduct www.planning.org/ethics/
Massachusetts Commission on Ethics www.mass.gov/ethics
City of Santa Clara CA comprehensive site on ethics www.santanclaraca.gov
Institute for Local Self Government – Developing a Local Agency Ethics Code www.ca-ilg.org/trust
Vermont Land Use Education & Training Collaborative – Rules of Procedure & Ethics Manual www.vpic.info/pubs/rules_proc.pdf