Related Work Done by a Private Party Following

Public Employment

CE 480

After serving the County for many years as evaluator of the engineering aspects of County zoning petitions, Ryan, an engineer, retires and opens a consulting office to engage in similar kinds of work for private clients. Ryan is then retained by the XYZ development company petitioning the County board for a zoning variance. He is to testify about the technical feasibility of a major water system and its environmental impact on adjacent communities.

While still in public service, Ryan made preliminary technical evaluations regarding this petition. Citizens' groups opposing the granting of the variance have formally objected to the development company's use of Ryan as an expert witness in support of the petition.

Questions:

(1) Does Ryan have a conflict of interest?

(2) How important is it that Ryan made a preliminary evaluation of this petition while still working for the County?

(3) Is there additional information that would change your judgment of the situation?

Definitions

CONFLICT OF INTEREST

A person has a conflict of interest when the person is in a position of trust which requires her to exercise judgment on behalf of others (people, institutions, etc.) and also has interests or obligations of the sort that might interfere with the exercise of her judgment, and which the person is morally required to either avoid or openly acknowledge. (The lesser requirement of open acknowledgment is usually adopted when it seems to burdensome to require the person in a position of trust to divest herself of the interest that conflicts with her position of responsibility. For example, some journals require that authors disclose any substantive financial interests that might have biased their research assessment. Requiring investigators to divest themselves of investments they may have made on the basis of their scientific judgment would be too burdensome, and might even suppress publication.)

Dictionary definitions frequently apply the term only to conflicts between a person's private interests and those of a public office the person holds, and by extension with that person's professional obligations and responsibilities. However, there can also be conflicts of interest in which private interests do not enter. For example, the American Bar Association specifies as part of a general rule on conflict of interest that "A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third party, or by the lawyer's own interests, unless: 1)the lawyer reasonably believes the representation will not be adversely affected, and 2)the client consents after consultation. When representation of multiple clients in a single matter is undertakem, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved."ABA, 1989

There is no similar rule requiring engineers or engineering firms to avoid, say, building manufacturing facilities for, or supplying parts to, two companies that directly compete in the same market, although the engineering firm might need to be especially careful to avoid disclosing the proprietary information of one company to the other. This example illustrates the point that one needs to look carefully at the nature of a professional's or a public official's obligations and responsibilities in order to know when conflicting interests become a conflict of interest, that is, when a situation that requires discretion to handle the actual or potential conflict fairly is one that he is morally required to avoid altogether, or at least to disclose to all parties.

A policy requiring financial disclosure, that is, disclosure of financial interests that might conflict with judgment as a researcher or as a public official, is very commonly called a "conflict of interest policy," although such financial conflict of interest is only one specific type.