Chapter 3
Chapter 3
MODULE 3
PROFESSIONAL OBLIGATIONS AND RESPONSIBILITIES
PROFESSIONAL NORMS
There are two forms of professional norms: permissions and obligations. Permissions are instances where individual judgement is permitted, when one may behave as one judges appropriate. An example would be a professional having permission to refuse to accept potential clients. Obligations, on the other hand, are required professional norms, prescriptions for action or needed character traits. These are matters where individual judgement is not permitted. If a professional has an obligation then it is not permissible to neglect or omit it.
An obligation is the agreement, oath, promise, contract or the like by which one is bound. It is any duty imposed by law, contract, promise or social relation. Obligations are defined by society, government, law, work settings and professions. They are sometimes explicitly stated as in legislation or in codes of conduct or practice. They may be only tangentially defined, as in a job description. They may also be left implicit as part of the work place or organizational culture.
OBLIGATIONS OF THE PROFESSIONAL
There are clear expectations placed on professions with respect to the conduct of their members. How well a profession meets these expected standards is critical to the trust relationship that underlies dealings among professionals, between professionals and clients, and between professionals and the public. It is this trust relationship that is in part responsible for society supporting the granting by governments of “self-governance” to certain professional organizations. It is also why the regulation of the professions by government is an ongoing issue. Increased public scrutiny of the conduct of professionals resulting from a number of cases of alleged and proven professional misconduct and a heightened concern for the willingness or capacity of some professional bodies to “police their own” have brought into question how well professions are protecting this public trust.
In the context of planning, there are discrete sets of interests to be protected. First party interests are those of the providers of professional services – not only the professional practitioners themselves, but all who are allied with them in what has become a realm of practice based increasingly on a team effort. Second party interests are those of the clients of professional services. This grouping may also include employers. And finally, third party interests are those of the general public who have neither provided nor purchased professional service but are liable to be affected by the result.
So for planners, the following might be a preliminary list of professional obligations. Planning professionals must act on behalf of clients, not themselves.
Planning professionals must be sensitive to the interests of third parties and the potential impacts of their work on those not directly engaged (interests of the public).
Planning professionals must protect vulnerable interests, including those unable to speak on their own behalf (future generations, populations not yet on site).
Planning professionals must consistently provide, to the best of their ability, a highly competent standard of practice and service.
Planning professionals must sustain and seek to advance the standard of practice of the profession.
Planning professionals must sustain and seek to advance the goals of the profession.
Planning professionals must act ethically in dealings with clients, colleagues, government and the public.
In many ways these obligations are shared with a range of professions. Speaking out on behalf of, and protecting the interests of, the most vulnerable in society has long been a unique and expected social responsibility of highly educated individuals. However, given the detail of work and defined responsibilities that planners face in their day to day practices, it is often difficult to reflect more broadly on the implications and standard of their practices.
CONFLICTS OF INTEREST AND OBLIGATION
A conflict of interest occurs when an individual has personal interests that may improperly influence their professional judgment. Professionals who place their own personal interests (or someone else’s) ahead of those of their client, employer and the public are in a conflict position. The loss of independence of judgment by a professional undermines the trust relationship between the client and practitioner and/or between the public and the professional. The appearance of a conflict may be just as important as the factual existence of it. Those accused of being in, or failing to declare, a conflict must expend considerable energies and resources to defend their “good names” and the reputation of their body of professional work.
A conflict of interest arises when a planner receives either a direct or indirect benefit. A direct benefit is one in which the planner receives the benefit personally. An indirect benefit is one where a family member, friend, or business associate of the planner benefits. For instance, take the case of a planner whose domestic partner is a lawyer in private practice. The planner undertakes a project to obtain approval for a plan of subdivision, and the client promises the practitioner that, should the application be successful, his/her domestic partner will receive future legal work relating to the subdivision. The planner does not benefit directly, but the fee stream for his/her domestic partner is clearly an indirect benefit.
A benefit need not be financial to create the potential for conflict of interest. For instance, the client in the above example is aware that the planner is interested in gaining appointment as a director of a prestigious volunteer community organization and promises to use influence to gain that appointment for the planner provided s/he is successful in obtaining approval of the plan of subdivision. The planner does not gain an immediate direct or indirect financial benefit (and may, in fact, never benefit financially from the appointment), but would gain a direct non-monetary benefit as a director of the organization.
Conflicts of obligation occur when an individual fails to meet the expected standard of professional conduct as it applies to the protection of first (profession and professional colleagues), second (client/employer), and third party (public) interests. When practitioners take it upon themselves to exercise judgement or interpretation with respect to explicit professional codes or standards of practice requirements, they may be in a conflict of obligation.
CONFLICTS OF INTEREST
The following are typical situations which would place the professional in a conflict of interest or may lead to the perception of their being in a conflict of interest.
Having a direct or indirect beneficial interest in a decision or outcome
This may be a financial interest, but is not limited to having a direct financial stake. Benefits can be derived in an indirect fashion or by association. For example, a planning practitioner receives a direct benefit when s/he is asked to accept an arrangement where the fee for professional services rendered for attaining approval for a plan of subdivision is to be paid by being given lots once the plan is registered. Another example would be where a planning practitioner accepts an arrangement whereby the fee for a project is reduced or waived entirely on the promise of substantial future work with the same client.
Acceptance of Gifts
Gifts can be of many forms, not just financial (money, trips, material goods, etc). Gifts may also be kick backs, bribes, fee-sharing, split commissions, or the like. In recent years, heightened public scrutiny has resulted in corporations, including many municipalities, creating explicit policies with respect to the giving or receiving of gifts to make clear standards of conduct which had previously been implicit or a matter of professional or individual judgement. Professional bodies have also engaged in significant educational programs to advise members as to how to avoid this form of conflict.
Moon-lighting
Holding a second position by employment or contract may compromise the integrity, competence, or diligence of the professional’s work for a client or employer. An example would be a municipal planner who also engages in consulting work on the side having to attend to a client’s representation before a committee or tribunal during normal employment hours. Engaging in such consulting work on the side without the explicit permission of the employer would also represent a situation where a conflict may
occur. Establishment of a consulting practice in direct competition with your employer would equally give rise to a conflict.
Representing both parties
This conflict occurs when a practitioner offers professional services to both parties in a matter without their full knowledge, and without the professional’s full disclosure. An example here would be a consultant hired by a municipality to draft policy on supportive housing without acknowledging that s/he has been retained to represent a number of housing organizations within the same jurisdiction.
By matter of record
A conflict may occur where a professional has taken a previous public position on an issue or decision which now requires action or decision. Should the professional take a position different from that presented previously, then a perception of a conflict may exist – what pressures were brought to bear, or inducements offered, to cause the change? A clear presentation of the evolution and rationale for the change in professional opinion must be developed to offset such a perception. An example would be a planning consultant who is giving evidence before a tribunal is confronted with a record of evidence from a previous hearing where s/he had offered a very different professional opinion and is asked to explain.
Self-Dealing
This conflict occurs when an employment position is used to acquire work for an outside firm that you have an interest in. For example, an individual working for a public sector employer used his/her position to gain work for a private consulting firm that s/he owns.
Gaining private advantage from the use of your employer’s resources
An example here would be copying an employer’s licensed software to load on a personal computer at home or to use in completing private consulting work. Another would be to use your employer’s long distance telephone budget to make calls related to private consulting work without your employer’s explicit consent.
Use of proprietary or confidential information
Examples of this conflict of interest would include using work conducted under contract to a previous client to fulfill a new contract with a different client or to use confidential information acquired from a client to make an investment for personal gain. The conflict still exists when the investment is made in the name of another, for example a family member.
Selling Influence
This conflict occurs when a professional seeks benefits in exchange for using his/her influence to advance the position or interests of a particular party or group. It may also include using contacts gained in a position from which the professional has retired to advance new private consulting work in the same area. An example from planning would be a retired public sector planning manager going into business as a development consultant in the same municipality and lobbying previous colleagues or staff members.
(For a discussion of conflicts of interest in the public sector see: Kernaghan, K. and J.Langford, The Responsible Public Servant, Halifax, N.S.: Institute for Research on Public Policy, 1990)
CONFLICTS OF OBLIGATION
As stated previously, conflicts of obligation occur when a professional fails to meet the standard of professional conduct expected as it applies to the protection of first, second, and third party interests. Inadvertently omitting to meet such expected behavioural standards is as serious a conflict of obligation as are deliberate acts.
Professional to Colleagues
Honesty (Truthfulness)
This conflict goes beyond refraining from deliberately misleading or misinforming a colleague. It involves sharing information which may assist a professional peer, or at a minimum prevent a misleading of others should such information be withheld.
Fairness
Fairness means abiding by the social rules which define fair competition within a jurisdiction, not maligning or casting aspersions on a professional peer, not stealing clients, and not undercutting professional peers by charging fees inappropriate to the work performed.
Loyalty
These obligations are to the professional organization and its integrity, and would include the expectation that a professional would contribute to the advancement of the profession and its members, would support ethical behaviour in practice, and would report instances of unethical or unprofessional conduct to the appropriate authority or through the appropriate protocol.
Competence
Here the professional is expected to maintain a high standard of practice through an ongoing critical self-reflection of professional experience and continuous learning. Performance of competent work reflects well on both the practitioner and the profession.
Professional to Client or Employer
Competence
This addresses the obligation of a professional to provide and maintain a high standard of professional practice to represent the best interest of the client or employer. It includes not holding oneself out to do or accept work one is not competent to perform.
Diligence
A responsibility of diligence clearly follows from the notion that the professional be worthy of a client’s trust. A professional who is not diligent can neglect significant matters and turn out substandard work.
Honesty
The obligation of honesty is the obligation not to mislead or lie to the client, or others on behalf of the client (which reflects badly on the client). It includes not stealing from the client or employer, providing the full service agreed to, and keeping complete and accurate records in support of all billing for professional services rendered.
Candor
Candor is more than just honesty or truthfulness. It implies full disclosure, or providing full information (silence or selective disclosure can be another way of lying), and includes informing of the bad as well as the good.
Discretion
Discretion is more than just confidentiality of information and facts obtained in confidence from a client. It also means to protect the privacy of the client. Discretion may cover materials that are not confidential (could be a matter of public record).
Loyalty
To continue to act in the client’s interest, in spite of intervening opportunities to advance one’s self interest. There are, however, limits as to how much loyalty a client might expect (not just blind loyalty). Clients should be able to expect a level of loyalty that does not violate a professional’s other responsibilities or code obligations.
Fairness
As discussed under obligations to colleagues, fairness means abiding by the accepted social rules for competition.
Obedience (Professional to Employer)
With respect to obedience to an employer, there is an important distinction to be made between acting as one’s employer directs and acting as one’s employer “lawfully” directs. “Lawful” is used in the broadest sense, and comprises not only legal and regulatory obligations but also policies, procedures and any applicable codes of ethics or practice. There are a number of functions that planners perform which are routine and administrative in nature. These are normally defined in job descriptions and administrative policies and procedures within the workplace. It is reasonable for employers to expect that employees, including professional planners, follow such protocols and direction.
However, there is a clear distinction to be made between a planner being asked to meet these employment obligations and being asked or directed by an employer not to engage in independent professional judgement or initiative on a planning matter where the development of such an opinion is appropriate or required. In addition, an employer may not request or direct a planner to substitute the employer’s opinion or judgment for the planner’s own.
Professional to Third Parties
Honesty
A planner has an obligation to provide full disclosure, including information that, if it were deliberately withheld, would obviously mislead the public or impacted parties.
Fairness
Abiding by the social rules for competition, a planner has a duty to consider equally the values and interests of all parties involved, and not to discriminate on the basis of race, colour, gender, religion, age and so forth.
Non-malfeasance
A planner must not injure third parties, and must abide by the rules which define fair competition (as long as all those in competition act within the rules, then losers are not wronged by winners).
IDENTIFYING A CONFLICT OF INTEREST
There are several tests that professionals may apply to establish whether a conflict of interest exists. A series of simple questions may assist in avoiding entering into a conflict position.
The obvious first question is “Is this legal?” Far too many errors are made based on an inaccurate or inadequate understanding of the law as it may apply. For members of a regulated profession, this first question may be answered in part by the provisions of the ethical code of the body or by the standards of practice as set out in codes of conduct, practice, or misconduct. “What does the Code have to say about this?” is also an obvious starting point. However, asking oneself any of the following questions may also assist in identifying a conflict:
“Am I receiving a personal benefit in any form?” A professional has a personal interest when s/he receives any personal benefit from an action or decision. The interest may be monetary or of a moral nature, and can be direct or indirect. A benefit to someone associated with the professional, such as a family member, a close friend or a business associate, would be an example of an indirect benefit. Again, it need not be monetary.
“Will this action compromise my objective professional judgement or opinion?” It is incumbent on professionals to always consider whether personal interests are influencing, or have the potential to influence, their professional objectivity for or against any action, decision or recommendation.
“Am I changing my recommendation so that I can have a benefit?” A personal interest can improperly influence a professional’s judgement. It must be something substantial enough that the professional practitioner wants the benefit or wants to avoid the loss that accompanies the interest.
“How would this look on the front page of tomorrow’s newspaper or as a story on the evening news?” There is a second form of this question as well. “How embarrassed would I be if others discovered what I have done?” Sometimes the most effective way to avoid a conflict of interest is to not place yourself in a position where others can raise the perception that you have knowingly and willingly engaged in such a course of action.
And finally, there is the question that is often used as a test in courts of law. “What would a reasonable person think?” Consider what a neutral observer would think of the situation. Could a reasonable person conclude that the professional practitioner is making a decision, undertaking an action, or offering a recommendation that was influenced by personal gain? Whether or not the practitioner’s professional judgment is actually compromised does not matter. The fact that a reasonable person might perceive a conflict of interest is enough. A perceived or potential conflict of interest is often as significant, and can be as damaging, as a real conflict of interest.
AVOIDING, RESPONDING TO OR MANAGING A CONFLICT OF INTEREST
Conflicts of interest may arise in any work or public setting. Wherever possible they should be avoided. However, sometimes they occur and must be responded to. Transparency and responsiveness are critical if the conflict is to be managed appropriately. At the earliest opportunity the professional practitioner should disclose the nature of the conflict to their client or employer, or give notice that a conflict has been perceived by others. Removing oneself from the situation as soon as such notification has been properly provided allows the employer or client to take appropriate steps which may include the use of existing policies or protocols for the identification, reporting, management and mitigation of conflicts or the selection of a new practitioner to provide the service.
Avoidance
In the government sphere, a common avoidance strategy is to effectively “remove temptation”. Public officials (especially elected officials) may place assets into a blind trust; this allows them to retain ownership of the assets but, since the trust is administered by a third party, makes it difficult or impossible for them to know exactly what they own and, hopefully, results in them not being tempted to act in their financial interests. Officials may also divest any assets that could give rise to a conflict.
“Pre-emptive” disclosure may also be used. This requires an individual, on a periodic basis (usually annually), to disclose any assets s/he may own, or situations s/he may be in, that could lead to conflict. Thus, a physician who is head of medicine at a hospital might disclose an advisory position (whether paid or unpaid) s/he holds with a pharmaceutical company.
Mitigation
Disclosure
Disclosure is a common practice among professions and elected public officials. In several professional bodies members are required by public legislation or by rules of professional conduct to disclose potential or actual conflicts of interest. Failure to provide disclosure may be an offence subject to sanction or even criminal charges, and may expose the individual to civil liability (among other things, a person who profited from an undisclosed conflict may be required to repay that profit; this is known as “disgorging” or “accounting for” the amount).
Disclosure should take place at the earliest opportunity after an individual learns s/he is (or may be perceived to be) in a situation of conflict of interest. This may occur prior to an assignment, or at the outset of, or during, a project; regardless of when the individual learns of the actual or potential conflict, s/he should disclose it as soon as possible thereafter. To avoid questions about whether or when the conflict was disclosed, it may be a good idea to make the disclosure in writing (via e-mail, fax or letter). For a planning professional, disclosure would be made to the employer and/or client.
Post-disclosure
Making disclosure is often not enough. “Recusal” is frequently the next step. Recusal is removing oneself from participation in a process to avoid conflict of interest. However, unlike steps discussed under “Avoidance” above, recusal is generally a response to a specific situation rather than a pre emptive action. Take, for example, a planner in private practice who has a close relative or close friend working in a management position in a municipal planning department. S/he is asked to prepare and submit a plan of subdivision to that planning department. By recusing him/herself, the planner would agree not only to avoid working on the project, but would also not participate in any discussion of it, either within the firm or with the friend/relative.
By recusing oneself from any decision or action which relates to a personal interest, conflict may be avoided. In some professions, such an act of recusal is left to the individual as a result of applying his/her better judgment. However, in other professions, and in a range of public and private sector settings, recusal is the expected or mandated behavior. Codes of ethics and conduct are often quite prescriptive with respect to the circumstances in which a professional must declare the conflict and remove themselves from discussions, decision and action on a matter.
Planners, especially those employed in government, should also be aware of any policies their employers have regarding conflict of interest, as these may also govern their behaviour.
(See the Government of Manitoba, Civil Service Commission Policy Manual directives on Conflicts of Interest as an example.)
Codes of ethics generally prohibit conflicts of interest but they also often provide guidance to minimize problems arising from conflicts should they occur. For some professions the codes clearly define the expected conduct of individuals where such conflicts are permitted (removal, disclosure) so that a professional cannot use ignorance of their code requirements as an excuse for unethical conduct. However, such Codes must be supported by a clearly defined and active disciplinary process if the instances of conflicts and unacceptable professional conduct are to be minimized.
QUESTIONS
The following questions and case studies are intended only to stimulate your thinking about the subject of this module; you should not submit your answers.
- Many critics of the planning profession argue that most planning school graduates and practitioners lack sufficient grounding in ethics to fully grasp the significance of their role in society. Without adequate direction in formulating their “ethical compass”, planners are often left to struggle with one ethical dilemma after the other. Would you support or challenge this criticism?
- Have you ever been in a conflict of interest situation? How did you handle it? As a result of that experience, would you do anything different?
- Case Study #1: You work as a planner in sole practice. Your client has asked you to submit a plan of subdivision to the municipality for approval and has asked you to accept two lots in the proposed subdivision as your fee on the basis that the submission is approved. The lots have the same value as your fee. Since the value is the same, would it be a conflict of interest for you to accept the lots as payment? Why or why not?
- Case Study #2: You are working in a private planning firm on a plan for subdivision of a brownfield site. You determine that there is a contaminant in the soil that has not been reported and which may not be entirely removed by the client’s proposed in-situ remediation. The risk assessment, which has been approved by the Ministry of the Environment, does not mention this contaminant. You report this to the client, who agrees to treat the soil for it, but does not want to amend the risk assessment because the project is already behind schedule and the amendment would delay things further. What are your obligations in this matter? If they conflict, how do you balance them or determine which one should govern your behaviour?