Oklahoma APA

Annual Conference

Claremore, OK

October, 2017

Notice: AICP members are hereby notified

that their attendance is required for the

duration of the event in order to receive CM

credit.

planning.org

• “Cases of the Year” created by AICP’s Ethics Committee to provide continuing education materials regarding the AICP Code of Ethics and Professional Conduct.

• Note that only the Ethics Committee is authorized to give a “formal advisory opinion” on the propriety of a planner’s proposed conduct (Section C.3, Ethics Code).

• Direct queries or suggestions regarding these “Cases of the Year” to AICP’s Ethics Officer, at ethics@planning.org.

Advice on Ethical Conduct

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• “Principles to Which We Aspire”

(Section A, AICP Code of Ethics and Professional Conduct)

• “Our Rules of Conduct”

(Section B, AICP Code of Ethics and Professional Conduct)

• “Ethical Principles of Planning”

(Ethics web site—for non-professional planners)

Ethical Principles and Rules

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• Seek Informal Advice from Ethics OfficerNon-binding and not in writing

• Seek an Advisory Opinion from Ethics CommitteeProvided in writing—but only on selected, unresolved issues

• File a Complaint of Ethical MisconductCan be filed by anyone—but only against an AICP member—for having allegedly violated a “Rule of Conduct”

Dealing with Ethical Issues

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“Always do right. This will gratify some people and astonish the rest.” -Mark Twain

“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.” -Thomas Jefferson

“The standards that govern the conduct of a person, especially a member of a profession.”◦ www.wikitionary.com

Planners should just apply common sense.

Ethical problems are seldom clear cut.

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

Our Overall Responsibility to the Public

Our Responsibility to Our Clients and Employers

Our Responsibility to Our Profession and Colleagues

Ethics Cases of the Year:

2017-18

Created by the Ethics Committee, American Institute of Certified Planners

planning.org

• Ethical Scenarios

1. Special Advantages

2. Supplemental Salary

3. Social Media

4. Plagiarism

5. Incomplete Information

6. Charitable Gifts

7. Conference Attendance

Agenda

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Ethics Topics (Cases and Inquiries – 2016)

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• All “cases” based on real situations occurring in the United States during 2016-17.

• Scenarios derived from informal inquiries or actual cases of ethical misconduct.

These are True Stories

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Cast of Characters

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Small Town Planner Catherine, AICPLarge City Planner Dan, AICPPlan Commissioner HarlandRegional Planner Patrick, AICPPlanning Consultant Jane, AICP

Catherine, AICP

Harland

Dan, AICP

Patrick, AICP

Jane, AICP

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• Catherine, AICP, is zoning staff for Wurster. A home owner requests a special-use permit to repair cars in his garage, located in an area of single-family houses.

• Despite opposition, Catherine approves the permit, with limits on the number of cars on the premises and on nearby streets.

Special Advantages

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• Shortly thereafter, Catherine asks the garage owner if she can store an antique car she owns in the garage.

• Catherine agrees to pay the operator a monthly storage fee.

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Q: Has Catherine, AICP, violated any ethical principles or rules?

Question

16

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• Has Catherine received a “special advantage,” despite having paid the garage owner?

◦ Principle #1c: “We shall pay special attention to the interrelatedness of decisions.”

Rule of Conduct #5: “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.”

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.”

Ethical Issues

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• Catherine, AICP, has applied for a planning director’s job with a rural county.

• In order to supplement the small salary, the county supervisor has offered Catherine an additional position—as the county’s building inspector.

Supplemental Salary

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Scenario 2

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• The building inspector job currently is contracted out to a consultant.

• The pay for the inspector job is based on the amount of fees generated by building permits.

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Scenario 2

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Q: Should Catherine, AICP, have any concerns about this arrangement?

Q: If so, what response should she give to the county supervisor?

Questions

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Scenario 2

planning.org

• Catherine’s actions as county planner (e.g., rezonings) could result in more building permits—and, consequently, a higher salary.

• It might be preferable if Catherine asked for a set salary for the building inspector’s job.

Ethical Issue

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Scenario 2

planning.org

Principle #1c: “We shall pay special attention to the interrelatedness of decisions.”

Principle #2a: “We shall exercise independent professional judgment on behalf of our clients and employers.”

Rule of Conduct #25: “We shall neither deliberately, nor with reckless indifference, commit any wrongful act, whether or not specified in the Rules of Conduct, that reflects adversely on our professional fitness.”

Scenario 2

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• Unless Catherine already has experience as a building inspector, she should not agree to begin that job until she has received sufficient training.

Rule of Conduct #15: “We shall not accept work beyond our professional competence unless the client or employer understands and agrees that such work will be performed by another professional competent to perform the work and acceptable to the client or employer.”

Ethical Issue

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Scenario 2

planning.org

• Harland, a realtor, is one of five members of the Hudson Plan Commission.

• After a Commission meeting, he posts an item on his Facebook page about a development proposal.

• He hopes to get some reactions from Facebook “friends” in Hudson.

Social Media

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Scenario 3

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• Included in the long thread of comments on Harland’s Facebook page are some from two of his fellow Commission members.

• Harland replies to these comments and a back-and-forth exchange ensues.

• Dan, AICP, the planning director of Hudson, sees the Facebook posts. Dan, AICP

Scenario 3

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Q: Are there any ethical concerns that Dan should have?

Q: What should Dan, AICP, say to Harland, even though he is not a planner?

Questions

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Scenario 3

Harland

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• Dan may want to brief Harland—and his fellow Commission members—about citizen participation issues.

Ethical Principles for Planning (for planning process participants): “Strive to give citizens (including those who lack formal organization or influence) full, clear, and accurate information on planning issues.”

Principle #1e: “Participation should be broad enough to include those who lack formal organization or influence.”

Principle #1h: “We shall deal fairly with all participants in the planning process.”

Ethical Issues

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Scenario 3

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• Dan should check state and local “Open Meetings” laws, since three Commission members, including himself, were commenting about a project outside of a public meeting.

Scenario 3

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Q. Is Facebook an adequate and appropriate forum for public engagement?

Q. Are there any potential problems—and advantages?

Questions

Scenario 3

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• Patrick, AICP, is senior planner with a regional planning agency. One of his duties is to review draft comp plans.

• After reviewing a draft plan for Geddesville, he sees that large portions of the text also appear—verbatim, including typos—in another community’s adopted plan.

Plagiarism

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Scenario 4

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• Patrick phones Jane, AICP, the consultant who prepared the draft plan. After discussing the plan’s review process, Patrick asks Jane about the copied text.

• Jane defends this as “acceptable practice,” noting that she has listed the other community’s plan—prepared by a different consulting firm—in her bibliography.

Patrick, AICP

Scenario 4

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Q: Is this “acceptable” practice by Jane, AICP?

Q: If not, what—if anything—should Patrick, AICP, do to comply with ethics requirements?

Questions

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Scenario 4

Jane, AICP

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• If Jane does not agree to change the document, Patrick could consider filing an ethical misconduct charge.

Rule of Conduct #17: “We shall not use the product of others’ efforts to seek professional recognition or acclaim intended for producers of original work.”

Ethical Issues

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Scenario 4

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• If Jane does not agree to change the document, should Patrick inform the community so it can amend the draft plan?

Principle #3a: “We shall protect and enhance the integrity of our profession.”

Principle #3c: “We shall describe and comment on the work and views of other professionals in a fair and professional manner.”

Scenario 4

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Q: If Jane copied from another plan—but one she had prepared—would that be more acceptable?

Question

Scenario 4

Jane, AICP

planning.org

• Dan, AICP, prepares staff reports for the Zoning Board of Appeals. Following a meeting, the ZBA’s chair tells the city manager (Dan’s boss) he wants to see more “streamlined” staff reports.

• The chair, an attorney, wants to eliminate references to a parcel’s history (i.e., previous denials, etc.), as well as any percentage figures for zoning variances.

Incomplete Information

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Scenario 5

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• The city manager, who is not a planner, tells Dan to simplify the reports. Dan, who cosigns the reports, is concerned these changes will “sugarcoat” the application process for zoning variances.

• Dan believes less information will make it easier for the ZBA to approve zoning variances, since the public won’t be able to discern the relative scale of these changes for building heights and setbacks.

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Scenario 5

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Q: What, if anything, should Dan, AICP, do?

Question

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Scenario 5

Dan, AICP

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• Dan could talk to his supervisor about his concerns. He then could follow up with a memo, noting his ethical concerns—as an AICP member—about providing less-accurate information.

• Dan could propose to the city manager that he (Dan) not cosign the staff reports.

• Dan also could propose a more “streamlined” memo, but with an addendum containing additional details.

Ethical Issues

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Scenario 5

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Ethical Principles in Planning (for participants in the planning process): “Strive to give citizens . . . full, clear, and accurate information on planning issues . . .”

Principle #1d: “We shall provide timely, adequate, clear, and accurate information on planning issues to all affected persons and to governmental decision makers”

Principle #2b: “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 #1: “We shall not deliberately or with reckless indifference fail to provide adequate, timely, clear, and accurate information on planning issues.”

Scenario 5

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Q. What if the city manager was an AICP planner?

Q. Would that alter his or Dan’s response?

Questions

Scenario 5

Dan, AICP

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• By submitting “less information,” has the city manager directed Dan to make analyses or reach findings not supported by available evidence?

Rule of Conduct #18: “We shall not direct or coerce other professionals to make analyses or reach findings not supported by available evidence.”

Ethical Issue

Scenario 5

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• Following a Plan Commission meeting, a land-use attorney tells Dan, the city’s planning director, that he has made a cash donation—in Dan’s name—to a charity.

• The attorney knows holiday gifts are not allowed by local ethics rules, so he chose a charity in a different city—with no affiliation to Dan.

Charitable Gifts

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• Dan, AICP, asks the City Attorney for an opinion. After checking with the state ethics board, the City Attorney says there are no ethics violations.

• The City Attorney recommends that Dan simply thank the land use attorney for his generous charitable donation.

Scenario 6

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Q: Is this an acceptable solution for Dan?

Question

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Scenario 6

Dan, AICP

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• Dan should thank the land use attorney, but he should ask that his name not be identified with the donation.

• Dan also should request the attorney not make any future donations on behalf of the department or its employees.

Rule of Conduct #5: “We shall not, as public officials or employees, accept from anyone other than our public employer any compensation . . . or other advantage that may be perceived as related to our public office or employment.”

Ethical Issues

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Scenario 6

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• While attending an APA chapter session on ethics, Jane notes the planner in front of her spending the entire time on his cell phone, responding to emails and checking his Pinterest site.

• Jane also sees several planners leaving the ethics session well before its conclusion.

Conference Attendance

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Q: If these planners include the session on their CM credit logs, are they violating the Ethics Code?

Q: What, if anything, should Jane do?

Questions

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Jane, AICP

Scenario 7

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• An “absent” planner who includes this session on his/her CM log may be violating an ethical rule of conduct.

Rule of Conduct #12: “We shall not misstate our education, experience, training, or any other facts which are relevant to our professional qualifications.”

Rule of Conduct #25: “We shall neither deliberately, nor with reckless indifference, commit any wrongful act, whether or not specified in the Rules of Conduct, that reflects adversely on our professional fitness.”

Ethical Issues

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Scenario 7

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• Jane should inform the Ethics Officer so this can become a scenario for next year’s “Ethics Cases of the Year.”

Scenario 7

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After a public agency publishes a RFP, a planner at

the agency reaches out to a consulting firm and

encourages them to bid. He specifically tells the

firm: “We're looking for your approach as it's

different than what we've worked with before.”

SCENARIO

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Principle #2c: "We shall avoid a conflict of interest or even the

appearance of a conflict of interest in accepting assignments from

clients or employers."

Rule of Conduct #8: "We shall not, as public officials or employees,

engage in private communications with planning process participants if

the discussions relate to a matter over which we have authority to make

a binding, final determination if such private communications are

prohibited by law or by agency rules, procedures, or custom.

CODE OF ETHICS CONSIDERATIONS

Does it show some form of favoritism if the agency only reaches out to one firm in this manner?

Is it a conflict of interest if the agency reaches out to multiple firms?

Is the key issue that the RFP is released before the planner reaches out to the firm?

Are there any other ethical implications if the agency (or its staff) speak to the firm prior to publication?

If the reaching out to a firm was done before the RFP was published, the agency should consider addressing this request in the RFP; that is, the RFP should say the agency is looking for an innovative approach. Another approach is for the agency to consider "innovative" approaches or technique as something the proposals will be scored on.

In dealing with an RFP, ensure that all communications between agency and firms are professional and transparent. Once the RFP is published, avoid discussing: the RFP, any desired qualifications, or the agency's "desires." Only accept written questions during the RFP process, and publish all of the questions and responses for all of the firms. This will help to avoid "even the appearance of a conflict of interest," per the Code of Ethics.

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An agency releases a Request for Qualifications (RFQ) highlighting the

need for a small team that will be able to focus on this project. After the

Qualifications packets are received and reviewed by the agency, one

firm is selected as the top respondent, due to its streamlined and

focused team.

The agency requests the firm provide a full scope and fee. As part of its

response, the size of the firm's project team doubles in number. Feeling

burned, the agency now is forced to spend significant time negotiating

the scope and fee, instead of proceeding with the project.

SCENARIO

Rule of Conduct #10: We shall neither deliberately, nor with reckless indifference, misrepresent the qualifications, views and findings of other professionals.

Rule of Conduct #12: We shall not misstate our education, experience, training, or any other facts which are relevant to our professional qualifications.

Rule of Conduct #15: We shall not accept work beyond our professional competence unless the client or employer understands and agrees that such work will be performed by another professional competent to perform the work and acceptable to the client or employer.

It is possible that expectations could change during a project; ie:acouncil or board could turn over and the actual work scope is greatly changed.

Should you leave an open-ended part of the contract to allow for flexibility with a la carte work?

Consultants often believe that agencies need to be more realistic when asking for more or different work that has budget implications.

In contrast, agency staff often think consultants need to be more mindful when crafting a scope and budget, to account for contingencies. This is particularly applicable when the project team or fee is very different from what is originally proposed.

Specificity must be your friend. If an agency desires a small team on a project, then that information needs to be included in the RFP/RFQ. And, if a firm knows it will need a larger team to complete a project, then that information needs to be conveyed in the firm’s response to the RFP/RFQ.

From a non-ethics standpoint, this scenario may illustrate why some feel it is often better to issue an RFP — with a scope and budget — rather than requesting a statement of qualifications (RFQ).

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An agency releases an RFP. After reviewing the responses, the agency

selects two finalists, while noting that both firms are listing the same

large project as a reference. During the interviews, it becomes clear that

a staff member — one with key expertise applicable to the agency's

project — had switched between firms after completing the sample

project. Now both firms are claiming the project as their key experience

for this project.

SCENARIO

Rule of Conduct #1: We shall not deliberately or with reckless indifference fail to provide adequate, timely, clear and accurate information on planning issues.

Rule of Conduct #12: We shall not misstate our education, experience, training, or any other facts which are relevant to our professional qualifications.

Does the project work stay with the planner or with the firm?

Can the planner’s new firm claim specific experience if the planner is now employed with another firm? This may depend on the size of the project team. Was the project only worked on by a single person, or were there other team members that still work at the firm?

These problems also can happen when a Proposal moves from a planner to the firm's marketing department. How do we, as planners, ensure that words aren’t twisted to create an unintended ethical conflict?

A proposal needs to specify the role of the firm in a prior project and whether existing or past team members were actually involved. Agencies should direct questions about this during an interview phase — or while checking references — in order to determine a staff member’s level of involvement in a reference project.

Agencies also may want to consider creating a template that requires firms to show the specific roles of staff members on projects that are used as references.

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• For informal advice regarding ethical conduct, contact

APA/AICP’s Ethics Officer, Jim Peters, FAICP, at 312-786-6360

or ethics@planning.org.

• For more information, visit planning.org/ethics.

AICP Ethics Committee

Denise M. Harris, AICP, Chair

Graham S. Billingsley, FAICP

Stephen C. Butler, FAICP

Philip T. Farrington, AICP

Kimberly C. Porter, AICP

Final Note

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“A society grows great when old men plant trees in whose shade they know they shall

never sit.” ~Greek proverb

ETHICS MATTER!Presented by:

Susan Connors, AICP Danielle BarkerCity of Norman City of BethanyAPA-OK President APA-OK Vice-President

Paula J. Dennison, AICP Jill Ferenc, AICPCity of Stillwater City of ClaremoreAPA-OK Past President APA-OK Secretary