NSPE Board of Ethical Review Case Precedents on Municipal Engineer Dual Role and Conflict of Interest
For many years, WXY has provided services directly to City H (a small city), and WXY currently has three contracts directly with the city for separate projects with City H.
City H officials are currently considering whether to replace Engineer B with another full-time city engineer or, as a cost cutting and efficiency measure, to hire a consultant (such as WXY Engineers) as the city engineer.
Engineer A, ethics reviewers analyzing the case
Prior BER decisions addressing analogous situations where engineering firms held simultaneous consulting contracts and public engineering roles with the same municipality, providing analogical reasoning patterns for this case
BER 74-2 Municipal Engineer Firm Small Municipality Public Interest Justification Instance
Small Municipality Dual-Role Public Interest Justification Recognition Capability
The consulting firm principal serving as municipal engineer under state law recognized that the public interest in providing small municipalities with the most competent engineering services they can acquire justifies the dual-role arrangement in which the firm also provides design services for capital improvement projects.
BER Case 74-2: state law required every municipality to have a municipal engineer; smaller communities retained consulting firm principals in this role
Serving as municipal engineer while firm provided engineering services for capital improvement projects, justified by the public interest in small municipality access to competent engineering
Municipal engineer firm principal (BER Case 74-2)
Many of the smaller communities in the state did not have and could not afford full-time municipal engineers or supporting staff personnel for a full-time office
It is assumed that the state law was intended to achieve this end
the Board determined that the public interest is best served by providing to the small municipalities the most competent engineering services which they can acquire
BER 74-2 Small Municipality State Law Dual-Role Permissibility Instance
BER Case 74-2: State law required municipal engineers; small communities could not afford full-time engineers; consulting firm principals served as municipal engineers while their firms provided capital improvement services
Consulting firm principals serving as municipal engineers in small municipalities (BER Case 74-2)
Small Municipality Public Interest Dual-Role State Law Permissibility Constraint
Under state law requiring every municipality to have a municipal engineer, consulting firm principals appointed as municipal engineers for small municipalities that cannot afford full-time engineers were ethically permitted to have their firms also provide engineering services for capital improvement projects — because the public interest in providing small municipalities with the most competent engineering services they can acquire justified the arrangement.
NSPE BER Case 74-2; State law requiring municipal engineers; NSPE Code of Ethics
Duration of the municipal engineer appointment and associated consulting firm engagements
In such instances the smaller communities retained the services of a consulting firm in private practice and appointed a principal of the firm as the municipal engineer
BER Case No. 63-5 (circa 1963) before BER Case No. 74-2 (circa 1974)
In an early case, BER Case No. 63-5... Later, in BER Case No. 74-2
BER Case No. 74-2 (circa 1974) before current WXY/City H case
Later, in BER Case No. 74-2... Turning to the facts, the Board believes many of the same considerations present in BER Case Nos. 63-5 and 74-2 are applicable to the present case.
BER Multi-Precedent Conflict Assessment Integration City H Instance
Present case: City H official concluded WXY's existing contracts created a conflict of interest; Board found this conclusion inconsistent with multiple BER precedents addressing analogous dual-role arrangements
City H officials / Engineer A / NSPE Board of Ethical Review
BER Precedent Multi-Case Conflict Assessment Integration Constraint
City H's conflict-of-interest concern about WXY's appointment as city engineer was required to be assessed against the cumulative weight of multiple BER precedents (Cases 63-5, 74-2, and subsequent decisions) — not evaluated in isolation — and the city official's conclusion that the arrangement constituted a conflict of interest was found ethically unsupported because it contradicted the accumulated BER guidance on analogous arrangements.
NSPE BER Cases 63-5, 74-2, and subsequent decisions; NSPE Code of Ethics
Both the previously cited BER cases, as well as subsequent BER decisions, do not agree with the city official's conclusion
At the time of City H's appointment decision for city engineer
Over the years, conflicts of interest issues have been regularly considered by the NSPE Board of Ethical Review
the Board believes many of the same considerations present in BER Case Nos. 63-5 and 74-2 are applicable to the present case
The current ethical analysis is no longer conducted on a blank slate; prior rulings provide a framework that constrains and guides the Board's reasoning, making the outcome more predictable but also more principled
BER Case No. 63-5: circa 1963; BER Case No. 74-2: circa 1974; both prior to the current case
Two prior NSPE Board of Ethical Review rulings, BER Case No. 63-5 (1963) and BER Case No. 74-2 (1974), were established as precedent, addressing analogous dual-role scenarios involving part-time city engineers and consulting firms serving municipalities. These precedents exist as fixed historical outcomes that shape the current analysis.
BER Precedent Cases Established → Ethical Permissibility Outcome Reached
The NSPE Board of Ethical Review made a deliberate adjudicative decision, drawing on two historical precedent cases, BER Case No. 63-5 (1963) and BER Case No. 74-2 (1974), to conclude that it would be ethical for WXY Engineers to serve as city engineer
Without the prior BER precedents, the Board would have lacked an established doctrinal framework, making a permissibility ruling far less certain and potentially resulting in a different or deferred outcome
Existence of BER Case No. 63-5 establishing baseline permissibility of consulting firms serving as municipal engineers
Existence of BER Case No. 74-2 refining conditions under which dual roles are acceptable
The BER's authority to apply precedent to new fact patterns
WXY's policy of declining private work within City H (satisfying a key condition from precedent)
Two directly applicable precedents + WXY's conflict-mitigation policy (declining private work) + BER adjudicative authority = sufficient basis for an ethical permissibility ruling
The conditionality of the ruling (requiring disclosure and no self-review) may be overlooked in practice
The ruling may be cited to justify similar arrangements in other municipalities, potentially normalizing dual roles without adequate scrutiny of case-specific facts
Duty to provide clear, reasoned ethical guidance to the profession
Duty to serve the public interest by enabling small municipalities to access competent engineering services
Obligation to apply NSPE Code principles consistently with established precedent
Obligation to identify and articulate the conditions under which an otherwise problematic arrangement becomes ethically permissible
Conflicts of interest must be avoided or disclosed
Engineers shall hold paramount the safety, health, and welfare of the public
Engineers shall not allow secondary interests to compromise professional judgment
Practical public interest considerations inform ethical permissibility in resource-constrained contexts
Provide authoritative ethical guidance that balances the public interest in accessing competent municipal engineering services against the need to prevent conflicts of interest, while establishing clear conditions under which dual roles are permissible
Application of NSPE Code to complex dual-role scenarios
Balancing competing public interest and professional integrity considerations
Ethical adjudication and precedent analysis
The NSPE Board of Ethical Review made a deliberate adjudicative decision, drawing on two historical precedent cases, to determine that it is ethical for Engineer A and WXY to serve as city engineer while holding design contracts with City H, subject to the condition that WXY does not review its own work and discloses future conflict-creating circumstances.
CausalLink_Board Ruling on Ethical Permis
CausalLink_Considering WXY as City Engine
CausalLink_Declining Private Work Within
CausalLink_Establishing Long-Term City Co
CausalLink_Raising Conflict-of-Interest C
City H Officials Informed Appointment Decision Facilitation - Conflict Information
City H must make an informed appointment decision; one official has already raised a conflict concern that requires full investigation before proceeding
Municipal Client Structural Conflict Full Disclosure Pre-Appointment Constraint
City H officials are constrained to ensure they have complete and accurate conflict-of-interest information — including the self-oversight implications of WXY's three active contracts and the partial mitigation from absence of private developer work — before making the city engineer appointment decision, and to seek independent advice if WXY cannot provide impartial guidance on the structural appointment question.
NSPE Code of Ethics; public official conflict-of-interest standards
One city official has raised a concern that because WXY is under contract with City H, having WXY serve as city engineer would constitute a conflict of interest
During the appointment deliberation process
City H officials are currently considering whether to replace Engineer B with another full-time city engineer or, as a cost cutting and efficiency measure, to hire a consultant (such as WXY Engineers) as the city engineer
City H Officials Informed City Engineer Appointment Decision Facilitation
Municipal Client Informed City Engineer Appointment Decision Facilitation Capability
City H officials must possess the capability to ensure they have complete and accurate conflict-of-interest information — including the self-oversight implications of WXY's three active contracts — before making the city engineer appointment decision
City H officials are deliberating on whether to hire a full-time replacement or appoint WXY Engineers as consulting city engineer
Deliberation process that includes full conflict-of-interest analysis, including the concern raised by one official, before deciding whether to appoint WXY as consulting city engineer
It would be ethical for Engineer A’s firm, WXY Engineers, to serve as city engineer for City H, perform general consulting services, and be under contract to provide specific design services.
Beyond the Board's finding that WXY Engineers may ethically serve as city engineer while holding three active design contracts, the Board's reasoning implicitly depends on a disclosure condition that is neither independently verifiable nor self-enforcing. The ethical permissibility of the dual role rests on Engineer A's ongoing obligation to disclose all known or potential conflicts as they evolve, yet the Board provides no mechanism by which City H officials can confirm that such disclosures are timely, complete, or structurally insulated from Engineer A's financial self-interest in retaining and expanding WXY's design contract portfolio. This gap is significant: if the ethical clearance is conditioned on disclosure, and disclosure is the sole structural safeguard, then the entire permissibility framework collapses if Engineer A underreports a prospective conflict, whether intentionally or through motivated reasoning. The Board should have explicitly recommended that City H establish an independent review trigger—such as requiring a second engineering opinion before awarding any new design contract to WXY under the city engineer arrangement—to give the disclosure obligation operational teeth rather than leaving it as an unverifiable ethical aspiration.
The Board's approval of WXY's dual role, while grounded in the small-municipality public interest justification drawn from prior precedent, creates an unaddressed precedential risk by failing to explicitly confine its ruling to small-municipality contexts. The structural self-oversight conflict that arises when a multi-contract incumbent firm simultaneously advises a city on engineering needs and executes paid design work under that same advisory umbrella is qualitatively more dangerous in larger municipalities where contract values are greater, the number of concurrent projects is higher, and the financial incentive to distort advisory judgment is correspondingly amplified. By issuing a general permissibility ruling without a size or resource-scarcity qualifier, the Board leaves open the possibility that the ruling could be cited as precedent to justify identical arrangements in mid-sized or large cities where the small-municipality public interest rationale does not apply and where the absence of private client work within the jurisdiction provides far weaker mitigation relative to the scale of the structural conflict. The Board's reasoning would have been more analytically complete had it explicitly stated that the ethical permissibility is contingent on the municipality lacking the fiscal capacity to employ a full-time independent city engineer, and that the arrangement becomes presumptively impermissible as municipal size and engineering budget increase.
The Board's reasoning treats the absence of private client work within City H as a meaningful conflict mitigation factor, but this framing obscures a more fundamental and unresolved tension: the structural self-oversight problem in the WXY arrangement does not arise from WXY reviewing its own private-client work, but from WXY, acting as city engineer, effectively recommending, scoping, and potentially influencing the award of design contracts that WXY itself will then be paid to execute. The no-private-work factor, while relevant to one category of conflict identified in prior precedent, does not address this distinct self-referential advisory loop. A city engineer who recommends that a particular infrastructure project requires engineering design services, and whose firm then receives the contract for those services, faces a financial incentive to identify more projects, recommend broader scopes, and favor design solutions that generate billable work—regardless of whether any private clients are involved. The Board should have separately analyzed this prospective-contract self-interest conflict as a category distinct from the private-client self-review conflict, and should have conditioned ethical permissibility on a structural requirement that WXY recuse itself from any advisory recommendation that directly triggers a new design contract opportunity for WXY, with an independent party making that determination on City H's behalf.
In response to Q101, Engineer A was obligated to disclose WXY's three existing contracts to City H officials at the earliest moment he became aware that WXY was being considered for the city engineer role, and certainly before any formal or informal appointment discussion began. NSPE Code II.4.a imposes a proactive, not reactive, disclosure duty. The obligation is triggered by the existence of a known or potential conflict, not by a city official's independent discovery of it. Because Engineer A, as WXY's president, had direct and complete knowledge of all three active contracts at the moment the city engineer vacancy arose, any delay in disclosure—even a brief one—constitutes a technical violation of II.4.a. The fact that a city official independently raised the conflict concern does not cure the prior failure to disclose; it merely demonstrates that the conflict was apparent enough to be noticed without Engineer A's assistance. The Board's conditional approval implicitly assumes disclosure occurred, but the case facts do not confirm that Engineer A proactively initiated it. This gap in the factual record means the Board's ethical clearance rests on an unverified assumption, and if disclosure was reactive rather than proactive, a violation of II.4.a occurred regardless of whether the arrangement is otherwise permissible.
In response to Q102, the structural problem of WXY serving simultaneously as city engineer and as a competing bidder for new design contracts is not resolved by disclosure alone. When WXY, acting in its advisory capacity as city engineer, identifies a need for new design work, it occupies both the role of the advisor who defines the scope of work and the role of a potential beneficiary of that work. This creates a self-referential conflict in which the advisor's financial interest in winning the contract could subtly shape how the need is framed, how urgently it is characterized, and how the scope is defined. The city's ability to evaluate and award that contract independently is compromised because the informational foundation for the award decision was constructed by an interested party. The Board's approval of the dual role does not address this prospective conflict adequately. A structurally sound arrangement would require WXY to recuse itself from any advisory recommendation that could lead to a contract it is eligible to bid on, and the city would need an independent mechanism—such as a separate review committee or an independent engineer—to evaluate whether the identified need is genuine and whether WXY's proposed scope is appropriate. Without such a mechanism, the Board's approval creates a recurring ethical vulnerability on every new project cycle.
In response to Q103, the Board's ruling does carry a meaningful risk of misapplication in larger municipal contexts, and the Board should have explicitly cabined its holding to small-municipality circumstances. The ethical permissibility conclusion in this case rests substantially on the public interest justification drawn from BER 74-2, which recognized that small municipalities may lack the resources to attract or retain a full-time city engineer and that appointing a consulting firm principal serves the public welfare in that constrained environment. That justification is context-dependent and does not transfer to larger municipalities where full-time qualified engineers are available, where the financial stakes of individual design contracts are substantially higher, and where the structural self-oversight risks are correspondingly greater. Without an explicit limitation in the Board's ruling, a larger city could cite this case as precedent for appointing an incumbent multi-contract firm as city engineer, even though the public interest justification that anchors the ruling would be absent. The Board's failure to articulate this boundary leaves the ruling vulnerable to overbroad application and weakens the protective function of the conflict-of-interest standards the ruling purports to uphold.
In response to Q104, Engineer A was ethically obligated to recuse himself or WXY from advising City H on the threshold question of whether to hire a consulting firm as city engineer versus a full-time employee. This question is precisely the decision point at which WXY's financial interest was most acute: a consulting-firm outcome would directly benefit WXY, while a full-time employee outcome would foreclose that opportunity. Advising a client on a decision in which the advisor stands to gain financially from one of the available outcomes is a paradigmatic conflict of interest under NSPE Code II.4.a. The non-self-serving advisory obligation requires that Engineer A's counsel to City H be free from distortion by personal financial interest. Even if Engineer A believed in good faith that the consulting-firm model was genuinely superior for City H, the structural appearance of self-interest is sufficient to require recusal from that specific advisory question. The appropriate conduct would have been for Engineer A to disclose WXY's interest, decline to offer a recommendation on the structural question, and allow City H officials to reach that threshold decision independently before any discussion of WXY's potential appointment began.
In response to Q201, when the only available qualified firm already holds active contracts with a city, the principle of structural independence from self-oversight does not simply yield to the principle of small-municipality access to competent engineering. Rather, the two principles must be reconciled through structural conditions rather than through a simple priority determination. The Board's approach implicitly adopts this reconciliation by conditioning approval on disclosure and by noting the absence of private client work as a partial mitigation. However, the reconciliation is incomplete because it does not specify the structural mechanisms—such as recusal protocols, independent review triggers, or city council oversight of new contract awards—that would preserve meaningful independence within the dual-role arrangement. The small-municipality access principle justifies permitting the arrangement to exist; it does not justify permitting it to exist without structural safeguards. When the Board fails to specify those safeguards, it effectively allows the access principle to override the independence principle entirely in practice, even while nominally preserving both in theory.
In response to Q202, partial mitigation through the absence of private client work within City H does not justify full ethical clearance of WXY's dual role. The no-private-work factor eliminates one specific category of self-oversight conflict—namely, the risk that WXY as city engineer would review and approve its own work performed for private developers—but it does not eliminate the broader structural conflict arising from WXY's financial interest in retaining and expanding its design contracts with the city itself. The Board treats the absence of private work as though it resolves the conflict of interest concern raised by the city official, but that concern, properly understood, encompasses both the private-client self-review risk and the public-client self-interest risk. The latter risk—that WXY's advisory judgment as city engineer could be distorted by its interest in maintaining or growing its three existing city contracts—is not addressed by the no-private-work factor at all. Disclosure is a necessary but not sufficient condition for ethical clearance in this context. Full ethical clearance would require either the elimination of the structural conflict through institutional design or a demonstration that the conflict is genuinely non-distorting, neither of which the Board establishes.
In response to Q203, the principle of undivided loyalty owed by a city engineer to the public client does conflict with the simultaneous holding of design contracts with that same client, and the conflict is not merely theoretical. Undivided loyalty requires that the city engineer's advisory recommendations be shaped exclusively by the city's best interests. However, when the city engineer also holds design contracts with the city and stands to benefit financially from the continuation and expansion of those contracts, every advisory recommendation that touches on project scope, project priority, or the need for additional engineering services is made in a context where financial self-interest is present. The loyalty principle does not require conscious bad faith to be violated; it is violated whenever the structural conditions are such that financial self-interest could plausibly influence judgment, regardless of the advisor's subjective intentions. The Board's approval of the dual role implicitly treats loyalty as compatible with disclosed financial interest, but the loyalty principle as articulated in NSPE ethics standards is closer to an undivided standard that disclosure alone cannot satisfy when the financial interest is ongoing and recurring rather than isolated and historical.
In response to Q204, the prospective and evolving conflict disclosure obligation does not merely coexist with the objectivity requirement—it reveals a deeper tension in the Board's reasoning. If WXY's conflicts are sufficiently ongoing and evolving that they require continuous disclosure as new contracts are awarded, then the conflicts are not episodic and manageable but rather structural and persistent. A disclosure obligation that must be triggered repeatedly over the life of the city engineer arrangement is evidence that the underlying conflict is not being resolved but merely reported. Objectivity and independence, as foundational requirements of the city engineer advisory role, presuppose that the advisor's judgment is structurally free from distorting influences, not merely that those influences are periodically acknowledged. The Board's reliance on ongoing disclosure as the primary ethical safeguard therefore conflates transparency with independence. Transparency is a necessary condition for accountability; it is not a substitute for the structural independence that the city engineer role demands. The evolving disclosure obligation the Board implicitly imposes is better understood as a symptom of an unresolved structural conflict than as a solution to it.
In response to Q301, from a deontological perspective, Engineer A's duty of loyalty to City H as city engineer and WXY's duty to act in its own commercial interest as a contracted design services provider are not merely in tension—they are categorically incompatible in specific decision contexts. Kant's categorical imperative requires that duties be universalizable and that persons not be treated merely as means. When Engineer A, acting as city engineer, makes advisory recommendations that could expand WXY's design contract portfolio, he is simultaneously fulfilling a duty to City H and advancing WXY's commercial interest. The deontological problem is not that both duties exist but that they cannot both be fully honored in the same act of judgment. A recommendation that serves WXY's commercial interest cannot be verified to be purely motivated by duty to City H, and a recommendation that purely serves City H's interest may require Engineer A to act against WXY's commercial interest. Disclosure does not resolve this categorical tension because disclosure is an epistemic remedy—it informs the client of the conflict—but it does not alter the structural reality that the conflicting duties are being exercised simultaneously by the same agent in the same role. Deontological ethics would require role separation, not merely role transparency.
In response to Q302, from a consequentialist perspective, the public benefit of ensuring City H has access to competent engineering services does plausibly outweigh the aggregate risk of structural self-oversight conflicts in this specific small-municipality context, but only if the structural safeguards are adequate to contain the risk. The consequentialist calculus depends on the probability and magnitude of harm from the conflict, the probability and magnitude of benefit from the arrangement, and the availability of alternatives. In City H's case, the alternatives—hiring a full-time city engineer the city may not be able to afford, or going without qualified engineering oversight—carry their own substantial public welfare costs. The harm from WXY's structural conflict is real but probabilistic: it materializes only if WXY's advisory judgment is actually distorted by self-interest, and the no-private-work factor reduces one category of that risk. However, the consequentialist approval is conditional on the structural safeguards being sufficient to keep the probability of harm low. If the Board's approval is implemented without recusal protocols, independent contract review mechanisms, or city council oversight of new awards, the probability of harm increases substantially, and the consequentialist balance may shift against approval. The Board's ruling is consequentially defensible only as a conditional approval with enforceable structural conditions, not as an unconditional clearance.
In response to Q303, from a virtue ethics standpoint, the pursuit of the city engineer role by a firm that simultaneously holds three active design contracts with the city does not straightforwardly demonstrate the professional integrity and impartiality that the virtue of objectivity demands, but neither does it conclusively reveal a character disposition toward self-interest that undermines trustworthiness. The virtue ethics analysis depends on the manner of pursuit rather than the fact of pursuit. A firm that proactively discloses all conflicts, voluntarily proposes structural safeguards, and genuinely subordinates its commercial interest to the city's welfare in its advisory conduct demonstrates virtuous professional character even within a structurally complex arrangement. Conversely, a firm that pursues the role without proactive disclosure, frames the arrangement in ways that maximize its own benefit, and fails to propose independent oversight mechanisms reveals a character disposition that is inconsistent with the virtue of objectivity. The case facts do not conclusively establish which pattern describes WXY's conduct. The virtue ethics verdict therefore depends on facts the Board did not fully examine: specifically, whether Engineer A's pursuit of the city engineer role was accompanied by the kind of transparent, self-limiting, client-centered conduct that virtue ethics would require. The Board's ruling implicitly assumes virtuous conduct without verifying it.
In response to Q304, from a deontological perspective, NSPE Code provision II.4.a does impose a duty on Engineer A to disclose not only current conflicts but also all reasonably foreseeable future conflicts that could arise as new design contracts are awarded under the city engineer arrangement. The duty is grounded in the text of II.4.a, which requires disclosure of all known or potential conflicts of interest. The word 'potential' extends the duty beyond present conflicts to those that are reasonably foreseeable given the structural arrangement being entered into. When Engineer A accepts the city engineer role while holding three existing contracts, it is entirely foreseeable that new design contracts will be identified and potentially awarded to WXY during the tenure of the city engineer arrangement. The conflict that would arise from each such award is therefore a potential conflict at the moment of appointment, and II.4.a requires its disclosure at that time, not merely when each new contract materializes. Failure to disclose the structural pattern of prospective conflicts at the outset—even if each individual future conflict is disclosed as it arises—constitutes a breach of the prospective disclosure duty because it deprives City H of the full picture of the arrangement's conflict structure at the decision point when that information is most consequential.
In response to Q401, if WXY Engineers had been performing private design work for developers within City H at the time of the city engineer appointment consideration, the Board's ethical permissibility conclusion would very likely have been reversed, and this reversal threshold is highly revealing. The no-private-work factor is the primary structural distinction the Board draws between the present case and a clearly impermissible arrangement. Its removal would eliminate the only concrete mechanism by which the self-oversight conflict is partially contained: without it, WXY as city engineer would be reviewing and approving its own work performed for private clients, creating a direct and unambiguous self-oversight conflict with no mitigating factor. The reversal threshold reveals that the Board's approval is not based on a general principle that incumbent multi-contract firms may serve as city engineers, but rather on a narrow factual condition—the absence of private work—that functions as a proxy for the absence of direct self-review. This means the ethical permissibility of the arrangement is highly fact-sensitive and fragile: a single private client engagement within City H would collapse the ethical clearance entirely. The Board should have made this fragility explicit and specified that WXY's continued eligibility for the city engineer role is contingent on maintaining the no-private-work condition throughout the tenure of the arrangement.
In response to Q402, if Engineer A had proactively declined to pursue the city engineer role and instead recommended that City H hire an independent full-time city engineer, that act of self-restraint would have more fully satisfied the non-self-serving advisory obligation and would likely have produced a superior public interest outcome in the long run, though not necessarily in the short run. The non-self-serving advisory obligation requires that Engineer A's counsel to City H be free from distortion by personal financial interest. Recommending an independent full-time city engineer would have been the recommendation most clearly free from such distortion, because it would have foreclosed WXY's own financial opportunity. In the short run, City H might have faced difficulty affording or attracting a qualified full-time engineer, which is the public interest concern that justifies the Board's approval of the consulting-firm model. However, in the long run, an independent city engineer would have provided City H with structurally unconflicted advisory services, eliminated the recurring self-oversight risks that attend WXY's dual role, and preserved the integrity of the city's engineering decision-making process. The fact that self-restraint would have been more ethically pure does not mean the Board's approval of the alternative is wrong, but it does mean that Engineer A's pursuit of the city engineer role, rather than his recommendation of an independent alternative, is the ethically weaker choice even if it is a permissible one.
In response to Q403, if City H had been a large municipality with a robust engineering department rather than a small city with limited resources, the Board would not have been able to apply the small-municipality public interest justification drawn from BER 74-2, and the ethical permissibility conclusion would very likely have changed. BER 74-2's permissibility holding rests explicitly on the public interest served by ensuring that small municipalities with limited resources have access to competent engineering services through the consulting-firm model. That justification is inapplicable when a large municipality has the resources to hire a full-time city engineer and the institutional capacity to maintain independent engineering oversight. In a large-municipality context, the structural self-oversight conflict created by an incumbent multi-contract firm serving as city engineer would not be offset by any comparable public interest benefit, because the alternative—an independent full-time city engineer—would be both available and affordable. The ethical analysis would therefore focus exclusively on the conflict of interest, and the conflict, unmitigated by the small-municipality justification, would likely be disqualifying. This counterfactual confirms that the Board's ruling is not a general principle about the permissibility of incumbent multi-contract firms serving as city engineers but rather a narrow, context-dependent exception justified by the specific resource constraints of small municipalities.
In response to Q404, if Engineer A had failed to make any disclosure of WXY's three existing contracts to City H officials before accepting the city engineer role, the Board's conditional ethical approval would have been withdrawn, because disclosure is the foundational condition on which the entire permissibility analysis rests. This scenario exposes a significant gap in the Board's reasoning: the ethical permissibility of the arrangement is entirely contingent on a disclosure condition that is not independently verifiable by the Board, by City H officials, or by any external oversight body. The Board cannot confirm that disclosure occurred, cannot specify what form it must take, cannot establish a standard for its adequacy, and cannot impose consequences for its omission. The ruling therefore creates a structure in which the ethical clearance is formally conditional but practically unconditional, because the condition cannot be enforced. This gap is not merely procedural—it is substantive, because it means that an engineer who fails to disclose receives the same practical benefit from the Board's ruling as one who discloses fully. A more rigorous ruling would have specified the required form and content of disclosure, identified who within City H must receive it, and noted that the arrangement is impermissible absent documented disclosure, thereby giving the disclosure condition genuine rather than nominal force.
The Board resolved the tension between the principle of undivided loyalty owed by a city engineer to the public client and the principle permitting a consulting firm to simultaneously hold design contracts with that same client by treating disclosure as the primary reconciling mechanism. Rather than concluding that the structural self-oversight conflict categorically disqualifies WXY Engineers, the Board implicitly ranked transparency above structural independence, accepting that ongoing, scrupulous disclosure of all known and potential conflicts can render an otherwise problematic dual role ethically permissible. This resolution is coherent but incomplete: it presupposes that disclosure alone neutralizes the subtle distortion of advisory judgment that financial self-interest in retaining or expanding design contracts could produce, without explaining how City H officials, lacking independent engineering expertise, can meaningfully evaluate disclosures about conflicts embedded in the very advice they are receiving. The case therefore teaches that when the Board applies disclosure as a conflict-resolution tool, it implicitly assumes a sophisticated, informed client capable of acting on disclosed information — an assumption that is weakest precisely in the small-municipality context the Board uses to justify the arrangement.
The principle that small municipalities deserve access to competent engineering services and the principle that a city engineer must maintain structural independence from self-oversight were not fully reconciled in this case — they were prioritized in sequence, with public access treated as the threshold justification that permits entry into the analysis, and structural independence then managed through conditional constraints rather than enforced as an absolute bar. The precedent cases BER 63-5 and BER 74-2 supplied the doctrinal foundation for this sequencing: once the public interest in engineering access is established, the Board shifts to asking how the dual role can be made ethically workable rather than whether it should be permitted at all. This prioritization carries a significant implication: the small-municipality public interest justification functions as a gating principle that, once satisfied, substantially lowers the threshold for approving arrangements that would otherwise raise serious structural conflict concerns. The case teaches that principle prioritization in NSPE ethics analysis is context-sensitive rather than hierarchical in the abstract, and that factual circumstances — particularly the size and resource constraints of the client municipality — can elevate a secondary justification into the dominant analytical frame, potentially at the expense of the structural integrity principles that protect the public the Board is simultaneously trying to serve.
The principle of prospective and evolving conflict disclosure and the principle that objectivity and independence are foundational to the city engineer advisory role exist in a relationship of latent tension that the Board's conditional approval does not fully resolve. Disclosure of evolving conflicts presupposes that conflicts will arise, be recognized, and be reported over time — but this ongoing disclosure obligation implicitly acknowledges that the structural conflict is not eliminated by the initial appointment; it persists and may deepen as WXY Engineers, acting as city engineer, identifies new project needs that it is simultaneously positioned to design and be paid to execute. The Board's approval therefore rests on a dynamic ethical condition rather than a static one, meaning that the ethical permissibility of the arrangement at the moment of appointment does not guarantee its permissibility as the contractual relationship evolves. This teaches a critical lesson about principle interaction: when disclosure is used to manage a structural conflict rather than eliminate it, the ethical clearance granted is inherently provisional and requires continuous re-evaluation. The absence of a formal mechanism within the Board's ruling to trigger re-evaluation — such as a requirement that City H retain independent review capacity for decisions in which WXY has a financial stake — represents a gap between the disclosure principle's demands and the objectivity principle's requirements, leaving the arrangement's long-term ethical integrity dependent on Engineer A's self-monitoring rather than on institutional safeguards.
Conflict of Interest Disclosure Standard in Recommendation Contexts
However, the Board would caution that WXY will need to disclose further circumstances (e.g., private work in city, reviewing its own work, etc.) that might create a potential for a conflict of interest.
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 in issuing its cautionary guidance to Engineer A
Governs the obligation of Engineer A and WXY Engineering to disclose circumstances that might create a potential conflict of interest (e.g., private work within City H, reviewing their own work) when serving in the dual role of city engineer and design consultant
Derived from NSPE Code and BER case history
Conflict of Interest Disqualification Standard
One city official has raised a concern that because WXY is under contract with City H, having WXY serve as city engineer would constitute a conflict of interest.
WXY does not perform any private work for developers or other private parties within City H and, therefore, if it were designated city engineer for City H, WXY would not be reviewing the work it performed for private clients.
Engineer A, City H officials evaluating the arrangement
Provides norms on when a reviewing engineer or firm must recuse from approving work due to financial relationships with the entity whose work is under review; relevant to whether WXY's existing contracts disqualify it from serving as city engineer
The deliberation shifts from purely administrative (who fills the vacancy) to ethico-legal (whether the proposed arrangement is permissible); conflict-of-interest analysis becomes a prerequisite to any appointment decision
During City H's deliberation period on replacing Engineer B; after WXY was identified as a candidate for the city engineer role
A city official formally flagged the potential conflict of interest inherent in WXY serving as city engineer while simultaneously holding three active contracts with City H. This concern became part of the official deliberation record.
Conflict-of-Interest Concern Raised → Board Ruling on Ethical Permissibility
A city official made a deliberate decision to formally raise a conflict-of-interest concern about WXY, which necessitated an adjudicative ruling by the NSPE Board of Ethical Review drawing on two historical precedent cases
Had no city official raised the concern, the conflict would have persisted unexamined and no formal ethical ruling would have been sought or issued
Existence of NSPE as an adjudicative body with jurisdiction over professional ethics questions
Formal articulation of the conflict-of-interest concern by a city official
Prior BER precedent cases (63-5 and 74-2) providing an applicable doctrinal framework
Unresolved ambiguity about whether dual roles were ethically permissible
Formally raised concern + NSPE adjudicative authority + applicable precedent = sufficient basis for a binding ethical ruling
Potential loss of independent oversight of engineering work performed under those contracts
Risk of perceived or actual conflict of interest if the selected consultant already holds active contracts with the city
Duty to seek competent engineering services for the municipality
Fiduciary duty to manage public resources efficiently
Obligation to consider and deliberate on conflict-of-interest concerns raised by colleagues
Cost-effectiveness in municipal governance
Due diligence in procurement and conflict-of-interest review
Public officials must act in the public interest
Reduce municipal expenditure on engineering oversight while maintaining access to competent engineering services by leveraging an existing contractor relationship
Evaluation of engineering service delivery models
Municipal governance and procurement decision-making
Current moment, following Engineer B's resignation
City H officials made a deliberate policy decision to explore hiring a consulting firm such as WXY Engineers as city engineer rather than replacing Engineer B with a full-time employee, motivated by cost-cutting and efficiency goals.
Should Engineer A proactively disclose WXY's three active contracts and their self-oversight implications to City H officials before any city engineer appointment discussion begins, or defer to City H's own deliberative process to surface and evaluate the conflict?
Engineer A, as president of WXY Engineers, must decide whether to proactively disclose to City H the full structural conflict of interest created by WXY's three active design contracts before any appointment discussion proceeds, or to allow the city to discover and evaluate the conflict through its own deliberative process. This decision point addresses the timing, form, and completeness of disclosure required under NSPE Code II.4.a when an incumbent multi-contract firm is being considered for a supervisory advisory role over its own active work.
Engineer A affirmatively discloses to City H officials the existence, scope, and self-oversight implications of all three active WXY contracts before any formal or informal appointment discussion begins, providing a written summary of the structural conflict and WXY's assessment of its manageability.
Engineer A responds fully and transparently when City H officials or a city official raises the conflict-of-interest concern, providing complete information at that point, on the grounds that the city's own deliberative process surfaced the issue and a reactive disclosure satisfies the informational purpose of II.4.a.
Engineer A discloses not only the three existing contracts but also the structural pattern of prospective conflicts — that new design contracts will foreseeably arise during the city engineer tenure — at the moment of formal appointment consideration, treating the disclosure as encompassing both current and reasonably foreseeable future conflicts as required by the word 'potential' in II.4.a.
Should WXY Engineers accept appointment as city engineer for City H while holding three active design contracts with the city, relying on disclosure and the absence of private client work as sufficient ethical safeguards, or decline the appointment on the grounds that the structural self-oversight conflict is irreconcilable through disclosure alone?
WXY Engineers and City H must jointly decide whether the dual-role arrangement — WXY serving simultaneously as city engineer and as a contracted design services provider — is ethically permissible given WXY's three active contracts, or whether the structural self-oversight conflict is irreconcilable and WXY must decline the appointment. This decision point addresses the core permissibility question, weighing the small-municipality public interest justification against the structural self-oversight prohibition, and determines what structural conditions, if any, can render the arrangement ethical.
WXY Engineers accepts the city engineer appointment, proactively discloses all three active contracts and their self-oversight implications to City H, proposes structural safeguards including recusal from advisory recommendations that directly trigger new design contract opportunities for WXY, and commits to ongoing disclosure of evolving conflicts — treating the small-municipality public interest justification and the no-private-work mitigation as sufficient to render the arrangement ethical under these conditions.
WXY Engineers declines the city engineer appointment on the grounds that holding three active design contracts while serving as the oversight authority for those same contracts creates a structural self-oversight conflict that disclosure alone cannot cure, and recommends that City H seek an independent full-time city engineer or an alternative consulting firm without active contracts with the city.
WXY Engineers accepts the city engineer appointment only after the three existing active contracts are novated to an independent engineering firm or completed, eliminating the immediate self-oversight conflict while preserving WXY's eligibility to serve as city engineer and bid on future design contracts under a disclosed dual-role arrangement going forward.
Should Engineer A recuse himself and WXY from advising City H on whether to hire a consulting city engineer versus a full-time city engineer, or may Engineer A provide that advisory input after disclosing WXY's direct financial interest in the consulting-firm outcome?
Engineer A must decide whether to advise City H on the threshold structural question of whether to hire a consulting firm as city engineer versus a full-time city engineer, given that WXY Engineers is itself a candidate for the consulting role and stands to benefit financially from the consulting-firm outcome. This decision point addresses the non-self-serving advisory obligation and the self-interest advisory non-distortion duty, determining whether Engineer A must recuse from advising on the structural question or may advise with disclosure.
Engineer A declines to offer any advisory recommendation to City H on whether to hire a consulting city engineer versus a full-time city engineer, discloses WXY's direct financial interest in the consulting-firm outcome, and allows City H officials to reach that threshold decision independently before any discussion of WXY's potential appointment begins.
Engineer A discloses WXY's direct financial interest in the consulting-firm outcome to City H officials before offering any advisory input, then provides his professional assessment of the consulting-firm model's merits for City H — on the grounds that full disclosure satisfies II.4.a and that Engineer A's unique familiarity with City H's engineering needs makes his perspective genuinely valuable to the city's decision.
Engineer A discloses WXY's financial interest and limits his advisory input to factual information about how consulting city engineer arrangements have functioned in comparable small municipalities — drawing on BER precedent and industry practice — without offering a recommendation on which model City H should choose, leaving the normative judgment entirely to City H officials.
Should WXY Engineers accept the city engineer role for City H while retaining its three active design contracts, or decline the appointment to preserve structural independence from self-oversight?
Engineer A / WXY Engineers Dual-Role Acceptance Decision: Whether WXY Engineers should accept appointment as city engineer for City H while simultaneously holding three active design contracts with the city, given the structural self-oversight conflict and the small-municipality public interest justification.
Accept the city engineer appointment while proactively disclosing all three active design contracts to City H officials before any formal appointment discussion, and commit to ongoing disclosure of all known and potential conflicts as the arrangement evolves, relying on the small-municipality public interest justification and the no-private-work mitigation factor as established in BER 74-2.
Decline the city engineer appointment on the grounds that holding three active design contracts with City H creates a structural self-oversight conflict that disclosure alone cannot cure, and instead recommend that City H seek an independent full-time city engineer or a firm without existing city contracts, thereby fully satisfying the non-self-serving advisory obligation.
Accept the city engineer appointment conditioned on a formal recusal protocol under which WXY refrains from any advisory recommendation that could directly trigger a new design contract opportunity for WXY, with an independent party or city council committee making those determinations on City H's behalf, thereby preserving the public interest benefit while providing structural safeguards beyond disclosure alone.
Should Engineer A proactively disclose WXY's three active contracts to City H officials immediately upon learning of the city engineer vacancy, before any appointment discussion begins, or is it sufficient to disclose when a conflict concern is independently raised by a city official?
Engineer A Proactive Conflict Disclosure Timing Decision: Whether Engineer A was obligated to proactively disclose WXY's three existing contracts to City H officials at the earliest moment the city engineer vacancy arose, before any appointment discussion began, or whether disclosure triggered by a city official's independent concern satisfies the duty under NSPE Code II.4.a.
Proactively disclose all three active design contracts to City H officials at the earliest moment Engineer A becomes aware of the city engineer vacancy and before any formal or informal appointment discussion begins, treating the disclosure obligation as triggered by the existence of the known conflict rather than by the client's independent discovery of it, and documenting the disclosure in writing to give it verifiable force.
Respond with complete and transparent disclosure of all three active contracts and all prospective conflict implications when a city official independently raises the conflict-of-interest concern during the appointment discussion, treating the official's inquiry as the triggering event for the disclosure obligation and providing a comprehensive account of the structural conflict at that point.
Proactively disclose not only the three existing active contracts but also the full structural pattern of prospective conflicts that will arise as new design contracts are identified and potentially awarded to WXY during the city engineer tenure, providing City H with the complete conflict picture at the appointment decision point and proposing a formal ongoing disclosure protocol for future contract cycles.
Once WXY Engineers serves as city engineer, should WXY recuse itself from any advisory recommendation that could directly lead to a new design contract for WXY and require an independent party to evaluate that need, or should WXY disclose its financial interest at each new contract cycle and allow City H officials to decide based on that disclosure?
City H New Design Contract Award Process Decision: Whether, once WXY Engineers is appointed city engineer, the city should require WXY to recuse itself from advisory recommendations that could trigger new design contracts for WXY, or whether disclosure of the conflict at each new contract cycle is sufficient to manage the self-referential advisory loop.
Formally recuse WXY from any advisory recommendation as city engineer that could directly identify, scope, or characterize a need for new design work that WXY would be eligible to bid on, and require City H to designate an independent party—such as a separate review committee or an independent engineer—to evaluate whether the identified need is genuine and whether WXY's proposed scope is appropriate before any new contract is awarded.
At each new project cycle where WXY as city engineer identifies a need for additional design services, disclose WXY's financial interest in the potential contract to City H officials before any award discussion, allow City H officials to make the award decision independently based on that disclosure, and document each disclosure in writing as an ongoing condition of the dual-role arrangement's permissibility.
Establish a standing protocol under which any new design contract identified through WXY's city engineer advisory function is automatically subject to competitive solicitation from at least one additional qualified firm, with City H's governing body making the final award decision, thereby preserving WXY's eligibility to compete while ensuring that the informational foundation for the award is not constructed exclusively by an interested party.
Limits revenue opportunities from private development work within City H
Positions WXY favorably should a city engineer role ever be considered
Duty to disclose and avoid circumstances that compromise impartiality
Proactive avoidance of conflicts of interest
Protecting the integrity of public oversight functions
Engineers shall avoid conflicts of interest
Engineers shall not allow private interests to compromise public duties
Transparency and integrity in professional practice
Avoid the category of conflict of interest that arises when a firm reviews its own private-client work in its capacity as a public official or city engineer
Business strategy and ethical risk assessment
Understanding of municipal conflict-of-interest standards
Ongoing policy, established prior to present case
WXY Engineers made a deliberate policy decision not to perform private work for developers or other private parties within City H, limiting its client base in the city exclusively to the municipal government.
Declining Private Work Within City H → Ethical Permissibility Outcome Reached
WXY Engineers made a deliberate policy decision not to perform private work for developers or other private clients within City H, a conflict-mitigation measure that the NSPE Board credited as a relevant factor in concluding that WXY's dual role was ethically permissible
Had WXY not maintained this policy, i.e., had it also performed private developer work within City H, the conflict of interest would have been substantially more acute, and the BER would likely have reached a different or more conditional ruling
The BER's recognition of this policy as a meaningful ethical safeguard
The policy's alignment with conditions implied or stated in BER precedent cases 63-5 and 74-2
WXY's active and verifiable policy of declining private work within City H
Private-work declination policy + BER precedent framework + absence of other disqualifying conduct = sufficient for the BER to reach a permissibility conclusion
Engineer A Advisory Non-Distortion on Consultant vs. Full-Time Hire Question
City H is deciding between a full-time city engineer and a consulting arrangement; WXY is a candidate for the consulting role and therefore cannot impartially advise on this structural question
Prospective Appointee Self-Interested Advisory Non-Distortion Constraint
Engineer A and WXY Engineers are constrained from advising City H on the threshold question of whether to hire a consulting firm versus a full-time city engineer, because WXY is itself a candidate for the consulting role and its commercial self-interest would irresolvably bias any such advisory input.
NSPE Code of Ethics Sections II.4, III.2; faithful agent and conflict-of-interest provisions
During the period when City H is deliberating on the appointment structure
Engineer A is the president of WXY Engineers, an engineering firm
Engineer A Scrupulous Impartiality Advisory Role Constraint
WXY holds three active design contracts with City H and would simultaneously serve in an advisory city engineer capacity, creating ongoing temptation to distort advisory recommendations in favor of WXY's commercial interests
Part-Time Public Advisory Engineer Scrupulous Impartiality Constraint
If WXY Engineers were appointed as city engineer, Engineer A would be constrained to ensure that all advisory recommendations to City H are not influenced by WXY's private commercial interest in retaining or expanding its design contracts with the city.
WXY currently has three contracts directly with the city for separate projects with City H
Throughout any period of dual-role service as city engineer and active contract holder
Engineer A Structural Conflict Full Disclosure Pre-Appointment to City H
City H is considering appointing WXY as city engineer; Engineer A must ensure City H has complete conflict information to make an informed decision
Engineer A is constrained to proactively and fully disclose to City H officials the complete nature of the structural conflict of interest — including the three active contracts, the self-oversight implications, the partial mitigation from absence of private developer work, and the residual conflict — before City H makes its appointment decision.
NSPE Code of Ethics Sections II.4, III.2; Conflict-of-Interest Disclosure Standard
Before and during the appointment decision process
WXY does not perform any private work for developers or other private parties within City H
Engineer A Structural Conflict Proactive Disclosure to City H
Incumbent Multi-Contract Firm Structural Conflict Proactive Disclosure Capability
Engineer A, as president of WXY Engineers, must possess the capability to proactively disclose to City H officials the full nature of the structural conflict of interest arising from WXY's three active contracts, without waiting for officials to independently identify the conflict
Engineer A is president of WXY Engineers, which holds three active contracts with City H and is being considered for city engineer appointment
Proactive disclosure of all three active contracts and their self-oversight implications to City H decision-makers before or during the appointment consideration process
Engineer A WXY Engineering Dual-Role Self-Review Structural Boundary Maintenance Instance
Dual-Role City Engineer Self-Review Structural Boundary Maintenance Capability
Engineer A and WXY Engineering, serving as city engineer while also under contract for specific design services, must maintain the structural boundary that excludes reviewing their own firm's work from the scope of city engineer advisory services, and must recognize that acquiring private work within City H would trigger self-review conflicts requiring reassessment.
Current case: Board conditions ethical permissibility of WXY dual-role arrangement on exclusion of self-review functions from advisory scope
Board's ruling that WXY may serve as city engineer and perform general consulting services only where those services do not include reviewing WXY's own work, and noting that WXY's current absence of private work in City H is a key mitigating factor
it would be ethical for Engineer A and his firm WXY to serve as city engineer for City H, perform general consulting services where these services do not include reviewing the work of Engineer A's firm
WXY does not perform any private work within City H and would not be reviewing the work it performed for private clients
Engineer A WXY Engineering Prospective Evolving Conflict Ongoing Disclosure Monitoring Instance
Prospective Dual-Role Evolving Conflict Ongoing Disclosure Monitoring Capability
Engineer A and WXY Engineering, having been found ethically cleared to serve as city engineer for City H while under existing contracts, must continuously monitor for and promptly disclose to City H any further circumstances — such as acquiring private work within the city or situations requiring review of their own work — that would create or aggravate a conflict of interest.
Current case: Board conditionally approves WXY dual-role arrangement but requires ongoing monitoring and disclosure of evolving circumstances
Board's caution that WXY must disclose further circumstances (e.g., private work in city, reviewing its own work) that might create a potential conflict of interest, and that under different factual circumstances the city may need to revisit ethical considerations
the Board would caution that WXY will need to disclose further circumstances (e.g., private work in city, reviewing its own work, etc.) that might create a potential for a conflict of interest
Under different factual circumstances, the city may have to revisit the ethical considerations raised
Engineer A WXY Engineering Small Municipality Public Interest Dual Role Justification Instance
Engineer A, WXY Engineering, and City H officials recognized that City H's legitimate need for cost-effective engineering advisory services — and the public interest in providing small municipalities with the most competent engineering services available — constitutes a valid justification for the proposed dual-role arrangement, consistent with the public interest rationale affirmed in BER 74-2.
Current case: Board affirms public interest justification for WXY dual-role arrangement based on City H's need for competent engineering services
Board's finding that City H will gain the benefit of WXY's experience and expertise, and that the public interest considerations from BER 74-2 apply to the current case
Engineer A / WXY Engineering / City H Officials
Engineer A and his firm, WXY Engineering, have provided services to City H for many years and it appears that City H will gain the benefit of that experience and expertise
Engineer A WXY Prospective City Engineer Self-Interest Advisory Non-Distortion
Prospective City Engineer Self-Interest Advisory Non-Distortion Capability
Engineer A and WXY Engineers must possess the capability to recognize that advising City H on whether to hire a consulting vs. full-time city engineer is self-interested when WXY is itself a candidate for the consulting role, and to refrain from or disclose this conflict before providing such advice
Engineer A and WXY Engineers are being considered for appointment as consulting city engineer while City H deliberates on the full-time vs. consulting structure
Identification that WXY's commercial interest in being appointed city engineer distorts any advice it might give City H on the full-time vs. consulting structure question
Engineer B BER 63-5 Advisory Impartiality Non-Division Constraint Instance
BER Case 63-5: Small community retained Engineer B part-time as city engineer; Engineer B also prepared plans and specifications for city projects on a fee basis above his monthly retainer
Engineer B, retained part-time as city engineer while also preparing plans and specifications for city projects, was required to be scrupulously careful that his advisory recommendations to the city council were not influenced by his secondary interest as the engineer likely to be retained for design work — and was prohibited from allowing his dual capacity to become a divided loyalty.
NSPE BER Case 63-5; NSPE Code of Ethics Section II.4
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 the duration of Engineer B's part-time city engineer retention
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
the engineer was acting in a dual capacity, but not a divided one
Engineer B BER 63-5 Advisory Loyalty Non-Division Self-Monitoring
Dual-Role Advisory Loyalty Non-Division Self-Monitoring Capability
Engineer B, serving as part-time city engineer while also providing design services to the same community, was required to be scrupulously careful that his advisory recommendations to the city council were not influenced by his secondary interest as the engineer likely to be retained for design work.
BER Case 63-5 precedent: part-time city engineer also retained for design services to same community
Providing advisory services to city council on engineering problems while separately preparing plans and specifications for city projects, maintaining independence between the two roles
Engineer B BER 63-5 Client Self-Review Waiver Permissibility Instance
BER Case 63-5: Community waived right to independent review of Engineer B's plans, enabling the dual-capacity arrangement to proceed ethically
Engineer B and the small community (BER Case 63-5)
Municipal Client Self-Review Waiver Dual-Capacity Permissibility Constraint
The small community's waiver of its right to have an independent engineer review Engineer B's plans rendered Engineer B's dual capacity as both designer and reviewing city engineer ethically permissible — because the NSPE Code imposes no mandatory independent review requirement — provided that Engineer B's advisory function remained undivided.
there is no requirement in the NSPE Code that an engineer's plans for a client must be reviewed by an engineer employed or retained by the client
Duration of the specific city project for which Engineer B prepared plans and specifications
Under those circumstances, the engineer was acting in a dual capacity, but not a divided one
the client has the right of review by its own engineer, but it may waive its right, as it did in BER Case No. 63-5
Engineer B BER 63-5 Client Self-Review Waiver Recognition Instance
Municipal Client Self-Review Waiver Right Recognition Capability
Engineer B recognized that the NSPE Code does not require independent review of an engineer's plans by the client's own engineer, and that the city's waiver of independent review permitted him to act in a dual capacity without constituting a divided loyalty.
BER Case 63-5: city waived right to independent review of Engineer B's plans, permitting dual capacity arrangement
Proceeding ethically in dual advisory-design capacity after the city waived its right to independent plan review, recognizing this as a permissible dual capacity rather than an impermissible divided loyalty
City H transitions from having dedicated in-house engineering leadership to an unoccupied municipal engineer role; decision-making process on replacement is initiated
Prior to City H's decision-making period; exact date unspecified but before WXY consideration began
The full-time City H engineer (Engineer B) resigned from their position, creating an immediate vacancy in municipal engineering leadership. This departure triggered a structural gap in city operations requiring urgent resolution.
Engineer B Resignation Occurs → Considering WXY as City Engineer
Engineer B resigned from their position, creating an immediate vacancy that prompted City H officials to explore hiring a consulting firm such as WXY Engineers
Without Engineer B's resignation, no vacancy would have existed and City H would have had no immediate reason to consider WXY for the city engineer role
City H's need for engineering services continuity
Existence of a vacant city engineer position
WXY Engineers' pre-existing relationship with City H via active contracts
Resignation creating vacancy + WXY's established presence + City H's operational need for engineering oversight
Engineer B part-time city engineer role (BER 63-5) overlaps Engineer B preparation of plans for same city (BER 63-5)
Engineer B, on a part-time basis to serve as city engineer... Engineer B was retained by the city council for the preparation of plans and specifications for a city project.
Engineer B part-time city engineer role (BER 63-5)
Engineer B preparation of plans for same city (BER 63-5)
Entity1 starts before Entity2 and ends during Entity2
Engineer B resignation before City H consideration of WXY as city engineer
Engineer B, the full-time city engineer, has resigned... City H officials are currently considering whether to replace Engineer B... or to hire a consultant (such as WXY Engineers) as the city engineer.
City H consideration of WXY as city engineer
Accumulation of multiple concurrent contracts could later complicate or raise questions about impartiality if WXY were asked to take on an oversight or city engineer role
Deep entrenchment with a single municipal client could create dependency and perceived conflicts
Acting within the scope of professional competence
Provision of competent engineering services to a public client
Serving the public interest by providing experienced municipal engineering support
Engineers may legitimately pursue business relationships with public entities
Engineers shall act in a manner that promotes public health, safety, and welfare
Build a stable, recurring revenue relationship with a municipal client and expand WXY's portfolio of public-sector work
Project delivery across multiple concurrent engagements
Years prior to present case (unspecified)
Engineer A and WXY Engineers made a deliberate business decision to pursue and maintain a long-term service relationship with City H, ultimately securing three concurrent contracts for separate projects.
Establishing Long-Term City Contracts → Three Active Contracts Exist Simultaneously
Engineer A and WXY Engineers made a deliberate business decision to pursue and maintain a long-term relationship with City H, resulting in three active, concurrent contracts at the time City H considered WXY for the city engineer role
Had WXY limited its engagements with City H to a single contract, or had City H enforced vendor diversification, the simultaneous multi-contract situation would not have arisen, reducing the magnitude of the conflict-of-interest concern
Three Active Contracts Exist Simultaneously
Absence of a policy limiting the number of simultaneous contracts with one vendor
City H's willingness to award multiple concurrent contracts to a single firm
WXY's deliberate pursuit of multiple city contracts
WXY's active business development strategy targeting City H + City H's repeated contract awards = accumulation of three simultaneous active contracts
The ethical status of WXY's potential appointment shifts from 'uncertain/contested' to 'conditionally permissible'; the burden moves from justifying the arrangement to complying with disclosure conditions
At the conclusion of the Board's review process; after all facts, precedents, and arguments were considered
The NSPE Board of Ethical Review concluded that it would be ethical for WXY Engineers to serve as city engineer under the stated conditions, including appropriate disclosures. This outcome is the formal result of the Board's deliberative process.
Municipal Engineer Dual Role Ethics Standard
City H officials are currently considering whether to replace Engineer B with another full-time city engineer or, as a cost cutting and efficiency measure, to hire a consultant (such as WXY Engineers) as the city engineer to perform general consulting services and be under contract to provide specific design services on individual city projects.
Engineer A (president of WXY Engineers), City H officials
Governs the conditions under which an engineering firm serving as city engineer may also hold separate design contracts with the same municipality, including conflict of interest constraints and the prohibition on reviewing one's own work
NSPE Board of Ethical Review Case No. 63-5
In an early 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.
Both the previously cited BER cases, as well as subsequent BER decisions, do not agree with the city official's conclusion.
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
NSPE Board of Ethical Review in analogical reasoning for the present case
Establishes that a part-time city engineer may ethically prepare plans and specifications for the same municipality, provided loyalties are not divided; also addresses the client's right to waive independent review of the engineer's own work
NSPE Board of Ethical Review Case No. 74-2
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 whose duties and compensation are to be fixed by a municipal ordinance.
In deciding that it is 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 is best served by providing to the small municipalities the most competent engineering services which they can acquire.
Turning to the facts, the Board believes many of the same considerations present in BER Case Nos. 63-5 and 74-2 are applicable to the present case.
Establishes that it is ethical for an engineer to serve as municipal engineer while their consulting firm also provides engineering services for capital improvement projects to the same municipality, particularly for smaller communities that cannot afford full-time municipal engineers
National Society of Professional Engineers
Primary normative authority governing Engineer A's obligations regarding conflict of interest when WXY Engineers is considered for the city engineer role while holding existing city contracts
NSPE BER Board BER 63-5 74-2 Municipal Engineer Dual-Role Permissibility Synthesis Instance
BER Dual-Precedent Municipal Engineer Dual-Role Permissibility Synthesis Capability
The NSPE BER synthesized BER Cases 63-5 and 74-2 to assess the ethical permissibility of WXY Engineering's proposed dual-role arrangement as city engineer and design service provider, correctly identifying the factual conditions (no private-client review conflicts, no self-review of own work) under which such arrangements are permissible.
Current case: Board applies dual-precedent synthesis to assess permissibility of WXY Engineering's proposed city engineer appointment
Board's analysis applying BER 63-5 and 74-2 precedents to the current case, finding the arrangement permissible given WXY's absence of private work in City H and the public interest in small municipality engineering access
This view is reinforced by the fact that WXY does not perform any private work within City H and would not be reviewing the work it performed for private clients
NSPE Board inception before BER Case No. 63-5
Since its inception in the late 1950s, the Board has considered many cases... In an early case, BER Case No. 63-5
NSPE Board inception (late 1950s) before BER Case No. 74-2 (circa 1974)
Since its inception in the late 1950s, the Board has considered many cases... Later, in BER Case No. 74-2
Public Official Conflict of Interest Standard
WXY currently has three contracts directly with the city for separate projects with City H.
Addresses the ethical obligations of an engineer or engineering firm assuming a quasi-public official role (city engineer) while simultaneously holding private contracts with the same public entity, and the duty to avoid exploitation of public position for private gain
Creates a dual role that requires careful management to avoid self-review and divided loyalties
Financial benefit to WXY from the expanded engagement could be seen as a secondary interest influencing advice
May invite ongoing scrutiny of WXY's impartiality in advising the city
Providing competent and experienced engineering services to a public client
Serving the public interest by offering continuity of engineering expertise
Engineers shall act as faithful agents of their clients
Engineers shall avoid conflicts of interest or disclose them when unavoidable
Engineers shall not allow financial interests to compromise professional judgment
Loyalty to public interest supersedes private gain
Expand WXY's engagement with City H to include the city engineer role, providing general consulting services and specific design services while leveraging the firm's existing expertise and relationships
Obligation to disclose circumstances that could constitute conflicts of interest
Risk of self-review violation if WXY as city engineer reviews WXY's own design work
Risk of violating the duty not to allow secondary financial interests to influence professional advice if not carefully managed
Ability to maintain role separation between city engineer oversight and design execution
Conflict-of-interest management and disclosure
General consulting and advisory services to municipal government
Municipal engineering expertise sufficient for city engineer duties
Current moment, in response to City H's deliberations
Engineer A made or was positioned to make a deliberate professional decision to seek or accept the role of city engineer for City H while WXY already held three active design contracts with the city, creating the dual-role arrangement at the center of the ethical analysis.
Would it be ethical for Engineer A’s firm, WXY Engineers, to serve as city engineer for City H, perform general consulting services, and be under contract to provide specific design services on individual city projects?
At what point during the city engineer vacancy process was Engineer A obligated to proactively disclose WXY's existing three contracts to City H officials, and does the failure to do so before the appointment discussion began constitute a violation of disclosure obligations under NSPE Code II.4.a?
If WXY Engineers is appointed city engineer and subsequently identifies a need for additional design work on a new city project, how should the city evaluate and award that contract given that WXY, acting as city engineer, would effectively be recommending work that it could also perform and be paid to execute?
Does the Board's approval of WXY's dual role create a precedent that could be misapplied in larger municipalities where the financial stakes and structural self-oversight risks are substantially greater, and should the Board have explicitly limited its ruling to small-municipality contexts?
Was Engineer A ethically obligated to recuse himself or WXY from advising City H on the very question of whether to hire a consulting firm as city engineer versus a full-time employee, given that WXY stood to benefit financially from the consulting-firm outcome?
Does the principle that small municipalities deserve access to competent engineering services conflict with the principle that a city engineer must maintain structural independence from self-oversight, and if so, which principle should take precedence when the only available qualified firm already holds active contracts with the city?
Does the principle that absence of private client work within City H partially mitigates WXY's conflict of interest conflict with the principle that disclosure alone is insufficient to resolve a structural self-oversight conflict, and does partial mitigation ever justify full ethical clearance?
Does the principle of undivided loyalty owed by a city engineer to the public client conflict with the principle that a consulting firm serving as city engineer may simultaneously hold design contracts with that same client, given that financial self-interest in retaining or expanding those contracts could subtly distort the advisory judgment the city depends upon?
Does the principle that prospective and evolving conflicts require ongoing disclosure conflict with the principle that objectivity and independence are foundational to the city engineer advisory role, in the sense that a disclosure obligation presupposes a continuing conflict that may be fundamentally incompatible with the impartiality the role demands rather than merely manageable through transparency?
From a deontological perspective, does Engineer A's duty of loyalty to City H as city engineer categorically conflict with WXY Engineers' duty to act in its own commercial interest as a contracted design services provider, and can disclosure alone resolve that categorical tension?
From a consequentialist perspective, does the public benefit of ensuring small municipalities like City H have access to competent engineering services outweigh the aggregate risk of structural self-oversight conflicts that arise when a multi-contract incumbent firm assumes the city engineer advisory role?
From a virtue ethics standpoint, does a firm that simultaneously holds three active design contracts with a city and then pursues the city engineer advisory role demonstrate the professional integrity and impartiality that the virtue of objectivity demands, or does the pursuit itself reveal a character disposition toward self-interest that undermines trustworthiness?
From a deontological perspective, does NSPE Code provision II.4.a impose an absolute duty on Engineer A to disclose not only current conflicts but also all reasonably foreseeable future conflicts that could arise as new design contracts are awarded under the city engineer arrangement, and does failure to anticipate and disclose such prospective conflicts constitute a breach of duty regardless of outcome?
If WXY Engineers had been performing private design work for developers within City H at the time of the city engineer appointment consideration, would the Board's ethical permissibility conclusion have been reversed, and what does that reversal threshold reveal about the structural limits of the no-private-work mitigation principle?
If Engineer A had proactively declined to pursue the city engineer role and instead recommended that City H hire an independent full-time city engineer, would that act of self-restraint have better satisfied the non-self-serving advisory obligation, and would it have produced a superior public interest outcome for City H?
If City H had not been a small municipality with limited resources but instead a large city with a robust engineering department, would the Board have applied the small-municipality public interest justification drawn from BER 74-2, and would the ethical permissibility conclusion have changed in the absence of that justification?
If Engineer A had failed to make any disclosure of WXY's three existing contracts to City H officials before accepting the city engineer role, would the Board's conditional ethical approval have been withdrawn entirely, and does this scenario expose a gap in the Board's reasoning by showing that the ethical permissibility rests entirely on a disclosure condition that is not independently verifiable?
Could prompt a more thorough ethical review that ultimately validates or invalidates the WXY arrangement
May delay or complicate the cost-saving arrangement the city is considering
Duty of transparency and due diligence in municipal governance
Duty to raise ethical concerns in public decision-making
Obligation to protect the public interest from structural conflicts of interest
Accountability and transparency in government
Conflicts of interest must be identified and addressed proactively
Public officials must safeguard the integrity of municipal processes
Ensure that the city's decision-making process accounts for the ethical and governance risks of appointing a contractor already under contract as the city's chief engineering authority
Ability to identify and articulate conflict-of-interest risks
Deliberative participation in public decision-making
Municipal governance and ethics awareness
Current moment, during deliberations over city engineer replacement
A city official made a deliberate decision to formally raise a conflict-of-interest concern about WXY serving as city engineer while simultaneously holding three active contracts with City H, injecting an ethical checkpoint into the deliberation process.
The pre-existing multi-contract state transforms from a routine business condition into a material ethical factor the moment WXY is considered for the city engineer role; what was administratively normal becomes ethically significant
Ongoing at the time of Engineer B's resignation and City H's deliberation; result of years of relationship-building
At the time City H considered WXY for the city engineer role, WXY already held three active, concurrent contracts with City H, a structural condition that predated and directly shaped the ethical dilemma. This co-existence of multiple contracts is not a decision but an accumulated state of affairs.
WXY Absent Private Work Partial Mitigation Non-Sufficiency Assessment
A city official's conflict concern was partially addressed by noting WXY has no private developer work in City H, but three active municipal contracts remain and create a residual self-oversight conflict
Absent Private Developer Work Partial Conflict Mitigation Non-Sufficiency Constraint
WXY Engineers and City H officials are constrained from treating WXY's absence of private developer work in City H as a complete resolution of the conflict-of-interest concern; the absence of private work eliminates one dimension of conflict but does not resolve the residual structural conflict arising from WXY's self-oversight of its own active municipal contracts.
NSPE Code of Ethics Section II.4; BER Case conflict-of-interest standards
WXY does not perform any private work for developers or other private parties within City H and, therefore, if it were designated city engineer for City H, WXY would not be reviewing the work it performed for private clients
During the appointment consideration and any subsequent dual-role period
WXY Conflict of Interest Disclosure Evolution Compliance - City H Appointment
The evolved NSPE standard requires disclosure rather than absolute avoidance, but WXY must still make complete and prompt disclosure of all conflict dimensions
Conflict of Interest Disclosure Supersession of Absolute Avoidance Constraint
WXY Engineers is constrained to apply the evolved conflict-of-interest disclosure standard — promptly disclosing all known conflicts to City H — rather than either (a) applying an outdated absolute-avoidance standard that would categorically prohibit any dual-role arrangement, or (b) failing to disclose the structural conflict on the grounds that the absence of private developer work resolves all concerns.
NSPE Code of Ethics Section II.4; evolved conflict-of-interest disclosure standard
Throughout the appointment consideration and any subsequent dual-role period
WXY Dual Role Self-Review Prohibition - Active Contracts
WXY holds three active contracts with City H and is being considered for the city engineer role that would require oversight of those same contracts
Dual Role Self-Review Conflict Prohibition Constraint
WXY Engineers is constrained from simultaneously serving as city engineer (reviewer/overseer) and as design/service contractor under its three active City H contracts, because the structural self-review conflict renders both roles ethically impermissible to hold concurrently.
NSPE Code of Ethics Section II.4; BER Case 94-5
While WXY holds active contracts with City H and is proposed as city engineer
having WXY serve as city engineer would constitute a conflict of interest
WXY Engineers BER Dual-Role Municipal Engineer Precedent Triangulation
BER Dual-Role Precedent Triangulation for Municipal Engineer Permissibility Capability
WXY Engineers, Engineer A, and City H officials must be able to identify and triangulate among BER precedent cases establishing permissible scope of dual-role municipal engineer arrangements, and correctly distinguish permissible precedents from the impermissible fact pattern of WXY's three active contracts
The BER 74-2 Municipal Engineer Firm Principal precedent is directly relevant to assessing the permissibility of WXY's proposed dual role
Application of BER precedent cases (e.g., BER 74-2) to determine that WXY's incumbent multi-contract status places this case outside the permissible precedent range for consulting city engineer arrangements
WXY Engineers / Engineer A / City H Officials
WXY Engineers City H Self-Oversight Scope Limitation Instance
Present case: WXY Engineers holds three active contracts with City H and is being considered for appointment as city engineer; ethical permissibility conditioned on exclusion of self-review from city engineer scope
Active Municipal Contract Self-Oversight Scope Limitation Constraint
WXY Engineers, if appointed as city engineer for City H while holding three active contracts with City H, is prohibited from performing city engineer functions that include reviewing or approving the work performed under its own active contracts — and the ethical permissibility of the dual arrangement is conditioned on WXY's city engineer services being scoped to exclude such self-review.
NSPE BER Case 94-7; NSPE Code of Ethics Section II.4; BER Cases 63-5 and 74-2
Throughout the duration of WXY's simultaneous city engineer appointment and active municipal contracts
WXY will need to disclose further circumstances (e.g., private work in city, reviewing its own work, etc.) that might create a potential for a conflict of interest
WXY Engineers Conflict of Interest Disclosure Evolution Compliance Constraint Instance
Present case: City H official's absolute-avoidance conclusion was rejected by the Board in favor of the evolved disclosure-based standard, conditioned on WXY's ongoing disclosure of conflict circumstances
WXY Engineers / Engineer A / City H officials
The evolved conflict-of-interest standard — requiring prompt and complete disclosure rather than absolute avoidance — governs WXY's appointment as city engineer, prohibiting City H from applying an outdated absolute-avoidance framework to categorically bar WXY's appointment solely because WXY holds active contracts, while simultaneously requiring WXY to disclose all conflict circumstances so City H can make an informed appointment decision.
NSPE Code of Ethics Section II.4; BER Cases 63-5, 74-2, and subsequent decisions
the Board does not concur with City H official's concern that because WXY is under contract with City H, having WXY serve as city engineer would constitute a conflict of interests
Pre-appointment disclosure and throughout the duration of the dual arrangement
WXY Engineers Conflict of Interest Evolution Standard Compliance
Conflict of Interest Evolution Standard Compliance Capability
WXY Engineers and Engineer A must recognize that the evolved conflict-of-interest disclosure standard requires prompt disclosure of all known conflicts — including the self-oversight conflict from three active contracts — rather than relying on older, less stringent approaches
The WXY Engineers Conflict of Interest Disclosure Evolution Compliance obligation requires application of the current evolved standard
Application of the current evolved conflict-of-interest standard to the WXY multi-contract city engineer situation, requiring proactive and complete disclosure
WXY Engineers Disclosure Insufficiency Self-Review Conflict Recognition
Disclosure Insufficiency Recognition for Self-Review Conflict Capability
WXY Engineers, Engineer A, and City H officials must recognize that merely disclosing the conflict arising from WXY's three active contracts is insufficient to cure the ethical violation — the only permissible resolution is declining the city engineer appointment
The structural conflict of WXY overseeing its own work as city engineer cannot be cured by disclosure given the nature of the self-review problem
Determination that the self-oversight conflict from three active contracts is irremediable through disclosure alone, requiring declination of the appointment
WXY Engineers Dual-Role City Engineer Conflict Recognition
Dual-Role City Engineer Conflict of Interest Recognition Capability
WXY Engineers and Engineer A must recognize that simultaneously serving as city engineer (public advisory/oversight role) and holding active design contracts with City H creates a dual-role conflict of interest that cannot be adequately managed
WXY Engineers holds three active contracts with City H and is being considered for the city engineer role that would oversee engineering work in the city
Recognition that the city engineer role requires oversight of engineering work including WXY's own contracted work, creating an irreconcilable dual-role conflict
WXY Engineers Evolving Conflict Ongoing Disclosure Trigger Instance
Present case: Board conditionally cleared WXY's dual arrangement but cautioned that further circumstances must be disclosed and may require revisiting the ethical analysis
Evolving Conflict Circumstance Ongoing Disclosure Trigger Constraint
WXY Engineers, having received conditional ethical clearance to serve as city engineer for City H, must continuously monitor for and promptly disclose to City H any further circumstances — including commencement of private work within City H, situations requiring review of WXY's own work, or new contract awards — that materially change the conflict-of-interest profile and may require re-evaluation of the ethical permissibility of the dual arrangement.
Ongoing throughout the duration of WXY's city engineer appointment
WXY Engineers Incumbent Multi-Contract Self-Oversight Conflict Non-Acceptance
Incumbent Multi-Contract Firm Self-Oversight Conflict Non-Acceptance Capability
WXY Engineers and Engineer A must possess the capability to recognize that holding three active contracts with City H while being considered for city engineer creates an irreconcilable self-oversight conflict requiring declination of the appointment
WXY Engineers holds three active contracts with City H and is being considered to replace the departing full-time city engineer
Recognition that serving as city engineer while holding three active design/service contracts with City H would place WXY in the position of overseeing its own work
WXY Engineers Multi-Client Simultaneous Representation Feasibility Assessment
Multi-Client Interest Simultaneous Representation Feasibility Assessment Capability
WXY Engineers and Engineer A must assess whether simultaneously representing City H as city engineer (public advisory/oversight role) and as design contractor under three active contracts is ethically feasible, and correctly determine that the concurrent relationships make adequate representation of all interests impossible
WXY holds three active design/service contracts with City H while being considered for the city engineer oversight role
Assessment that WXY cannot adequately serve both its role as city engineer (representing the public interest in oversight) and its role as design contractor (representing its own commercial interests under three active contracts) simultaneously
WXY Engineers No Private Work Conflict Negation Scope Boundary Instance
Present case: City H official raised conflict-of-interest concern; Board found it negated by WXY's absence of private work in City H, but residual self-oversight conflict remains
WXY's absence of private client work within City H negates the specific conflict-of-interest concern about reviewing work performed for private clients, but does not eliminate the residual structural conflict arising from WXY's self-oversight of its own active municipal contracts — requiring separate assessment and management of the residual conflict.
NSPE BER Case 94-7; NSPE Code of Ethics Section II.4
Throughout the period of WXY's proposed city engineer appointment
WXY Engineers Part-Time Municipal Engineer Dual-Role Permissibility Boundary Assessment
Part-Time Municipal Engineer Performance Evaluation Impartiality Capability
WXY Engineers, Engineer A, and City H officials must assess whether the proposed part-time consulting city engineer arrangement — where WXY simultaneously holds active design contracts — can be conducted with the impartiality required of a city engineer role, and recognize that WXY's commercial interest in its own contracts compromises this impartiality
The proposed arrangement would have WXY serve as city engineer while holding three active contracts, creating an impartiality problem in performance evaluation
Recognition that WXY's financial interest in its three active contracts would compromise its ability to evaluate engineering work impartially in the city engineer role
WXY Engineers Private-Client Absence Partial Mitigation Residual Conflict Assessment
Private-Client Absence Partial Mitigation Residual Conflict Assessment Capability
WXY Engineers and City H officials must possess the capability to recognize that WXY's absence of private developer work in City H partially mitigates but does not eliminate the conflict of interest, because the self-oversight problem from WXY's three public contracts persists
WXY does not perform private work for developers in City H, which partially addresses one dimension of the conflict but not the self-oversight dimension from existing public contracts
Analysis distinguishing the private-client review conflict dimension (mitigated by absence of private work) from the self-oversight conflict dimension (persisting from three active public contracts)
WXY Engineers Small Municipality Engineering Access Ethical Balancing
Small Municipality Practical Engineering Access Ethical Balancing Capability
WXY Engineers, Engineer A, and City H officials must balance City H's legitimate need for cost-effective engineering services against the ethical imperative to prevent the self-oversight conflict, identifying alternative arrangements that serve both interests
City H is considering the consulting city engineer arrangement as a cost-cutting measure, reflecting the practical constraints of a small municipality
Recognition that City H's cost-cutting motivation and small-city resource constraints are legitimate but cannot override the conflict-of-interest prohibition, and exploration of alternative arrangements
WXY NSPE Code II.4.e Design Services Ineligibility Assessment - City H
WXY is proposed to serve as city engineer while also holding active design contracts; NSPE Code II.4.e creates an ineligibility constraint on being selected for new design services by the same governmental body
Part-Time Public Engineer NSPE Code II.4.e Design Services Ineligibility Constraint
If WXY Engineers is appointed as city engineer (a quasi-public official role), WXY is constrained by NSPE Code Section II.4.e from being selected by City H to perform additional engineering design services for the city — meaning the appointment would need to be structured to address this ineligibility or WXY must decline new design contracts from City H during the city engineer tenure.
NSPE Code of Ethics Section II.4.e; BER Cases 63-5, 74-2
City H officials are currently considering whether to replace Engineer B with another full-time city engineer or, as a cost cutting and efficiency measure, to hire a consultant (such as WXY Engineers) as the city engineer to perform general consulting services and be under contract to provide specific design services on individual city projects
Throughout any period of WXY's service as city engineer
WXY Self-Oversight Structural Conflict City Engineer Non-Acceptance
City H is considering appointing WXY Engineers as consultant city engineer while WXY holds three existing active contracts with the city
Incumbent Multi-Contract Firm City Engineer Self-Oversight Structural Conflict Non-Acceptance Constraint
WXY Engineers, holding three active contracts with City H, is constrained from accepting appointment as city engineer because the role would require WXY to oversee and review its own active contract work, creating an irresolvable structural self-oversight conflict of interest.
NSPE Code of Ethics, Sections II.4 and III.2; BER Case precedents on dual-role self-review conflicts
For the duration that WXY holds active contracts with City H
WXY Small Municipality Dual-Role Permissibility Boundary Assessment
City H is a small municipality considering a consulting firm city engineer arrangement analogous to BER Cases 63-5 and 74-2, but with the added complication of three existing active contracts
Small Municipality Practical Dual-Role Permissibility Boundary Constraint
WXY Engineers' proposed dual role as city engineer and active contract holder with City H must be assessed against the boundary conditions of small municipality dual-role permissibility: absence of self-review, absence of private developer work, prompt disclosure, and NSPE Code II.4.e compliance — with the active contracts creating a self-review risk that may push the arrangement outside the permissible boundary established by BER Cases 63-5 and 74-2.
NSPE Code of Ethics Section II.4.e; BER Cases 63-5, 74-2, 01-11
During the appointment consideration process and any subsequent dual-role period
WXY multi-year service to City H before Engineer B resignation
For many years, WXY has provided services directly to City H... Engineer B, the full-time city engineer, has resigned from his position with City H.
WXY three active contracts with City H overlaps City H consideration of WXY as city engineer
WXY currently has three contracts directly with the city... City H officials are currently considering... to hire a consultant (such as WXY Engineers) as the city engineer.
Defeasibility edge from tensionresolution
source_field=tensionresolution; confidence=0.88
Public welfare is served by permitting the arrangement under conditions of non-self-review and ongoing disclosure, rather than by categorical prohibition that would deprive City H of experienced engineering services
source_field=tensionresolution; confidence=0.93
The public welfare interest in affordable engineering services for small municipalities is legitimate but does not override the conflict-of-interest prohibition when the proposed firm holds active contracts with the city
source_field=tensionresolution; confidence=0.85
source_field=tensionresolution; confidence=0.82
Accountability requires proactive disclosure even when disclosure may disadvantage the engineer's own firm
Engineer A should disclose the self-interest and recuse from advising on the procurement structure decision
source_field=tensionresolution; confidence=0.92
The evolved disclosure-and-management standard, rather than categorical prohibition, governs; the Board's approval of WXY's arrangement is consistent with this evolution, conditioned on ongoing disclosure
source_field=tensionresolution; confidence=0.91
Loyalty is satisfied when the advisory role remains undivided; the dual capacity does not itself violate loyalty provided the engineer's advice is not influenced by the design interest
source_field=tensionresolution; confidence=0.9
Ongoing disclosure is the mechanism by which the conditional ethical clearance is maintained; failure to disclose changed circumstances would retroactively undermine the ethical basis for the arrangement
source_field=tensionresolution; confidence=0.87
The Board permits dual capacity but draws the line at self-review; WXY may serve as city engineer and hold design contracts but may not review its own work in the advisory role — this is the structural condition that makes the arrangement ethically viable
The client's knowing waiver of independent review, combined with the engineer's scrupulous maintenance of undivided advisory loyalty, renders the arrangement permissible; the prohibition on self-review is a default rule that the client may waive
source_field=tensionresolution; confidence=0.95
The cost-efficiency rationale is legitimate but does not override the structural conflict; the city should seek a consulting city engineer that does not simultaneously hold active design contracts with the city
The partial mitigation from no private-client work, combined with the self-review prohibition and ongoing disclosure obligation, collectively render the arrangement permissible; any future acquisition of private clients in City H would trigger re-evaluation
Dual capacity is permissible when the advisory function remains undivided in loyalty; the limiting condition is that advice must not be influenced by the design interest, and self-review requires client waiver
source_field=tensionresolution; confidence=0.86
The overlap between the governmental oversight role and the active private contracts is direct and irreconcilable; the structural conflict cannot be cured by disclosure alone
Partial mitigation acknowledged but found insufficient to cure the remaining structural conflict of self-oversight over active municipal contracts
source_field=tensionresolution; confidence=0.89
The public interest in competent engineering access, combined with the absence of private-client work in City H, tips the balance toward permissibility with ongoing disclosure obligations
municipal engineer appointment (BER 74-2) before firm retained for capital improvement projects (BER 74-2)
The municipal engineer's firm was thereafter usually retained for engineering services for capital improvement projects needed by the municipality.
municipal engineer appointment (BER 74-2)
firm retained for capital improvement projects (BER 74-2)
A City H official raised the concern that WXY Engineers, which holds three active contracts with the city, cannot ethically serve as city engineer because it would be supervising and advising on its own work — a structural self-oversight co
The city engineer role requires objective, independent professional judgment on behalf of the city; WXY's three active contracts with City H create financial interests that compromise its ability to provide objective advice on matters touch
If Engineer A or WXY Engineers were to advise City H on the merits of hiring a consulting city engineer versus a full-time city engineer — a decision in which WXY has a direct commercial interest — they would be obligated to ensure that adv
Engineer A, as president of WXY Engineers, bears professional accountability for proactively disclosing the structural conflict created by WXY's three active contracts with City H when the firm is being considered for the city engineer role
The Board conditioned its approval of WXY Engineering's dual role on WXY's ongoing obligation to disclose any further circumstances — such as acquisition of private clients within City H or situations requiring review of its own work — that
The Board's approval of WXY Engineering's dual role is explicitly conditioned on WXY not reviewing the work it performs for City H in its city engineer advisory capacity; the Board frames general consulting services as permissible only 'whe
The case analysis notes that WXY does not perform private work for developers within City H, meaning it would not be reviewing its own private-client work — this eliminates one conflict vector but not the self-oversight conflict arising fro
The Board justified the dual-role arrangement for WXY Engineering and Engineer A by reference to the public interest in ensuring City H has access to the most competent engineering services available, treating the public benefit of experien
The Board explicitly invoked the public interest in small-municipality engineering access — grounded in BER Case No. 74-2 — to justify permitting WXY Engineering to serve as city engineer while holding active contracts with City H, treating
WXY Engineers simultaneously occupying the public governmental city engineer role and performing private consulting design work under three active contracts with the same city creates an actual and apparent conflict of interest because the
The Board's extensive historical survey of BER conflict-of-interest cases — from the late 1950s through the present — reflects the profession's evolved understanding that conflicts of interest are among the most prevalent ethical issues eng
The city engineer role exists to protect the public interest of City H residents by providing independent, objective engineering advice to the city; appointing a firm with active financial interests in the city's engineering contracts compr
The practical need of City H (a small city) for cost-effective engineering advisory services creates pressure to appoint a consulting firm as city engineer, but this practical need does not override the ethical constraints on accepting a ro
The structural conflict arising from WXY serving as city engineer while holding three active city contracts is irreconcilable — it arises from the identity of the roles rather than a mere financial interest — and cannot be cured by disclosu
In BER Case No. 63-5, the Board held that Engineer B's simultaneous service as part-time city engineer and as design engineer for city projects was ethically permissible because the dual capacity did not divide his loyalties — the client's
The Board cited the axiomatic professional loyalty norm — that a professional may not take action or make decisions that divide loyalties from those of the employer or client — as the foundational standard against which Engineer B's dual ro
The Board in BER Case No. 63-5 held that the city's decision not to require independent review of Engineer B's plans was a permissible exercise of the client's right to waive independent review, because no NSPE Code provision mandates third
The Board explicitly noted that WXY Engineering's absence of private-client work within City H reinforces the ethical permissibility of the dual-role arrangement, because WXY would not be reviewing work performed for private clients — reduc
Engineer A, as president of WXY Engineers, is obligated to proactively disclose to City H officials the full nature of the structural conflict of interest created by WXY's three active contracts with the city and the self-oversight implicat
Engineer A and WXY Engineers are obligated to refrain from advising City H on the merits of hiring a consulting city engineer versus a full-time city engineer without first disclosing their direct commercial interest in the outcome of that
Engineer A, WXY Engineers, and City H officials are obligated to assess whether the proposed city engineer arrangement — where WXY simultaneously holds active design contracts with the city and serves as its advisory city engineer — falls w
City H officials are obligated to ensure they have complete and accurate conflict-of-interest information — including the self-oversight implications of WXY's three active contracts — before making the city engineer appointment decision, an
Engineer A, WXY Engineers, and City H officials are obligated to recognize that City H's legitimate need for cost-effective engineering advisory services as a small city creates pressure toward the consulting city engineer model, but that t
Engineer B was obligated to ensure that his advisory recommendations to the city council were not influenced by his secondary interest as the engineer likely to be retained for the design of city projects, maintaining scrupulous separation
Engineer B was obligated to recognize and respect the city's right to waive independent review of his own plans, and to proceed ethically under that waiver without exploiting it to compromise advisory objectivity, understanding that the dua
The municipal engineer firm principal and the municipality were obligated to recognize that the public interest in providing small municipalities with access to the most competent engineering services available justified the dual-role arran
WXY Engineers, holding three active contracts with City H, is obligated to decline appointment as city engineer because the structural self-oversight conflict — overseeing its own active contract work in an independent advisory capacity — i
Engineer A and WXY Engineering are obligated to continuously monitor for and promptly disclose to City H any further circumstances that arise — such as acquisition of private clients within City H, situations requiring review of the firm's
Engineer A and WXY Engineering are obligated to comply with the current evolved standard of conflict-of-interest management — requiring prompt disclosure of all known or potential conflicts to City H — rather than treating the dual-role arr
Engineer A and WXY Engineering are obligated, as a condition of the ethically permissible dual-role arrangement, to refrain from performing in the city engineer advisory capacity any review, evaluation, or approval of work that WXY Engineer
Engineer A and WXY Engineering are obligated to act as faithful agents and trustees for City H in the city engineer advisory role, serving the city's interests loyally and without division, ensuring that advisory recommendations reflect the
WXY Engineers and City H officials are obligated to recognize that WXY's absence of private developer work in City H partially mitigates — but does not eliminate — the conflict of interest arising from WXY's three active public contracts wi
Engineer A, WXY Engineering, and City H officials are obligated to recognize that the public interest in providing City H with access to the most competent engineering services — grounded in the experience and expertise WXY has developed th
Engineer A and WXY Engineers are obligated to comply with the current evolved conflict-of-interest disclosure standard — promptly disclosing all known or potential conflicts arising from WXY's three active city contracts to City H — rather
{'employment_type': 'Full-time municipal employee', 'status': 'Resigned'}
Full-time city engineer for City H who has resigned, triggering the municipality's decision about whether to hire a replacement full-time engineer or contract with a consulting firm such as WXY.
{'type': 'employer', 'target': 'City H'}
{'type': 'successor_candidate', 'target': 'WXY Engineers'}
Engineer B, the full-time city engineer, has resigned from his position with City H
City H Official Conflict Concern Authority
{'role_type': 'Municipal official / administrative authority', 'position': 'City H official (unspecified title)'}
A City H official who raised concern that having WXY Engineering serve as city engineer while under contract with City H would constitute a conflict of interest. The Board did not concur with this concern given the precedents established in BER Cases 63-5 and 74-2.
{'type': 'authority_over', 'target': 'City H engineering procurement'}
{'type': 'raises_concern_about', 'target': 'Engineer A WXY Engineering Incumbent Multi-Contract Prospective City Engineer'}
{'license': 'Professional Engineer (implied as firm president)', 'firm': 'WXY Engineers', 'existing_contracts_with_city': 3, 'private_developer_work_in_city': False}
President of WXY Engineers, which holds three active contracts with City H and is being considered to replace the departing full-time city engineer as a consulting city engineer arrangement; must navigate the conflict-of-interest concern raised by city officials.
{'type': 'current_client', 'target': 'City H'}
{'type': 'peer', 'target': 'Engineer B (departing city engineer)'}
{'type': 'prospective_employer_client', 'target': 'City H (city engineer role)'}
Incumbent Multi-Contract Firm Prospective City Engineer
Engineer A is the president of WXY Engineers
City H officials are currently considering whether to hire a consultant (such as WXY Engineers) as the city engineer
WXY currently has three contracts directly with the city
Engineer B Part-Time City Engineer Dual Capacity - BER 63-5
Duration of Engineer B's part-time city engineer engagement including preparation of plans and specifications
Engineer B was retained by the city council for the preparation of plans and specifications for a city project
Engineer B's simultaneous advisory and design role for the same community
Community retaining Engineer B on part-time basis as city engineer and subsequently retaining him for plan preparation
Raised Conflict of Interest Concern Structurally Negated by No Private Work
From the moment the city official raised the concern; persists until City H makes its decision or WXY's practice scope changes
Apparent Conflict Structurally Negated by Absence of Private Client Work State
The city official's conflict of interest concern regarding WXY's appointment, which is structurally negated by WXY's absence of private work in City H
City H's decision on the appointment, or a change in WXY's private work scope within the city
if it were designated city engineer for City H, WXY would not be reviewing the work it performed for private clients
City official formally raising the conflict of interest concern about WXY serving as city engineer while under contract
WXY No Private Work Conflict Negation - Present Case
Current state — WXY performs no private work within City H
City H official's conflict-of-interest concern negated by WXY's absence of private work within City H
WXY beginning to perform private work within City H jurisdiction
City H official raising conflict-of-interest concern about WXY serving as city engineer while under contract
WXY Proposed as City Engineer with Existing Contracts
From Engineer B's resignation through City H's pending decision on replacement
Consultant Firm Proposed as Municipal City Engineer with Existing Contracts State
City H's active consideration of appointing WXY Engineers as consultant city engineer while WXY holds three existing contracts with the city
City H's final decision on whether to hire WXY or another engineer/firm
Engineer B's resignation from the full-time city engineer position, prompting City H to consider a consultant model
BER 74-2 Municipal Engineer Firm Principal
{'license': 'Professional Engineer', 'appointment_basis': 'State law mandate', 'compensation_structure': 'Cost-plus or flat monthly retainer for advisory role plus project fees for capital work', 'municipality_size': 'Small community unable to afford full-time municipal engineer', 'case_reference': 'BER Case No. 74-2'}
A principal of a private consulting engineering firm appointed as municipal engineer pursuant to state law requiring every municipality to have a municipal engineer. The firm was thereafter retained for capital improvement engineering services for the same municipality. The BER ruled this arrangement ethical as it serves the public interest by providing small municipalities with the most competent engineering services they can acquire.
{'type': 'appointed_by', 'target': 'Small Municipality'}
{'type': 'firm_retained_by', 'target': 'Small Municipality for Capital Projects'}
{'type': 'principal_of', 'target': 'Private Consulting Engineering Firm'}
Consulting Firm Principal Appointed Municipal Engineer
a state law that required that every municipality have a municipal engineer
The municipal engineer's firm was thereafter usually retained for engineering services for capital improvement projects needed by the municipality
it is 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 smaller communities retained the services of a consulting firm in private practice and appointed a principal of the firm as the municipal engineer
City H Officials Informed City Engineer Appointment Decision Facilitation Instance
City H is a small city making a cost-driven decision about its city engineer role. The public interest of City H residents depends on the city engineer providing independent, objective advisory services. The appointment decision must be made with full awareness of the structural conflict implications.
City H officials and Engineer A / WXY Engineers
Municipal Client Informed City Engineer Appointment Decision Facilitation Obligation
City H officials are obligated to ensure they have complete and accurate conflict-of-interest information — including the self-oversight implications of WXY's three active contracts — before making the city engineer appointment decision, and Engineer A is obligated to facilitate rather than obstruct that informed decision-making process.
During the appointment deliberation period following Engineer B's resignation
Disclosure Insufficiency for WXY Structural Self-Oversight Conflict
WXY Engineers appointment as City H consulting city engineer
Private-Client Absence as Partial Conflict Mitigation Principle
The structural conflict arising from WXY serving as city engineer while holding three active city contracts is irreconcilable — it arises from the identity of the roles rather than a mere financial interest — and cannot be cured by disclosure to City H because City H is already aware of the existing contracts
The conflict is structural: the city engineer is supposed to independently advise the city on engineering matters, but WXY cannot independently advise on matters in which it has a direct financial stake as contractor; awareness of the conflict by the city does not restore the independence the role requires
Disclosure Insufficiency for Structural Conflict of Interest
Structural conflicts require categorical prohibition or structural remedy (e.g., independent oversight of WXY's own contracts), not merely disclosure
Engineer B Client Waiver of Independent Review - BER 63-5
Duration of Engineer B's plan preparation engagement
Client Waiver of Independent Engineering Review Right State
Community's waiver of right to have independent engineer review Engineer B's plans
Community's implicit waiver of independent review right by retaining Engineer B for both advisory and design roles
Engineer B Part-Time City Engineer and Design Provider
{'license': 'Professional Engineer', 'practice_type': 'Full-time private practice with part-time municipal service', 'compensation_structure': 'Monthly retainer for advisory role plus professional fees for design projects', 'case_reference': 'BER Case No. 63-5'}
Engineer B was retained part-time as city engineer for a small community, providing general advisory services to the city council, and was also separately retained to prepare plans and specifications for specific city projects on a professional fee basis above his monthly retainer. The BER ruled this ethical provided his advisory judgments were not influenced by his secondary interest in design commissions.
{'type': 'design_provider_to', 'target': 'Small Community (City)'}
{'type': 'retained_by', 'target': 'Small Community (City)'}
{'type': 'serves_as_advisor_to', 'target': 'Small Community City Council'}
Part-Time City Engineer Dual-Role Design Provider
Engineer B was engaged in full-time private practice and treated his part-time service to the community as service to a client
The duties for the city usually included advising the city council on engineering problems
Private-Client Absence as Partial Conflict Mitigation Principle Invoked for WXY City H Appointment
WXY Engineering's lack of private clients within City H as a mitigating factor in the conflict analysis
Incumbent Multi-Contract Self-Oversight Conflict Prohibition
Prospective Conflict Disclosure Obligation Under Evolving Factual Circumstances
The Board explicitly noted that WXY Engineering's absence of private-client work within City H reinforces the ethical permissibility of the dual-role arrangement, because WXY would not be reviewing work performed for private clients — reducing one dimension of the structural conflict while the self-review prohibition on municipal contract work addresses the remaining dimension
The absence of private-client work in City H is treated as a factual mitigant that, combined with the self-review prohibition, makes the arrangement ethically viable; it is not a complete cure but a significant partial mitigation
This view is reinforced by the fact that WXY does not perform any private work within City H and would not be reviewing the work it performed for private clients.
the Board would caution that WXY will need to disclose further circumstances (e.g., private work in city, reviewing its own work, etc.) that might create a potential for a conflict of interest.
Public Welfare Paramount Invoked in City Engineer Conflict of Interest Assessment
Integrity of City H's engineering oversight and advisory function
Part-Time Municipal Engineer Competitive Disadvantage Acknowledgment and Ethical Constraint
The city engineer role exists to protect the public interest of City H residents by providing independent, objective engineering advice to the city; appointing a firm with active financial interests in the city's engineering contracts compromises this public protection function
The public welfare paramount principle requires that the city engineer be positioned to give advice that serves the public interest without being compromised by the advisor's own financial interests in the city's engineering program
Public welfare requires independent engineering oversight; the structural conflict must be resolved before WXY can ethically serve as city engineer
City H officials are currently considering whether to replace Engineer B with another full-time city engineer or, as a cost cutting and efficiency measure, to hire a consultant (such as WXY Engineers) as the city engineer to perform general consulting services
Small Municipality Consulting Firm Appointment - BER 74-2
Duration of consulting firm principal's appointment as municipal engineer
Many of the smaller communities in the state did not have and could not afford full-time municipal engineers
Small Municipality Consulting Firm Municipal Engineer Appointment State
Small municipalities appointing consulting firm principals as municipal engineers under state law mandate
The municipal engineer's firm was thereafter usually retained for engineering services for capital improvement projects
State law requiring municipal engineer appointment combined with municipality's inability to afford full-time engineer
WXY Engineering Conditional Ethical Permissibility - Present Case
From Board's ethical determination forward, contingent on no new conflict-generating circumstances arising
Conditional Ethical Permissibility Pending Disclosure Compliance State
WXY Engineering's ethical clearance to serve as city engineer for City H, conditioned on ongoing disclosure
Emergence of new conflict-generating circumstances (private work in city, self-review situations) without disclosure
it would be ethical for Engineer A and his firm WXY to serve as city engineer for City H
Board determination that WXY serving as city engineer is ethical under current facts, with explicit caution about future disclosure obligations
WXY Engineers Conflict of Interest Disclosure Evolution Compliance Instance
The evolved NSPE standard requires disclosure and management of conflicts rather than absolute avoidance. WXY's three active contracts create a known potential conflict that must be disclosed to City H under the current standard, even if the conflict may be partially mitigated by the absence of private-client work.
Conflict of Interest Disclosure Evolution Compliance Obligation
Engineer A and WXY Engineers are obligated to comply with the current evolved conflict-of-interest disclosure standard — promptly disclosing all known or potential conflicts arising from WXY's three active city contracts to City H — rather than treating the conflict as either automatically disqualifying (old avoidance standard) or manageable without disclosure (inadequate standard).
Upon being considered for the city engineer appointment and throughout any appointment period
WXY Multi-Contract Relationship with City H
Ongoing — WXY has provided services to City H for many years and currently holds three active contracts
WXY has provided services directly to City H (a small city)
WXY Engineers' ongoing contractual relationship with City H across three active projects
Not yet terminated; persists through the decision period
Execution of multiple engineering service contracts between WXY and City H over many years
BER 74-2 Municipal Engineer Firm Small Municipality Public Interest Justification
State law required every municipality to have a municipal engineer. Smaller communities could not afford full-time engineers and retained consulting firms, appointing a principal as municipal engineer. The Board found this ethical because the public interest is best served by providing small municipalities with the most competent engineering services they can acquire.
BER 74-2 Municipal Engineer Firm Principal and municipal decision-makers
Small Municipality Dual-Role Arrangement Public Interest Justification Recognition Obligation
The municipal engineer firm principal and the municipality were obligated to recognize that the public interest in providing small municipalities with access to the most competent engineering services available justified the dual-role arrangement (municipal engineer plus capital project design firm), provided the arrangement was structured to serve that public interest.
At the time of appointment and throughout the dual-role engagement
{'entity_type': 'Small municipality', 'decision_pending': 'City engineer replacement procurement'}
City H officials deliberating whether to hire a full-time replacement city engineer or contract with WXY Engineers as consulting city engineer, and evaluating the conflict-of-interest concern raised regarding WXY's existing contracts.
{'type': 'client', 'target': 'WXY Engineers (existing contracts)'}
{'type': 'prospective_employer', 'target': 'WXY Engineers (city engineer role)'}
Municipal Engineering Contracting Authority
City H officials are currently considering whether to replace Engineer B with another full-time city engineer or, as a cost cutting and efficiency measure, to hire a consultant
Dual Capacity Without Divided Loyalty Permissibility Principle Invoked for Engineer B BER 63-5
Engineer B part-time city engineer role concurrent with design work for same city
WXY Engineering prospective appointment as city engineer while holding active design contracts
Conflict of Interest Disclosure Evolution Principle
Municipal Advisory Role Self-Review Prohibition
In BER Case No. 63-5, the Board held that Engineer B's simultaneous service as part-time city engineer and as design engineer for city projects was ethically permissible because the dual capacity did not divide his loyalties — the client's interests remained paramount — provided his advisory advice was not influenced by his secondary design interest
The ethical test is not whether the engineer holds two roles but whether those roles actually divide loyalty; the Board's axiomatic formulation — that a professional may not divide loyalties from client — is satisfied when the advisory role remains client-faithful despite the concurrent design interest
Dual Capacity Without Divided Loyalty Permissibility Principle
Under those circumstances, the engineer was acting in a dual capacity, but not a divided one.
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 WXY Engineering Prospective Evolving Conflict Ongoing Disclosure
The Board approved WXY Engineering serving as city engineer for City H while holding three active contracts with the city, conditioned on WXY not reviewing its own work and disclosing any further circumstances that might create conflicts, such as private work within the city.
Prospective Evolving Conflict Circumstance Ongoing Disclosure Obligation
Engineer A and WXY Engineering are obligated to continuously monitor for and promptly disclose to City H any further circumstances that arise — such as acquisition of private clients within City H, situations requiring review of the firm's own work, or new contract relationships — that could create or materially aggravate a conflict of interest, recognizing that the Board's approval of the dual-role arrangement is conditioned on the current factual circumstances and does not constitute permanent authorization.
Ongoing throughout the duration of the dual-role city engineer appointment
Engineer B BER 63-5 Advisory Loyalty Non-Division Dual Role
Engineer B served part-time as city engineer providing advisory services to the city council while also being retained for preparation of plans and specifications for city projects on a fee basis above his monthly retainer.
Engineer B (BER Case No. 63-5 part-time city engineer)
Dual-Role City Engineer Advisory Loyalty Non-Division Obligation
Engineer B was obligated to ensure that his advisory recommendations to the city council were not influenced by his secondary interest as the engineer likely to be retained for the design of city projects, maintaining scrupulous separation between his advisory and design roles.
Throughout the duration of dual advisory-design service to the community
Non-Self-Serving Advisory Obligation Invoked for Engineer A City Engineer Candidacy
City H decision on whether to hire full-time city engineer or consulting firm
Client Interest Primacy Over Engineer Personal Advantage in Faithful Agent Role
Faithful Agent Obligation Within Ethical Limits
If Engineer A or WXY Engineers were to advise City H on the merits of hiring a consulting city engineer versus a full-time city engineer — a decision in which WXY has a direct commercial interest — they would be obligated to ensure that advice is not structured to favor their own appointment
Engineer A's position as a candidate for the city engineer role creates a structural incentive to recommend the consulting model; any advisory input from WXY on this decision must be disclosed as self-interested and should not be the basis for the city's decision
Objectivity Invoked for Independent City Engineer Advisory Role
WXY Engineers advisory capacity as prospective city engineer
The city engineer role requires objective, independent professional judgment on behalf of the city; WXY's three active contracts with City H create financial interests that compromise its ability to provide objective advice on matters touching those contracts
Objectivity as a professional virtue requires that the city engineer's recommendations not be influenced by the firm's own financial stake in the city's engineering program; the existence of three active contracts creates a structural impediment to objectivity
Objectivity requires structural independence; the conflict must be resolved to restore the conditions for objective advice
Professional Accountability Invoked for Engineer A Conflict Disclosure Obligation
Engineer A's obligation to disclose conflict to City H officials
Conflict of Interest Disclosure in Advisory Engagements
Engineer A, as president of WXY Engineers, bears professional accountability for proactively disclosing the structural conflict created by WXY's three active contracts with City H when the firm is being considered for the city engineer role, and for advising the city of the ethical implications
Professional accountability requires that Engineer A not passively allow the city to proceed with an appointment that creates an irreconcilable conflict of interest without affirmatively raising the ethical issue
Engineer A is the president of WXY Engineers, an engineering firm. For many years, WXY has provided services directly to City H (a small city), and WXY currently has three contracts directly with the city for separate projects with City H.
Prospective Conflict Disclosure Obligation Under Evolving Factual Circumstances Invoked for WXY Engineering
Future factual developments such as private work in City H or self-review situations
WXY Engineering ongoing city engineer appointment
The Board conditioned its approval of WXY Engineering's dual role on WXY's ongoing obligation to disclose any further circumstances — such as acquisition of private clients within City H or situations requiring review of its own work — that would materially alter the conflict analysis, and explicitly noted that changed factual circumstances might require the city to revisit the ethical considerations
The Board's ethical clearance is explicitly conditional and prospective; WXY bears a continuing monitoring and disclosure obligation, and the city retains the right to re-evaluate the arrangement if facts change
Under different factual circumstances, the city may have to revisit the ethical considerations raised.
Engineer A WXY Engineering Conflict of Interest Disclosure Evolution Compliance
The Board's extensive historical survey of BER conflict-of-interest cases reflects the profession's evolution from absolute avoidance to disclosure and management. The Board's approval of WXY's dual role is conditioned on ongoing disclosure of further circumstances that might create conflicts.
Engineer A and WXY Engineering are obligated to comply with the current evolved standard of conflict-of-interest management — requiring prompt disclosure of all known or potential conflicts to City H — rather than treating the dual-role arrangement as requiring absolute avoidance, recognizing that the profession has moved to mandatory disclosure and management as the operative ethical requirement.
Throughout the dual-role engagement, with particular attention to any new circumstances that arise
Conflicts of interest are clearly among the most prevalent ethical issues that engineers face in their professional lives
Engineer B BER 63-5 Client Self-Review Waiver Recognition
The city did not require independent review of Engineer B's plans in his capacity as city engineer, effectively waiving its right to such review. The Board found this permissible, establishing that the engineer was acting in a dual but not divided capacity.
Municipal Client Self-Review Waiver Right Recognition Obligation
Engineer B was obligated to recognize and respect the city's right to waive independent review of his own plans, and to proceed ethically under that waiver without exploiting it to compromise advisory objectivity, understanding that the dual capacity remained permissible precisely because the client exercised its informed waiver right.
At the time of plan preparation and advisory review for city projects
The Board noted that the client has the right of review by its own engineer, but it may waive its right, as it did in BER Case No. 63-5
Private Client Absence Partial Mitigation Invoked by WXY Conflict Analysis
The case analysis notes that WXY does not perform private work for developers within City H, meaning it would not be reviewing its own private-client work — this eliminates one conflict vector but not the self-oversight conflict arising from its three active municipal contracts
The absence of private-client work within City H distinguishes this case from the classic BER 74-2 scenario but does not fully resolve the conflict; the remaining self-oversight conflict vector is independently sufficient to raise serious ethical concerns
Engineer A WXY Engineering Incumbent Multi-Contract Prospective City Engineer
Client Waiver of Independent Self-Review Right Permissibility Principle Invoked in BER 63-5
City H's potential acceptance of WXY Engineering's dual role without independent self-review
City's decision not to require independent review of Engineer B's plans in BER Case No. 63-5
The Board in BER Case No. 63-5 held that the city's decision not to require independent review of Engineer B's plans was a permissible exercise of the client's right to waive independent review, because no NSPE Code provision mandates third-party review of an engineer's work, and the client's autonomous decision to accept the dual-role arrangement without independent review was ethically valid
Client autonomy includes the right to waive independent engineering review; the ethical obligation on the engineer is to ensure the waiver is informed and that advisory advice remains uninfluenced by design interest
Client Waiver of Independent Self-Review Right Permissibility Principle
The Board noted that the client has the right of review by its own engineer, but it may waive its right, as it did in BER Case No. 63-5.
The Board noted that there is no requirement in the NSPE Code that an engineer's plans for a client must be reviewed by an engineer employed or retained by the client.
Engineer A Small Municipality Engineering Service Access Public Welfare Facilitation Instance
City H is a small city considering the consulting city engineer model as a cost-cutting and efficiency measure. The public welfare interest in affordable engineering services for small municipalities is legitimate but does not override the conflict-of-interest prohibition when the proposed firm holds active contracts with the city.
Engineer A / WXY Engineers and City H officials
Small Municipality Engineering Service Access Public Welfare Facilitation Obligation
Engineer A, WXY Engineers, and City H officials are obligated to recognize that City H's legitimate need for cost-effective engineering advisory services as a small city creates pressure toward the consulting city engineer model, but that this public welfare objective must be achieved through an arrangement that does not compromise the objectivity of the city engineer role through structural self-oversight conflicts.
During the appointment deliberation and any subsequent arrangement structuring
Engineer A Structural Conflict Proactive Disclosure to City H Instance
WXY holds three active contracts with City H. A city official has already raised the conflict concern. Engineer A bears professional accountability for ensuring City H has complete conflict information before any appointment is formalized.
Incumbent Multi-Contract Firm Structural Conflict Proactive Disclosure to Municipal Client Obligation
Engineer A, as president of WXY Engineers, is obligated to proactively disclose to City H officials the full nature of the structural conflict of interest created by WXY's three active contracts with the city and the self-oversight implications of simultaneously serving as city engineer, before the municipality makes its appointment decision.
Before or contemporaneously with any formal appointment deliberation or acceptance
Engineer A WXY Prospective City Engineer Self-Interest Advisory Non-Distortion Instance
City H is deliberating between hiring a full-time replacement city engineer or contracting with a consulting firm such as WXY Engineers. WXY has a direct financial interest in the city choosing the consulting model, creating a self-serving advisory risk if WXY provides input on the structural question.
Prospective City Engineer Self-Interest Advisory Non-Distortion Obligation
Engineer A and WXY Engineers are obligated to refrain from advising City H on the merits of hiring a consulting city engineer versus a full-time city engineer without first disclosing their direct commercial interest in the outcome of that decision, given that WXY is itself a candidate for the consulting city engineer role.
During the period when City H is deliberating the full-time vs. consulting city engineer decision
WXY has provided services directly to City H for many years
Loyalty Invoked as Axiomatic Non-Division Standard for Dual-Role Engineers
Engineer B dual role as city engineer and design engineer in BER Case No. 63-5
WXY Engineering dual role as city engineer and design contractor for City H
The Board cited the axiomatic professional loyalty norm — that a professional may not take action or make decisions that divide loyalties from those of the employer or client — as the foundational standard against which Engineer B's dual role in BER Case No. 63-5 was assessed, and by extension as the standard governing WXY Engineering's proposed dual role
Loyalty in this context is operationalized as the prohibition on divided loyalties; the engineer's advisory advice must remain faithful to the client's interests and must not be distorted by the secondary design interest
WXY Engineers Part-Time Municipal Engineer Dual-Role Permissibility Boundary Assessment Instance
BER precedent (Cases 63-5, 74-2, 01-11) establishes that part-time municipal engineer firms may also perform design work for the municipality in certain circumstances, but the permissibility boundary is crossed when the firm would review its own work. WXY's three active contracts create precisely this self-review risk in the city engineer role.
Part-Time Municipal Engineer Dual-Role Advisory-Design Ethical Permissibility Boundary Obligation
Engineer A, WXY Engineers, and City H officials are obligated to assess whether the proposed city engineer arrangement — where WXY simultaneously holds active design contracts with the city and serves as its advisory city engineer — falls within the permissible dual-role boundary established by BER precedent, recognizing that the self-oversight risk from active contracts distinguishes this case from permissible arrangements.
Before accepting the city engineer appointment
WXY Private-Client Absence Partial Mitigation Residual Conflict Assessment Instance
The case explicitly notes that WXY does not perform private work for developers within City H, meaning it would not be reviewing its own private-client work. However, WXY still holds three active public contracts with the city, creating a residual self-oversight conflict that the private-client absence does not resolve.
Private-Client Absence Partial Mitigation Recognition and Residual Conflict Assessment Obligation
WXY Engineers and City H officials are obligated to recognize that WXY's absence of private developer work in City H partially mitigates — but does not eliminate — the conflict of interest arising from WXY's three active public contracts with the city, and to conduct a residual conflict assessment addressing the remaining self-oversight risk on those active contracts.
During the conflict-of-interest analysis preceding the city engineer appointment decision
Dual-Role Public-Private Conflict Invoked in WXY City Engineer Appointment
WXY Engineers appointment as City H consulting city engineer while holding three active city contracts
WXY Engineers simultaneously occupying the public governmental city engineer role and performing private consulting design work under three active contracts with the same city creates an actual and apparent conflict of interest because the governmental responsibilities directly intersect with the private consulting work
The city engineer role carries governmental advisory and oversight authority; WXY's simultaneous role as design contractor under three active city contracts means its governmental responsibilities directly overlap with its private consulting work for the same client
Dual-Role Conflict of Interest Prohibition in Public-Private Engineering
Municipal Advisory Role Self-Review Prohibition Invoked as Limiting Condition on WXY Approval
Boundary between permissible general advisory services and impermissible self-review
WXY Engineering city engineer role scope limitation
The Board's approval of WXY Engineering's dual role is explicitly conditioned on WXY not reviewing the work it performs for City H in its city engineer advisory capacity; the Board frames general consulting services as permissible only 'where these services do not include reviewing the work of Engineer A's firm,' making self-review prohibition the operative limiting condition
Self-review prohibition is the non-negotiable ethical floor that cannot be waived by the municipality in the context of an ongoing multi-contract relationship; it is the boundary condition that distinguishes permissible dual capacity from impermissible divided loyalty
it would be ethical for Engineer A and his firm WXY to serve as city engineer for City H, perform general consulting services where these services do not include reviewing the work of Engineer A's firm and be under contract to provide specific design services on individual city projects.
Part-Time Municipal Engineer Competitive Constraint Invoked in WXY Appointment Context
City H decision to use consulting city engineer model for cost efficiency
The practical need of City H (a small city) for cost-effective engineering advisory services creates pressure to appoint a consulting firm as city engineer, but this practical need does not override the ethical constraints on accepting a role that creates irreconcilable conflicts with existing contracts
Small municipalities face genuine resource constraints that make the consulting city engineer model attractive, but these constraints do not dissolve the ethical obligations of the appointed firm to avoid irreconcilable conflicts of interest
Small Municipality Competent Engineering Access as Public Interest Justification Invoked for WXY Appointment
BER Case No. 74-2 precedent for small municipality municipal engineer arrangements
City H decision whether to appoint WXY Engineering as consulting city engineer
The Board explicitly invoked the public interest in small-municipality engineering access — grounded in BER Case No. 74-2 — to justify permitting WXY Engineering to serve as city engineer while holding active contracts with City H, treating the resource constraints of small communities as an affirmative ethical justification for the dual-role arrangement
The principle operates as an affirmative justification that can override the presumptive concern about dual-role conflicts when the municipality lacks practical alternatives and the arrangement is structured to minimize self-review
Small Municipality Competent Engineering Access as Public Interest Justification
the Board determined that the public interest is best served by providing to the small municipalities the most competent engineering services which they can acquire. It is assumed that the state law was intended to achieve this end.
It is assumed that the state law was intended to achieve this end.
Many of the smaller communities in the state did not have and could not afford full-time municipal engineers or supporting staff personnel for a full-time office.
the Board determined that the public interest is best served by providing to the small municipalities the most competent engineering services which they can acquire.
Structural Self-Oversight Conflict Invoked by City H Official Concern
A City H official raised the concern that WXY Engineers, which holds three active contracts with the city, cannot ethically serve as city engineer because it would be supervising and advising on its own work — a structural self-oversight conflict
The city engineer role carries authority to advise on and oversee all engineering matters for the city, including the three active contracts WXY currently holds; this creates an irreconcilable structural conflict regardless of WXY's absence of private-client work in the city
The structural conflict arising from self-oversight of active contracts is not cured by the absence of private-client work; the conflict is inherent in the identity of supervisor and supervised
Conflict of Interest Disclosure Evolution Principle Invoked in BER Historical Survey
Historical BER conflict-of-interest jurisprudence
The Board's extensive historical survey of BER conflict-of-interest cases — from the late 1950s through the present — reflects the profession's evolved understanding that conflicts of interest are among the most prevalent ethical issues engineers face, and that the profession's response has shifted from categorical avoidance toward contextual disclosure-and-management, as evidenced by the Board's approval of dual-role arrangements in BER Cases 63-5 and 74-2
The evolution of BER thinking on conflicts of interest provides the interpretive framework for assessing the WXY situation; the Board's approval of prior dual-role arrangements is not an anomaly but reflects the profession's mature, contextual approach to COI
Conflicts of interest are clearly among the most prevalent ethical issues that engineers face in their professional lives.
Over the years, conflicts of interest issues have been regularly considered by the NSPE Board of Ethical Review.
Engineer A WXY Engineering Self-Review Non-Performance Structural Boundary
The Board approved WXY Engineering serving as city engineer while holding three active contracts with City H, but explicitly conditioned this approval on WXY performing general consulting services that do not include reviewing the work of Engineer A's firm. The Board noted WXY does not perform private work within City H, reinforcing the permissibility of the arrangement.
Dual-Role City Engineer Self-Review Non-Performance Structural Boundary Obligation
Engineer A and WXY Engineering are obligated, as a condition of the ethically permissible dual-role arrangement, to refrain from performing in the city engineer advisory capacity any review, evaluation, or approval of work that WXY Engineering performed in its design contractor capacity for City H, ensuring that the structural self-oversight conflict identified by the City H official does not materialize in practice.
the Board is of the view that it would be ethical for Engineer A and his firm WXY to serve as city engineer for City H, perform general consulting services where these services do not include reviewing the work of Engineer A's firm
Throughout the duration of the dual-role city engineer appointment, applicable to each instance of advisory review activity
Engineer A WXY Engineering Small Municipality Public Interest Dual Role Justification
The Board explicitly invoked the public interest in small-municipality engineering access — grounded in BER Case No. 74-2 — to justify permitting WXY Engineering's dual role as city engineer and design contractor for City H, noting that City H will gain the benefit of WXY's experience and expertise.
Engineer A, WXY Engineering, and City H municipal officials
Engineer A, WXY Engineering, and City H officials are obligated to recognize that the public interest in providing City H with access to the most competent engineering services — grounded in the experience and expertise WXY has developed through years of service to City H — constitutes a legitimate justification for the dual-role arrangement, provided the arrangement is structured to avoid self-review and maintain undivided loyalty.
At the time of appointment deliberation and throughout the dual-role engagement
Public Welfare Paramount Invoked in Small Municipality Engineering Access Justification
WXY Engineering appointment as city engineer while holding active contracts with City H
The Board justified the dual-role arrangement for WXY Engineering and Engineer A by reference to the public interest in ensuring City H has access to the most competent engineering services available, treating the public benefit of experienced municipal engineering as an affirmative ethical consideration that weighs in favor of permitting the arrangement
Public welfare in this context is not solely about conflict avoidance but also about ensuring small municipalities receive competent engineering services; the Board treats deprivation of competent engineering as itself a public welfare harm
Engineer A and his firm, WXY Engineering, have provided services to City H for many years and it appears that City H will gain the benefit of that experience and expertise.
Engineer A WXY Engineering Faithful Agent City H Advisory Role
The Board approved WXY Engineering's dual role as city engineer and design contractor for City H, conditioned on WXY maintaining undivided loyalty in the advisory capacity — consistent with the axiomatic principle that a professional may not take action or make decisions that divide loyalties from those of the employer or client.
Engineer A and WXY Engineering are obligated to act as faithful agents and trustees for City H in the city engineer advisory role, serving the city's interests loyally and without division, ensuring that advisory recommendations reflect the city's interests rather than WXY's commercial interests in retaining design contracts.
Throughout the duration of the city engineer appointment
{'license': 'Professional Engineer', 'firm': 'WXY Engineering', 'existing_relationship': 'Long-standing multi-contract service provider to City H', 'private_work_in_city': 'None — WXY does not perform private work within City H', 'case_reference': 'Current case (present BER)'}
Engineer A and his firm WXY Engineering have provided services to City H for many years under multiple contracts and are being considered for appointment as city engineer. The Board ruled it ethical for WXY to serve as city engineer, perform general consulting services (excluding self-review), and remain under contract for specific design services, provided further conflict-triggering circumstances (e.g., private work in city, reviewing own work) are disclosed.
{'type': 'existing_contractor_to', 'target': 'City H'}
{'type': 'prospective_city_engineer_for', 'target': 'City H'}
{'type': 'subject_to_concern_from', 'target': 'City H Official'}
Engineer A and his firm, WXY Engineering, have provided services to City H for many years
be under contract to provide specific design services on individual city projects
perform general consulting services where these services do not include reviewing the work of Engineer A's firm
WXY Engineers Incumbent Multi-Contract City Engineer Non-Acceptance Obligation Instance
WXY Engineers holds three active contracts with City H and is being considered to replace the departing full-time city engineer Engineer B. A city official has already raised the conflict-of-interest concern. WXY does not perform private developer work in City H, which partially mitigates but does not eliminate the conflict arising from its active public contracts.
Incumbent Multi-Contract Firm City Engineer Self-Oversight Conflict Non-Acceptance Obligation
WXY Engineers, holding three active contracts with City H, is obligated to decline appointment as city engineer because the structural self-oversight conflict — overseeing its own active contract work in an independent advisory capacity — is irreconcilable through disclosure alone.
At the time of and prior to any formal acceptance of the city engineer appointment