Ethical Challenges for Planning Consultants N O V E M B E R 1 5, P M - 2 : 3 0 P M E S T, 1. 5 C M

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1 Ethical Challenges for Planning Consultants APA CHAPTERS & DIVISIONS FREE WEBINAR PROGRAM N O V E M B E R 1 5, P M - 2 : 3 0 P M E S T, 1. 5 C M

2 Session Participants Paulette (Polly) M. Carolin, FAICP Las Vegas, NV Phone:(702) Kimberly K. (KK) Gerhart-Fritz, AICP, President The Planning Workshop, Inc., Indianapolis, IN Phone: Jerry Weitz, Ph.D., FAICP, President Jerry Weitz & Associates, Inc., Greenville, NC Associate Professor, East Carolina University Phone:

3 Session Sponsor APA s Private Practice Division Become a member: $10 for student and new professional members; $25 for all other members This is a repeat of a Session from the 2012 APA National Conference in Los Angeles, so no double-counting (it would be unethical)! Thanks to the original session organizer, the Private Practice Division s Acting Chair Deborah Myerson, AICP Her full contact information: Deborah L. Myerson, AICP Planning and Development Consultant Tel/fax: dlmyerson@yahoo.com 834 S. Sheridan Dr. ~ Bloomington, Indiana

4 Learning Objectives Understand the standards of ethical behavior according to the AICP Code of Ethics and Professional Conduct Highlight parts of the Code that appear particularly relevant to planning consultants (for those of you in the public sector, it is your chance to find out what to expect from a planning consultant) Consider specific contexts and situations of private planning practice that raise ethical issues and concerns and learn how private consultants would respond Develop reasoning and reflection skills that can be applied in every day situations 4

5 Session Format Six situations introduced, then potentially relevant code sections are identified panel members will respond with remarks (2 minutes max. ea.) after each situation is introduced (45 minutes) Suggestion: pull up a copy of the AICP Code of Ethics, 5 Audience questions - submitted as written questions; 6+ randomly selected; panel members will respond and audience members may comment (45 minutes) Conclusions (time permitting)

6 Caveats Before We Begin All communications regarding specific situations should occur with the APA Executive Director (Paul Farmer, FAICP) in his capacity as the ethics officer General Advice: pay attention to those things you might do or say that would make your sainted Mother roll over in her grave or that you or your children wouldn t want to read about yourself in the newspaper, or in social media 6

7 Caveats Before We Begin Professional Development Officers (PDOs) of the various state APA chapters are encouraged to engage in conversations about ethics but are not authorized to give guidance Ethical situations are rarely cut and dry and often contain a high level of nuance (lots of GREY AREA) The AICP Code of Ethics helps certified planners negotiate the ethical and moral dilemmas they sometimes face Principles to Which We Aspire (Section A of the code) are not technically enforceable but must be considered; Rules of Conduct (Section B) are enforceable 7

8 #1 Moonlighting Public Sector Planner A planner is employed by a city government. He or she wants to do private consulting work in another nearby local government jurisdiction while maintaining the current public sector job. Can he or she engage in private work? If so, under what circumstances and precautions? 8 Times are tough can we afford to turn down work?

9 #1 Relevant Code Provisions Rule of Conduct #4. We shall not, as salaried employees, undertake other employment in planning or a related profession, whether or not for pay, without having made full written disclosure to the employer who furnishes our salary and having received subsequent written permission to undertake additional employment, unless our employer has a written policy which expressly dispenses with a need to obtain such consent. 9 Principle A.2.c. We shall avoid a conflict of interest or even the appearance of a conflict of interest in accepting assignments from clients or employers.

10 #2: Public and Private Client Conflict 10 A consulting planner is under contract to prepare a zoning ordinance for a city, and the consulting planner was on the city government planning staff a short time earlier. A developer has approached this planner and is intent on eventually up-zoning a large parcel of land in the jurisdiction for which the planner is preparing the new zoning ordinance. The developer asks the consulting planner if he or she will take the developer on as a client and provide political advice about individual council members and how to proceed with getting the property upzoned. What can the planner do?

11 #2 Relevant Code Provisions (1 of 2) 11 Principle A.2.b. We shall accept the decisions of our client or employer concerning the objectives and nature of the professional services we perform unless the course of action is illegal or plainly inconsistent with our primary obligation to the public interest. Rule of Conduct #3. We shall not accept an assignment from a client or employer to publicly advocate a position on a planning issue that is indistinguishably adverse to a position we publicly advocated for a previous client or employer within the past three years unless (1) we determine in good faith after consultation with other qualified professionals that our change of position will not cause present detriment to our previous client or employer....

12 #2 Relevant Code Provisions (2 of 2) Rule of Conduct #7. We shall not use to our personal advantage, nor that of a subsequent client or employer, information gained in a professional relationship that.we should recognize as confidential because its disclosure could result in embarrassment or other detriment to the client or employer... Rule of Conduct #9. We shall not engage in private discussions with decision makers in the planning process in any manner prohibited by law or by agency rules, procedures, or custom. Rule of Conduct #13. We shall not sell, or offer to sell, services by stating or implying an ability to influence decisions by improper means. Rule of Conduct #14. We shall not use the power of any office to seek or obtain a special advantage that is not a matter of public knowledge or is not in the public interest. 12

13 #3: City Attorney Conflict 13 You are a consulting planner who works for a city doing zoning administration. The city attorney is also a real estate attorney. You have observed that the city attorney frequently has private real estate clients. In cases of conflict between a private real estate client interest and the city, this attorney chooses the interests of the private real estate client to the detriment of the city, whom he is also charged with representing. The city attorney also has many political connections in city government, and you believe he is likely to retaliate if you raise the issue publicly. As a certified planner witnessing this, what do you do?

14 #3 Relevant Code Provisions 14 Principle A.2. 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. Rule of Conduct #2. We shall not accept an assignment from a client or employer when the services to be performed involve conduct that we know to be illegal or in violation of these rules. Rule of Conduct #19. We shall not fail to disclose the interests of our client or employer when participating in the planning process. Nor shall we participate in an effort to conceal the true interests of our client or employer.

15 #4. Unrealistic Work Deadline in RFP 15 A city s request for proposal (RFP) asks for a local comprehensive plan and it specifies that the plan is to be prepared within a sixmonth time frame. You know the review process alone for the plan will take four months, leaving you only two months to accomplish public participation tasks and prepare the plan. You view it as impossible to undertake in that timeframe. However, you know that other planning consultants are likely to bid on the project and in doing so suggest it can be done in the time frame, even if they know they cannot. What does your firm do?

16 #4 Relevant Code Provisions Rule of Conduct #11: We shall not solicit prospective clients or employment through use of false or misleading claims, harassment, or duress. Rule of Conduct #16: We shall not accept work for a fee, or pro bono, that we know cannot be performed with the promptness required by the prospective client, or that is required by the circumstances of the assignment. 16

17 #5. Disadvantaged Group Input 17 A planning consultant has a contract to prepare a plan for a county and also a separate contract to prepare a plan for a city in the same county. The consultant finds that the elected officials of the city are not inclined to seek input from a low-income, disadvantaged, disproportionately African-American neighborhood. An opportunity arises for the consultant to meet with this neighborhood, and it will be taped and televised. The consultant doesn t want to ask if he or she should attend because the city client is likely to say no. What does the planning consultant do?

18 #5 Relevant Code Provisions (1 of 3) 18 Principle A.1.d. We shall provide timely, adequate, clear, and accurate information on planning issues to all affected persons and to governmental decision makers. Principle A.1.e. We shall give people the opportunity to have a meaningful impact on the development of plans and programs that may affect them. Participation should be broad enough to include those who lack formal organization or influence.

19 #5 Relevant Code Provisions (2 of 3) 19 Principle A.1.f. 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. Principle A.2. 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.

20 #5 Relevant Code Provisions (3 of 3) 20 Principle A.2.a. We shall exercise independent professional judgment on behalf of our clients and employers. Principle A.2.b. We shall accept the decisions of our client or employer concerning the objectives and nature of the professional services we perform unless the course of action is illegal or plainly inconsistent with our primary obligation to the public interest. Rule of Conduct #19: We shall not fail to disclose the interests of our client or employer when participating in the planning process. Nor shall we participate in an effort to conceal the true interests of our client or employer.

21 #6 Affordable Housing Neighborhood 21 You are preparing a comprehensive plan for a city. The mayor, who has been in office for more than 30 years, has indicated property owners of an older, intown neighborhood want to rezone the property from single-family residential to office use. The city planner indicates the land use plan should be changed for this neighborhood to reflect office use per the mayor. The mostly renter neighborhood is still stable but abuts the downtown commercial district. It is one of the few remaining in the city that provides affordable housing for low-income persons. How do you respond?

22 #6 Relevant Code Provisions All of those cited for situation #5 may apply The principles to which we subscribe derive from the special responsibility of our profession to serve the public interest with compassion for the welfare of all people (Code Preamble) 22

23 Audience Questions Randomly select from your submitted questions Participants provide suggestions (maximum 2 minutes each) Conclusions follow (time permitting) 23

24 References/Resources AICP Code of Ethics, American Planning Association and American Institute of Certified Planners. September Ethics in Planning: A Toolkit for Conducting Ethics Sessions. Paul Farmer, Certified Planners and Ethics. Carol Barrett, FAICP, Planners Press. Everyday Ethics for Practicing Planners 24

25 Thank You! Go forth and be ethical Paulette (Polly) M. Carolin, FAICP Las Vegas, NV Phone:(702) Kimberly K. (KK) Gerhart-Fritz, AICP, President The Planning Workshop, Inc., Indianapolis, IN Phone: Jerry Weitz, Ph.D., FAICP, President Jerry Weitz & Associates, Inc., Greenville, NC Associate Professor, East Carolina University Phone: