Conflicts of Interest 4

[LocalGovernment]

Under pressure in local government situation. In SC, I believe it is a conflict of interest to be employed by local government as the jurisdiction engineer that oversees enforcement of State Stormwater Regulations and to be directed to perform the stormwater design services for the local government projects to avoid hiring a private engineer to provide the design. I have been informed those in authority that I believe it is not legal to both provide the design service and then be the enforcer of the law on that design at the same time. I have been challenged to provide where it says in the law or the regulations that I can't be the designer and the enforcer at the same time. I have tried to find that information in a written form from the State Law or the Licensing Board and can't find anything. Can anyone please help?

 

[jgailla]

I agree with you that it's a conflict of interest, but it's probably not in any regulatory handbook.
You should call and ask the State Board.
If you're working for someone who asks to see written evidence that your ethical issue is valid, you should be looking for another job.

 

[msquared48]

Are your bosses PE's too? Or they MBA's?

Mike McCann, PE, SE (WA)

 

[zdas04]

If you are a P.E. working for the government, who is paying your Professional Liability insurance?

Without that insurance you really should lock your stamp up in a bank safe deposit box in another town and then mail the key to a distant relative (preferably one who travels a lot and is regularly inaccessible). That way if you ever feel a strong urge to put your home, retirement, family's future, and any capital assets that you've accumulated over your life at risk you will have a couple of weeks to reconsider before you actually have access to your stamp.

David Simpson, PE
MuleShoe Engineering

Law is the common force organized to act as an obstacle of injustice Frédéric Bastiat

 

[MintJulep]

It's sort of covered here:

http://ethics.sc.gov/RulesofConduct/Pages/RulesofConductLaw.aspx

in SECTION 8-13-735

I didn't dig too deep.

 

[LocalGovernment]

Bosses are local government officials (Council Members, County Administrator, etc...). Local Government is required by law to have a County Engineer. It is not an uncommon requirement. Typical duties are to review submittals and enforce Federal, State and local regulations, oversee Stormwater Program, etc. Design work is not a typical requirement in this type of environment.

 

[zdas04]

Further, does the city really want to put you in the position of competing with the engineers you are trying to regulate? There is no way that doesn't end up in court (paying a bunch more to lawyers than the city would have paid to a private sector engineer).

David Simpson, PE
MuleShoe Engineering

Law is the common force organized to act as an obstacle of injustice Frédéric Bastiat

 

[cvg]

its not unusual for a county or state department, such as the road or bridge department to perform some engineering tasks sometimes even including design, even though the majority of the time that work is contracted out to consultants. so in that case, the county engineer would be ultimately responsible for the design. it is a conflict of interest, but is not illegal and is done frequently.

however, i would resist doing it specifically because of both the liability and also because it is difficult to be objective about enforcing the regulations when your own staff is doing the work. And really the cost for an experienced consultant to do it is probably less than your own cost.

 

[beej67]

My first thought, was that you could solicit a bid from private design firms with which you're familiar, and who's designs you've reviewed in the past, to review and approve your work.

See how your bosses like that?



That's just a first impression. I don't really have the answer to this question, but I do think that having an engineer-reviewer relationship between separate entities with different perspectives is a positive influence on the end product.



Hydrology, Drainage Analysis, Flood Studies, and Complex Stormwater Litigation for Atlanta and the South East -

http://www.campbellcivil.com

 

[CANPRO]

Are you covered with any professional liability insurance? I'm not sure how that comes into play in your situation...but if I was in your situation and I wasn't clearly covered I wouldn't touch the design work.

 

[brandonbw]

"See how your bosses like that?" The things I would do to plan check a local government plan. First thing is take a 3' wide red marker, make a swipe and say I can't read these plans. If you come back with this again we are charging $200/hr for the next plan check.

I know of plan checkers who do their own design for the City, but are not stamping the plans. I need to ask a friend how that gets handled.

B+W Engineering and Design
Los Angeles Civil Engineer and Structural Engineer

http://bwengr.com

 

[Ron]

OK...let's take another look at "approval" of designs by a municipality or government entity. As the County Engineer, when you "approve" a design by an outside consultant, do you incur any liability for that design? No. For two reasons. First, it isn't your design. Second, you work for an entity that enjoys some level of sovereign immunity. It's the same as when a building inspector approves construction that is defective. So in effect, you are not "approving" anything. [highlight #FCE94F]You are checking to see that a design hits certain codified flag points, without determining its real efficacy.[/highlight] Next, does your review and approval protect the health, safety and welfare of the public? Perhaps, but that's the responsibility of the engineer who does the design. So, in effect, your review has no function other than an administrative hoop through which the consultants must jump, satisfying some ordinance that was conceived by non-engineers for whatever reason.

Now, suppose you do the design on behalf of the county. The county will then waive the approval process as the design is being produced in house and is certainly expected to be consistent with county requirements that would have been a part of the aforementioned "approval". You are not tasked with approving your own design....the county has already done that by its waiver of approval and its codification of the requirements. There is no ethical dilemma here. This is commonly done throughout the country.[highlight #FCE94F][/highlight]

 

[rowingengineer]

I don't live in USA so I have no comments on your state boards ect. However just because a conflict of interest exists doesn't mean something is wrong. Generally a conflict interest problems exists when you are try to hide something, for example a politician can have interest in private entities as long as they are disclosed and conducts himself appropriately.

http://www.nceng.com.au/

"Programming today is a race between software engineers striving to build bigger and better idiot-proof programs, and the Universe trying to produce bigger and better idiots. So far, the Universe is winning."

 

[hokie66]

Ron is correct. This sort of question would never have arisen years ago, when local government engineers did most of the utilities design in house.

 

[urgross]

For storm water management design, federal facilities exceeding 5,000 SF must meet the requirements of EISA 438. However, no enforcement measures are provided under EISA, and the EISA 438 requirements do not fall under enforcement of the CWA. So, for either design, or enforcement, of requirements, the federal government, generally the DPW or facility engineer (very rarely a civil engineer), the customer effecctively becomes the authority having jurisdiction, and may waive, without concern of enforcement, any portion of EISA 438. Does that sound like a conflict of interest? The same thing applies to EO 13508 for the Chesapeake Bay. Some States have opted for enforcement measures, such as "rain tax". The originating authority, Federal government, may or may not waive portions at their own discretion. Would that be conflict of interest, bad governance, or just letting the foxes watch the chicken coop?

 

[LocalGovernment]

All,

Thank you so much for the variety and depth of your responses. In short, I think I can conclude that there is no direct, clear, black and white answer. Once again, life is grey and murky at best. In response to the last post from urgross, I have done numerous Federal projects on military bases and you are correct. The Federal Government does not bow to any State or Local requirements but can abide by them voluntarily if they so choose. Likewise, they may or may not follow their own standards (which they do have).

In my specific case, my main concern was being the designer of record and the enforcer of all the Federal, State and local stormwater regulations that exist at the same time. The conflict, in my mind, exists that if I, as the designer, design to meet all of these requirements in private practice, then the regulator who enforces the laws that I must abide by as a designer can enforce that which I missed or misinterpreted without threat of impunity (note the sovereign immunity doctrine cited in an earlier post above). However, if I am under threat of losing my job at worst or potentially stunting my advancement or pay raises because I adhere to both the design and enforcement of laws created by others that are not necessarily engineers, that could create a perceived conflict of interest. The appearance of such a conflict of interest could lead to the accusation that I purposely did not design it correctly (as opposed to an omission error or misinterpretation) or I pressured my enforcement staff to not enforce things correctly in order to protect my reputation. Again, with ethics, it is not just "not doing the wrong thing" but also not "appearing to do the wrong thing". By virtue of my position as both designer and enforcer, my concern is that a simple mistake or omission would "appear" to be, in reality, purposeful. Hence the question of a conflict of interest...

This has been a great discussion and I think has flushed out many issues for us all to consider. In the end, I have discovered that it is not clearly legislated in my exact circumstance (although I think it would be wise to enact such clear legislation for exact examples such as I have proposed). Therefore, in the end, it is a personal decision that I must make without any real clear answer. I think all of you have helped me to frame my reasoning as what any other reasonable engineer would do in the same situation should I ever be challenged. Thank you!