Advising Engineer B Selection → Engineer B Selection Confirmed
Advising Engineer B Selection → Smithtown Accepts Engineer A's Firm
Advisory Role to Contractor Role Transition Conflict Prohibition Invoked Against Engineer A
Engineer B's termination and replacement
Smithtown local road project design contract
Faithful Agent Obligation Within Ethical Limits
Engineer A advised on and concurred in the selection of Engineer B for the road design contract, then evaluated Engineer B's performance in his town engineer role, and then — following the termination that resulted from that evaluation — offered his own firm's services to perform the same design work, directly benefiting from the adverse outcome he participated in producing
The principle is violated because the causal chain runs directly from Engineer A's advisory authority (selection concurrence) through his evaluative authority (performance review) to his commercial benefit (contract award) — each step in the chain was enabled by his public role
Engineer A Part-Time Town Engineer and Private Consultant
Advisory Role to Contractor Role Transition Conflict Prohibition
Following the termination of Engineer B under the terms and conditions of his contract with the town, Engineer A offers, and Smithtown agrees, that Engineer A's firm should perform the design work for the local road project for Smithtown.
The conflict prohibition is not overridden by the client's agreement to accept Engineer A's firm, because the client's consent was itself shaped by Engineer A's prior advisory influence and cannot cure the underlying conflict
Engineer A, in his role as town engineer, reviews Engineer B's preliminary work and becomes convinced that Engineer B's performance on the contract does not meet the standards as outlined in Engineer B's contract with the town.
With Engineer A's advice and concurrence, Smithtown selects Engineer B to provide design services for a local road project.
NSPE Board of Ethical Review Case No. 01-11
More recently, in BER Case No. 01-11, Engineer A was the president of WXY Engineers, an engineering firm
In deciding that it would be ethical for Engineer A's firm, WXY Engineers, to serve as city engineer for City H, perform general consulting services, and also be under contract to provide specific design services
contrary to the situation in BER Case 01-11, the performance of such services by Engineer A potentially places him in the situation of reviewing his own work
NSPE Board of Ethical Review as the primary analogical precedent, then distinguished on the self-review issue
Cited as the most recent and directly analogous precedent, establishing that an engineering firm already under contract with a city may ethically serve as city engineer and perform design services, provided services do not include reviewing the firm's own work, and with disclosure of further conflict-creating circumstances; distinguished from the instant case because Engineer A's role would involve reviewing his own work
BER Case No. 01-11 before current case (instant case)
NSPE Board of Ethical Review Case No. 63-5
in an earlier case, BER Case No. 63-5, a small community retained a professional engineer, Engineer B, on a part-time basis to serve as city engineer
The Board ruled that it is ethical for a professional engineer retained by a community on a part-time basis as a city engineer to prepare plans and specifications for a project for the same community
it is axiomatic that a professional person may not take action or make decisions which would divide his loyalties or interests from those of his employer or client
NSPE Board of Ethical Review as analogical precedent for the instant case
Cited as foundational precedent establishing that a part-time city engineer may ethically prepare plans and specifications for the same community, subject to scrupulous care against divided loyalties, and that the client may waive its right to independent review
BER Case No. 63-5 before BER Case No. 74-2
NSPE Board of Ethical Review Case No. 74-2
in BER Case No. 74-2, the Board considered a case involving a state law that required that every municipality have a municipal engineer
In deciding that it was ethical for the engineer to serve as a municipal engineer and participate in a consulting firm providing engineering services to the same municipality under the stated conditions, the Board determined that the public interest was best served by providing the small municipalities with the most competent engineering services which they can acquire
Cited as precedent addressing state law requiring municipal engineers, establishing that it is ethical for a consulting firm principal to serve as municipal engineer and for that firm to be retained for capital improvement projects, in service of providing small municipalities with competent engineering services
BER Case No. 74-2 before BER Case No. 01-11
BER Case Precedent - Part-Time Public Engineer Self-Dealing
NSPE Board of Ethical Review Cases Addressing Part-Time Public Engineer Conflicts of Interest
Engineer A is the part-time town engineer for Smithtown and also has a consulting engineering practice
Prior BER cases addressing the ethical obligations of part-time public engineers who hold dual roles as private practitioners, providing analogical reasoning patterns for the conflict-of-interest analysis in this case
CausalLink_Advising Engineer B Selection
CausalLink_Formally Concluding Deficient
Competitor Conduct in Procurement Standard - Displacement via Supervisory Authority
NSPE and professional engineering ethics community
Professional Norms Governing Engineer Conduct When Supervisory Role Creates Competitive Advantage
Competitor Conduct in Procurement Standard
With Engineer A's advice and concurrence, Smithtown selects Engineer B
Engineer A offers, and Smithtown agrees, that Engineer A's firm should perform the design work
Engineer A, in his role as town engineer, reviews Engineer B's preliminary work
Governs the ethical limits on Engineer A's conduct in using his supervisory role as town engineer to evaluate and terminate Engineer B's contract, and then leveraging that position to secure the replacement contract for his own firm, constituting an impermissible exploitation of public authority for competitive private gain
It is ethical for Engineer A to contact Smithtown and advise the town that Engineer B’s performance on the contract did not meet the standards as outlined in Engineer B’s contract with the town.
Beyond the Board's finding that Engineer A's performance critique of Engineer B was ethically permissible, the Board's conclusion rests on an incomplete foundation because it does not address whether Engineer A was obligated to disclose his private consulting firm's competitive interest to Smithtown before initiating the performance review. The faithful agent obligation that justified Engineer A's candid assessment of Engineer B's deficiencies does not operate in isolation — it is conditioned by the equally operative conflict of interest disclosure obligation. An engineer who holds a dual public-private role and who stands to benefit financially from a negative performance finding must, at minimum, disclose that structural interest to the client before rendering the adverse assessment. The absence of any such disclosure in the case facts means the Board's approval of Engineer A's conduct on Question 1 is at best incomplete and at worst implicitly endorses a structurally compromised evaluation process. The ethical permissibility of the performance critique should have been conditioned on prior disclosure, and the Board's failure to impose that condition leaves a significant gap in the ethical framework governing part-time municipal engineers who simultaneously maintain private consulting practices.
The Board's approval of Engineer A's performance evaluation of Engineer B, while defensible on the narrow ground that Engineer A had a legitimate advisory duty to Smithtown, fails to grapple with the structural impossibility of impartiality that arises when the evaluator is simultaneously a potential successor contractor. Even if Engineer A's substantive criticism of Engineer B's work was objectively accurate and professionally grounded, the structural conflict of interest created by Engineer A's dual role as part-time town engineer and private consultant means that no external observer — including Smithtown, Engineer B, or the public — could reliably distinguish legitimate professional criticism from self-interested competitive displacement. This structural indistinguishability is not cured by the accuracy of the criticism itself. The Board's reasoning implicitly treats objective accuracy as a sufficient ethical defense, but deontological analysis under the impartiality obligation requires that the process of evaluation be untainted, not merely that the conclusion be correct. The appropriate remedy was not for Engineer A to refrain from reporting deficiencies, but for Engineer A to formally disclose the conflict, allow Smithtown to decide whether to proceed with Engineer A's evaluation or appoint an independent reviewer, and then recuse himself from any successor contractor selection process entirely.
The Board's conclusion that Engineer A's performance critique was ethically permissible must be read in conjunction with the professional dignity protection owed to Engineer B under the Code. Even where an adverse performance assessment is substantively justified, the engineer rendering that assessment bears an obligation to ensure that the criticism is communicated through appropriate channels, is limited to documented contractual deficiencies, and does not extend to reputational injury beyond what the facts support. In the present case, because Engineer A had a direct financial interest in Engineer B's termination, the risk that the adverse assessment exceeded the bounds of documented deficiency and crossed into reputationally injurious territory is materially elevated. The Board's approval of Engineer A's conduct on Question 1 should therefore be understood as conditional: it is ethical for Engineer A to report genuine, documented contractual deficiencies to Smithtown, but it would not be ethical for Engineer A to amplify, exaggerate, or selectively present those deficiencies in a manner designed to ensure termination rather than remediation, particularly given Engineer A's competitive interest in the outcome.
The Board's conclusion that it was unethical for Engineer A to offer and agree to perform the road design work for Smithtown is well-grounded in NSPE Code Section II.4.e, but the Board's reasoning should be extended to recognize that the prohibition is categorical and does not depend on whether Engineer A's prior performance review of Engineer B was accurate, impartial, or conducted in good faith. Section II.4.e prohibits an engineer in a governmental advisory role from soliciting or accepting a contract from that governmental body regardless of the circumstances that created the vacancy. This means that even in the counterfactual scenario where Engineer A had fully disclosed his conflict of interest before the performance review, had conducted a scrupulously impartial evaluation, and had played no role in Smithtown's decision to terminate Engineer B, Engineer A's firm would still be categorically ineligible to accept the successor design contract. The prohibition is structural, not intent-based, and it operates independently of the quality or integrity of the advisory conduct that preceded the contract opportunity.
The Board's conclusion on Question 2 does not adequately address Smithtown's independent ethical and institutional responsibility in accepting Engineer A's offer to perform the design work. While the Board's analysis appropriately focuses on Engineer A's obligations, the municipal government itself — as a sophisticated public client that had engaged Engineer A as its part-time town engineer — was in a position to recognize the structural conflict of interest created by Engineer A's dual role. Smithtown's acceptance of Engineer A's offer without apparent inquiry into the conflict of interest implicates the procurement integrity obligation that governs public engineering contract awards. The Board's framework, by focusing exclusively on Engineer A's conduct, implicitly treats Smithtown as a passive actor, when in fact Smithtown bore an independent obligation to decline the offer, conduct an independent competitive selection process, and ensure that the public engineering procurement was not tainted by the appearance of self-dealing. The ethical analysis is incomplete without acknowledging that both parties to the arrangement — Engineer A as offeror and Smithtown as acceptor — violated the structural integrity of public engineering procurement.
The Board's conclusion that Engineer A's acceptance of the road design contract was unethical must be further extended to address the small municipality public welfare exception and why it does not override the categorical prohibition in this case. Prior BER precedent has recognized that part-time municipal engineers in small or geographically isolated communities may occupy dual roles that would be impermissible in larger jurisdictions, because the practical unavailability of alternative engineering resources creates a public welfare imperative. However, this exception applies to the initial dual-role arrangement — permitting a part-time town engineer to also maintain a private consulting practice — and does not extend to permit that same engineer to exploit the advisory role to displace a competitor and then capture the resulting contract. The public welfare rationale justifies the existence of the dual role; it does not justify the self-dealing that occurs when the dual role is used as a mechanism for competitive displacement. Even in the smallest municipality, the structural prohibition of Section II.4.e must be honored, and Smithtown's obligation was to seek an independent engineering firm through a competitive process rather than defaulting to Engineer A's firm as the path of least resistance.
It would not be ethical for Engineer A to offer and agree to perform the work for Smithtown.
In response to Q101, Engineer A's obligation to disclose his dual-role conflict arose at the moment he recognized — or reasonably should have recognized — that a negative performance finding against Engineer B could create an opportunity for his own private consulting firm to obtain the successor design contract. This point of recognition almost certainly preceded the formal review itself, since Engineer A, as a practicing consultant in the same domain, would have understood the market consequence of a termination recommendation. The failure to disclose before initiating the review independently taints the review process regardless of whether Engineer B's performance was substantively deficient. Procedural integrity in public procurement requires that the evaluator's impartiality be structurally secured before the evaluation begins, not merely that the substantive conclusions be accurate after the fact. A tainted process cannot be retroactively legitimized by a correct outcome, because the public interest in procurement integrity is served by the process itself, not solely by the result. Accordingly, Engineer A's failure to disclose prior to initiating the review constitutes an independent ethical violation separate from the question of whether he should have accepted the successor contract.
In response to Q102, Engineer A was obligated to recuse himself from the performance evaluation of Engineer B at the point when it became foreseeable — which is to say, at the outset of the review — that a negative finding would position his own firm as a natural successor contractor. The structural logic of recusal is that it is required not only when bias is proven but when the evaluator's financial interest creates an objective appearance of partiality that reasonable observers would find disqualifying. Engineer A's dual role as both the town's advisory engineer and the principal of a competing private firm created precisely this structural appearance. The appropriate independent mechanism for Smithtown would have been to retain a disinterested third-party engineer — one with no competitive stake in the outcome — to conduct the performance evaluation, or alternatively to have the evaluation conducted by Smithtown's own administrative officials using objective contractual benchmarks without Engineer A's participation. The Board's conclusion that Engineer A's performance report was ethically permissible implicitly accepts that the substantive accuracy of the criticism is sufficient to validate the process, but this reasoning underweights the structural conflict that made impartial evaluation by Engineer A categorically impossible regardless of his subjective good faith.
In response to Q103, Smithtown bears independent ethical and institutional responsibility for accepting Engineer A's offer to perform the road design work. The town was in a position — indeed, was obligated as a public entity — to recognize that the same engineer who had just recommended the termination of Engineer B was now proposing to benefit financially from that termination by assuming the vacated contract. This structural sequence — adverse evaluation followed immediately by self-interested offer — is precisely the pattern that public procurement integrity norms are designed to prevent. Smithtown's acceptance of Engineer A's offer without conducting an independent competitive selection process made the municipality a participant in the conflict of interest rather than a victim of it. The Board's conclusions focus entirely on Engineer A's conduct and do not address Smithtown's independent obligation to decline the self-dealing offer and initiate a fair procurement process. This omission is analytically significant because it leaves unaddressed the institutional dimension of the ethical failure: public clients who accept conflicted offers are not passive bystanders but active enablers of the procurement irregularity.
In response to Q104, if Engineer A had proactively recused himself from the performance evaluation and Smithtown had independently terminated Engineer B through a separate, disinterested review process, the ethical calculus regarding Engineer A's eligibility to compete for the successor design contract would change substantially but not completely. The recusal would eliminate the evaluator-to-beneficiary conflict that is the primary basis for the Board's conclusion that accepting the successor contract was unethical. However, Engineer A would still face the constraint imposed by NSPE Code Section II.4.e, which prohibits engineers in public service from soliciting or accepting contracts from the governmental body on which they serve as an officer or employee. As part-time town engineer, Engineer A holds a qualifying public role, and this provision operates as a categorical bar that is not cured solely by recusal from the evaluation. Engineer A's firm would therefore need to assess whether his part-time town engineer role constitutes the kind of public service position that triggers Section II.4.e's prohibition, and whether the road design contract falls within the scope of that prohibition. If it does, recusal from the evaluation alone would be insufficient to render Engineer A's firm eligible to compete, and a full separation from the town engineer role — or at minimum, a formal waiver process with full disclosure — would be required before Engineer A's firm could ethically pursue the successor contract.
In response to Q201, the tension between Engineer A's Faithful Agent Obligation — which required him to provide candid performance assessments to Smithtown — and the Conflict of Interest Recusal Obligation — which required him to abstain from evaluating Engineer B once his firm stood to benefit from a negative finding — is real and not fully resolved by the Board's analysis. The correct resolution of this tension is not to allow one duty to override the other but to recognize that the two duties operate at different temporal stages and can be sequenced to honor both. Engineer A's faithful agent obligation to Smithtown required candid assessment of Engineer B's performance; this duty was genuine and could not be abandoned simply because a conflict existed. However, the conflict of interest recusal obligation required that before Engineer A fulfilled his candid assessment duty, he first disclose the conflict to Smithtown and allow the town to decide whether to proceed with Engineer A's evaluation or to obtain an independent assessment. By disclosing first, Engineer A would have honored both duties: the faithful agent duty by providing the assessment with the town's informed consent, and the recusal duty by ensuring the town could make an autonomous, informed decision about the evaluator's reliability. The failure to sequence these duties correctly — by disclosing before evaluating — is the precise ethical error, not the act of evaluation itself.
In response to Q202, the structural impossibility identified in this question is analytically sound and represents a significant gap in the Board's reasoning on Question 1. When an evaluator holds a direct competitive financial interest in the outcome of the evaluation he conducts, the evaluation is structurally compromised in a way that cannot be remedied by pointing to the accuracy of the substantive conclusions. This is because the structural conflict operates at the level of process integrity, not outcome accuracy: even if Engineer B's performance was genuinely deficient, the fact that Engineer A stood to benefit financially from finding it deficient means that no independent observer — including Engineer B, Smithtown's residents, or future engineers considering public contracts — can distinguish legitimate professional criticism from self-interested displacement. The Board's conclusion that Engineer A's performance report was ethical implicitly treats substantive accuracy as sufficient to validate a structurally conflicted process. This reasoning is inconsistent with the principle that the appearance of impartiality is itself a professional obligation, not merely a secondary concern. The Municipal Advisory Engineer Performance Evaluation Obligation and the Prohibition on Reputation Injury Through Competitive Critique are therefore in genuine and unresolved tension in this case, and the Board's conclusion on Question 1 should be understood as establishing only a minimum threshold — that the criticism was not malicious or false — rather than a full ethical clearance of the evaluation process.
In response to Q203, the tension between the Public Welfare Paramount principle — which recognizes that small municipalities may have limited practical access to engineering services — and the Evaluator-to-Beneficiary Conflict Prohibition is genuine, but the public welfare consideration does not override the structural conflict prohibition in this case. The public welfare exception recognized in prior BER precedent for small municipalities is intended to address situations where no alternative engineering resources are realistically available and where the public would be materially harmed by strict application of conflict rules. However, that exception applies to the question of whether a part-time municipal engineer may perform design work for the municipality at all — a question the Board has addressed in prior cases by permitting such arrangements under appropriate disclosure conditions. It does not apply to the specific and more serious situation where the same engineer has used his official evaluative authority to displace a competitor and then immediately offered to fill the vacancy himself. The severity of the structural conflict in this case — where official power was exercised in a way that directly created the commercial opportunity — places it outside the scope of the small municipality public welfare exception. Even in geographically isolated municipalities, the appropriate response to Engineer B's termination would be to seek competitive proposals from available firms, not to allow the evaluating engineer to self-select as the replacement.
In response to Q204, the distinction between conflicts where disclosure is curative and those where the structural nature of the conflict renders even full disclosure ethically inadequate turns on whether the conflicted party retains decision-making power over an outcome that directly benefits him after disclosure. In cases where disclosure is curative — such as when an engineer discloses a financial interest in a project and the client consents to proceed — the disclosure transfers the decision-making authority to the client, who can then make an autonomous, informed choice. The conflict is cured because the conflicted party no longer controls the outcome; the informed client does. In contrast, where the structural conflict involves the conflicted party exercising official authority to create the very opportunity from which he then benefits — as Engineer A did by conducting the performance review that led to Engineer B's termination — disclosure alone cannot cure the conflict because the damage to procurement integrity occurs at the moment the official authority is exercised, not at the moment the benefit is received. By the time disclosure could occur and the client could respond, Engineer A would already have used his official position to shape the outcome in his favor. This is the principle underlying the Disclosure Insufficiency for Structural Conflict doctrine: where the conflict is embedded in the exercise of official power rather than merely in the receipt of a benefit, disclosure is a necessary but insufficient remedy, and structural recusal — removal of the conflicted party from the decision-making role entirely — is the only adequate response.
In response to Q301, from a deontological perspective, Engineer A failed to fulfill a categorical duty of impartiality when evaluating Engineer B's performance. Deontological ethics requires that duties be performed in a manner that could be universalized — that is, that the maxim underlying the action could serve as a universal law without contradiction. The maxim underlying Engineer A's conduct — 'a public engineer may evaluate a contractor's performance while holding a private financial interest in the contractor's termination, provided the evaluation is substantively accurate' — cannot be universalized without destroying the integrity of public procurement as an institution. If every part-time municipal engineer were permitted to evaluate and displace contractors whenever doing so created a business opportunity for their private firm, the institution of impartial public engineering oversight would collapse. Furthermore, Kant's Formula of Humanity requires that persons not be treated merely as means to an end. Engineer B was treated as a means to Engineer A's commercial advancement: the evaluation process, regardless of its substantive accuracy, was structured in a way that used Engineer B's professional standing as an instrument for Engineer A's financial benefit. The categorical duty of impartiality was therefore violated not because the findings were false, but because the evaluative process was conducted by a party who could not, by structural definition, be impartial.
In response to Q302, from a virtue ethics standpoint, Engineer A failed to demonstrate the professional integrity and practical wisdom — phronesis — required of a part-time municipal engineer when he chose to report Engineer B's deficiencies without first disclosing his competing financial interest. Virtue ethics evaluates conduct not merely by outcomes or rule compliance but by whether the agent acted as a person of good character would act in the circumstances. A person of genuine professional integrity, upon recognizing that his private firm stood to benefit from a negative performance finding, would have experienced the conflict as a moral signal requiring action — specifically, disclosure to Smithtown and recusal from the evaluation — before proceeding. The practically wise engineer understands that the appearance of integrity is itself a professional virtue, not merely a strategic concern, because public trust in engineering oversight depends on the actual and perceived impartiality of those who exercise evaluative authority. Engineer A's failure to disclose and recuse suggests either that he did not recognize the conflict — which would indicate a failure of practical wisdom — or that he recognized it and proceeded anyway — which would indicate a failure of integrity. Neither interpretation is consistent with the character of a virtuous professional. The subsequent offer to perform the design work compounds this assessment: a virtuous engineer would have recognized that accepting the successor contract would transform a potentially defensible performance review into an apparent act of self-dealing, and would have declined on those grounds alone.
In response to Q303, from a consequentialist perspective, the overall outcome of Engineer A's dual actions — reporting Engineer B's deficiencies and then accepting the successor design contract — produced a net harm to the integrity of public engineering procurement that outweighs the immediate benefit Smithtown received from obtaining a replacement engineer. The consequentialist calculus must account not only for the immediate parties but for the systemic effects on the institution of public engineering oversight. The immediate benefit to Smithtown — obtaining a replacement engineer without delay — is real but modest and could have been achieved through a competitive selection process that would have preserved procurement integrity. The harms, by contrast, are significant and systemic: Engineer B suffered reputational and financial injury through a process that was structurally compromised; future engineers considering public contracts in small municipalities are placed on notice that their performance may be evaluated by competitors with financial interests in their termination; and the public's trust in the impartiality of part-time municipal engineers is undermined by a precedent that permits evaluator-to-beneficiary transitions without structural safeguards. Furthermore, the consequentialist analysis must account for the chilling effect on qualified engineers who might otherwise seek public contracts in municipalities where the town engineer holds a competing private practice: if the risk of biased evaluation and displacement is not constrained by ethical rules, fewer qualified engineers will compete for such contracts, ultimately harming the public interest in access to competent engineering services.
In response to Q304, from a deontological perspective, NSPE Code Section II.4.e imposes a prohibition that is substantially categorical in nature and does not depend primarily on the subjective intent behind the performance review. The provision prohibits engineers in public service from soliciting or accepting contracts from the governmental body on which they serve, and this prohibition is structured as a rule rather than a standard — it does not invite case-by-case balancing of intent, accuracy, or good faith. The deontological force of the provision derives precisely from its categorical character: by removing the question of intent from the analysis, the rule eliminates the possibility that a conflicted engineer could justify self-dealing by asserting that his adverse evaluation was conducted in good faith. This categorical structure serves the deontological value of treating all persons — including Engineer B and future contractors — as ends in themselves, by ensuring that the evaluative process cannot be instrumentalized for private benefit regardless of the evaluator's subjective motivations. However, the categorical prohibition is not entirely absolute in the sense of admitting no exceptions: prior BER precedent has recognized that part-time municipal engineers may perform design work for their municipalities under certain conditions, suggesting that the prohibition is contextually bounded rather than universally absolute. What Section II.4.e does prohibit categorically is the specific sequence of events present in this case — using official evaluative authority to displace a contractor and then soliciting the successor contract — because this sequence constitutes the precise form of self-dealing the provision was designed to prevent.
In response to Q401, Engineer A's adverse performance review of Engineer B would have been substantially more ethically defensible — though not entirely without concern — if Engineer A had first formally disclosed his private consulting firm's potential competitive interest to Smithtown and recused himself from any subsequent contractor selection process. The formal disclosure would have transferred decision-making authority to Smithtown, allowing the town to make an autonomous, informed judgment about whether to proceed with Engineer A's evaluation or to seek an independent assessment. This would have honored the Conflict of Interest Disclosure Evolution Principle and would have addressed the most serious structural defect in the actual sequence of events. However, even with prior disclosure, the evaluation would retain a residual ethical concern: the fact that Engineer A conducted the evaluation at all, knowing of his competitive interest, creates an appearance of partiality that disclosure mitigates but does not fully eliminate. The more complete ethical solution would have combined disclosure with actual recusal from the evaluation itself — not merely from the subsequent selection process. Recusal from the selection process alone, without recusal from the evaluation, would still permit Engineer A to shape the outcome through his evaluative findings while formally abstaining from the selection decision, which is a distinction without a meaningful difference in terms of actual influence over the outcome.
In response to Q402, if Engineer A had declined to offer his firm's services after Engineer B's termination and Smithtown had selected an independent third-party engineer through a competitive process, Engineer A's original performance review of Engineer B would not be retroactively cleansed of its conflict of interest taint, but the ethical significance of that taint would be substantially reduced. The conflict of interest embedded in the review process is a fact about the process itself, not about its consequences, and cannot be retroactively altered by subsequent events. However, the ethical weight assigned to that process conflict depends significantly on whether it produced a harmful outcome. When the conflicted evaluation is followed by a fair, competitive selection process that does not benefit the evaluator, the harm to procurement integrity is limited to the evaluation stage itself — which, if the findings were substantively accurate, may represent a procedural irregularity rather than a material injustice. The retroactive cleansing concept is therefore partially valid in consequentialist terms — the overall procurement outcome would be fair even if the evaluation process was procedurally compromised — but is invalid in deontological terms, because the duty of impartiality was violated at the moment of evaluation regardless of subsequent events. The practical implication is that Engineer A's decision not to offer his firm's services would significantly mitigate the ethical harm of the conflicted evaluation, but would not eliminate the obligation to have disclosed the conflict and considered recusal before conducting the review.
In response to Q403, the Board's conclusion on Question 2 should not differ even if Smithtown were so small and geographically isolated that no other qualified engineering firm was realistically available to complete the road design project. The small municipality public welfare exception recognized in prior BER precedent addresses the general question of whether a part-time municipal engineer's firm may perform design work for the municipality — a question that may be answered affirmatively under appropriate disclosure conditions. However, that exception does not extend to the specific situation where the part-time municipal engineer has used his official evaluative authority to displace the incumbent contractor and then offered his own firm as the replacement. The distinction is critical: the public welfare exception is designed to ensure that small municipalities have access to engineering services, not to permit part-time municipal engineers to use their official positions to create commercial opportunities for their private firms. Allowing the exception to apply in the latter situation would effectively permit the exception to swallow the rule, because any part-time municipal engineer in a small municipality could invoke public welfare concerns to justify self-dealing procurement. The appropriate response to genuine geographic isolation would be for Smithtown to seek engineering services through regional or state engineering assistance programs, or to negotiate directly with Engineer A's firm through a transparent process that does not involve Engineer A in his official capacity — not to accept Engineer A's self-interested offer without competitive scrutiny.
The Board resolved the tension between the Faithful Agent Obligation and the Conflict of Interest Recusal Obligation by treating them as operating in sequential, non-overlapping domains rather than as simultaneously triggered duties. Engineer A's obligation to provide candid performance assessments to Smithtown was found to be legitimate in isolation — the Board affirmed that reporting Engineer B's deficiencies was ethically permissible. However, the Conflict of Interest Recusal Obligation was applied not to the evaluation itself but to the downstream act of accepting the successor contract. This sequential resolution avoids the harder question of whether Engineer A's competitive financial interest in a negative finding structurally contaminated the evaluation before it was communicated. The case thus teaches that the Board is willing to treat the advisory and commercial phases of a dual-role engineer's conduct as analytically separable, even when they are causally and temporally linked, provided the advisory act itself is substantively defensible. The practical implication is that the ethical violation is located at the moment of self-offer, not at the moment of adverse evaluation — a resolution that leaves the structural conflict of interest in the evaluation phase largely unaddressed.
The case reveals an unresolved tension between the Disclosure Insufficiency for Structural Conflict principle and the Conflict of Interest Disclosure Evolution Principle. In prior BER precedent, particularly BER Case No. 01-11, disclosure of a dual role was treated as a curative mechanism that could render an otherwise conflicted arrangement ethically permissible. In the instant case, however, the Board implicitly applied the stronger Disclosure Insufficiency principle — holding that no amount of disclosure could ethically permit Engineer A to accept the road design contract after having served as the evaluator who triggered Engineer B's termination. The distinguishing factor appears to be structural rather than informational: where the same engineer who holds advisory authority over a contractor subsequently benefits commercially from that contractor's removal, the conflict is not merely a matter of undisclosed competing interests but of an inherent role incompatibility that disclosure cannot neutralize. This case therefore teaches that disclosure is curative only when the conflicting interests are parallel and transparent at the outset, not when the advisory role itself generates the commercial opportunity through the exercise of official authority. The Board did not articulate this distinction explicitly, leaving a doctrinal gap that future cases involving part-time municipal engineers will need to fill.
The Public Welfare Paramount principle — which recognizes that small municipalities like Smithtown may have limited access to qualified engineering services and may practically depend on their part-time town engineer's firm — was considered by the Board but ultimately subordinated to the Evaluator-to-Beneficiary Conflict Prohibition and the Advisory Role to Contractor Role Transition Conflict Prohibition. This prioritization reflects a judgment that procurement integrity and structural impartiality are non-negotiable constraints even in resource-constrained municipal contexts, and that the public welfare rationale cannot be invoked to launder a conflict of interest that the engineer himself created through the exercise of official authority. The case teaches that public welfare considerations operate as a background justification for permitting dual-role arrangements in the first instance — as recognized in BER Case No. 63-5 and BER Case No. 74-2 — but do not function as an override once the dual-role engineer has used official authority in a manner that directly generates a private commercial benefit. The prohibition encoded in NSPE Code Section II.4.e is therefore treated as categorical with respect to the successor contract, regardless of whether Smithtown had practical alternatives, and regardless of whether Engineer A's performance criticism of Engineer B was substantively accurate. This categorical treatment also implicitly assigns to Smithtown an independent obligation not to accept Engineer A's self-offer, recognizing that the municipality's complicity in the arrangement compounds rather than cures the ethical violation.
Conflict of Interest Disclosure Evolution Principle Applied to BER Case 01-11 Precedent
WXY Engineers' dual role as city engineer and design contractor for City H in BER Case No. 01-11
Disclosure Insufficiency for Structural Conflict of Interest
In BER Case No. 01-11, the Board applied the disclosure-and-management approach to permit WXY Engineers to serve as city engineer while also providing design services, subject to disclosure of further circumstances that could create conflicts — demonstrating the evolved standard that conflicts are manageable through disclosure when structurally avoidable
The disclosure-and-management approach applies to manageable conflicts where self-review and evaluator-to-beneficiary problems are structurally avoided, distinguishing permissible dual roles from categorically prohibited ones
Conflict of Interest Disclosure Evolution Principle
WXY would need to disclose further circumstances (e.g., private work in city, reviewing its own work) that could create the potential for a conflict of interest
Disclosure-and-management applies to BER Case No. 01-11 because self-review was structurally avoided; categorical prohibition applies in the instant case because self-review is structurally inevitable
In deciding that it would be ethical for Engineer A's firm, WXY Engineers, to serve as city engineer for City H, perform general consulting services, and also be under contract to provide specific design services, the Board determined that Engineer A and WXY Engineering had provided services to City H for many years
The Board also concluded that it would be ethical for Engineer A and his firm WXY to serve as city engineer for City H and perform general consulting services and design services on individual projects under circumstances where those services did not include reviewing the work of Engineer A's firm
Conflict of Interest Disclosure Evolution Principle Invoked in Engineer A Dual Role Context
Engineer A's offer to perform the design work
Engineer A's dual role as part-time town engineer and private consultant created a known and potential conflict of interest that required prompt disclosure to Smithtown — particularly when Engineer A began evaluating Engineer B's performance and when he contemplated offering his own firm's services as a replacement
Under the disclosure-and-management standard, Engineer A was obligated to disclose the conflict at each stage — when advising on selection, when evaluating performance, and especially when offering his firm's services — so that Smithtown could make an informed determination about whether to accept the conflicted advice or engagement
Engineer A is the part-time town engineer for Smithtown and also has a consulting engineering practice.
Disclosure alone is insufficient to cure the conflict when the engineer's evaluative authority over the contractor's fate is directly linked to the commercial opportunity — disclosure is a necessary but not sufficient condition for ethical conduct in this scenario
Conflict of Interest Disqualification Standard - Reviewer-to-Beneficiary Prohibition
Professional Norms Prohibiting Engineers from Reviewing Competitor Work and Then Benefiting from Competitor's Termination
Conflict of Interest Disqualification Standard
Following the termination of Engineer B under the terms and conditions of his contract with the town, Engineer A offers, and Smithtown agrees, that Engineer A's firm should perform the design work
Establishes that Engineer A, having used his public authority to review and recommend termination of Engineer B, was ethically disqualified from then offering his own firm's services as a replacement, because the reviewing and terminating role creates an irreconcilable conflict with the subsequent beneficiary role
Conflict of Interest Recusal Obligation Invoked Against Engineer A Town Engineer Role
Engineer A's decision to offer his firm's services after Engineer B's termination
Engineer A's prior advisory role in selecting Engineer B and his subsequent evaluative role in assessing Engineer B's performance created a conflict of interest that required recusal from any commercial engagement on the same project — Engineer A should have recused from offering his firm's services when the contract became available
The recusal obligation applies because Engineer A's prior relationship with the project — as advisor on contractor selection and evaluator of contractor performance — is sufficiently substantial to compromise the objectivity and impartiality of any subsequent commercial engagement on the same project
Recusal obligation overrides the faithful agent duty to serve the client's immediate needs, because the client's long-term interest in procurement integrity is better served by an independent contractor selection than by accepting the conflicted engineer's offer
Conflict of Interest State Engineer A Smithtown Road Project
From Engineer A's communication of performance concerns about Engineer B through the town's consideration of Engineer A's firm for the design work
Conflicts of interest are clearly among the most prevalent ethical issues that engineers face in their professional lives
Engineer A's conflict between his advisory duty as town engineer to Smithtown and his private commercial interest in securing the road design contract for his firm
Board's ruling establishing categorical ineligibility of Engineer A's firm for the design work
it is the Board's view that there are serious ethical constraints that would preclude the selection of Engineer A by the town to perform the road design work
Town's consideration of Engineer A's firm for road design work following Engineer A's advisory criticism of Engineer B
Should Engineer A participate in advising on and concurring in the selection of Engineer B for the road design contract, or should he recuse himself from the selection process on the ground that his private firm stands to benefit competitively from the outcome?
When Smithtown asks Engineer A — in his capacity as part-time town engineer — to advise on and concur in the selection of Engineer B for the road design contract, Engineer A must decide whether to participate in that selection process. Engineer A's private consulting practice is capable of performing the same road design work and could foreseeably benefit if the selected contractor later fails or is terminated. Participating fulfills his faithful agent duty to Smithtown but simultaneously creates an undisclosed structural conflict of interest that taints the entire downstream procurement chain.
Engineer A formally notifies Smithtown that his private consulting practice is capable of performing the same road design work, creating a foreseeable competitive interest in the selection outcome, and withdraws from all advisory participation in the contractor selection process so that an unconflicted party can evaluate and recommend candidates.
Engineer A discloses to Smithtown that he maintains a private practice but proceeds to advise on and concur in Engineer B's selection, relying on disclosure alone to manage the conflict without recusing from the advisory role.
Engineer A advises on and concurs in Engineer B's selection in his capacity as town engineer without disclosing to Smithtown that his private firm could competitively benefit if the selected contractor fails, treating the advisory role as fully separate from his private commercial interests.
Part-Time Municipal Advisory Engineer with Competing Private Practice
Should Engineer A conduct the performance evaluation of Engineer B and report his findings to Smithtown, or should he recuse himself from the evaluation entirely and disclose his competitive financial interest in the outcome before any assessment is rendered?
After Engineer B is retained and performance concerns arise, Engineer A — still serving as part-time town engineer — must decide how to handle the performance evaluation of Engineer B. At this point, Engineer A's private firm could directly obtain the road design contract if Engineer B is terminated. Engineer A faces a choice between fulfilling his candid advisory duty to Smithtown and protecting Engineer B's right to an impartial evaluation free from a conflicted evaluator. The evaluation outcome will determine whether Engineer B is terminated, directly affecting whether Engineer A's firm can benefit.
Engineer A affirmatively discloses to Smithtown that his private consulting practice stands to benefit if Engineer B is terminated, and fully withdraws from the performance evaluation process, recommending that Smithtown retain an unconflicted third party to assess Engineer B's performance.
Engineer A discloses his competitive financial interest to Smithtown before rendering the evaluation, then proceeds to conduct and report the performance assessment while noting that Smithtown should weigh his findings in light of his self-interest — relying on disclosure to partially mitigate but not eliminate the conflict.
Engineer A contacts Smithtown and advises that Engineer B's performance does not meet contract standards, providing his candid professional assessment in fulfillment of his faithful agent duty, without disclosing that his private firm could obtain the contract if Engineer B is terminated.
Part-Time Municipal Advisory Engineer Evaluating a Contractor He Could Replace
Should Engineer A offer his own firm's design services to Smithtown for the road project on which he previously advised contractor selection and evaluated the terminated contractor's performance, or should he decline to offer and instead facilitate an open competitive procurement process?
After Engineer B's contract is terminated — a termination to which Engineer A's advisory evaluation contributed — Smithtown needs a replacement design engineer for the road project. Engineer A, who advised on Engineer B's selection and evaluated Engineer B's deficient performance, now faces a decision about whether to offer his own firm's services to fill the vacancy. Accepting would convert his prior advisory and evaluative authority directly into private commercial gain on the same project, placing him in the position of reviewing his own prior advisory work.
Engineer A declines to offer his firm's services for the replacement design contract, discloses to Smithtown the conflict of interest that bars him from competing for this work, and advises Smithtown to conduct an open, qualification-based competitive selection process in which all qualified firms — excluding Engineer A's — may participate.
Engineer A discloses to Smithtown his prior roles in advising on Engineer B's selection and evaluating Engineer B's performance, then offers his firm's design services on the theory that full disclosure cures the structural conflict and that Smithtown's practical need for engineering services justifies the engagement.
Engineer A offers his firm's design services to Smithtown and agrees to perform the road design work, treating the termination of Engineer B as having resolved the prior conflict and proceeding on the basis that his firm is qualified and available to serve the municipality's immediate need.
Part-Time Municipal Advisory Engineer Seeking to Transition to Design Contractor
Should Smithtown accept Engineer A's offer to perform the road design work, or should the municipality independently recognize the structural conflict of interest and decline the offer in favor of an open competitive procurement process?
Smithtown's administrative agents, having received Engineer A's offer to perform the road design work after Engineer A advised on Engineer B's selection and evaluated Engineer B's performance, must decide whether to accept that offer. Smithtown is in a position to recognize — or should be in a position to recognize — the structural conflict of interest embedded in Engineer A's offer: the same engineer who shaped the procurement outcome and contributed to the termination is now seeking to benefit from it. Acceptance makes the municipality complicit in a procurement integrity failure and harms Engineer B's professional standing.
Smithtown declines Engineer A's offer, formally acknowledges the structural conflict of interest arising from Engineer A's prior advisory and evaluative roles on the same project, and initiates an open qualification-based competitive selection process for the replacement design contract from which Engineer A's firm is excluded.
Smithtown accepts Engineer A's offer but requires Engineer A to formally document and disclose all prior advisory and evaluative roles on the project, treating documented disclosure as sufficient to cure the structural conflict and satisfy procurement integrity requirements.
Smithtown accepts Engineer A's offer on the ground that the municipality has limited access to engineering services, Engineer A is already familiar with the project, and the practical need to complete the road project outweighs the procurement integrity concerns raised by Engineer A's prior advisory and evaluative roles.
Municipal Government Client Receiving Conflicted Design Offer from Its Own Advisory Engineer
Disclosure Insufficiency for Structural Conflict Applied to Engineer A Design Contract
Engineer A's eligibility to accept Smithtown road design contract
Engineer A's structural conflict of interest — arising from his advisory role's authority over Engineer B's fate and the self-review problem — cannot be cured by disclosure of further circumstances, making categorical prohibition on the design contract the required ethical outcome
Unlike the manageable conflict in BER Case No. 01-11 where WXY Engineers could provide design services with disclosure when self-review was avoided, Engineer A's conflict is structural and irreconcilable because it involves both the evaluator-to-beneficiary problem and the self-review problem simultaneously
The Board does not believe that the disclosure of any further circumstances (e.g., private work in town for a developer, reviewing its own work) would be sufficient to avoid a conflict of interest or the appearance of a conflict of interest
The structural nature of the conflict places it outside the disclosure-and-management framework; categorical prohibition is required
This conclusion is based upon the language in Section II.4.e and is irrespective of whether the town's procurement laws are scrupulously followed
Dual-Role Conflict of Interest Invoked Against Engineer A Part-Time Town Engineer
Engineer A's simultaneous public advisory role and private consulting practice
Smithtown local road project contractor selection and evaluation
Engineer A simultaneously serves as part-time town engineer (a public advisory role with authority over contractor selection and evaluation) and as principal of a private consulting engineering practice — the two roles intersect directly when Engineer A advises on contractor selection and then evaluates the selected contractor's performance, creating a conflict between public advisory impartiality and private commercial interest in obtaining the contract
The dual-role prohibition applies because Engineer A's public role as town engineer gave him authority over both the selection of Engineer B and the evaluation of Engineer B's performance — authority that is directly linked to the private commercial opportunity Engineer A subsequently accepted
Dual-Role Conflict of Interest Prohibition in Public-Private Engineering
Engineer A is the part-time town engineer for Smithtown and also has a consulting engineering practice. With Engineer A's advice and concurrence, Smithtown selects Engineer B to provide design services for a local road project.
The conflict of interest prohibition overrides the faithful agent obligation because the engineer's public role created the commercial opportunity, and accepting that opportunity compromises the integrity of both the public role and the private engagement
Engineer A, in his role as town engineer, reviews Engineer B's preliminary work and becomes convinced that Engineer B's performance on the contract does not meet the standards
Dual Role Advisory and Design Ethical Permissibility Boundary
Ongoing as a contextual framework condition established by prior BER cases and applicable to the instant case
it is not uncommon for a professional engineer in private practice or an engineering firm to serve as a city, town, or county engineer
The general ethical boundary conditions under which a part-time municipal engineer may also perform design services for the same municipality, as established through BER Cases 63-5, 74-2, and 01-11
Not terminated — represents a persistent contextual framework condition
The Board ruled that it is ethical for a professional engineer retained by a community on a part-time basis as a city engineer to prepare plans and specifications for a project for the same community, but in so acting the engineer must be scrupulously careful that his advice is not influenced by his secondary interest
Historical pattern of small municipalities retaining private engineering firms as part-time municipal engineers who also perform design services
Engineer A Advisory Engineer Candid Contractor Performance Assessment
Advisory Engineer Candid Contractor Performance Assessment Capability
Engineer A possessed and exercised the capability to provide a candid, professionally grounded assessment of Engineer B's performance deficiencies to Smithtown, calling to the town's attention his professional opinion that Engineer B had failed to meet the required standards — within professional bounds and without malicious or false injury to Engineer B.
As part-time town engineer, Engineer A evaluated Engineer B's performance on the road project and communicated his professional assessment of deficiencies to Smithtown.
Engineer A called to Smithtown's attention his professional opinion that Engineer B had failed to meet the standards required to complete the local road project, and the Board found nothing to suggest his comments were beyond the bounds or constituted malicious or false injury to Engineer B.
it is this Board's view that Engineer A did have an affirmative obligation as town engineer to call to the attention of the city Engineer A's opinion that Engineer B had failed to meet the standards required to complete the local road project
Having done so, it is the Board's view that Engineer A acted consistently with the NSPE Code of Ethics
There is nothing under the facts to suggest that anything said by Engineer A was beyond the bounds or could be construed as anything to injure maliciously or falsely, directly or indirectly, the professional reputation or prospects, practice, or employment of Engineer B
Engineer A Advisory Role Design Work Categorical Ineligibility
From the town's consideration of Engineer A's firm for the road design work through the Board's ruling
Advisory Role Design Work Eligibility Prohibition State
Engineer A's categorical ineligibility under NSPE Code II.4.e to be selected by Smithtown to perform road design work, as officer or principal of his engineering firm, irrespective of procurement law compliance
Board's ruling establishing categorical ineligibility; would terminate if Engineer A resigned from advisory role or was no longer officer/principal of the firm
Engineer A is an officer or principal of his engineering firm, and thus according to NSPE Code of Ethics, section II.4.e, is not eligible to provide engineering services to Smithtown for the local road project
Town's consideration of selecting Engineer A's firm for road design services on a project Engineer A had advised upon as town engineer, combined with Engineer A's status as officer or principal of the firm
Engineer A Advisory Role to Design Contractor Transition Prohibition
Engineer A served as part-time town engineer, advised on Engineer B's selection, evaluated Engineer B's performance, and then offered his own firm to perform the design work after Engineer B's termination.
Engineer A (Part-Time Town Engineer and Private Consultant)
Advisory Role to Design Contractor Transition Prohibition Obligation
Engineer A was obligated to refrain from offering his firm's design services for the Smithtown road project after having advised on and concurred in the selection of Engineer B and subsequently evaluated and contributed to the termination of Engineer B's contract, because his prior advisory and evaluative roles created an irreconcilable conflict of interest barring him from transitioning to the role of design contractor on the same project.
Upon Engineer B's termination and before offering his firm's services as replacement design contractor
Engineer A Advisory Role to Design Contractor Transition Prohibition Recognition
Advisory Role to Design Contractor Transition Prohibition Recognition Capability
Engineer A lacked or failed to exercise the capability to recognize that his advisory role in selecting Engineer B prohibited him from subsequently offering his own firm's design services for the same project after Engineer B's termination.
Engineer A served as part-time town engineer, advised on Engineer B's selection, evaluated Engineer B's performance, and then offered his own firm to replace Engineer B — failing to recognize the impermissible transition from advisory to design contractor role.
Failure demonstrated by Engineer A offering his firm's design services to Smithtown immediately following Engineer B's termination — a project on which Engineer A had advised on and concurred in the original contractor selection.
With Engineer A's advice and concurrence, Smithtown selects Engineer B to provide design services for a local road project
Following the termination of Engineer B under the terms and conditions of his contract with the town, Engineer A offers, and Smithtown agrees, that Engineer A's firm should perform the design work for the local road project for Smithtown
Engineer A Advisory Role to Design Contractor Transition Prohibition Smithtown
Engineer A's sequence of advisory actions — selecting Engineer B, reviewing Engineer B's performance, and then offering his own firm's services — constituted the paradigmatic advisory-to-design transition prohibited by NSPE Code Section II.4.e.
Advisory Role to Design Contractor Transition Prohibition Constraint
Engineer A was prohibited from offering or accepting design services for the Smithtown road project after having served in the advisory capacity of town engineer, advising on and concurring in the selection of Engineer B, and conducting the performance review that led to Engineer B's termination.
NSPE Code of Ethics Section II.4.e; BER Case analysis
Following Engineer A's advisory role in Engineer B's selection and performance review
It is implied under the facts of this case that Engineer A is an officer or principal of his engineering firm, and thus according to NSPE Code of Ethics, section II.4.e, is not eligible to provide engineering services to Smithtown for the local road project
Engineer A Advisory Role to Design Contractor Transition Prohibition Smithtown Road Project
Engineer A served as part-time town engineer, advised on Engineer B's selection, reviewed Engineer B's performance adversely, and then offered his own firm's services as successor designer after Engineer B's termination
Engineer A was prohibited from offering his firm's design services for the Smithtown road project after having advised on and concurred in Engineer B's selection for that same project and subsequently conducted the performance review leading to Engineer B's termination — the advisory-to-design transition creating an irresolvable conflict of interest under NSPE Code Section II.4.e.
NSPE Code of Ethics Section II.4.e; BER Case No. 01-11
From the moment Engineer A advised on and concurred in Engineer B's selection through the duration of the road project design phase
Engineer A BER Dual-Role Precedent Triangulation Municipal Engineer
BER Dual-Role Precedent Triangulation for Municipal Engineer Permissibility Capability
Engineer A was required to possess the capability to triangulate among BER Cases 63-5, 74-2, and 01-11 to correctly identify that the instant case fell outside the permissible dual-role precedents — a capability he failed to exercise when he offered his firm's design services.
The Board triangulated among BER Cases 63-5, 74-2, and 01-11 to determine that Engineer A's situation was distinguishable from permissible dual-role arrangements because of the self-review risk.
Failure to distinguish the instant case from permissible precedents: Engineer A's situation differed critically from BER 01-11 because he would be reviewing his own work, a distinction the Board identified as dispositive.
Later, in BER Case No. 74-2, the Board considered a case involving a state law that required that every municipality have a municipal engineer
Engineer A Candid Performance Assessment of Engineer B Road Project
Engineer A served as part-time town engineer for Smithtown while maintaining a private consulting practice. Engineer B was selected with Engineer A's advice and concurrence to perform road design services. Engineer A subsequently evaluated Engineer B's preliminary work and determined it did not meet contract standards.
Engineer A (Part-Time Town Engineer for Smithtown)
Municipal Advisory Engineer Candid Performance Assessment Obligation
Engineer A was obligated as town engineer to call to Smithtown's attention his professional opinion that Engineer B had failed to meet the standards required to complete the local road project, providing candid assessment without malicious or false characterization of Engineer B's professional reputation.
it is this Board's view that Engineer A did have an affirmative obligation as town engineer to call to the attention of the city Engineer A's opinion that Engineer B had failed to meet the standards required to complete the local road project.
Upon forming the professional opinion that Engineer B had failed to meet contract standards, before or contemporaneously with any recommendation regarding Engineer B's continued engagement
As a competent advisor to the town upon whose judgment the town undoubtedly relied, it would be appropriate for Engineer A to make comments in connection with Engineer B's professional services.
Having done so, it is the Board's view that Engineer A acted consistently with the NSPE Code of Ethics.
There is nothing under the facts to suggest that anything said by Engineer A was beyond the bounds or could be construed as anything to injure maliciously or falsely, directly or indirectly, the professional reputation or prospects, practice, or employment of Engineer B.
Engineer A Client Relationship with Smithtown
From Engineer A's appointment as part-time town engineer through the successor design contract engagement
Engineer A is the part-time town engineer for Smithtown
Engineer A's professional relationship with Smithtown as part-time town engineer, and subsequently as design consultant for the road project
Not terminated within the described facts
Engineer A offers, and Smithtown agrees, that Engineer A's firm should perform the design work for the local road project for Smithtown
Engineer A's appointment as part-time town engineer for Smithtown
Engineer A Competitive Conflict of Interest Disclosure Before Advisory Critique
Engineer A evaluated Engineer B's performance in his capacity as town engineer while his private practice stood to benefit commercially from a finding that Engineer B's performance was deficient.
Competitive Conflict of Interest Disclosure Before Advisory Critique Obligation
Engineer A was obligated to affirmatively disclose to Smithtown his competitive financial interest in the outcome of his evaluation of Engineer B's performance — specifically that his private consulting practice could obtain the design contract if Engineer B were terminated — before or contemporaneously with conducting that evaluation, so that Smithtown could appropriately weigh the evaluation in light of Engineer A's self-interest.
Before or at the time Engineer A reviewed Engineer B's preliminary work and formed conclusions about contract compliance
Engineer A Competitive Interest Adverse Performance Review Recusal Smithtown
Engineer A conducted an official performance review of Engineer B in his capacity as town engineer, found performance deficient, and subsequently offered his own firm's services as replacement — the review and replacement forming a sequential conflict of interest
Competitive Interest Adverse Performance Review Recusal Constraint
Engineer A was required to recuse from conducting the official performance review of Engineer B's preliminary design work given that Engineer A's private firm had a foreseeable commercial interest in obtaining the successor design contract if Engineer B were terminated — the private commercial interest in the review outcome creating a conflict of interest that precluded impartial official review.
NSPE Code of Ethics Sections II.4, II.5.b; Conflict of Interest Avoidance provisions
Engineer A, in his role as town engineer, reviews Engineer B's preliminary work and becomes convinced that Engineer B's performance on the contract does not meet the standards as outlined in Engineer B's contract with the town
At the time Engineer A undertook the performance review of Engineer B's preliminary work
Engineer A Competitive Procurement Fairness Smithtown Road Project
After Engineer B's termination, Engineer A offered his own firm's services directly to Smithtown rather than recommending an open competitive procurement for replacement design services.
Competitive Procurement Fairness Obligation
Engineer A was obligated, in his capacity as part-time town engineer with advisory authority over engineering service contracts, to ensure that the replacement design contract for the road project was awarded through an open, competitive, and qualification-based process — rather than through a direct offer by Engineer A's own firm — so that all qualified firms had a fair opportunity to compete for the work.
Upon Engineer B's termination and before any replacement design contractor was engaged
Engineer A Conflict of Interest Avoidance Smithtown Road Project Dual Role
Engineer A's dual role created a textbook conflict of interest that the NSPE Code's conflict of interest avoidance provisions were designed to address.
Engineer A was required to avoid the conflict of interest arising from his simultaneous roles as part-time town engineer and private consulting firm principal seeking the successor road design contract, including by refraining from accepting the design contract after having exercised official advisory authority over the incumbent contractor's selection and performance evaluation.
NSPE Code of Ethics Section II.4.e; conflict of interest avoidance provisions
Throughout Engineer A's dual role as town engineer and private practitioner
Engineer A Conflict of Interest Disclosure Evolution Compliance
Engineer A's dual role as part-time town engineer and private consultant created a known conflict of interest that required prompt disclosure to Smithtown under the evolved conflict-of-interest management standard.
Conflict of Interest Disclosure Evolution Compliance Obligation
Engineer A was obligated to promptly disclose to Smithtown the known and potential conflict of interest arising from his dual role as part-time town engineer and private consultant capable of performing the same road design work, including at the time of advising on Engineer B's selection and at the time of evaluating Engineer B's performance.
Upon accepting the part-time town engineer role and throughout the contractor selection and evaluation process
Engineer A Conflict of Interest Disclosure Evolution Compliance Capability
Conflict of Interest Evolution Standard Compliance Capability
Engineer A lacked or failed to exercise the capability to recognize that evolved professional standards required prompt disclosure of all known conflicts arising from his dual role as part-time town engineer and private consultant — including disclosure before advising on Engineer B's selection and before conducting the performance evaluation.
The evolved standard of conflict-of-interest management required Engineer A to promptly disclose known and potential conflicts arising from his dual role, which he failed to do throughout the sequence of events.
Failure demonstrated by Engineer A's non-disclosure of his conflict of interest to Smithtown at any stage — neither before advising on Engineer B's selection, nor before conducting the performance evaluation, nor before offering his firm's services.
Engineer A Conflict of Interest Disclosure Smithtown Dual Role
Engineer A's simultaneous roles as public official and private practitioner created a structural conflict of interest that required prompt disclosure to Smithtown
Conflict of Interest Avoidance (Constraint)
Engineer A was constrained by conflict of interest avoidance obligations to disclose promptly to Smithtown the known and potential conflict of interest arising from his dual role as part-time town engineer and private consulting firm principal — particularly upon recognizing that his official advisory and review functions could directly benefit his private practice through displacement of Engineer B.
NSPE Code of Ethics Section II.4; Conflict of Interest Avoidance provisions
From the moment Engineer A recognized the potential conflict through the conclusion of the road project procurement
Engineer A Conflict of Interest Disclosure Supersession Before Advisory Critique Smithtown
Engineer A's private commercial interest in obtaining the successor design contract created a conflict of interest that required prompt disclosure before he exercised official review authority over Engineer B
Conflict of Interest Disclosure Supersession of Absolute Avoidance Constraint
Engineer A was obligated under the evolved conflict of interest disclosure standard to promptly disclose to Smithtown his competitive financial interest in the outcome of his evaluation of Engineer B's performance before conducting that evaluation — the disclosure obligation arising from the foreseeable benefit to Engineer A's private practice if Engineer B were terminated and Engineer A's firm captured the successor contract.
NSPE Code of Ethics Section II.4; Conflict of Interest Disclosure Evolution provisions
Before Engineer A undertook the performance review of Engineer B's preliminary work
Engineer A Conflict of Interest in Successor Contract
From the point at which Engineer A began reviewing Engineer B's work through the award of the successor contract to Engineer A's firm
Engineer A's personal and private commercial interest in obtaining the successor design contract conflicting with his professional obligation to conduct an objective, impartial performance review of Engineer B in his official town engineer capacity
Engineer A's private firm standing to benefit commercially from an adverse performance finding against Engineer B in Engineer A's official review capacity
Engineer A Disclosure Insufficiency Recognition Self-Review Conflict
Dual-Role Irreconcilable Conflict Identification Capability
Engineer A was required to possess the capability to recognize that disclosure of his conflict of interest would be insufficient to cure the ethical violation arising from accepting the road design contract — a capability he failed to exercise when he offered his firm's services.
The Board determined that unlike BER Case 01-11 where disclosure of further circumstances could manage the conflict, Engineer A's situation involved an irremediable self-review conflict that disclosure could not cure.
Failure to recognize disclosure insufficiency: Engineer A's offer to perform the road design work created a conflict that could not be cured by disclosure, as the Board determined that disclosure of further circumstances would not be sufficient to avoid the conflict or its appearance.
Engineer A Disclosure Insufficient Self-Review Conflict Smithtown Road Design
Unlike BER Case 01-11 where WXY Engineers did not review its own work, Engineer A's acceptance of the road design contract would place him in the position of reviewing his own work in his capacity as town engineer, making disclosure an insufficient cure.
Disclosure-Insufficient Self-Review Conflict Irresolvability Constraint
Engineer A's potential conflict of interest arising from accepting the Smithtown road design contract — after having advised on Engineer B's selection and conducted the performance review leading to Engineer B's termination — could not be resolved through disclosure of further circumstances, because the design engagement would place Engineer A in the position of reviewing his own work.
NSPE Code of Ethics; BER Case analysis distinguishing BER Case 01-11
At the time Engineer A offered and Smithtown considered accepting Engineer A's firm for the road design contract
Engineer A Dual-Role Advisory-Design Self-Review Prohibition Recognition
Engineer A was required to possess the capability to recognize that NSPE Code Section II.4.e prohibited him from accepting the road design contract from Smithtown after having advised on and concurred in Engineer B's selection and evaluated Engineer B's performance — a capability he failed to exercise when he offered his firm's services.
Engineer A served as part-time town engineer for Smithtown, advised on Engineer B's selection, evaluated Engineer B's performance deficiencies, and then offered his own firm to perform the road design work — triggering NSPE Code II.4.e prohibition.
Failure to recognize the prohibition: Engineer A offered his firm's design services for the Smithtown road project after serving as town engineer and evaluating Engineer B's performance, placing himself in the position of potentially reviewing his own work.
according to NSPE Code of Ethics, section II.4.e, is not eligible to provide engineering services to Smithtown for the local road project
Engineer A Dual-Role Advisory and Contractor Selection Non-Participation
Dual-Role Advisory and Contractor Selection Non-Participation Capability
Engineer A lacked or failed to exercise the capability to recognize at the outset that his dual role as part-time town engineer with advisory authority over contractor selection and as principal of a private consulting practice required him to refrain from advising on and concurring in Engineer B's selection.
Engineer A's participation in advising on and concurring in Engineer B's selection — while maintaining a private practice — established the foundational conflict that made all subsequent conduct ethically impermissible.
Failure demonstrated by Engineer A advising on and concurring in Engineer B's selection for the road design contract while simultaneously maintaining a private consulting practice that could subsequently seek to perform the same work.
Engineer A Dual-Role Conflict of Interest Disclosure to Smithtown
Engineer A simultaneously served as part-time town engineer (with authority over contractor selection and evaluation) and as principal of a private consulting practice that could perform the same road design work. This dual role created a known conflict of interest that required disclosure and, given the structural nature of the conflict, recusal from the design contract.
Engineer A was obligated to disclose to Smithtown the conflict of interest arising from his dual role as part-time town engineer and private consultant with a commercial interest in obtaining the road design contract, recognizing that the current ethics standard requires prompt disclosure of all known or potential conflicts — though in this case disclosure was insufficient to cure the structural conflict and recusal from the design engagement was required.
it is not uncommon for a professional engineer in private practice or an engineering firm to serve as a city, town, or county engineer.
Upon recognizing the dual-role conflict, and before advising on or evaluating Engineer B's performance
Questions naturally arise as to whether such work constitutes a clear conflict of interest and NSPE Code provisions clearly address many of these concerns.
The Board does not believe that the disclosure of any further circumstances (e.g., private work in town for a developer, reviewing its own work) would be sufficient to avoid a conflict of interest or the appearance of a conflict of interest.
the engineer must be scrupulously careful that his advice is not influenced by his secondary interest as the engineer likely to be retained for the design of the project.
Engineer A Dual-Role Ethical Boundary Recognition Road Project
Engineer A's situation differed from BER Case 01-11 (WXY Engineers as city engineer performing design on separate projects without self-review) because Engineer A would be reviewing his own advisory work on the same road project where he evaluated Engineer B.
Part-Time Municipal Engineer Dual-Role Advisory-Design Ethical Permissibility Boundary Obligation
Engineer A was obligated to recognize that the instant case fell outside the permissible dual-role precedents established in BER Cases 63-5, 74-2, and 01-11, because the combination of prior advisory role, evaluative role over the terminated contractor, and the self-review problem on the same project created a structural conflict not curable by disclosure — distinguishing this situation from cases where advisory and design roles on separate projects or without self-review were found permissible.
contrary to the situation in BER Case 01-11, the performance of such services by Engineer A potentially places him in the situation of reviewing his own work.
Upon considering whether to offer or accept the road design contract from Smithtown
the Board also concluded that it would be ethical for Engineer A and his firm WXY to serve as city engineer for City H and perform general consulting services and design services on individual projects under circumstances where those services did not include reviewing the work of Engineer A's firm.
Engineer A Dual-Role Municipal Engineer Contractor Selection Non-Participation
Engineer A advised on and concurred in Engineer B's selection while simultaneously operating a private consulting practice capable of performing the same road design services.
Dual-Role Municipal Engineer Contractor Selection Non-Participation Obligation
Engineer A was obligated to refrain from advising on and concurring in the selection of Engineer B for the road design contract, given that his private consulting practice was capable of performing the same work and could foreseeably benefit if the selected contractor failed or was terminated.
At the time Smithtown was selecting a design contractor for the local road project
Engineer A Dual Public-Private Role Conflict
From the inception of Engineer A's part-time town engineer role through the offer and acceptance of the successor design contract by Engineer A's firm
Engineer A's simultaneous role as part-time town engineer and private consulting firm principal
Not terminated within the described facts; persists through Engineer A's firm accepting the successor contract
With Engineer A's advice and concurrence, Smithtown selects Engineer B to provide design services
Engineer A simultaneously holding part-time town engineer position and operating a private consulting engineering practice while advising on selection of Engineer B
Engineer A Dual Public-Private Role Interrelated Domain Conflict Smithtown
Engineer A's governmental role as town engineer and his private consulting practice operated in the same domain of municipal engineering services, creating an irresolvable conflict when he sought to perform design work for the municipality he officially served
Dual Public-Private Role Interrelated Domain Conflict Non-Participation Constraint
Engineer A was prohibited from accepting private consulting engagements — including the Smithtown road design contract — in the same substantive domain as his governmental role as part-time town engineer, because the identity of subject matter between the governmental role and the private consulting engagement created an irresolvable conflict of interest that breached the basic trust as an honest and faithful agent for Smithtown.
NSPE Code of Ethics Section II.4; BER Cases 67-1 and 02-8
Throughout the period of Engineer A's service as part-time town engineer for Smithtown
Engineer A Dual Role Self-Review Conflict Smithtown Road Project
Engineer A's firm accepted the road design contract while Engineer A continued in his role as town engineer, creating a self-review situation where Engineer A would be in a position to review his own firm's work in his official capacity
Dual Role Self-Review Conflict Prohibition Constraint
Engineer A was prohibited from simultaneously serving as Smithtown's town engineer — with oversight and review authority over engineering design work performed for the municipality — and as the principal of the private firm performing that same design work, as this structural conflict of interest rendered both roles ethically impermissible to hold concurrently.
From the moment Engineer A's firm was engaged to perform the road design work while Engineer A continued as town engineer
Engineer A Faithful Agent Advisory Service to Smithtown Within Ethical Limits
Engineer A's faithful agent duty to Smithtown required candid performance assessment of Engineer B, but did not extend to accepting the design contract where doing so would create an irreconcilable conflict of interest under NSPE Code II.4.e.
Engineer A was obligated to serve Smithtown faithfully as its town engineer — including providing candid professional assessments of contractor performance — while remaining within the ethical limits imposed by the conflict-of-interest prohibition that precluded him from accepting the road design contract on the same project.
Throughout the duration of Engineer A's service as part-time town engineer for Smithtown
it is the Board's view that there are serious ethical constraints that would preclude the selection of Engineer A by the town to perform the road design work.
Engineer A Faithful Agent Obligation Within Ethical Limits Smithtown Road Project
Engineer A's faithful agent duty to Smithtown required honest advisory and evaluative services, but that duty was bounded by the ethical prohibition on conflicts of interest that arose from his dual role.
Engineer A was obligated to serve Smithtown's interests faithfully as part-time town engineer — including providing honest advice on contractor selection and impartial evaluation of contractor performance — but only within the ethical limits imposed by the NSPE Code, which precluded him from allowing his private commercial interest to influence his advisory and evaluative functions.
Throughout Engineer A's tenure as part-time town engineer for the road project
Engineer A Firm Road Design Self-Review Prohibition
From the town's consideration of Engineer A's firm for the road design work through the Board's determination of categorical ineligibility
Self-Review Prohibition Irresolvable by Disclosure State
Engineer A's firm's potential selection for the Smithtown road design project, which would place Engineer A in the position of reviewing his own work in his capacity as town engineer
Board's determination that Engineer A's firm is categorically precluded from performing the road design work under NSPE Code II.4.e
Town's consideration of selecting Engineer A's firm to perform road design work on a project Engineer A had advised upon as town engineer
Engineer A Governmental Employee Private Consulting Conflict Non-Engagement
Engineer A served as part-time town engineer for Smithtown while simultaneously operating a private consulting practice capable of performing the same road design services he was overseeing in his public role.
Governmental Employee Private Consulting Conflict Non-Engagement Obligation
Engineer A was obligated to refrain from accepting private consulting engagements in the same substantive domain as his governmental role as part-time town engineer — specifically road design services for the same municipality — recognizing that such dual engagement breached the basic trust as an honest and faithful agent for Smithtown and created conflicts of interest that could not be adequately managed through disclosure alone.
Upon accepting the part-time town engineer role and throughout the road project
Engineer A Municipal Advisory Legitimate Performance Criticism
From Engineer A's formation of the performance concern through the town's receipt of the advisory communication
Engineer A did have an affirmative obligation as town engineer to call to the attention of the city Engineer A's opinion that Engineer B had failed to meet the standards required to complete the local road project
Municipal Advisory Engineer Legitimate Performance Criticism State
Engineer A's professional opinion communicated to Smithtown that Engineer B failed to meet required standards for the local road project
Town's receipt of Engineer A's advisory communication and subsequent action
As a competent advisor to the town upon whose judgment the town undoubtedly relied, it would be appropriate for Engineer A to make comments in connection with Engineer B's professional services
Engineer A's assessment that Engineer B failed to meet the standards required to complete the local road project
Engineer A NSPE Code II.4.e Design Services Ineligibility Smithtown Road Project
Engineer A held dual roles as part-time town engineer (public official) and principal of a private consulting engineering firm, and offered his firm's design services to the municipality he officially served
Part-Time Public Engineer NSPE Code II.4.e Design Services Ineligibility Constraint
Engineer A, as part-time town engineer and therefore an officer or employee of Smithtown, was categorically ineligible under NSPE Code Section II.4.e to be selected by Smithtown to perform engineering design services for the local road project while simultaneously serving in his official town engineer capacity.
Engineer A Official Performance Review Competitive Displacement Prohibition Smithtown
Engineer A reviewed Engineer B's preliminary work in his official capacity, found it deficient, Engineer B was terminated, and Engineer A's firm then offered and was accepted to perform the design work
Official Performance Review Competitive Displacement Prohibition Constraint
Engineer A was prohibited from using his official town engineer authority to conduct an adverse performance review of Engineer B — which led to Engineer B's termination — and then capturing the successor design contract for his own private firm, as this sequence constituted competitive displacement through official authority in violation of conflict of interest and faithful agent obligations.
NSPE Code of Ethics Sections II.4, II.5, III.6, III.7; BER Case No. 01-11
From the initiation of Engineer A's performance review of Engineer B through Engineer A's offer to perform successor design work
Engineer A Official Review Authority Used to Displace Engineer B
From Engineer A's review of Engineer B's preliminary work through the award of the successor design contract to Engineer A's firm
Official Review Authority Used to Displace Peer Professional State
Engineer A's conduct of official performance review of Engineer B's work, leading to Engineer B's termination and Engineer A's firm capturing the successor contract
Not terminated within the described facts; the successor contract award to Engineer A's firm represents the culmination of the state
Engineer A, in official town engineer capacity, reviewing Engineer B's preliminary work and forming an adverse performance conclusion
Engineer A Part-Time Municipal Engineer Impartial Performance Evaluation
Engineer A evaluated Engineer B's preliminary design work in his capacity as town engineer while simultaneously operating a private consulting practice that could perform the same design services.
Part-Time Municipal Engineer Impartial Performance Evaluation Obligation
Engineer A was obligated to either conduct his evaluation of Engineer B's performance with complete impartiality — free from any private commercial interest in the outcome — or to recuse himself entirely from the evaluation, given that his private consulting practice was capable of performing the same road design work and stood to benefit if Engineer B were terminated.
At the time Engineer A reviewed Engineer B's preliminary work and formed conclusions about contract compliance
Engineer A Part-Time Municipal Engineer Performance Evaluation Impartiality
Part-Time Municipal Engineer Performance Evaluation Impartiality Capability
Engineer A lacked or failed to exercise the capability to conduct his evaluation of Engineer B's performance with complete impartiality, given that his private consulting practice stood to benefit commercially from a finding that Engineer B's performance was deficient.
As part-time town engineer with a private consulting practice, Engineer A's evaluation of Engineer B's preliminary design work was compromised by his potential commercial interest in the outcome of that evaluation.
Failure demonstrated by Engineer A conducting a performance evaluation of Engineer B while simultaneously positioned to offer his own firm as a replacement — creating an irreconcilable conflict between his evaluative role and his commercial interest.
Engineer A Part-Time Public Role with Private Practice Conflict
From Engineer A's advisory role in selecting Engineer B through the successor contract award to Engineer A's firm
Part-Time Public Role with Private Practice Conflict State
Engineer A's structural conflict arising from simultaneously advising on Engineer B's selection, reviewing Engineer B's performance in an official capacity, and then positioning his private firm to succeed Engineer B
Engineer A advising on Engineer B's selection while holding a private consulting practice, then conducting the official performance review that led to Engineer B's termination and his own firm's succession
{'license': 'Professional Engineer (implied)', 'dual_roles': ['Part-time town engineer', 'Private consulting firm principal'], 'conflict_type': 'Self-dealing — evaluative authority leveraged to create competitive opening for own firm'}
Serves simultaneously as part-time town engineer for Smithtown and as principal of a private consulting engineering practice; advises on and concurs in the selection of Engineer B; reviews and negatively evaluates Engineer B's preliminary design performance in his municipal role; and then offers and secures the vacated design contract for his own private firm.
{'type': 'advisor_to', 'target': 'Smithtown Municipal Client'}
{'type': 'competitor_to', 'target': 'Engineer B Municipal Road Project Design Contractor'}
{'type': 'evaluator_of', 'target': 'Engineer B Municipal Road Project Design Contractor'}
{'type': 'replacement_contractor_for', 'target': 'Smithtown Municipal Client'}
Dual-Role Part-Time Municipal Engineer Transitioning to Design Contractor
Engineer A Post-Termination Contractor Replacement Self-Offer Ethical Prohibition Recognition
Post-Termination Contractor Replacement Self-Offer Ethical Prohibition Recognition Capability
Engineer A lacked or failed to exercise the capability to recognize that evaluating Engineer B's performance and contributing to Engineer B's termination, then offering his own firm as replacement, constituted impermissible self-dealing regardless of the accuracy of his performance evaluation.
Engineer A's role as evaluator of Engineer B's performance and subsequent offer to replace Engineer B created an appearance of self-dealing that the capability would have required him to recognize and avoid.
Failure demonstrated by Engineer A's sequential conduct: reviewing Engineer B's preliminary work, concluding it did not meet contract standards, and then — following termination — offering his own firm to perform the design work.
Engineer A Prohibition on Accepting Road Design Contract After Advisory and Evaluative Role
After Engineer A evaluated Engineer B's preliminary work as deficient and Engineer B's contract was terminated, Smithtown sought to retain Engineer A's firm to perform the road design work. Engineer A offered to perform the design services.
Municipal Advisory Engineer Self-Review Prohibition Design Contract Acceptance Obligation
Engineer A was prohibited under NSPE Code Section II.4.e from accepting the road design contract from Smithtown after having advised on Engineer B's selection and evaluated Engineer B's performance, because acceptance would place Engineer A in the position of reviewing his own advisory work and constituted a structural conflict of interest not curable by disclosure.
Upon being approached by Smithtown to perform the road design work following Engineer B's termination
It is implied under the facts of this case that Engineer A is an officer or principal of his engineering firm, and thus according to NSPE Code of Ethics, section II.4.e, is not eligible to provide engineering services to Smithtown for the local road project.
This conclusion is based upon the language in Section II.4.e and is irrespective of whether the town's procurement laws are scrupulously followed.
the performance of such services by Engineer A potentially places him in the situation of reviewing his own work.
Engineer A Scrupulous Impartiality Advisory Role Smithtown
Engineer A's dual role as part-time town engineer and private consulting firm principal created the risk that his performance assessment of Engineer B could be influenced by his private commercial interest in capturing the successor design contract.
Part-Time Public Advisory Engineer Scrupulous Impartiality Constraint
Engineer A, in his capacity as part-time town engineer for Smithtown, was required to be scrupulously careful that his advisory opinions — including his performance assessment of Engineer B — were not influenced by his secondary private commercial interest in being retained for the successor road design contract.
NSPE Code of Ethics; BER Case No. 63-5 precedent
the engineer must be scrupulously careful that his advice is not influenced by his secondary interest as the engineer likely to be retained for the design of the project
Throughout Engineer A's tenure as part-time town engineer, particularly during the performance evaluation of Engineer B
Engineer A Small Municipality Dual Role Permissibility Boundary Smithtown
The BER distinguished the present case from prior permissible dual-role precedents on the grounds that Engineer A's advisory-to-design transition involved self-review potential and an irresolvable conflict not present in the prior cases.
Small Municipality Practical Dual-Role Permissibility Boundary Constraint
Engineer A's situation fell outside the permissible boundary of dual-role practice established by BER Cases 63-5, 74-2, and 01-11, because unlike those cases, Engineer A had advised on and concurred in the selection of Engineer B, conducted the performance review leading to Engineer B's termination, and then sought to capture the successor design contract — thereby creating a self-review potential and an irresolvable conflict that disclosure alone could not cure.
NSPE Code of Ethics Section II.4.e; BER Cases 63-5, 74-2, 01-11
At the time Engineer A offered his firm's design services to Smithtown following Engineer B's termination
Engineer A Small Municipality Practical Engineering Access Ethical Balancing
Small Municipality Practical Engineering Access Ethical Balancing Capability
Engineer A was required to possess the capability to balance the practical reality that small municipalities depend on part-time engineers against the ethical imperative to avoid conflicts of interest — recognizing that the public interest in engineering access does not override the prohibition on self-review conflicts.
The Board acknowledged the practical reality of small municipalities relying on part-time engineers while determining that this practical consideration did not override the ethical prohibition on Engineer A accepting the design contract.
The case context illustrates the tension: Engineer A's part-time advisory role served Smithtown's legitimate need for engineering expertise, but the transition to design contractor crossed the ethical boundary even given the municipality's limited resources.
it is not uncommon for communities with limited budgets to retain the services of a competent professional engineer or professional engineering firm to serve in an advisory or other capacity on engineering matters affecting the community
the practical reality for many professional engineers and engineering firms that by serving in a limited professional advisory role, they are precluded from consideration on actual engineering projects
the public interest was best served by providing the small municipalities with the most competent engineering services which they can acquire
Engineer A Terminated Contractor Professional Dignity Protection
Engineer A evaluated Engineer B's performance and contributed to Engineer B's termination while simultaneously having a private commercial interest in obtaining the same design contract.
Terminated Contractor Professional Dignity Protection Obligation
Engineer A was obligated to recognize that Engineer B had a professional dignity interest in being evaluated impartially, and that conducting the performance evaluation while holding a private commercial interest in Engineer B's termination constituted an injury to Engineer B's professional reputation and livelihood that could not be justified by Engineer A's subjective belief in the accuracy of the evaluation.
Engineer A Terminated Contractor Professional Dignity Protection Engineer B
The BER found that Engineer A's performance assessment of Engineer B did not exceed the bounds of legitimate advisory opinion and could not be construed as malicious or false injury to Engineer B's professional reputation.
Competitor Reputation Injury Prohibition Constraint
Engineer A was constrained from making statements about Engineer B's professional performance that could be construed as maliciously or falsely injuring Engineer B's professional reputation, prospects, practice, or employment — even while fulfilling his legitimate advisory obligation to inform Smithtown of Engineer B's performance deficiencies.
NSPE Code of Ethics Section III.7; BER Case analysis
During and after Engineer A's performance assessment of Engineer B
Engineer A Terminated Contractor Professional Dignity Protection Smithtown
Engineer A's adverse performance review of Engineer B led to Engineer B's termination, after which Engineer A's firm captured the successor contract — raising the question of whether the review was conducted impartially or served as a mechanism for competitive displacement
Engineer A was constrained from conducting his official performance review of Engineer B in a manner that injured Engineer B's professional reputation, prospects, or employment through the exercise of official authority structured to benefit Engineer A competitively — establishing that the prohibition on injuring a competitor's professional reputation applies with equal or greater force when the injurious conduct is channeled through official public authority rather than through direct competitive critique.
NSPE Code of Ethics Section III.7; BER Case 01-1
At the time of Engineer A's performance review of Engineer B and subsequent recommendation leading to Engineer B's termination
{'license': 'Professional Engineer', 'firm_role': 'Officer or principal of private engineering firm', 'engagement_type': 'Part-time advisory retainer'}
Engineer A served as part-time town engineer for Smithtown in an advisory capacity, evaluated Engineer B's performance on the local road project, advised the town that Engineer B failed to meet required standards, and was subsequently proposed by the town to assume the vacated design contract — a selection the Board found ethically impermissible under NSPE Code Section II.4.e.
{'type': 'client', 'target': 'Smithtown Municipal Client'}
{'type': 'conflict_of_interest', 'target': 'Municipal Road Project Design Contractor'}
{'type': 'peer_evaluator', 'target': 'Engineer B Municipal Road Project Design Contractor'}
Part-Time Municipal Engineer Advisory Only
Engineer A did have an affirmative obligation as town engineer to call to the attention of the city Engineer A's opinion that Engineer B had failed to meet the standards required
there are serious ethical constraints that would preclude the selection of Engineer A by the town to perform the road design work
Engineer A Town Engineer Advisory Role Conflict
Throughout Engineer A's tenure as town engineer for Smithtown, including the period of Engineer B's road project and its aftermath
Engineer A's simultaneous role as part-time town engineer and principal of private engineering firm
Engineer A's appointment as part-time town engineer while maintaining private engineering practice
Engineer A WXY Engineers City Engineer BER 01-11
{'license': 'Professional Engineer', 'firm_role': 'President of WXY Engineers', 'engagement_type': 'City engineer plus existing design contracts', 'case_reference': 'BER Case No. 01-11'}
In BER Case No. 01-11, Engineer A as president of WXY Engineers was considered for the city engineer role for City H while already holding three design contracts with the city. The Board found this ethical provided WXY did not review its own work, and cautioned that further conflicting circumstances would require additional disclosure.
{'type': 'client', 'target': 'City H Municipal Client BER 01-11'}
{'type': 'dual_role', 'target': 'City Engineer and Design Contractor'}
WXY Engineers, an engineering firm. For many years, WXY had provided services directly to City H
it would be ethical for Engineer A's firm, WXY Engineers, to serve as city engineer for City H, perform general consulting services, and also be under contract to provide specific design services
Engineer A's advisory role / concurrence in selecting Engineer B before Engineer B's preliminary design work
Engineer A's review of Engineer B's work before termination of Engineer B
Engineer A's role as part-time town engineer overlaps Engineer A's private consulting practice
Engineer A's role as part-time town engineer overlaps Engineer B's performance of design services
{'license': 'Professional Engineer', 'engagement_type': 'Part-time city engineer retainer plus project-specific design fees', 'case_reference': 'BER Case No. 63-5'}
In BER Case No. 63-5, Engineer B was retained part-time as city engineer while in full-time private practice, providing advisory services and also preparing plans and specifications for city projects on a fee basis above the retainer. The Board found this ethical provided advisory judgments were not influenced by the prospect of design commissions.
{'type': 'client', 'target': 'Small Community Municipal Client BER 63-5'}
{'type': 'dual_role', 'target': 'Advisory and Design'}
a small community retained a professional engineer, Engineer B, on a part-time basis to serve as city engineer
Engineer B was engaged in full-time private practice and treated his part-time service to the community as a public service
it is ethical for a professional engineer retained by a community on a part-time basis as a city engineer to prepare plans and specifications for a project for the same community
Engineer B City Engineer BER 63-5 Dual-Role Permissibility
In BER Case 63-5, Engineer B possessed the capability to serve as part-time city engineer while also preparing plans and specifications for city projects — demonstrating the permissible scope of dual-role arrangements when the engineer is scrupulously careful that advisory advice is not influenced by secondary design interests.
BER Case 63-5 established the foundational permissibility of dual-role municipal engineer arrangements, subject to the constraint that advisory advice must not be influenced by secondary design interests.
Engineer B served as part-time city engineer providing advisory services and was also retained to prepare plans and specifications for city projects, with the Board finding this ethical provided the engineer's advice was not influenced by secondary design interests.
The Board ruled that it is ethical for a professional engineer retained by a community on a part-time basis as a city engineer to prepare plans and specifications for a project for the same community, but in so acting the engineer must be scrupulously careful that his advice is not influenced by his secondary interest as the engineer likely to be retained for the design of the project
Engineer B Employment Terminated by Smithtown
From the formal termination of Engineer B's contract through the successor contract award
Following the termination of Engineer B under the terms and conditions of his contract with the town
Engineer B's contractual relationship with Smithtown, terminated following Engineer A's adverse performance review
Not applicable — termination is the state itself
Smithtown's termination of Engineer B under the terms and conditions of his contract, following Engineer A's adverse performance finding
Engineer B Municipal Road Project Design Contractor
{'license': 'Professional Engineer (implied)', 'project_phase': 'Preliminary design', 'termination_basis': 'Contractual performance standards'}
Selected by Smithtown with Engineer A's advice and concurrence to provide design services for a local road project; begins preliminary design services; is evaluated negatively by Engineer A in his town engineer role; and is terminated under contract terms, with his design work subsequently assumed by Engineer A's private firm.
{'type': 'evaluated_by', 'target': 'Engineer A Part-Time Town Engineer and Private Consultant'}
{'type': 'replaced_by', 'target': 'Engineer A Part-Time Town Engineer and Private Consultant'}
Municipal Road Project Design Contractor
Smithtown selects Engineer B to provide design services for a local road project
Engineer A reviews Engineer B's preliminary work and becomes convinced that Engineer B's performance on the contract does not meet the standards
Engineer B begins to perform preliminary design services
Engineer B Professional Dignity Protection in Performance Evaluation
Engineer A evaluated Engineer B's preliminary road design work as failing to meet contract standards, leading to Engineer B's termination. The evaluation was conducted while Engineer A held a private commercial interest in obtaining the same design work.
Engineer A (Part-Time Town Engineer evaluating Engineer B)
Engineer A was obligated to ensure that his evaluation of Engineer B's performance deficiencies did not constitute malicious or false injury to Engineer B's professional reputation, practice, or employment — confining assessment to factual professional deficiencies without exceeding the bounds of legitimate advisory commentary.
During and after the performance evaluation of Engineer B's work
{'license': 'Professional Engineer', 'engagement_type': 'Design contract for local road project'}
Engineer B was selected by Smithtown to provide design services for a local road project under a formal contract, was evaluated by Engineer A in his capacity as town engineer, and was found to have failed to meet the standards required to complete the project, leading to termination of the design contract.
{'type': 'evaluated_by', 'target': 'Engineer A Town Engineer Advisory Role'}
Engineer B had failed to meet the standards required to complete the local road project
There is nothing under the facts to suggest that anything said by Engineer A was beyond the bounds or could be construed as anything to injure maliciously or falsely the professional reputation or prospects, practice, or employment of Engineer B
it would be appropriate for Engineer A to make comments in connection with Engineer B's professional services
Engineer B WXY Engineers BER 01-11 Dual-Role City Engineer Permissibility
In BER Case 01-11, WXY Engineers possessed and exercised the capability to identify the conditions under which a dual-role city engineer arrangement is permissible — including the absence of self-review risk and the obligation to disclose further circumstances that could create conflicts — establishing the precedent boundary against which the instant case is distinguished.
BER Case 01-11 established that a firm serving as city engineer while also providing design services is permissible when the firm does not review its own work, providing the precedent boundary for the instant case.
WXY Engineers' arrangement with City H was found permissible because WXY did not perform private work for developers within City H and therefore would not be reviewing its own work — the critical distinction from Engineer A's situation in the instant case.
More recently, in BER Case No. 01-11, Engineer A was the president of WXY Engineers
WXY did not perform any private work for developers or other private parties within City H and, therefore, if WXY was designated city engineer for City H, WXY would not be reviewing the work it performed for private clients
the Board also concluded that it would be ethical for Engineer A and his firm WXY to serve as city engineer for City H and perform general consulting services and design services on individual projects under circumstances where those services did not include reviewing the work of Engineer A's firm
Engineer B's preliminary design work before Engineer A's review of Engineer B's work
Evaluator-to-Beneficiary Conflict Prohibition Applied to Engineer A Road Design
Engineer A's attempt to accept Smithtown road design contract following Engineer B's termination
Engineer A served in a public advisory role with authority to evaluate Engineer B's performance and recommend or concur in termination; Engineer A is prohibited from accepting the road design contract that became available as a direct result of that termination
The evaluator's authority over the contractor's fate creates an irreconcilable conflict of interest that taints any subsequent competitive benefit derived from the adverse outcome, making Engineer A ineligible for the design contract under NSPE Code Section II.4.e
Evaluator-to-Beneficiary Conflict Prohibition in Public Contracting
it is implied under the facts of this case that Engineer A is an officer or principal of his engineering firm, and thus according to NSPE Code of Ethics, section II.4.e, is not eligible to provide engineering services to Smithtown for the local road project
The conflict prohibition is categorical and cannot be cured by disclosure or procurement law compliance
it is this Board's view that there are serious ethical constraints that would preclude the selection of Engineer A by the town to perform the road design work
Evaluator-to-Beneficiary Conflict Prohibition Invoked Against Engineer A
Engineer B's performance evaluation and termination
Smithtown local road project design contract award to Engineer A's firm
Engineer A, acting in his public evaluative capacity as town engineer, reviewed Engineer B's preliminary work, determined it did not meet contract standards, and contributed to Engineer B's termination — then immediately offered his own firm to fill the resulting vacancy, converting his evaluative authority into direct commercial benefit
The evaluator-to-beneficiary prohibition applies with full force because Engineer A's evaluative act was the proximate cause of the commercial opportunity he then accepted — the conflict is not merely apparent but structural and irreconcilable
Engineer A, in his role as town engineer, reviews Engineer B's preliminary work and becomes convinced that Engineer B's performance on the contract does not meet the standards as outlined in Engineer B's contract with the town. Following the termination of Engineer B under the terms and conditions of his contract with the town, Engineer A offers, and Smithtown agrees, that Engineer A's firm should perform the design work for the local road project for Smithtown.
Even if Engineer A's evaluation of Engineer B was technically accurate and the termination was contractually justified, the subsequent acceptance of the contract violates the principle because the ethical prohibition is not contingent on whether the evaluation was correct but on whether the evaluator may benefit from its outcome
Faithful Agent Obligation Within Ethical Limits Invoked for Engineer A
Engineer A's advisory services to Smithtown
Engineer A's evaluation of Engineer B's performance
Engineer A's faithful agent obligation to Smithtown required him to serve the town's interests in obtaining quality design services for the road project — but this obligation did not extend to offering his own firm's services in a manner that exploited the conflict of interest created by his advisory and evaluative roles
The faithful agent obligation is bounded by the ethical limits imposed by conflict of interest principles — Engineer A could faithfully serve Smithtown by providing an honest evaluation of Engineer B's performance, but could not extend that faithful service to self-dealing by offering his own firm as the replacement
The faithful agent obligation yields to the conflict of interest prohibition when the agent's self-interest in the outcome of the agency relationship is direct and substantial
Formally Concluding Deficient Performance
Formally Concluding Deficient Performance → Engineer B Contract Terminated
Impartiality in Contractually Designated Dispute Resolution Role Invoked for Engineer A Performance Evaluation
Engineer A's evaluation of Engineer B's preliminary design work
Engineer A's role as town engineer required him to evaluate Engineer B's performance impartially against the contract standards — but his private commercial interest in obtaining the design contract for himself created a structural impediment to genuinely impartial evaluation, because Engineer A stood to benefit directly if Engineer B was terminated
Even if Engineer A's evaluation was technically accurate, the structural conflict between his evaluative role and his commercial interest in the outcome means that the evaluation cannot be presumed impartial — the principle requires not only actual impartiality but the structural conditions that make impartiality credible
Impartiality in Contractually Designated Dispute Resolution Role
The impartiality obligation was compromised by the conflict of interest — Engineer A should have recused from the performance evaluation or disclosed the conflict before conducting it
Loyalty Obligation of Municipal Advisory Engineer to Candid Assessment
Engineer A's advisory evaluation of Engineer B's performance for Smithtown
Prohibition on Reputation Injury Through Competitive Critique
Engineer A's loyalty obligation to Smithtown as his client required him to provide candid professional assessment of Engineer B's performance deficiencies, even though doing so created the conditions that led to Engineer B's termination and the design opportunity
Loyalty to the municipal client requires honest professional assessment of contractor performance; the loyalty obligation is fulfilled by candid evaluation, not by suppressing adverse assessments to avoid competitive implications
Loyalty to the municipal client prevails; candid assessment is required by the advisory role and does not constitute malicious injury to Engineer B
Municipal Advisory Engineer Performance Evaluation Obligation Fulfilled by Engineer A
Engineer A's evaluation and communication of Engineer B's performance deficiencies to Smithtown
Engineer A, as town engineer, fulfilled his affirmative obligation to advise Smithtown of his professional opinion that Engineer B had failed to meet the standards required to complete the local road project, acting consistently with the NSPE Code of Ethics
The municipal advisory role created an affirmative duty of candid professional assessment; Engineer A's evaluation was within the bounds of professional assessment and did not constitute malicious or false injury to Engineer B's professional reputation
Municipal Advisory Engineer Performance Evaluation Obligation
The advisory obligation to provide candid assessment to the municipal client prevails; the evaluation was grounded in professional judgment and did not exceed the bounds of honest professional evaluation
Municipal Advisory Role Self-Review Prohibition Applied to Engineer A
Engineer A's acceptance of the road design contract would place him in the position of reviewing his own work in his capacity as town engineer, creating a structural self-review conflict that distinguishes this case from BER Case No. 01-11 where WXY Engineers structured its role to avoid self-review
The self-review problem is a distinct and additional basis for prohibiting Engineer A's acceptance of the design contract, separate from the evaluator-to-beneficiary conflict — together they render the conflict irreconcilable and disclosure-proof
Municipal Advisory Role Self-Review Prohibition
Self-review is categorically prohibited; unlike BER Case No. 01-11 where the role was structured to avoid self-review, Engineer A's dual role would structurally require it
NSPE Board of Ethical Review inception before BER Case No. 63-5
National Society of Professional Engineers
NSPE Code provisions clearly address many of these concerns
Engineer A acted consistently with the NSPE Code of Ethics
NSPE Board of Ethical Review throughout the analysis
Referenced as the primary normative framework governing conflict of interest obligations, loyalty duties, and the ethical constraints on Engineer A's conduct as town engineer and potential design engineer
NSPE Code of Ethics - Primary Normative Authority
Engineer A offers, and Smithtown agrees, that Engineer A's firm should perform the design work for the local road project
Primary ethical authority governing Engineer A's obligations as both a public official (town engineer) and private practitioner, particularly regarding conflict of interest, self-dealing, and the prohibition on using public authority for private gain
NSPE Code of Ethics for Engineers, Section II.4.e
NSPE Board of Ethical Review in analyzing Engineer A's eligibility to perform road design work
Cited as the specific provision rendering Engineer A ineligible to provide engineering services to Smithtown for the local road project while serving as town engineer, irrespective of procurement law compliance
Objectivity Obligation of Municipal Advisory Engineer
Engineer A's advisory role and evaluation of Engineer B's performance
Competitive Employment Freedom With Confidentiality Constraint
Engineer A's advisory role required that his advice to Smithtown not be influenced by his secondary interest as the engineer likely to be retained for the design of the project — the objectivity obligation requires scrupulous separation of advisory assessment from competitive self-interest
The objectivity principle in the municipal advisory context requires that advisory opinions be grounded solely in professional assessment of the contractor's performance, not in the advisory engineer's competitive interest in the design opportunity that would flow from an adverse evaluation
Objectivity requires scrupulous separation of advisory assessment from competitive self-interest; the ethical violation arises not from the evaluation itself but from the subsequent attempt to benefit from it through the design contract
Offering Own Firm's Services → Smithtown Accepts Engineer A's Firm
Part-Time Municipal Engineer Competitive Disadvantage Acknowledgment in Instant Case
Engineer A's competitive position as part-time town engineer relative to other engineering firms
The Board acknowledges the practical competitive disadvantage faced by Engineer A and other part-time municipal advisory engineers who are precluded from competing on public engineering projects, while maintaining that this disadvantage does not excuse the ethical prohibition on accepting the road design contract
The competitive disadvantage of the advisory role is a recognized professional cost that the profession has grappled with since the late 1950s, but it does not override the ethical constraints on conflicted design engagements
Part-Time Municipal Engineer Competitive Disadvantage Acknowledgment and Ethical Constraint
On the flip side of the issue is the practical reality for many professional engineers and engineering firms that by serving in a limited professional advisory role, they are precluded from consideration on actual engineering projects; the professional engineer or the engineering firm is placed at a significant competitive disadvantage in relation to other engineers and engineering firms that may freely compete on such public engineering projects
Ethical constraints on conflicted design work prevail over competitive disadvantage considerations; the profession must find structural solutions that minimize unnecessary competitive exclusion while preserving procurement integrity
Since its inception in the late 1950s, the NSPE Board of Ethical Review has considered many cases involving conflicts of interest issues of this type
Procurement Integrity in Public Engineering Invoked for Smithtown Road Project
Engineer B termination and replacement process
Smithtown local road project design contract award
Smithtown's acceptance of Engineer A's offer to perform the design work — after Engineer A had advised on the selection of the terminated contractor and evaluated that contractor's performance — compromised the integrity of the public engineering procurement process by allowing a conflicted advisor to directly benefit from the adverse outcome he participated in producing
Public procurement integrity requires not only that the initial selection be fair but that replacement selections following termination also be conducted through processes free from the influence of conflicted advisors — Smithtown's acceptance of Engineer A's offer without an independent selection process violated this principle
Procurement Integrity in Public Engineering
Procurement integrity is not subordinated to the client's convenience in accepting a known advisor's offer — the public interest in fair procurement requires an independent selection process even when the client is willing to waive it
Professional Dignity Invoked for Engineer B Road Design Contractor
Engineer B's performance evaluation by Engineer A
Engineer B's termination from the Smithtown road project
Engineer B's professional standing was adversely affected by being evaluated and terminated by an engineer who had a direct commercial interest in the outcome of that evaluation — the process by which Engineer B was terminated failed to respect Engineer B's professional dignity by subjecting his work to evaluation by a conflicted evaluator
Professional dignity requires that engineers whose work is evaluated be evaluated by disinterested parties — evaluation by a conflicted evaluator who stands to benefit from an adverse outcome fails to respect the evaluated engineer's professional standing
Engineer B's professional dignity interest reinforces the conflict of interest prohibition — the prohibition protects not only procurement integrity but also the dignity of engineers whose professional work is subject to conflicted evaluation
Professional Dignity Obligation Limiting Engineer A's Evaluation of Engineer B
Engineer A's communication to Smithtown regarding Engineer B's performance failures
Engineer A's evaluation of Engineer B's performance deficiencies was bounded by the professional dignity obligation not to injure maliciously or falsely the professional reputation of Engineer B — the Board found that Engineer A's evaluation did not exceed these bounds
Professional dignity requires that performance evaluations in the advisory context be grounded in honest professional assessment and not exceed the bounds of legitimate professional critique — the obligation is satisfied when the evaluation is factually grounded and not maliciously motivated
Professional dignity is respected when the evaluation is honest and professionally grounded; it does not prohibit candid adverse assessment required by the advisory role
Prohibition on Reputation Injury Through Competitive Critique Invoked for Engineer B
Engineer B's professional reputation and standing
Engineer A's evaluation of Engineer B's preliminary work — conducted while Engineer A had a private commercial interest in obtaining the same contract — constitutes a form of competitive critique rendered in circumstances where Engineer A stood to benefit professionally from Engineer B's diminished standing and termination
The prohibition applies because Engineer A's evaluative authority was exercised in a context where he had a direct competitive interest in the outcome — even if the evaluation was technically accurate, the structural conflict taints the evaluation as a form of competitive critique that injured Engineer B's professional standing
The prohibition on reputation injury through competitive critique reinforces the recusal obligation — Engineer A should not have conducted the evaluation given his competitive interest in the outcome
Public Official Conflict of Interest Standard - Town Engineer Dual Role
Professional Norms Governing Engineer-Public Officials in Dual Roles
Public Official Conflict of Interest Standard
Governs Engineer A's ethical obligations arising from his simultaneous role as part-time town engineer (public official) and private consulting engineer, establishing that he must not exploit his public supervisory authority to displace a competitor and then benefit privately from that displacement
Public Welfare Paramount in Small Municipality Engineering Services Context
Small municipality engineering service arrangements in BER Cases 63-5, 74-2, and 01-11
The Board's analysis of multiple BER cases reflects the fundamental principle that public welfare is best served by providing small municipalities with the most competent engineering services they can acquire, which justifies permitting dual advisory-design roles when structural conflicts are absent
Public welfare in the municipal engineering context requires balancing the public's interest in competent advisory services against the public's interest in procurement integrity — both are public welfare values that must be pursued simultaneously
the Board determined that the public interest was best served by providing the small municipalities with the most competent engineering services which they can acquire
Public welfare is served by permitting dual roles when structurally managed, but requires categorical prohibition when structural conflicts are irreconcilable
This relationship, while generally a reasonable response to the needs of the community, can sometimes raise ethical questions regarding whether and to what extent the professional engineer or professional engineering firm may go beyond the role of professional advisor
Qualification-Based Selection Procurement Law - Public Engineering Contract Award
State and Local Statutory Provisions Governing Public Engineering Contract Procurement
Qualification-Based Selection Procurement Law
Smithtown agrees, that Engineer A's firm should perform the design work for the local road project for Smithtown
Provides the legal framework governing how Smithtown must procure replacement engineering services following Engineer B's termination, establishing whether Engineer A's firm may be directly engaged without competitive procurement and the procedural safeguards applicable to public engineering contracts
Was it ethical for Engineer A to contact Smithtown and advise the town that Engineer B’s performance on the contract did not meet the standards as outlined in Engineer B’s contract with the town?
At what point was Engineer A obligated to disclose the conflict of interest arising from his dual role as part-time town engineer and private consultant before conducting the performance review of Engineer B — and did the failure to disclose before initiating that review independently render the review ethically tainted, regardless of whether the performance criticism was substantively accurate?
Should Engineer A have recused himself entirely from the performance evaluation of Engineer B once it became foreseeable that a negative finding could create an opportunity for Engineer A's own firm to obtain the design contract — and if so, what independent mechanism should Smithtown have used to conduct that evaluation?
Does Smithtown bear independent ethical responsibility for accepting Engineer A's offer to perform the design work, given that the town was in a position to recognize the structural conflict of interest created by Engineer A's dual role — and does the Board's conclusion adequately address Smithtown's own complicity in this arrangement?
Would the ethical analysis change if Engineer A had proactively recused himself from the performance evaluation and Smithtown had independently terminated Engineer B through a separate review process — and under those circumstances, would Engineer A's firm then be eligible to compete for the successor design contract?
Was it ethical for Engineer A to offer and agree to perform the road design work for Smithtown?
Does the Faithful Agent Obligation requiring Engineer A to provide candid performance assessments to Smithtown conflict with the Conflict of Interest Recusal Obligation that arguably required Engineer A to abstain from evaluating Engineer B once Engineer A's firm stood to benefit from a negative finding — and how should an engineer resolve this tension when both duties are simultaneously triggered?
Does the Municipal Advisory Engineer Performance Evaluation Obligation — which the Board found fulfilled by Engineer A — conflict with the Prohibition on Reputation Injury Through Competitive Critique, given that Engineer A had a direct competitive financial interest in the outcome of the evaluation he conducted, making it structurally impossible to distinguish legitimate professional criticism from self-interested displacement?
Does the Public Welfare Paramount principle — which recognizes that small municipalities like Smithtown may have limited access to engineering services and may practically depend on their part-time town engineer's firm — conflict with the Evaluator-to-Beneficiary Conflict Prohibition, and should the severity of that structural conflict override public welfare considerations even when no alternative engineering resources are readily available?
Does the Conflict of Interest Disclosure Evolution Principle — which suggests that disclosure may be sufficient to cure certain dual-role conflicts — conflict with the Disclosure Insufficiency for Structural Conflict principle applied in this case, and what distinguishes conflicts where disclosure is curative from those where the structural nature of the conflict renders even full disclosure ethically inadequate?
From a deontological perspective, did Engineer A fulfill a categorical duty of impartiality when evaluating Engineer B's performance, given that Engineer A simultaneously held a private consulting interest that would directly benefit from Engineer B's termination?
From a virtue ethics standpoint, did Engineer A demonstrate the professional integrity and practical wisdom required of a part-time municipal engineer when he chose to report Engineer B's deficiencies without first disclosing his own competing financial interest to Smithtown?
From a consequentialist perspective, did the overall outcome of Engineer A's dual actions — reporting Engineer B's deficiencies and then accepting the successor design contract — produce a net harm to the integrity of public engineering procurement that outweighs any benefit Smithtown received from obtaining a replacement engineer quickly?
From a deontological perspective, does NSPE Code Section II.4.e impose an absolute prohibition on Engineer A accepting the road design contract regardless of whether Engineer A's performance review of Engineer B was objectively accurate, or does the duty depend on the subjective intent behind the review?
Would Engineer A's adverse performance review of Engineer B have been ethically permissible if Engineer A had first formally disclosed his private consulting firm's potential competitive interest to Smithtown and recused himself from any subsequent contractor selection process?
If Engineer A had declined to offer his firm's services after Engineer B's termination and Smithtown had instead selected an independent third-party engineer through a competitive process, would Engineer A's original performance review of Engineer B be retroactively cleansed of its conflict of interest taint?
Would the Board's conclusion on Question 2 have differed if Smithtown were so small and geographically isolated that no other qualified engineering firm was realistically available to complete the road design project, invoking the small municipality public welfare exception recognized in prior BER precedent?
What if Engineer B had voluntarily withdrawn from the contract rather than being terminated by Smithtown — would Engineer A's subsequent offer to perform the road design work still constitute an impermissible conflict of interest, or does the absence of a formal adverse evaluation change the ethical calculus under Section II.4.e?
Small Municipality Smithtown Public Welfare Engineering Access Facilitation
Smithtown, like many small communities with limited budgets, retained a part-time town engineer to access competent engineering advisory services. The ethical constraints on dual-role service imposed a competitive disadvantage on Engineer A that the Board acknowledged as a practical reality of the part-time municipal engineer arrangement.
Smithtown Municipal Government and Engineering Profession Generally
Small Municipality Engineering Service Access Public Welfare Facilitation Obligation
Smithtown and the engineering profession were obligated to recognize that the public interest is best served by providing small municipalities with access to competent engineering services, and to structure part-time municipal engineering arrangements to achieve this objective within ethical conflict-of-interest boundaries — acknowledging that the competitive disadvantage imposed on Engineer A by the conflict prohibition is an ethical cost that does not override the prohibition but should be minimized through careful role structuring in future arrangements.
it is not uncommon for communities with limited budgets to retain the services of a competent professional engineer or professional engineering firm to serve in an advisory or other capacity on engineering matters affecting the community.
In structuring and administering the part-time town engineer arrangement
the Board determined that the public interest was best served by providing the small municipalities with the most competent engineering services which they can acquire.
the practical reality for many professional engineers and engineering firms that by serving in a limited professional advisory role, they are precluded from consideration on actual engineering projects; the professional engineer or the engineering firm is placed at a significant competitive disadvantage
Smithtown Municipal Client Non-Complicity in Engineer A Design Contract Acceptance
After Engineer A evaluated Engineer B's work as deficient and Engineer B's contract was terminated, Smithtown accepted Engineer A's offer to perform the road design services, despite Engineer A's prior advisory and evaluative roles on the same project.
Municipal Client Procurement Integrity Non-Complicity Obligation
Smithtown was obligated to refrain from accepting Engineer A's offer to perform the road design work after Engineer A had advised on Engineer B's selection and evaluated Engineer B's performance, recognizing that acceptance made the municipality complicit in a structural conflict of interest that undermined procurement integrity and harmed Engineer B's professional standing.
Upon receiving Engineer A's offer to perform the road design work following Engineer B's termination
{'entity_type': 'Municipal government', 'procurement_concern': "Awarded replacement contract to the evaluating town engineer's own firm without independent review"}
Retains Engineer A as part-time town engineer; relies on Engineer A's advice in selecting Engineer B as design contractor; accepts Engineer A's negative performance evaluation of Engineer B; terminates Engineer B under contract terms; and then agrees to award the replacement design contract to Engineer A's own private firm.
{'type': 'client_of', 'target': 'Engineer B Municipal Road Project Design Contractor'}
{'type': 'employer_of', 'target': 'Engineer A Part-Time Town Engineer and Private Consultant'}
{'type': 'replacement_client_of', 'target': 'Engineer A Part-Time Town Engineer and Private Consultant'}
Smithtown Municipal Government Municipal Client Procurement Self-Dealing Offer Declination
Municipal Client Procurement Self-Dealing Offer Declination Capability
Smithtown lacked or failed to exercise the capability to recognize and decline Engineer A's offer to perform design services for the road project — a project on which Engineer A had previously served as advisor and evaluator — thereby becoming complicit in the conflict of interest.
Smithtown's acceptance of Engineer A's offer to replace Engineer B — after Engineer A had advised on Engineer B's selection and evaluated Engineer B's performance — constituted complicity in an impermissible conflict of interest.
Failure demonstrated by Smithtown agreeing to Engineer A's offer to perform the design work after Engineer A had advised on Engineer B's selection and evaluated Engineer B's performance.
Smithtown Municipal Government Procurement Integrity Non-Complicity
Smithtown accepted Engineer A's offer to perform design work on the same project for which Engineer A had previously advised on contractor selection and evaluated the terminated contractor's performance.
Smithtown was obligated to decline Engineer A's offer to perform the road design work after Engineer A had advised on Engineer B's selection and evaluated Engineer B's performance in his capacity as town engineer, and instead to conduct an open competitive procurement for replacement design services, so as not to be complicit in Engineer A's conflict of interest.
Upon receiving Engineer A's offer to perform the design work following Engineer B's termination
Smithtown Municipal Government Procurement Integrity Non-Complicity Constraint
Smithtown agreed to engage Engineer A's firm for the road design project after Engineer A, in his official capacity, had reviewed and found deficient the work of the previously selected contractor
Competitive Procurement Fairness Constraint
Smithtown was constrained by competitive procurement fairness obligations from accepting Engineer A's offer to perform the road design work after Engineer A had advised on Engineer B's selection, reviewed Engineer B's performance in an official capacity, and participated in Engineer B's termination — the municipality's acceptance of the conflicted offer rendering it complicit in the procurement integrity violation.
NSPE Code of Ethics; Qualification-Based Selection Procurement Law; Public procurement integrity principles
At the time Smithtown agreed to engage Engineer A's firm for the road design work following Engineer B's termination
Smithtown Municipal Government Procurement Integrity Non-Complicity Engineer A Design Contract
Smithtown's acceptance of Engineer A's design services offer would have perpetuated the conflict of interest created by Engineer A's dual advisory and competitive role, undermining the integrity of the public procurement process.
Smithtown was constrained from accepting Engineer A's offer to perform the road design work after Engineer A had advised on Engineer B's selection, conducted the performance review leading to Engineer B's termination, and then offered his own firm's services — as acceptance would constitute complicity in a procurement process that violated NSPE Code Section II.4.e and the principle of competitive procurement fairness.
NSPE Code of Ethics Section II.4.e; public procurement integrity principles
At the time Smithtown considered accepting Engineer A's offer to perform the road design work
Smithtown Municipal Government Procurement Integrity Non-Complicity Recognition
Smithtown was required to possess the capability to recognize and decline Engineer A's offer to perform the road design work after Engineer A had served as town engineer and evaluated Engineer B's performance — a capability the municipality failed to exercise when it accepted Engineer A's offer.
Smithtown accepted Engineer A's offer to perform road design services after Engineer A had advised on Engineer B's selection and evaluated Engineer B's performance deficiencies as town engineer.
Failure to decline the conflicted offer: Smithtown accepted Engineer A's offer to perform the road design work despite Engineer A's prior advisory and evaluative role, creating complicity in the conflict of interest.
WXY Engineers BER 01-11 Permissible Dual-Role City Engineer Design Services
BER Case 01-11 precedent: WXY Engineers served as city engineer for City H while also holding three engineering contracts with the city. The Board found this permissible because WXY did not perform private work for developers within City H and would not be reviewing its own work. This precedent was distinguished from the instant case because Engineer A would be reviewing his own advisory work.
Engineer A (WXY Engineers, City Engineer for City H — BER Case 01-11)
In BER Case 01-11, WXY Engineers was obligated to disclose further circumstances that could create conflicts of interest (such as private work within the city or reviewing its own work) while being permitted to serve as city engineer and perform design services on individual projects, provided those services did not include reviewing WXY's own work — establishing the permissible boundary that the instant case exceeded.
During WXY Engineers' service as city engineer for City H
However, the Board also cautioned that WXY would need to disclose further circumstances (e.g., private work in city, reviewing its own work) that could create the potential for a conflict of interest.
WXY Engineers' existing contracts with City H before Engineer B (city engineer) resignation
termination of Engineer B before Engineer A offering his firm's services for the road project