Related Services for Private Party Following Public Employment
Case Citations: [74-4]
Engineer A was employed for many years by County X and specialized during a large part of that time in the evaluation of engineering aspects of county zoning petitions. Engineer A retires from public employment and opens a consulting office to engage in that type of work for private clients. XYZ Development Corporation retains Engineer A as an expert witness to support a petition for a pending zoning variance in which XYZ requests to proceed with the development of a major housing development. In order to obtain the variance, XYZ has to demonstrate the technical feasibility of a major water system consistent with environmental impact on adjacent communities. Engineer A, while employed by the county, was involved in the XYZ petition and made some preliminary technical evaluations on it. A citizen's group opposing the granting of the variance formally objects to Engineer A being allowed to participate in further proceedings as an expert witness in support of the petition.
Was it ethical for Engineer A to act as an expert witness for the XYZ Development Corporation on a matter on which he had done some work for the county?
This case illustrates a question which has become an issue of considerable study and debate in recent years, often referred to as the "revolving door" issue, in which professionals employed by a unit of government leave that employment and become private practitioners to specialize in and represent clients before their previous employing agency in the particular field of specialization.
We read Code 7(a) to refer primarily to situations in which an engineer may act to the detriment of a former employer by engaging in activities directly related to the work he had done for the former employer on a particular project or assignment. In Case 74-4, for example, we said that the thrust of Code 7(a) ". . .is to protect an employer and parties having an interest in his practice from a former employee utilizing this special knowledge to their detriment...." Under that reading, we have to ask in this case who, if anyone, would be "victimized" by the action of Engineer A in now representing the interests of the XYZ company.
By virtue of his long experience and expertise gained in the subject matter while employed by the county, Engineer A has gained detailed information on the internal procedures and policies of the county zoning authorities and that was undoubtedly a factor in XYZ's decision to retain Engineer A. We may also assume that during his involvement in the work of the county zoning authorities he has gained close personal contacts with the public officials and other staff members who are involved in the decision whether to grant the variance .
In this situation the public, or at least that part of it which is concerned with the variance issue, may be regarded as an "interested party" under the wording of Code 7(a).
To the extent that this case is controlled by Code 7(a), we are confronted with the wording of that provision which sets out the limitations on the basis of "while in the employ of others." In this case Engineer A made his arrangement with XYZ only after leaving county employment. Thus, he was not in the employ of others when he agreed to do the work on a specific project in which he had been directly involved while a county employee. It follows that if the facts were to the effect that Engineer A had made his arrangement with XYZ before leaving county employment he would be in violation of Code 7(a). We cannot assume that as a fact, however, even though there may well be some question raised on that score.
Taking a broader view of the fundamental issue in this case, we believe that the circumstances are such that Code 3, even though a more general statement of ethical concern, is pertinent. Giving Engineer A the benefit of the doubt as to his motive and purpose in taking on a case for a private client in which he had been directly involved as a public employee, we are concerned that his action is of a nature which may arouse public suspicion and open the way for charges which could reflect upon the profession. While all actions of engineers cannot be judged ethically on the sole basis of what some elements of the public might think or allege, in this kind of situation there is at least enough doubt to suggest that Engineer A's action was inappropriate and should be avoided in the larger interest of protecting the profession from misunderstanding.
It was not unethical for Engineer A to represent the XYZ Development Corporation on a matter on which he had done some work for the county, but this type of arrangement under these circumstances should be regarded as inappropriate.
*Note-This opinion is based on data submitted to the Board of Ethical Review and does not necessarily represent all of the pertinent facts when applied to a specific case. This opinion is for educational purposes only and should not be construed as expressing any opinion on the ethics of specific individuals. This opinion may be reprinted without further permission, provided that this statement is included before or after the text of the case.
Board of Ethical Review
Louis A. Bacon, P.E. Robert R. Evans, P.E. James G. Johnstone, P.E. Robert H. Perrine, P.E. James F. Shivler, Jr., P.E. Donald C. Peters, P.E., chairman
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