Advisory Rulings No. 1-3 (1991)

Advisory Rulings Nos. 1-3

Ethics Advisories

 

The AICP Code of Ethics and Professional Conduct provides for advice by the executive director on specific problems and questions concerning ethical behavior by members. The AICP Ethics Committee asked that such advice be codified as advisory rulings specified by the code.

Advisory Ruling No. 1: Sexual Harassment

 

Sexual harassment is unethical under the AICP Code of Ethics and Professional Conduct. Sexual harassment is also subject to penalty under law. The U.S. Equal Employment Opportunity Commission defines sexual harassment as: "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

 

1) Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment;

2) Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or

3) Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment."

 

Two of the general principles in the Code are applicable to specific instances of harassment: Principle D

(1) of the Code says that a planner must not commit a deliberately wrongful act which reflects adversely on the planner's professional fitness; and Principle D

(2) of the Code says that a planner must respect the rights of others and, in particular, must not improperly discriminate against persons. Unlawful sexual harassment as defined by the EEOC is a deliberately wrongful act.

 

Respecting the rights of others, under the Code, requires a standard of behavior higher than that defined as coercive or intimidating by EEOC. Conduct that may not have illegal effect may nevertheless be harassment. joking or bantering about sexual subjects, comments suggesting sexual attractiveness, and comments disparaging women or men or their abilities generally may constitute petty harassment. If any such behavior is found offensive, offended persons should so say. The offensive behavior becomes harassment if continued after the offender is notified.

 

Negligence or omission on the part of an employer who is dismissive of a complaint of sexual harassment, and encourages the complainant to be tolerant of the offense is itself a form of harassment.So is a deliberately false accusation of sexual harassment.

 

Harassment is decidedly distinct from behavior occasioned when a genuinely mutual affection springs up between co-workers. (May 1988)

Advisory Ruling No. 2: Conflicts of Interest When a Public Planner has a Stake in Private Development

 

The Code of Ethics and Professional Conduct addresses conflicts of interest in Principle B (3): "A planner must not, without the consent of the client or employer, and only after full disclosure, accept or continue to perform work if there is an actual, apparent, or reasonably foreseeable conflict between the interests of the client or employer and the personal or financial interest of the planner or of another past or present client or employer of the planner."

 

Conflicts of interest are reasonably foreseeable when a planner attempts to serve a real estate development client while also serving a public agency that may have a role in reviewing or approving projects of that client.

 

Inquiries from planners who contemplate combining activity in the real estate business with public planning work have fallen into a pattern as have the responses:

 

Real estate is a popular investment, and planners, knowing a lot about it, are attracted to it.

 

"I have an opportunity to invest in a small development, but the proposal will come before my agency for approval. What do you advise?" Don't do it. There are other investment opportunities.

 

"What if it's put in my wife's name?" Your wife's financial interest is your financial interest and yours is hers.

 

"But, when it comes before us, I will exclude myself from the decision, and only other staff members will recommend on the proposal. I won't take part at all." Your colleagues work with you, know that your interests are involved, and can't eliminate the influence of your relationship with them, even if unexpressed.

 

"My influence really can be a positive one on the developer. I know what would be good for the public and can work for a good design." That's what your agency is there for, and that's why it has the power to review and approve.

 

"But what if I disclose everything to the director, and he gives his consent ... ?" He shouldn't. I certainly would advise him not to."

 

"I will work for a broker in a neighboring jurisdiction across the state line. He doesn't have a license in that state." No, but some of his colleagues do. And some of the decisions affecting the broker's business are regional decisions involving both jurisdictions.

 

A code of ethics should not be a what-can-l-get-away-with code. It should not be tortured into loopholes and technicalities that would allow a person to be formally correct while ethically wrong. The AICP Code looks for "more than the minimum threshold of enforceable acceptability. It sets aspirational standards that require conscious striving to attain."

 

Developers can benefit from professional planning services and are just as entitled to fully conscientious advocacy of their interests as a public planning agency. A conflict of interest is inherent, however, in any assumption of both roles simultaneously.

 

There may also be a conflict when the roles overlap. A planner may move from employment by a public agency to employment by a private client. A conflict arises as soon as discussion is initiated for such a move. The public employer must, therefore, be notified promptly that such discussion has taken place whether or not it matures in a change of employment. This is decidedly earlier notice than is normal for a job change and it is notice of a change that may not take place. It is necessary, however, to guard against the substantial conflicts that would occur if a planner is in a position to influence the resolution of certain issues in public employ that will later affect the interests of a new, private employer.

 

Private planners and consultants who undertake work for a public agency, or change employment from private to public, must disclose any conflicts or potential conflicts to the public agency employer. (May 1988)

Advisory Ruling No. 3: Outside Employment or Moonlighting

 

A planner's responsibility to an employer places significant restraints on accepting work for employers outside of the full-time commitments to the primary employer. A full-time member of a planning agency staff owes loyalty, energy and powers of mind primarily to its service.

 

The Principles in the Code that concern conflict of interest [B(3)] and using an office to seek special advantage [B(6)] must especially be applied.

 

A planning staff member must take no employment outside of official duties unless such employment creates no conflict with those duties either in the interests to be served or in competition for time and energy. If the planner decides that there will be no such conflicts, then outside employment must, in addition, receive the explicit approval of the employer.

 

No outside employment must be undertaken if its performance will reduce the quality or dispatch with which the staff member executes primary responsibilities. The number of hours and the scheduled times devoted to outside employment must not interrupt or interfere with the time that the primary responsibilities demand.

 

Outside employment must never deal with any matter that may require an action or recommendation by the primary employing agency. Neither must employment be taken with any person or organization that does business with any agency of the primary employer.

 

Public property must not be used for any private purpose including work that is performed for other employers.

 

Principle B (7) says that "A planner must not accept ... work beyond the planner's professional competence or accept work which cannot be performed with the promptness required. . . . " Since the schedules, deadlines, priorities and unanticipated time demands of the primary employer must always take precedence, the volume of outside work must necessarily be small and an outside employer must be informed that prompt execution will not necessarily be satisfied.

 

Both the planner requesting, and the authority giving, approval for outside employment should consider the main justification for approval is a demand for whatever special professional knowledge and experience the planner has that is not otherwise readily available. Service as a teacher or instructor is outside employment that is most justifiable and an unspecialized, general consulting practice least justifiable. (May 1988)

Advisory Ruling No. 4: Honesty in the Use of Information

 

As professional givers of advice-advice that may affect the well-being of communities and individuals for many years-we have a special obligation to cherish honesty in the information that supports our advice.

 

Yet, many daily pressures do battle against honesty. We are pressed to be effective advocates for a community, a private client, an elected administration or a cause. A political agenda is often formed before dispassionate study; those who have campaigned for it then look with passion for studies to support it. Decision-makers may demand a greater degree of certainty, or impose more rigorous criteria for decision, than the capability of analysis or sufficiency of data can satisfy.

 

The Code of Ethics and Professional Conduct is filled with prescriptions for honesty:

 

A-3) "provide full, clear and accurate information on planning issues to citizens and govenmental decision-makers."

 

B-3) "only after full disclosure" (on conflicts of interest)-,'

 

B-4) "must not ... through use of false or misleading claims."

 

B-7) "must not accept ... work beyond the planner's professional competence."

 

C-1) "must protect and enhance the integrity of the profession."

 

C-2) "must accurately represent the qualifications, views and findings of colleagues."

 

D-4) "must accurately represent [one's own] professional qualifications, education and affiliations."

 

In some situations, planners must not provide full information. Planners frequently have the role of negotiators whose effectiveness depends on not disclosing final positions that are acceptable. And, as the Code points out, "the need to provide full public information may compete with the need to respect confidences." information that is disclosed in such circumstances must, however, be honest and accurate.

 

It is part of professional conduct to communicate our ethical standards to clients, employers and the public. Communicating them early, before they need to be applied to a specific controversy, may case pressures to abuse them.

 

There should be no need to explain what the code requires as full, clear and accurate information. Half-truths, deceptions and undocumented assertions don't pass. A half-truth is a whole lie. Don't cook the numbers.

 

There is also a positive duty on behalf of ethical treatment of information. In reporting the results of studies, planners must follow the scholar's rule of making it possible for others to follow in our footsteps and check our work. Document the sources of data. Report the statistical procedures used, what was done to bring the raw data into the form that is reported. What assumptions were made at different stages in the study?

 

Public decision-makers must often leap beyond the cautions and reservations of a careful study to achieve political solutions. Planners must take pains that our studies and recommendations are not wrongly interpreted, and that a clear distinction is made between factual findings and policy decisions. (March 1991)