SNEAPA 2013 Friday h1 3_15_ethics session 10 2013 revised


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Planning Ethics

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  • The Director of Planning and Development for a modest-sized city is a registered architect and also an AICP planner. She worked with a series of local firms before being asked to assume her current position about five years ago. The community has an excellent quality of life, an engaged citizenry, a strong economy and good public services. It is known for balancing its sense of history, environmental stewardship, support for new development and vigilance regarding public spending. Contentious issues such as completion of a long-delayed “missing link” of the downtown bypass, approval of a satellite new community that required extension of the city’s urban growth boundary and enactment of a series of environmental zoning overlays have all been touted as proof that the community is one where citizens both care and can get things done. All, however, revealed deep divisions in the community and hard feelings linger.
    The Director has a good relationship with the City Manager who hired her. The relationship between the Mayor and City Council has often been fractious. From the beginning of her appointment, she and the City Manager have typically discussed pending recommendations from her Department or the Planning Commission before public hearings or before recommendations are made public. The City Manager has cited the Mayor and Council’s “Operating Goals” as his justification, noting that the goals are adopted after a very public process every two years after newly elected counselors take office. He also notes that he has such conversations with all of his directors, from the Fire Chief to the City Engineer. He regards the city’s Comprehensive Plan as a “guide” even though state law mandates that it has the force of law.
    The fall election brought five new Councilors to the nine-person Council. They elected a new Mayor in the first council meeting of the newly formed council in January. The new Councilors ran on a platform that emphasized the need for jobs and growth, criticizing several incumbents as “hiding behind good intentions and using delay to stop development.” The recently adopted environmental zoning overlays were cited as an example of “unnecessary governmental overreaching.” Some of the incumbents lost their re-election bids while others retained their seats. The new Operating Goals, adopted with more than the usual debate and many 5-3 votes (and several 4-4 votes broken by the Mayor), are unabashedly pro-development. They include a commitment to evaluate all regulations with regard to their effects on growth, tax base, and the city’s future. The Planning Director was not a target by any candidates in the campaign, having worked on several of the city’s major development projects, including early work on the satellite community, while in private practice. She also served on the boards of preservation, waterfront and civic associations.
  • The City Manager often spoke to his team of directors about the need to play smart politics so that they can avoid being pulled into the Big Politics of the Mayor and Council. During the several months since the election, the Executive Director has noticed several changes in the City Manager and his management techniques. His requests for information now seem more urgent and his positions on cases and policy recommendations are privately argued with increased stridency. In individual and group meetings, Operating Goals and smart politics increasingly are mentioned to justify his instructions to his directors.
    She disagrees with him on two major issues:
    The City Manager, with the City Attorney’s support, has taken the position that any development application that was filed prior to the effective date of the new environmental zoning overlays – regardless of whether it had yet been found complete—constitutes a vested right and is not subject to compliance with the new regulations. Several parties have made clear their intentions to file suit regarding this interpretation. The City Manager instructed the Executive Director to issue interim regulations consistent with his interpretation until a decision has been rendered by a court of competent jurisdiction. She believes, and stated at several public meetings when the revisions were under consideration, that the city’s consistent practice has been to grandfather only complete applications. She believes her credibility would be seriously undermined if she now changed her opinion. The state’s case law is admittedly unclear on this matter and several efforts to create a “deemed approval” law by the state legislature have failed.
  • The second issue also relates to the new overlays and, specifically, the satellite community on which the Executive Director had worked while in private practice. The town center was built on an oxbow of the old river channel. As the planner on the project team, she analyzed the quality of three acres of seasonal wetlands along the oxbow and successfully argued that they were of such low quality that they did not fall within federal, state or local regulations. She received concurrence from the responsible officials at all levels. The area is represented by one of the incumbents who successfully retained his seat, as the voters in his district are strong environmental advocates. The developer of the satellite community is now ready to begin construction on Phase II, directly adjacent to the low quality wetlands. The City Manager instructed the Planning Director to tell the developer that he must avoid wetland impacts entirely and further instructed her to write a report with findings that justify requiring a project redesign. She told the City Manager that she cannot do so given her prior, well-known professional position on the issue. Her latest meeting with the City Manager ends with his comment: “Just figure it out.”
  • In July, several months after the wetlands incident, the City Manager promoted an AICP Planner from the Planning Director's staff to serve as his “Policy Advisor,” with responsibility for all policies other than those having to do with budget, fire, police and EMS. In his three years in the Planning and Development Department, the new Policy Advisor developed an excellent reputation as an “expeditor,” with an ability to cut through red tape. In creating the position, the City Manager cited the increasing needs of city council, as the ongoing regulatory reform identified regulations that need to be eliminated, significantly modified, or even added. (The latter are clearly an unintended effect of the new councilors’ efforts to reduce regulations.)
    The new Policy Advisor convinced the City Manager that one way to get these regulations to the City Council on a fast track is by following the same approach used for the transportation plan. The transportation plan has long been adopted separately from the comprehensive plan, but made legally a part of the comp plan through a city council resolution at the end of the process. The Policy Advisor believes a similar approach could be used for climate change, public safety, and sustainability plans, freeing the three plans from the “straitjacket” of the state’s enabling legislation for the comp plan. The Executive Director, when asked by the Mayor at a Council Meeting about this approach, indicated that she does not believe that it meets state law, distinguishing the transportation plan as mandated by federal law while these three new plans have no such mandate.
    In private discussions, the dispute became a bit personal. The Executive Director noted that the Manager’s Policy Advisor has limited experience, primarily only permit work, while he criticized the Planning Director as being trained only as an architect without any real claim to planning expertise.
  • The City Manager does not want the community “tied up” on these issues of climate change, sustainability and public safety, and wants them moved to a decision by the elected officials as quickly as possible. He told the two, “Just get it done! “
  • Near the end of the year, with the increasingly fractious City Council and increasingly unsupportive City Manager, the Planning Director decides to quietly begin the process of seeking another job. She wants to stay in the same community although she is willing to travel in any new job and is also willing to consider telecommuting for a firm without a local office. She is widely respected among public, private and community groups, has a good reputation among her peers in both the architecture and planning professions, and sees her biggest short term challenge keeping her job search confidential. She begins to map out a strategy and limits her conversations to several long-term confidants.
    An opportunity presents itself very quickly, as a head-hunter contacts her based on her reputation, not knowing that she has quietly begun searching for another position. He, too, is committed to confidentiality by his client, and is only able to tell her that he is representing a large North America-based planning, architecture and engineering firm seeking a Principal in charge of their planning business line for North America. She wants to do the right thing.
  • With the Planning Director’s sudden departure at the end of the year, the City Manager appoints her assistant as the Interim Director. He is interested in getting the job permanently. He has applied to take the AICP exam, has been approved as eligible and intends to take the exam in the next cycle. He understands the city bureaucracy, and has been instrumental in the success of the new regulatory reform initiative, receiving compliments from those across the political spectrum of the community. The City Manager’s Policy Advisor is also known to be very interested in the job and the City Manager and the council majority have come to respect him as rapid progress, indeed, has been made on the climate change and sustainability plans and both will be presented to the council soon after they reconvene in the new year. A third potential applicant, a well-respected Planning Director from a small, high-income suburb adjacent to the region’s airport, is a close friend of the City Manager’s family and has privately and confidentially made known her interest to his family members. She is AICP. An effective voice in the region, she was a leader in the effort to build a new Denver-style airport on the grounds that it would be a job-creator. (It would also relieve her suburban community of the problem of noise caused by being in the flight path of one of the major runways.) The city’s position – to keep the airport in place and connect it to downtown via BRT or LRT – is well-established. The selection of a new Planning Director will be made by the City Manager without any requirement of confirmation by any elected body.
  • The Policy Advisor is approached by the Mayor who, in a private discussion, suggests that he has great influence with the City Manager over his selection of a new Planning Director. He praises the planner’s work on both permits and regulatory reform. He notes that one of his biggest financial supporters, a local developer, agrees with him. The Policy Advisor knows that the developer is awaiting council action (after staff recommendation) on a regulatory change that would significantly increase the size and profitability of a pending development. The Policy Advisor makes no commitment, expresses his thanks to the Mayor for his kind words, and, as requested by the Mayor, does not mention the “confidential” discussion with anyone, including the City Manager. Acting on behalf of the City Manager and using the “Operating Goals” rationale, he directs the Interim Planning Director to change his recommendation to permit greater lot coverage and FAR in the regulations that will apply to the developer’s property. Not wanting to risk angering the City Manager at this time, the Interim Director makes the changes.
  • Early in the New Year, the former Planning Director has been hired by the global firm and assigned responsibility for design and planning for a multi-state area, including her community. They are particularly pleased because her hiring was considered to be important to securing a contract for a series of large, new suburban community projects in several metropolitan areas based on the success of the satellite community that was part of her earlier work. The same developer has partial interests in the new projects and respected her work as both an architect and, later, as Director of Planning and Development for the city. He still remembers her key role and persuasion in securing the original agreement on the contested wetlands and knows that a couple of the new projects have similar wetland issues that have only become more contentious over time. In his first meeting with the team of consultants, he turns to her and quips: “We’re looking forward to more of your great work, with exactly the same outcomes.” Her AICP-CEP environmental planner asks, “What did he mean by that?”
  • If possible, each should pay for their share of the cost. Sometimes, it may be impractical – try to keep track of whose turn it may be the next chance you get. Be aware of both circumstances and perceptions. If you are actively interviewing consultants for contract, avoid the situations you have referred to at least until all decisions have been finalized. Following other best practices could also assist in creating fair treatment. For example, you might consider answering consultants’ question about an RFP you have issues by establishing a requirement that all questions be submitted in writing by a specific date, and distribute all of the questions and answers to all consultants who responded to the RFP.
  • SNEAPA 2013 Friday h1 3_15_ethics session 10 2013 revised

    1. 1. ETHICS FROM TO LOCAL CODES TO THE AICP WITH A STOP AT THE ETHICS CASE OF THE YEAR & MORE So uthe rn N w Eng la nd A e ric a n Pla nning e m A s o c ia tio n Co nfe re nc e – M , CT, RI s A Cha p te rs W orcester M October 17 & 18, 2013 A– Robert P. Mitchell FAICP, Planning Consultant & Trainer- Boston MA Dwight H. Merriam FAICP, Partner Robinson & Cole Hartford CT
    2. 2. Ethics    “Ethics is a system or code of morals of a particular person, group or profession.” Webster’s “Always do right. This will gratify some people and astonish the rest." Mark Twain “Ethics are what you have when no one is looking.” Unknown
    3. 3. Advice On Ethics - Disclaimer This session has been created to provide general education regarding the AICP Code of Ethics.  Though examples, sample problems, and question and answer sessions are an important part of illustrating application of the code’s provisions, all certified planners should be aware that “Only the Ethics Officer [Chief Executive Officer of APA/AICP] is authorized to give formal advice on the propriety of a planner’s proposed conduct.” (AICP Code of Ethics, Section C3).  If you have a specific question regarding a situation arising in your practice, you are encouraged to seek the opinion of the Ethics Officer.
    4. 4. Perception vs. Reality
    5. 5. Ethics Code Adoption Issues              W adopt – hy Ethical “high ground” Response to recurring problem or one time problem Public Trust Lack of other state or local code for guidance W adopts – ho Local custom City/county charter Adopted by public body/citizens/other? W hat to adopt – If state does/does not have applicable ethics code Aspirational versus regulatory Topics to include:
    6. 6. Ethics Codes What Might they Include?       Purpose/goals Values behind the code Who it applies to Definitions Strategies for addressing ethical problems Confidential information       Gifts/gratuities Conflict of interest Assessment mechanism Complaint process, if any Enforcement Ethics training
    7. 7. Examples of State - Local Ethics Commissions & Codes Cities/Towns  West Hartford Connecticut  Monroe, Connecticut  Springfield, Massachusetts  Londonderry, New Hampshire State Ethics Commissions  Massachusetts Ethics Commission  Rhode Island Ethics Commission  Connecticut Office of State Ethics (state officials only)  California Fair Political Practices Commission & Attorney General  Pennsylvania State Ethics Commission
    8. 8. APA Ethical Principles in Planning    A guide to ethical conduct for all who participate in the planning process Pursue & faithfully serve the public interest (7 actions listed) Strive to achieve high standards of integrity & proficiency to maintain public respect for the planning process (13 actions listed)
    9. 9. The AICP Code Code of Ethics and Professional Conduct   Current Code - Adopted 2005; Revised 2009 (Ethics Codes for planners go back to 1959)  4 sections: A. B. C. D. Aspirational Values & Ideals Rules of Conduct Procedures Planners Convicted of Serious Crime
    10. 10. AICP Code of Ethics Aspirational Principles of the Code    Responsibility to the Public – 8 principles Responsibility to Clients and Employers - 3 principles Responsibility to the Profession & Colleagues – 10 principles Rules of Conduct  24 separate rules to adhere to
    11. 11. A.1 - 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 achieve high standards of professional integrity, proficiency, and knowledge. To comply with our obligation to the public, we aspire to the following principles: Eight Principles are Listed
    12. 12. A.2 - 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. Three Principles are listed
    13. 13. A.3 - 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. Ten Principles are listed.
    14. 14. Code B - 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. Note: there are 26 separate rules under this section.
    15. 15. Code C - Procedures Code Procedures:  Describe the way that one may obtain either a formal or informal advisory ethics ruling, and  Detail how a charge of misconduct can be filed, and  Describe how charges are investigated, prosecuted, and adjudicated.
    16. 16. Code C - Procedures      Informal and Formal Advice Only the Ethics Officer, who is the APA Executive Director, is authorized to give advice Formal advice is Binding Formal Advice: Findings within 21 days Forwarded to the Ethics Committee
    17. 17. Code D – Conviction of Serious Crimes     Automatic suspension from AICP if convicted Duty to Notify Ethics Officer if convicted Petition for reinstatement procedures Publication of name & crime of AICP planners
    19. 19. Ethics “Case of the Year” Issues  Director of Planning in a modest-sized city is an architect and AICP planner.  Strong civic life and character, but there are tough issues – a downtown bypass, and extension of urban growth boundary.  Mayor and City Council relationship fractious.  Director & City Manager relationship changing  Pro-development new City Council members
    20. 20. 1.1 “Smart Politics” vs. Big Politics     Pressure to “grandfather in” incomplete environmental zoning overlays Credibility of Planning Director could be hurt by change of position on the issue. State case law unclear, but “deemed approved” laws have failed recently. W options does the P hat lanning Director have for acting ethically?
    21. 21. 1.2 “Smart Politics” vs. Big Politics     New satellite community adjacent to low-quality wetlands City Manager instructs Director to tell developer that proposed expansion must be redesigned, to avoid wetland impacts entirely. In earlier private practice role, Director had successfully argued that the same area didn’t fall within preservation regulations. W options does the P hat lanning Director have for acting ethically?
    22. 22. 1.3 “Smart Politics” vs. Big Politics     Staff planner recruited as “Policy Advisor”, expeditor. Advisor suggest adopting several components of plan separately, to avoid state enabling legislation “straitjacket”. Director disagrees, things get a little personal. Are the two planners acting ethically with regard to the issue and to each other?
    23. 23. 1.4 “Smart Politics” vs. Big Politics    The City Manager does not want the community “tied up” on these issues of climate change, sustainability and public safety, and wants them moved to a decision by the elected officials as quickly as possible. He told the two, “Just get it done! “ Can the positions of these two AICPplanners on the issue be ethically reconciled?
    24. 24. 2.0 Job Hunting    Increasingly fractious political environment, quiet job search begins, among long-term confidants. Because of her strong reputation, a head hunter representing large firm seeks her out, commits to confidentiality. W can she say about her work with the city, hat pending m atters (including developm proposals) ent and advice that she has given the M ayor, City Council and the City M anager, both publicly and behind closed doors?
    25. 25. 3.0 Interim Director      Director leaves for another job. Assistant Planning Director appointed as Interim, is interested in job permanently. Policy Advisor and Planning Director from an other town emerge as candidates emerge. City Manager alone appoints new director. H m ow ight the three aspirants’ best conduct them selves and what m ight they say about each other should they be asked by the City M anager?
    26. 26. 4.0 “Confidential” Discussion     In a private discussion, Mayor praises Policy Advisor, cites his (the Mayor’s) influence over City Manager in selecting new Planning Director. Mayor’s supporter, local developer, “agrees” with him, mayor hints. Policy Advisor directs Interim Director to change recommendation in favor of developer. Interim Director makes the change. W ethical issues are raised in this scenario? H hat ow should the players respond?
    27. 27. 5.0 Back in the Private Sector     Former Planning Director now in charge of design and planning at a global firm, territory includes former community. Her hire may secure contract for several suburban projects in the area. Developer of these projects praises her work on wetland issues in previous projects, mentions he is looking forward to the same “outcomes”. W ethical issues are presented and how should hat they be addressed?
    28. 28. Other Ethics’ Cases Public Private Sector You are a public sector planner working with a consultant firm on your town’s new master plan  Before the plan is completed the consulting firm offers you a position with them ---------------------------------------------------------------- Are there ethical considerations that would prevent you from accepting this position?  Is there a way you could accept the position without compromising your ethics? 
    29. 29. Community Values  You are a consultant working in a city with 40% Hispanic population  City council and manager are all Anglos       Your job is to draft new zoning to lower densities from future in-fill projects in older neighborhoods The first neighborhood chosen for study is Hispanic City wants to limit overnight on-street parking, expansion of nonconforming houses, limits on # of bedrooms Residents claim discrimination. Census data indicates this neighborhood has larger families than Anglo neighborhoods. You schedule meeting with city officials to discuss this issue. After the meeting, you believe neighborhood concerns are well founded. What are your ethical obligations?
    30. 30. Socializing     You are a public sector planner but have a number of friends who are consultants. They may buy drinks or dinner, but you will also sometimes buy. As a public sector planner, is it unethical to pal around with private sector friends who pick up the tab occasionally? On a related topic, what if a planner is at a conference with several of the consultants that he/she works with and is invited to go to dinner? One of the consultants picks up the tab. Another pays for cabs. A third picks up drinks after dinner. Is there any conflict? Is there a more ethical way to handle these situations?
    31. 31. Final Ethics Case!!     You are attending an ethics training for the required 1.5 hours of CM credit. 30 minutes into the session your boss calls asking you to take care of a problem. You spend the next 45 minutes out in the lobby trying to solve the problem then rush back in for the last 15 minutes of the Ethics program. You make the call … Can you record the session on your CM log?
    32. 32. Ethics - Resources  AICP Code of E thics ethics/ index.htm  American Planning Association – E thical P rinciples of P lanning ethics/ ethicalprinciples.htm  MA State Ethics Commission ethics  Vermont Land Use Education & Training Collaborative – R ules of P rocedures & E thics M anual pubs/ rules_proc.pdf  Rhode Island Ethics Commission -  Connecticut Office of Ethics http:/ / ethics/ site/ default.asp  RI League Of Cities & Towns – E thics Guide for M unicipal Officials  Institute of Local Self Government – Developing a L ocal Agency E thics Code ethicscodes