BER-62-7 County Commission Engineer Self-Review Conflict Prohibition
BER Case 62-7: Engineer retained by county commission also retained by private developer for housing development involving commission-developer contract negotiations
County commission engineering consultant (BER Case 62-7)
Dual Role Self-Review Conflict Prohibition Constraint
The engineer retained by the county commission to perform all engineering and advisory services — including approval of plans submitted by others — was prohibited from simultaneously being retained by a private company to perform engineering design for a development involving extensive contract negotiations between the commission and that developer, because this placed the engineer in the position of passing engineering judgment on work or contract arrangements in which the engineer personally participated.
NSPE Code of Ethics Section II.4.d; BER Case 62-7
The engineer was also retained by a private company to perform engineering design for a development of several thousand housing units which involved extensive contract negotiations between the commission and the developer.
Duration of simultaneous county commission and private developer engagements
The Board found that the engineer was in a position of passing engineering judgment on behalf of the commission on work or contract arrangements which the engineer performed or in which he participated.
This obviously involved the self interest of the engineer and divided his loyalties.
BER-62-7 Divided Loyalty Dual-Client Impossibility Recognition
BER Case 62-7: Engineer's dual role created divided loyalties between commission and developer with opposing interests
Multi-Hat Simultaneous Dual-Client Adequate Representation Impossibility Constraint
Even if the engineer acted with the best of intentions, the engineer was prohibited from simultaneously serving the county commission and the private developer because the dual engagement placed the engineer in the position of assessing recommendations to two clients with possibly opposing interests, making adequate representation of both clients impossible.
Even if the engineer acted with the best of intentions, he was put into the position of assessing his recommendations to two clients with possibly opposing interests.
Given these realities, the Board concluded that a conflict of interest existed.
BER-67-12 Part-Time County Engineer Private Plan Recommendation Prohibition
BER Case 67-12: Part-time county engineer submitted private developer plans to county for approval; prohibited from recommending their approval
Part-time county engineer / private consultant (BER Case 67-12)
Part-Time County Engineer Private Plan Approval Recommendation Non-Issuance Constraint
The part-time county engineer who simultaneously acted as private consultant submitting a private developer's plans to the county for approval was absolutely prohibited from offering any recommendation for the approval of those plans, because doing so would constitute a self-serving advisory act violating the engineer's duty of impartiality in the public role.
In BER Case 67-12, the Board indicated that when an engineer serves as a part time county engineer and as a private consultant and in the latter capacity submits the plans of a private developer to the county for approval, he should not offer any recommendation for their approval.
Any instance of submitting private developer plans to the county while serving as part-time county engineer
To do so is a useless act because it is basic to the Code that an engineer will not submit plans or other work which he does not believe represents the best interests of his client.
BER-74-2 Small Municipality Public Interest Dual-Role Permissibility
BER Case 74-2: State law required municipalities to retain municipal engineers; consulting firm principal served as municipal engineer while firm provided capital improvement services
Municipal engineer consultant (BER Case 74-2)
Small Municipality Public Interest Dual-Role State Law Permissibility Constraint
Under state law requiring every municipality to retain a municipal engineer, a consulting firm principal serving as municipal engineer was not prohibited from simultaneously providing engineering services for capital improvements, because the engineer was not a bona fide employee and the public interest was best served by providing small municipalities with the most competent engineering services available.
State law requiring municipal engineers; NSPE Code of Ethics; BER Case 74-2
The Board found that the engineer was not a bona fide 'employee' of the municipality but a consultant, thus it was not unethical for him to serve as 'municipal engineer' and participate in a consulting firm providing engineering services to the municipality.
Duration of municipal engineer engagement under state law mandate
The Board reasoned that the public interest was best served by providing to small municipalities the most competent engineering services which they could acquire.
BER-74-2 and BER-62-7 Precedent Irreconcilability Acknowledged
Board's explicit acknowledgment of precedent irreconcilability while proceeding to apply cumulative precedent weight to reach a conclusion
BER Precedent Irreconcilability Acknowledged Non-Automatic Resolution Constraint
The Board acknowledged that BER Cases 62-7 and 74-2 are difficult to reconcile despite being based on identical code language, but was nonetheless constrained to reach a principled conclusion by applying the cumulative weight of all relevant precedents to the present facts.
NSPE Board of Ethical Review deliberative process; BER Cases 62-7 and 74-2
In all honesty, it is difficult to reconcile these two cases, as the two cases were based in pertinent part on identical language.
Based upon the earlier cited decisions and the facts presented, the Board reaffirms the view that the circumstances described are in violation of Section II.4.d.
BER-75-7 Commission Engineer Abstention-Conditioned Private Services
BER Case 75-7: Engineer on commission providing private services to permit applicants; permissibility conditioned on complete abstention and no influence on permit decisions
Commission member engineer (BER Case 75-7)
Abstention-Conditioned Commission Member Private Services Permissibility Constraint
The commission member engineer was permitted to provide private engineering services to private owners subject to the commission's jurisdiction only because the engineer had abstained from discussion and vote on permit applications, and was constrained to take no action whatsoever to influence the favorable decision on the permit.
The Board concluded there that an engineer serving on a commission could ethically provide services to the private owners because the engineer had abstained from the discussion and vote on permit applications.
Duration of simultaneous commission membership and private service provision
The Board cautioned, however, that care must be taken that the engineer in such a situation not have taken any action to influence the favorable decision on the permit.
BER-82-4 Engineer A No-Influence Abstention Compliance
BER Case 82-4: Board applied BER 75-7 abstention principle to confirm Engineer A's multi-role arrangement was permissible because no influence on decisions was found
Engineer A's permissibility of simultaneously holding public administrative roles and private consulting engagements was conditioned on there being nothing to suggest Engineer A had taken any action to influence decisions as administrator of the city block grant program or project administrator of the county airport authority.
NSPE Code of Ethics; BER Cases 75-7 and 82-4
In BER Case 82-4, there was nothing to suggest Engineer A had taken any action to influence decisions as administrator of the city block grant program or project administrator of the county airport authority.
Duration of Engineer A's simultaneous public and private roles
BER-82-4 Engineer A Review-Recommendation Non-Decision Permissibility
BER Case 82-4: Engineer A held four simultaneous public roles plus private consulting; Board found permissible because activities were review/recommendation rather than final decisions
Review-Recommendation Non-Decision Dual-Role Permissibility Boundary Constraint
Engineer A, serving simultaneously as county engineer, city engineer, airport authority project administrator, and city block grant administrator while also consulting for private firms, was constrained to limit activities to reviewing, recommending, formulating, and overseeing plans — rather than participating in actual 'decisions' — as the boundary condition for ethical permissibility of the multi-role arrangement under amended NSPE Code Section II.4.d.
NSPE Code Section II.4.d (amended); BER Case 82-4
The Board found that Engineer A did not actually participate in 'decisions' with respect to services solicited or provided by him or his organization in private or public engineering practice but rather reviewed, recommended, formulated, and oversaw plans.
Duration of Engineer A's simultaneous multi-role engagements
The Board found that his activities were within the meaning of the amended Code provisions and did not constitute 'decisions' under Section II.4.d.
Therefore the Board concluded that one who serves as both city and county engineer for a retainer fee may provide private engineering consulting services to the city and county.
BER 62-7 County Commission Engineer Divided Loyalty Conflict Recognition
Dual-Role Irreconcilable Conflict Identification Capability
The county commission engineering consultant in BER 62-7 lacked the capability to recognize that simultaneously serving the commission (passing judgment on work) and the private developer (performing that same work) created an irreconcilable conflict involving self-interest and divided loyalties
BER 62-7 precedent case involving county commission engineering consultant simultaneously retained by private developer for large housing development with extensive contract negotiations between commission and developer
BER Board's finding that the engineer was in a position of passing engineering judgment on behalf of the commission on work or contract arrangements which the engineer performed or in which he participated, obviously involving self-interest and divided loyalties
BER 62-7 County Commission Engineering Consultant (lacked)
{'project_type': 'Development of several thousand housing units', 'regulatory_relationship': 'Subject to county commission approval and contract negotiations'}
Private company retained the same engineer serving as county commission staff to perform engineering design for a large housing development, with the development involving extensive contract negotiations between the commission and the developer — creating the conflict of interest.
{'type': 'client_of', 'target': 'BER 62-7 County Commission Engineering Consultant'}
{'type': 'regulated_by', 'target': 'County Commission BER 62-7 Client'}
The engineer was also retained by a private company to perform engineering design for a development of several thousand housing units which involved extensive contract negotiations between the commission and the developer
BER 67-12 Part-Time County Engineer Private Plan Approval Recommendation Non-Issuance
Part-Time Municipal Engineer Private Plan Approval Recommendation Non-Issuance Capability
The part-time county engineer in BER 67-12 lacked or failed to apply the capability to recognize that submitting private developer plans to the county for approval and then offering a recommendation for their approval in the county engineer capacity was ethically prohibited as a useless and conflicted act
BER 67-12 precedent case involving part-time county engineer simultaneously acting as private consultant submitting developer plans to the county for approval
BER Board's finding that the part-time county engineer should not offer any recommendation for approval of privately-submitted developer plans, establishing the prohibition as a clear ethical rule
BER 67-12 Part-Time County Engineer (lacked / violated)
Finally, in BER Case 67-12, the Board indicated that when an engineer serves as a part time county engineer and as a private consultant and in the latter capacity submits the plans of a private developer to the county for approval, he should not offer any recommendation for their approval.
BER 74-2 Small Municipality Dual-Role Public Interest Justification Recognition
Small Municipality Dual-Role Public Interest Justification Recognition Capability
The municipal engineer in BER 74-2 demonstrated the capability to recognize that the public interest in providing small municipalities with the most competent engineering services available constituted a legitimate justification for the dual-role arrangement under state law
BER 74-2 precedent case involving state law requiring every municipality to retain a municipal engineer with the engineer's firm also retained for capital improvement services
BER Board's finding that the engineer was not a bona fide employee but a consultant, and that the public interest was best served by providing small municipalities with the most competent engineering services, justifying the dual-role arrangement
BER 74-2 Municipal Engineer Consulting Firm Principal
BER 75-7 Commission Member Abstention-Conditioned Private Services Self-Assessment
Abstention-Conditioned Commission Member Private Services Permissibility Self-Assessment Capability
The commission member engineer in BER 75-7 demonstrated the capability to assess that providing private services to owners appearing before the commission was permissible only through complete abstention from discussion and vote on relevant permit applications
BER 75-7 precedent case involving commission member providing private engineering services to private owners appearing before the commission
Engineer's abstention from discussion and vote on permit applications involving private owners for whom the engineer provided services, satisfying the BER's permissibility condition
BER Board BER 62-7 74-2 Precedent Irreconcilability Acknowledgment
BER Five-Precedent Dual-Role Municipal Engineer Conflict Spectrum Synthesis Capability
The BER Board demonstrated the capability to honestly acknowledge the difficulty of reconciling BER 62-7 and BER 74-2 — which reached different conclusions based on identical language — while still synthesizing a coherent framework from all five precedents to reach a definitive conclusion about Firm A's arrangement
BER Board's synthesis of five precedent cases to determine Firm A's ethical obligations
BER Board's explicit acknowledgment that 'in all honesty, it is difficult to reconcile these two cases, as the two cases were based in pertinent part on identical language,' followed by synthesis of all five precedents to reach a conclusion
In one, BER Case 62-7, an engineering consultant had been retained by a county commission to perform all necessary engineering and advisory services.
Board of Ethical Review in analogical reasoning about Firm A's dual role
Precedent establishing that an engineer retained by a county commission who also performs design for a private developer creates a conflict of interest due to divided loyalties and self-interest in reviewing one's own work
The Board has considered cases similar to this type on other occasions. In one, BER Case 62-7 ... In BER Case 67-12, the Board indicated...
BER Case 62-7 County Commission Engineer Dual-Role Conflict Precedent Application
The Board must reconcile multiple BER precedents — some finding dual roles permissible under specific conditions, others finding them impermissible — to reach a coherent ethical conclusion about Firm A's arrangement, which involves elements addressed across multiple prior cases.
BER Precedent Multi-Case Conflict Assessment Integration Constraint
The ethical assessment of Firm A's dual role must integrate BER Case 62-7's precedent establishing that an engineer retained by a county commission who also performs design for a private developer creates a conflict of interest, alongside BER Cases 74-2, 75-7, and 82-4, to reach a cumulative ethical conclusion about the permissibility of Firm A's arrangement.
BER Case 62-7; BER Case 74-2; BER Case 75-7; BER Case 82-4; NSPE Code Section II.4.d
City engages the services of a private consulting engineering firm, Firm A, to provide design review and construction inspection.
At the time of ethical assessment of Firm A's dual engagement
Firm A also provides design and inspection services for private developers within the city.
Precedent establishing that a part-time county engineer acting as private consultant who submits a private developer's plans to the county for approval must not offer any recommendation for their approval, as doing so is a useless act inconsistent with the Code
Sequential case numbering and the phrase 'More recently in BER Case 74-2' relative to earlier cases
More recently in BER Case 74-2, a case in which a state law required every municipality to retain a municipal engineer with that engineer's firm usually retained for engineering services for capital improvements needed by the municipality.
Precedent finding that a consultant serving as municipal engineer under state law was not a bona fide employee and could ethically provide consulting services to the municipality, in the public interest of securing competent engineering for small municipalities
BER Case 74-2 (1974) before BER Case 75-7 (1975)
Sequential case numbering; both cited as prior Board decisions leading to current ruling
BER Case 74-2 Small Municipality Consulting Municipal Engineer Permissibility
Duration of municipal engineer appointment under state law in BER Case 74-2
a state law required every municipality to retain a municipal engineer with that engineer's firm usually retained for engineering services for capital improvements needed by the municipality
Small Municipality Consulting Firm Municipal Engineer Appointment State
State law requiring municipalities to retain a municipal engineer, with the engineer's firm typically retained for capital improvement services
Board finding of ethical permissibility in BER Case 74-2
the engineer was not a bona fide 'employee' of the municipality but a consultant, thus it was not unethical for him to serve as 'municipal engineer'
State law requiring municipal engineer retention; engineer serving as consultant rather than bona fide employee
The question of whether an engineer who serves as a member of local boards or commissions which have some aspect of engineering may provide engineering services through his private firm to the boards and commissions was addressed in BER Case 75-7.
Precedent addressing whether an engineer serving on a local board or commission may provide engineering services through a private firm to those bodies, concluding it is ethical if the engineer abstains from discussion and vote on relevant permit applications
BER Case 75-7 (1975) before BER Case 82-4 (1982)
Sequential case numbering; BER Case 82-4 references the Code amendment as a change from prior standards addressed in earlier cases
In BER Case 82-4, the Board noted that this change was significant and particularly relevant.
Precedent interpreting amended Code Section II.4.d, finding that an engineer serving simultaneously as county engineer, city engineer, airport authority administrator, and block grant administrator did not violate the Code because his activities involved reviewing and recommending rather than making 'decisions' on his own work
BER Case 82-4 (1982) before current Board ruling on Firm A
BER Cumulative Precedent Integration — Firm A Conflict Assessment
Present case: Board cited five prior BER cases to reach its conclusion that Firm A's arrangement violated Section II.4.d
The Board was constrained to integrate the cumulative guidance from BER Cases 62-7, 74-2, 82-4, 75-7, and 67-12 — rather than applying any single precedent in isolation — in assessing the ethical permissibility of Firm A's multi-role arrangement, and Firm A was constrained to recognize that the weight of accumulated BER decisions on recurring conflict-of-interest arrangements constituted the operative ethical standard.
NSPE Board of Ethical Review deliberative process; BER Cases 62-7, 74-2, 82-4, 75-7, 67-12
The Board has considered cases similar to this type on other occasions.
Present case deliberation and Firm A's ongoing engagement
The ethical landscape governing dual-role conflicts is now well-established and publicly available; any engineering firm operating in a dual-role capacity after 1982 cannot claim ignorance of the applicable standards; the Board's analysis of Firm A's conduct is constrained to apply this accumulated precedent
1962–1982, prior to and contextualizing the present case
A historical sequence of Board of Ethical Review decisions (BER Cases 62-7, 74-2, 75-7, 67-12, 82-4) accumulates over two decades, progressively refining and strengthening the ethical standards applicable to dual-role conflicts in engineering practice. This body of precedent becomes the authoritative interpretive framework applied to Firm A's conduct.
BER Precedent Sequence Established → Section II.4.d Violation Confirmed
A historical sequence of Board of Ethical Review decisions (BER Cases 62-7, 74-2, 75-7, 67-12, 82-4) established and progressively reinforced the ethical standards against which Firm A's conduct was measured, providing the doctrinal foundation upon which the BER formally determined and reaffirmed that Firm A's conduct violated Section II.4.d.
Without the established BER precedent sequence, the violation finding would lack authoritative doctrinal grounding; however, the underlying conduct would remain ethically problematic, the precedent sequence confirmed rather than created the violation
BER Case 82-4 synthesizing multiple simultaneous public and private roles as a confirmed violation pattern
BER cases establishing acceptable mitigation measures such as abstention and withholding recommendations (Cases 75-7, 67-12)
Firm A's conduct matching the fact patterns addressed in prior precedents
Prior BER cases establishing that dual-role conflicts violate Section II.4.d (Cases 62-7, 74-2)
Firm A (primary); BER (institutional standard-setter)
Any single precedent case (particularly 62-7 or 74-2) addressing the core dual-client conflict was independently sufficient to provide the normative basis for the violation finding
The accumulated precedent from Cases 62-7 through 82-4, taken together, was sufficient to establish a clear and unambiguous standard against which Firm A's conduct could be measured and found violative
CausalLink_Commission Engineer Abstains f
CausalLink_County Engineer Withholds Reco
CausalLink_Engineer A Accepts Multiple Pu
CausalLink_Engineer Serves Dual Clients S
CausalLink_Firm A Accepts Developer Clien
CausalLink_Firm A Markets City Role to De
CausalLink_Municipal Engineer Accepts Pri
Potential for Firm A to leverage city role for private business development
Risk of divided loyalties if Firm A simultaneously serves private developers
Ensuring development meets city design standards
Providing infrastructure oversight for public benefit
Responsible stewardship of public infrastructure
Secure competent engineering review and inspection capacity without maintaining in-house engineering staff
Failure to ensure impartiality of the review and inspection function
Failure to establish structural safeguards preventing Firm A from serving conflicting clients
Assessment of engineering firm qualifications
The city made a deliberate decision to retain Firm A, a private consulting engineering firm, to provide design review and construction inspection services on the city's behalf. This foundational arrangement placed Firm A in a dual-authority position over developer-submitted plans.
City Engages Firm A → Dual-Role Conflict Materializes
The city made a deliberate decision to retain Firm A, a private consulting engineering firm, to provide engineering review and inspection services: a role that, when combined with Firm A's concurrent acceptance of developer clients, caused the structural conflict of interest to become an active reality when Firm A simultaneously holds authority over both sides of the review relationship.
Had the city retained a firm with no private developer clients, or imposed contractual prohibitions on concurrent private work, the dual-role conflict would not have materialized regardless of the ordinance's existence
Absence of contractual or ethical safeguards prohibiting concurrent private client relationships
City's decision to delegate engineering review authority to a private firm
Firm A's concurrent acceptance of private developer clients within the same jurisdiction
Ordinance establishing mandatory developer-funded review (creating the dual-authority structure)
City (as contracting authority) and Firm A (as accepting party), shared
City delegation of public review authority + Firm A's simultaneous private developer relationships + no conflict-of-interest controls = active structural conflict
The combination of public authority and private client interest in the same geographic and regulatory domain was alone sufficient to materialize the conflict
Municipal government engineering department
City Design Standards for Infrastructure
is constructed in accordance with the city's design standards
Firm A (as city's engineer), city, developers
Defines the technical benchmark that developer-built infrastructure must meet before city acceptance; forms the basis of Firm A's inspection mandate on behalf of the city.
{'entity_type': 'Municipal government', 'authority_basis': 'Local ordinance governing land development', 'infrastructure_interest': 'Receiving compliant infrastructure from private developers', 'fee_structure': 'Developer-funded pass-through for city-retained services'}
The city retains Firm A to conduct plan review and construction inspection of private development projects under local ordinance, with the goal of ensuring infrastructure to be turned over to the city meets its design standards. The city is the primary client of Firm A's regulatory services.
{'type': 'receives_infrastructure_from', 'target': 'Private Developer'}
{'type': 'regulates', 'target': 'Private Developer'}
City engages the services of a private consulting engineering firm, Firm A
In accordance with local ordinance governing land development
infrastructure within the development, which is to be turned over to the city, is constructed in accordance with the city's design standards
Code amendment (pre-1982) before BER Case 82-4 (1982)
In BER Case 82-4, the Board noted that this change was significant and particularly relevant... Although it was arguable that under the older Code provisions, Engineer A's activities would have constituted a conflict
Commission Engineer Abstains from Conflicted Vote (BER 75-7)
Reduced commission participation and potential gaps in technical expertise during relevant deliberations
Remaining risk of informal influence even absent formal participation
Avoiding participation in decisions where self-interest was implicated
Duty not to use positional authority to benefit private clients
Transparency about conflict through abstention
Impartiality in public decision-making roles
Maintain ethical propriety in dual role by removing oneself from decision-making processes where personal financial interest in private clients was implicated
Boundary management between public and private roles
In BER Case 75-7, the engineer serving on a commission made a deliberate decision to abstain from discussion and voting on permit applications involving private owners for whom the engineer also provided services. The Board found this abstention made the dual role ethically permissible, with the caveat that the engineer must not act to influence the favorable decision.
It was unethical for Engineer A to serve as city engineer and also provide review and inspection services for private developers within the city.
Beyond the Board's finding that the dual-role arrangement was unethical, the structural conflict in this case is materially aggravated by the fact that Firm A is compensated directly by the very developers whose work it is charged with inspecting on the city's behalf. Unlike a conventional municipal engineer who receives compensation solely from the public entity, Firm A's revenue stream is partially dependent on developer satisfaction and continued engagement. This compensating-party misalignment creates a financial incentive to approve rather than rigorously scrutinize developer-submitted plans and construction, independent of any separate private consulting relationship. The Board's conclusion, while correct, understates the severity of the conflict by focusing primarily on the dual-role label rather than on the structural economic dependency that the ordinance itself foreseeably created. The city bears some institutional responsibility for designing an ordinance that routes developer payments directly to the city's retained engineer, but that institutional flaw does not diminish Firm A's independent professional obligation to recognize and refuse an arrangement that structurally compromises its impartiality toward its principal client, the city.
The Board did not explicitly address the scenario in which Firm A both designs infrastructure for a private developer and then inspects that same infrastructure on the city's behalf, yet this self-review scenario represents a distinctly aggravated and independently sufficient form of the dual-role conflict. When an engineer reviews or inspects its own design work, the objectivity required by the city is structurally impossible to achieve: the inspector has a reputational and financial interest in validating the adequacy of its own prior design decisions rather than identifying deficiencies. This self-review prohibition is well-established in professional ethics and is analytically distinct from the broader divided-loyalty concern the Board addressed. The Board should have identified this scenario as a separate and more serious violation, because no disclosure, consent, or procedural safeguard can restore the objectivity that is categorically absent when an engineer evaluates its own work. The absence of this analysis in the Board's opinion leaves an important gap in the precedential record for cases involving consolidated design-and-inspection engagements.
Firm A's open marketing of its city engineer position as a tool to promise prospective developer clients a 50% reduction in inspection costs constitutes an independently sufficient basis for an ethics violation, separate from and in addition to the structural conflict-of-interest violation the Board identified. This marketing conduct violates at least two distinct ethical norms. First, it constitutes exploitation of a public position for private commercial gain, which is prohibited regardless of whether the underlying dual-role engagement would otherwise be permissible. Second, it represents an improper competitive method that distorts the market for engineering services within the city: competing firms that do not hold the city engineer contract cannot offer the same cost advantage, and Firm A's ability to do so derives entirely from its publicly conferred position rather than from any superior technical capability or efficiency. The Board's opinion, by folding the marketing conduct into the general conflict-of-interest analysis, does not fully articulate that the marketing exploitation would be unethical even under a more permissive reading of the dual-role rules, such as the framework applied in BER Case 74-2. A firm that holds a public engineering role may not weaponize that role as a commercial differentiator against competitors who lack access to the same publicly conferred advantage, because doing so subordinates the public interest served by the role to the firm's private commercial interests and corrupts the integrity of competitive procurement in the engineering market.
The Board's conclusion implicitly resolves, without explicitly acknowledging, the tension between BER Case 74-2 — which permits a consulting firm to serve as municipal engineer while also performing private work in the same jurisdiction under a public interest justification — and BER Case 62-7 — which condemns divided loyalty when a firm serves clients with potentially conflicting interests. The distinguishing factor that makes BER Case 62-7 the governing precedent here, rather than BER Case 74-2, is not merely the existence of dual roles but the active exploitation of the public role to solicit and secure private clients within the same jurisdiction subject to that public authority. In BER Case 74-2, the dual engagement arose from independent market circumstances and the public interest need of a small municipality to retain competent engineering services. In the present case, Firm A affirmatively leveraged its inspection authority to create a commercial advantage over competitors and to attract the very clients it was charged with regulating. This exploitation converts what might otherwise be a permissible incidental overlap into a structural corruption of the public role. The Board should have articulated this distinction explicitly, because without it the precedential relationship between BER Case 74-2 and BER Case 62-7 remains unresolved and future cases involving small-municipality dual-role arrangements will lack adequate guidance on when the public interest justification is defeated by commercial exploitation of the public position.
The abstention model applied in BER Case 75-7 — under which an engineer serving on a public commission may provide private services so long as the engineer recuses from conflicted votes — is analytically inapplicable to Firm A's situation, and the Board's failure to explain this distinction leaves an important gap in the reasoning. The abstention model works in BER Case 75-7 because the engineer's private service role and the public commission role are structurally separable: the engineer can simply not vote on matters affecting private clients, and the commission's decision-making function is preserved through the votes of other members. In Firm A's case, the conflict is not episodic and vote-specific but continuous and operational: every inspection Firm A performs on a developer project for which it also serves as private engineer is simultaneously an act of self-review and an act of serving two clients with potentially divergent interests. There is no discrete moment of recusal that can restore objectivity because the conflict is embedded in the inspection process itself rather than in a discrete decision point. Furthermore, even if Firm A were to recuse from inspecting its own developer clients' projects, the residual marketing exploitation of the city engineer position — using that position to promise cost savings to prospective clients — would remain an independent ethical violation that abstention cannot cure. The Board should have explicitly distinguished BER Case 75-7 to clarify that abstention-based mitigation is a context-specific remedy applicable only where the conflict is discrete and the public function can be fully discharged by others.
From a deontological perspective, Firm A's conduct represents an irreconcilable breach of categorical professional duty that no procedural safeguard, disclosure, or consent mechanism can remedy. The duty of a city-retained inspection engineer to the city requires unconditional fidelity to the city's infrastructure standards, with no financial or relational interest in the outcome of the inspection. The duty to a private developer client requires the engineer to act as a faithful agent of that client's interests, which include obtaining timely approval and minimizing cost. These two duties are not merely in tension — they are structurally incompatible in the inspection context, because every inspection finding that identifies a deficiency serves the city's interest and imposes a cost on the developer client, while every finding that overlooks a deficiency serves the developer's interest and undermines the city's. No amount of good faith effort can simultaneously maximize fidelity to both principals when their interests diverge on the same factual question. The consequentialist analysis reinforces this conclusion: the aggregate harm from compromised inspection integrity — including infrastructure that fails to meet city standards, erosion of public trust in municipal oversight, and distortion of competition among engineering firms who cannot offer the same publicly conferred cost advantage — substantially outweighs any efficiency gains from consolidated engineering services. The virtue ethics analysis adds a further dimension: a firm of professional integrity does not openly advertise its regulatory authority over prospective clients as a commercial selling point, because doing so publicly subordinates the virtue of impartiality to commercial self-interest in a manner that is visible to all market participants and corrosive to the profession's public standing.
The structure of the local ordinance — requiring developers to pay Firm A directly for review and inspection services rendered ostensibly on the city's behalf — creates a compensating-party conflict that is analytically independent of any separate private consulting relationship Firm A may hold with those same developers. When the entity being inspected is also the entity writing the check, Firm A's financial continuity as city engineer becomes contingent on maintaining relationships with the very parties whose work it must scrutinize without favor. This structural misalignment between the compensating party (the developer) and the benefiting party (the city and the public) means that even a Firm A that never solicited a single private developer client would face a latent incentive to conduct inspections in a manner that preserves developer goodwill. The Board's conclusion of unethicality is therefore supportable on this ground alone, without reference to the marketing exploitation or the private consulting engagements. The ordinance architecture does not excuse Firm A's conduct, but it does reveal that the city bears institutional responsibility for creating a fee structure that foreseeably compromises the independence of its own engineer.
When Firm A designs infrastructure for a private developer and subsequently inspects that same infrastructure on the city's behalf, a self-review prohibition applies that constitutes a distinct and aggravated form of the dual-role conflict. In this scenario, Firm A's inspection findings are not merely influenced by a financial relationship with the developer — they are structurally incapable of being objective because Firm A would be evaluating the adequacy of its own prior professional judgments. An inspector who designed the work being inspected has a reputational and financial interest in finding that work acceptable, independent of any developer-client loyalty. The Board's conclusion addressed the dual-role conflict in general terms but did not explicitly identify this self-review scenario as a separate and more serious violation. It should be recognized as such: the self-review prohibition is not merely a heightened instance of the divided loyalty problem but a categorically different breach, because it eliminates the possibility of independent professional judgment at the inspection stage regardless of Firm A's subjective intentions.
Firm A's open advertisement of a 50% cost savings to prospective developer clients constitutes an independently sufficient basis for an ethics violation, even if the underlying dual-role engagement were otherwise permissible under a BER 74-2 type analysis. The marketing conduct is not merely evidence of a conflict of interest — it is itself a violation of the prohibition on using a public position for private commercial advantage and of the requirement for fair competition among engineering firms. By converting its city engineer appointment into a sales proposition, Firm A explicitly monetized its regulatory authority, signaling to the market that access to favorable or streamlined inspection outcomes is bundled with retention of Firm A as a private consultant. This corrupts the competitive landscape for other engineering firms who cannot offer equivalent cost savings because they do not hold the city inspection contract. Even under the most permissive reading of BER 74-2 — which tolerates dual municipal and private roles in small municipalities — no precedent sanctions the affirmative exploitation of a public role as a private marketing instrument. The marketing conduct therefore stands as an independent violation of the non-self-serving obligation and the fairness in competition principle, separate from the structural conflict analysis.
The Small Municipality Public Interest Justification invoked in BER 74-2 and the Divided Loyalty Irreconcilability principle invoked in BER 62-7 are in genuine tension, and the Board's own acknowledgment that these cases are difficult to reconcile confirms that no clean synthesis is available. However, the tension resolves in favor of the BER 62-7 principle when a firm actively exploits its public role to solicit private clients within the same jurisdiction. BER 74-2's permissive holding rests on the premise that the dual role serves the public interest by ensuring competent engineering coverage in resource-constrained municipalities — a justification grounded in necessity and public benefit. That justification is negated, not merely weakened, when the firm converts the public appointment into a commercial instrument. At that point, the dual role no longer serves the public interest as its primary purpose; it serves the firm's private revenue interests, with public service as the vehicle. The BER 62-7 irreconcilability principle therefore governs in this case, and BER 74-2 should be understood as establishing a conditional permissibility that is forfeited when the public role is commercially exploited.
The abstention model applied in BER 75-7 — which permits an engineer serving on a commission to provide private services so long as they recuse themselves from conflicted votes — is distinguishable from Firm A's situation in a way that explains why abstention is sufficient in one context but insufficient in the other. In BER 75-7, the commission member's private services and public decision-making role are separable: the engineer can simply not vote on matters affecting their private clients, and the commission's decision-making function continues through other members. In Firm A's case, the inspection function is not separable in the same way. Firm A is not one voice among many on a deliberative body; it is the sole provider of inspection services to the city. There is no other member of the inspection panel who can step in when Firm A recuses itself from reviewing a developer client's project. Abstention in this context would mean no inspection at all, which is operationally untenable and would itself harm the city. The structural conflict is therefore non-curable by abstention because the role itself — not merely the vote — is what creates the conflict, and the role cannot be partially vacated without defeating its public purpose.
The Review-Recommendation versus Decision Distinction applied in BER 82-4 — which permits an engineer to hold multiple public roles when they only recommend rather than decide — does not meaningfully distinguish Firm A's inspection role from a decision-making function. While inspection findings may be formally characterized as recommendations to the city, they are functionally determinative: a city that retains Firm A precisely because it lacks in-house engineering expertise is not positioned to independently evaluate or override Firm A's inspection conclusions. The practical effect of Firm A's inspection findings is therefore equivalent to a decision, regardless of the formal label. The BER 82-4 distinction is meaningful only where the recommending engineer's output is genuinely subject to independent review by a competent decision-maker. Where, as here, the city's reliance on Firm A is total, the recommendation-versus-decision distinction collapses, and the objectivity compromise identified in the Board's conclusion applies with full force.
From a deontological perspective, Firm A violated its categorical duty of loyalty to the city as its principal client by simultaneously accepting compensation from private developers for services rendered ostensibly on the city's behalf, regardless of whether any actual degradation in inspection quality resulted. The deontological analysis does not require proof of harm; it requires only that the duty structure be examined. Firm A's duty as city engineer is to act as a faithful agent of the city, subordinating all other interests to the city's infrastructure protection mandate. Accepting payment from the very parties whose work Firm A must scrutinize creates a duty conflict that is not contingent on outcome — it is inherent in the role structure. The fact that a developer pays Firm A for inspection services that are legally defined as serving the city's interests, not the developer's, means Firm A is simultaneously obligated to two parties whose interests are structurally opposed at the moment of any enforcement decision. No disclosure or consent mechanism can dissolve this categorical conflict because the conflict inheres in the simultaneous acceptance of the two roles, not in any particular act of favoritism.
From a consequentialist perspective, the aggregate harms produced by Firm A's dual-role arrangement plausibly outweigh any efficiency benefits, even accounting for the cost savings the arrangement may have generated for individual developers. The harms operate across three dimensions. First, inspection integrity is compromised: Firm A's financial relationship with developers creates a systematic incentive to approve rather than rigorously enforce city standards, potentially resulting in substandard infrastructure being turned over to the city and ultimately to the public. Second, competitive distortion occurs: other engineering firms cannot compete for private developer work on equal terms because they cannot offer the cost savings that flow from holding the city inspection contract, effectively creating a captive market for Firm A. Third, institutional trust is eroded: when the public learns that the city's inspector is also the developer's paid consultant, confidence in municipal oversight is undermined regardless of whether any specific inspection was actually compromised. The efficiency benefit — reduced transaction costs for developers who use a single firm — is real but narrow and private, while the harms are diffuse, systemic, and public. The consequentialist calculus therefore supports the Board's conclusion of unethicality.
From a virtue ethics perspective, Firm A's open advertisement of its city engineer position as a tool for delivering a 50% cost savings to developer clients represents a fundamental failure of the virtue of impartiality and a subordination of professional integrity to commercial self-interest. A virtuous engineer in a public-serving role would recognize that the authority and access conferred by a public appointment are held in trust for the public, not as a private asset to be monetized. The act of marketing — openly, to prospective clients — the financial advantages that flow from holding the inspection contract is not merely a technical violation of a code provision; it reflects a character disposition that is incompatible with the role of a public-serving engineer. The virtuous engineer would experience the marketing opportunity as a temptation to be resisted, not a competitive advantage to be exploited. Firm A's conduct therefore fails the virtue ethics standard not because of a single act but because it reveals a settled disposition to treat public authority as a private commercial resource.
From a deontological perspective, the structural impossibility of Firm A simultaneously fulfilling its duty to the city — requiring rigorous, uncompromised inspection — and its duty to developer clients — whose approval interests may conflict with full enforcement of city standards — constitutes an irreconcilable breach of professional duty that no procedural safeguard can remedy. The irreconcilability is not contingent on any particular inspection decision going wrong; it is inherent in the simultaneous acceptance of duties that point in opposite directions at the moment of any enforcement judgment. Disclosure to the city and developer consent do not resolve this irreconcilability because they do not alter the underlying duty structure — they merely make the conflict transparent. A duty to inspect rigorously on behalf of the city and a duty to serve the developer's project interests cannot both be fully honored when the developer's project falls short of city standards. At that precise moment, Firm A must choose which duty to honor, and no amount of prior disclosure converts that forced choice into an ethically permissible one. The Board's conclusion of unethicality is therefore grounded in a structural duty conflict that is non-curable by consent or disclosure.
Even if Firm A had proactively disclosed every instance of a dual engagement to the city and obtained formal consent, that disclosure and consent would not have been sufficient to cure the structural conflict of interest. The divided loyalty that arises when Firm A inspects a developer client's work is not a contingent conflict that consent can waive — it is a structural condition that persists regardless of what the parties agree to in advance. The city's consent would mean only that the city knowingly accepted a compromised inspection regime, not that the inspection would in fact be uncompromised. Moreover, the city's ability to give meaningful informed consent is itself limited by its dependence on Firm A: a municipality that lacks in-house engineering expertise cannot independently evaluate whether Firm A's inspection findings are rigorous or accommodating. The consent would therefore be structurally uninformed in the most relevant dimension. Disclosure and consent are appropriate remedies for contingent conflicts — those that arise from particular circumstances and can be managed through transparency. They are not appropriate remedies for structural conflicts — those that inhere in the role relationship itself and cannot be dissolved by agreement.
If Firm A had adopted the abstention model from BER 75-7 — recusing itself from city review and inspection of any development project for which it also served as the developer's private engineer — that structural separation would have addressed the most acute form of the conflict but would not have rendered the overall arrangement ethical. The residual marketing exploitation of the city engineer position would have remained an independent ethical violation, because the improper competitive advantage derived from advertising the city appointment as a cost-savings vehicle exists independently of whether Firm A actually inspects its own clients' projects. Furthermore, even with full recusal from conflicted inspections, Firm A's position as city engineer would still confer informational advantages — knowledge of city standards, relationships with city staff, familiarity with approval processes — that it could leverage in serving private developer clients, creating a subtler but still real form of competitive distortion. The abstention model would therefore be a necessary but not sufficient condition for ethical compliance, and the marketing conduct would remain an independent violation regardless of how rigorously the recusal was implemented.
The absence of an explicit ordinance prohibition on Firm A providing services to private developers subject to its inspection authority does not diminish Firm A's independent professional obligation to avoid the conflict. The NSPE Code of Ethics imposes obligations that are not contingent on local regulatory prohibition; they derive from the engineer's professional role and the duties inherent in that role. An engineer is not ethically permitted to engage in conduct that the Code prohibits merely because a local ordinance has not independently forbidden it. The absence of an explicit prohibition may reflect legislative oversight, political compromise, or simple failure to anticipate the conflict — none of which converts the conduct into ethically permissible behavior. If anything, the absence of an explicit prohibition heightens the engineer's independent professional responsibility, because the engineer cannot rely on the regulatory framework to define the boundaries of acceptable conduct and must instead apply professional ethical judgment. Firm A's conduct would have been unambiguously unethical even without an explicit ordinance prohibition, and the presence of such a prohibition would have added legal force to what was already an ethical violation.
Even if Firm A had never marketed its city engineer position to prospective developer clients and had obtained all private developer engagements through entirely independent channels, the structural conflict between its city inspection duties and its developer client interests would likely have rendered the dual-role arrangement unethical under the facts of this case, though the analysis would be closer and the BER 74-2 precedent would carry more weight. The marketing conduct is an aggravating factor that makes the violation unambiguous, but it is not the sole basis for the violation. The core problem — that Firm A inspects on the city's behalf the work of parties who are also its private clients — exists independently of how those private client relationships were obtained. The financial incentive to approve rather than rigorously scrutinize a paying client's work is present whether the client was obtained through marketing exploitation or through independent referral. The BER 74-2 permissive precedent would counsel toward permissibility in the absence of marketing exploitation, but the developer-compensated inspection structure and the self-review scenario would still generate a structural conflict that the Board's reasoning in BER 62-7 would identify as irreconcilable. The marketing conduct therefore transforms a close case into a clear one, but the underlying structural conflict would have warranted serious ethical scrutiny even without it.
The Board resolved the tension between the Small Municipality Public Interest Justification — which permits a consulting firm to serve as municipal engineer while also performing private work in the same jurisdiction — and the Divided Loyalty Irreconcilability principle by treating the marketing exploitation of the city engineer position as the decisive aggravating factor that tips the balance. BER Case 74-2 implicitly tolerates some degree of dual engagement because small municipalities may have no practical alternative, and the public interest in competent engineering oversight is served by the arrangement. BER Case 62-7, by contrast, condemns dual engagement where the engineer's loyalty to one client structurally undermines fidelity to the other. In Firm A's case, the active advertisement of a 50% cost savings to prospective developer clients — made possible only by Firm A's city engineer position — transforms what might otherwise be a tolerable dual-role arrangement into one where the public role is being commercially weaponized. The Board effectively held that the public interest justification available under BER 74-2 is forfeited when the firm exploits that public role to generate private revenue, because at that point the firm is no longer merely tolerating an incidental overlap but is affirmatively profiting from the structural conflict. This resolution teaches that the Small Municipality Public Interest Justification is a conditional permission, not an absolute one: it survives only so long as the firm does not actively leverage its public authority to distort private market competition or generate private financial gain.
The abstention-based conflict mitigation model applied in BER Case 75-7 — under which an engineer serving on a public commission may also provide private services so long as they recuse themselves from votes directly affecting their private clients — was implicitly found insufficient to cure Firm A's structural conflict, and the distinction between the two cases reveals a foundational principle about when procedural safeguards can substitute for structural separation. In BER 75-7, the engineer's public role is deliberative and episodic: the conflict arises only when a specific vote is called, and abstention cleanly removes the engineer from that discrete decision. In Firm A's case, the public role is continuous and operational: inspection is not a single vote but an ongoing exercise of professional judgment that permeates every site visit, every field observation, and every acceptance recommendation. A developer-client relationship does not create a single identifiable moment of conflict that abstention can excise; it creates a persistent financial incentive to interpret ambiguous field conditions favorably, to overlook marginal non-conformances, and to expedite approvals. The Board's implicit conclusion is that abstention is a viable conflict mitigation tool only where the conflict is temporally discrete and the engineer's removal from a single decision fully eliminates the tainted influence. Where the conflict is structurally embedded in the continuous exercise of professional judgment, no procedural safeguard short of complete role separation can restore the objectivity that the public client is owed. This principle teaches that the adequacy of a conflict mitigation measure must be calibrated to the temporal and operational character of the conflicted role, not merely to the formal availability of a recusal mechanism.
The interaction among the Client Interest Primacy principle, the Public Welfare Paramount principle, and the Compensating-Party Benefiting-Party Misalignment principle reveals that Firm A's arrangement produced a three-way structural incoherence that no single principle could resolve in isolation. Client Interest Primacy requires Firm A to act as a faithful agent to the city, rigorously enforcing design standards in its inspection role. Public Welfare Paramount independently requires that infrastructure inspection serve the public interest in safe, code-compliant construction. The Compensating-Party Benefiting-Party Misalignment principle identifies a distinct and underappreciated structural flaw: the party paying Firm A for inspection services — the private developer — is the same party whose work is being inspected and whose financial interest lies in rapid, favorable approvals. These three principles converge on the same conclusion but through different analytical pathways, and their convergence is significant because it forecloses the possibility that any one of them could be satisfied while the others are violated. An engineer cannot be a faithful agent to the city while simultaneously being financially dependent on the developer for inspection fees, because the fee-payment relationship creates an implicit pressure toward developer-favorable outcomes that is structurally inconsistent with city-faithful inspection. The case therefore teaches that when the compensating party, the benefiting party, and the inspected party are all the same entity — the developer — the structural conflict is not merely a conflict of interest in the conventional sense but a fundamental misalignment of the incentive architecture of the engagement, which independently violates professional ethics regardless of the engineer's subjective intentions.
Cost Savings Claim Becomes Marketing Outcome
Firm A's public role has been monetized as a private competitive advantage; the city's regulatory authority is being used as a marketing asset; prospective developer clients are being recruited on the basis of Firm A's conflicted position rather than its technical merit
Concurrent with and following Firm A Markets City Role to Developers
Firm A's promise of 50% savings on inspection costs becomes a realized market outcome, as the dual-role arrangement structurally enables Firm A to offer lower costs to its developer clients by leveraging its city-engineer position. This outcome transforms an ethical conflict into a competitive market advantage.
{'engineering_staff': 'None — relied entirely on retained consultant', 'services_retained': 'All engineering and advisory services including sewage/water studies, sanitary district financing, plan approval'}
County commission lacking its own engineering staff that retained a private consulting engineer to perform all necessary engineering and advisory services, including plan approval — unaware that the same engineer was simultaneously retained by a private developer in contract negotiations with the commission.
an engineering consultant had been retained by a county commission to perform all necessary engineering and advisory services
The commission did not have an engineering staff so the engineer acted as the staff for the commission
County Engineer Withholds Recommendation on Own Plans (BER 67-12)
Potential awkwardness with private developer clients expecting advocacy
Reduced efficiency in plan review process
Avoiding self-assessment of own professional work
Maintaining integrity of the public engineering review function
Upholding impartiality in county engineering role
Integrity of engineering review processes
Part-time county engineer / private consultant
Preserve impartiality of the county engineering review function by refusing to recommend approval of plans the engineer had prepared in a private capacity
Boundary management between county and private roles
In BER Case 67-12, the part-time county engineer acting as a private consultant made (or was directed to make) a deliberate decision not to offer recommendations for approval of plans submitted by developer-clients in his private capacity. The Board affirmed this as the ethically required conduct, characterizing any such recommendation as a 'useless act' given the inherent conflict.
Should Firm A accept private developer clients within the same jurisdiction where it serves as the city's retained plan review and construction inspection engineer, or must it structurally separate those roles to preserve its impartiality toward the city?
Firm A, retained by the city to perform plan review and construction inspection of private developer projects — with developers paying Firm A's fees directly — must decide whether to simultaneously accept private design and inspection engagements from those same developers, recognizing that this dual-role arrangement creates a structural conflict between its duty of faithful agency to the city and its financial relationships with the regulated parties.
Firm A refuses to accept any private design or inspection engagements from developers whose projects are subject to Firm A's city-mandated review and inspection authority, maintaining complete structural separation between its public agency role and its private practice.
Firm A accepts private developer engagements while proactively disclosing each dual relationship to the city and obtaining formal city consent, relying on transparency and good-faith inspection practices to manage the conflict without structural separation.
Firm A accepts private developer engagements but adopts a BER 75-7-style abstention model, recusing itself from city review and inspection of any project for which it also serves as the developer's private engineer and arranging for substitute inspection coverage on those projects.
Should Engineer A accept simultaneous roles as city-retained engineer and private consultant to developers whose work Firm A inspects on the city's behalf, or decline private developer engagements within the same jurisdiction?
Engineer A (Firm A): Dual-Role Acceptance — City Engineer and Private Developer Inspector
Refuse to accept any private consulting work from developers whose projects are subject to Firm A's city inspection authority, maintaining exclusive loyalty to the city as principal client and eliminating the structural divided loyalty at its source.
Accept private developer engagements but implement a strict recusal protocol under which Firm A does not inspect any project for which it also serves as the developer's private engineer, relying on the BER 75-7 abstention model to manage discrete conflicts as they arise.
Accept both roles on the ground that the municipality lacks practical alternative engineering resources, treating the arrangement as permissible under BER 74-2's small-municipality public interest exception, with disclosure to the city of each concurrent developer engagement.
Should Firm A actively market its city engineer appointment to prospective private developer clients by advertising the cost savings that flow from its inspection authority, or refrain from using its public position as a commercial differentiator?
Firm A: Marketing Exploitation of City Engineer Position to Solicit Private Developer Clients
Immediately discontinue all advertising or solicitation that references Firm A's city engineer appointment as a source of cost savings or competitive advantage for prospective private developer clients, obtaining private engagements only through channels that do not exploit the public position.
Continue marketing the cost-savings advantage to prospective developer clients while proactively disclosing each concurrent developer engagement to the city and obtaining formal city consent, on the theory that transparency and consent cure any conflict arising from the marketing conduct.
Reframe marketing communications to emphasize genuine economies of scale and process efficiencies from consolidated engineering services without explicitly referencing the city inspection appointment, relying on BER 74-2's tolerance of dual municipal and private roles in small municipalities as authorization for informing the market of real service advantages.
When Firm A has designed infrastructure for a private developer, should Firm A recuse itself entirely from city inspection of that same infrastructure, or may it proceed with inspection under disclosure and consent protocols?
Firm A: Self-Review Conflict — Designing and Then Inspecting the Same Developer Infrastructure on the City's Behalf
Refuse to perform city inspection on any infrastructure project that Firm A designed in its private capacity, arranging for an independent engineer to conduct those inspections, thereby eliminating the self-review conflict at its source regardless of disclosure or consent.
Proceed with inspection of self-designed projects after disclosing the design relationship to both the city and the developer and obtaining formal written consent from the city, relying on the BER 75-7 abstention model's consent-plus-transparency framework as sufficient to manage the conflict.
Retain an independent third-party engineer to review safety-critical and structurally significant elements of self-designed projects while Firm A conducts routine procedural inspection of non-structural elements, on the theory that partial independent oversight restores sufficient objectivity for the city's purposes without requiring full recusal.
When Firm A both designs infrastructure for a private developer and then inspects that same infrastructure on the city's behalf, should Firm A treat this self-review scenario as a distinct and irreconcilable conflict requiring role separation, or may it proceed under the review-recommendation framework of BER 82-4 on the basis that its inspection findings are formally advisory rather than final decisions?
Firm A, which simultaneously prepares drawings for private developers, reviews those same drawings on the city's behalf, and performs construction inspection at developer expense, must decide whether to recognize that this cumulative multiplicity of roles — including self-review of its own design work — creates an irreconcilable conflict that cannot be cured by disclosure, consent, or procedural safeguard, requiring structural separation of the incompatible roles.
Firm A declines all private design engagements for developers whose projects it will subsequently inspect on the city's behalf, treating the design-then-inspect sequence as a categorically irreconcilable self-review conflict requiring complete role separation.
Firm A accepts both design and inspection roles but assigns them to entirely separate personnel within the firm with documented information barriers, treating the arrangement as analogous to BER 82-4's permissive multi-role framework where the reviewing engineer does not make final decisions.
Firm A discloses to the city each instance in which it designed infrastructure it will subsequently inspect, obtains formal city consent acknowledging the self-review relationship, and proceeds on the basis that the city's informed waiver cures the conflict under the BER 75-7 consent-and-transparency framework.
Should Firm A use its position as the city's retained inspection engineer as a marketing tool — openly advertising to prospective developer clients that retaining Firm A for private services yields a 50% reduction in inspection costs — or must it refrain from commercially exploiting its publicly conferred authority as a competitive differentiator?
Firm A, holding the city's plan review and construction inspection contract, must decide whether to actively market its city engineer position to prospective private developer clients by advertising that developers who also retain Firm A for private services can save 50% on inspection costs — a practice that exploits a publicly conferred advantage as a commercial differentiator and independently violates the non-self-serving obligation and fairness in competition principle, regardless of whether the underlying dual-role engagement might otherwise be permissible.
Firm A immediately discontinues all advertising, solicitation, and communication to prospective developer clients that references the cost savings or other advantages available to developers who retain Firm A for private services, treating its city engineer appointment as a public trust not to be monetized as a commercial differentiator.
Firm A continues to communicate the cost savings available to developer clients who also retain it for private services, but adds explicit disclosure of the dual-role relationship and the city's awareness of the arrangement, treating the marketing as a transparent communication of a permissible efficiency rather than an exploitation of public authority.
Firm A refrains from actively advertising the 50% cost savings but responds honestly when prospective developer clients directly inquire about the financial implications of retaining Firm A for both city-mandated and private services, treating passive disclosure of available efficiencies as distinguishable from affirmative exploitation of the public role.
Should Firm A accept private developer clients within the same jurisdiction where it serves as city-retained inspection engineer, or decline such engagements to preserve its undivided loyalty to the city?
Engineer (Firm A): City-Retained Engineer Dual-Role Acceptance Decision — Whether to Accept or Decline Private Developer Engagements While Serving as City Engineer
Firm A refuses to accept any private developer clients within the jurisdiction where it holds the city inspection contract, maintaining undivided loyalty to the city as its sole principal and eliminating the structural conflict at its source.
Firm A accepts private developer engagements but implements a strict recusal protocol under which it does not perform city inspection of any project for which it also serves as the developer's private engineer, relying on the abstention model from BER 75-7 and disclosing each dual engagement to the city for formal consent.
Firm A accepts private developer engagements on the grounds that the small municipality lacks practical alternatives for competent engineering coverage, treating the dual role as permissible incidental overlap under BER 74-2 and disclosing the arrangement to the city without implementing a formal recusal mechanism.
Should Firm A actively market its city engineer appointment to prospective developer clients by advertising a 50% cost savings, or refrain from using its public position as a commercial differentiator in soliciting private engagements?
Public / Firm A: Public Role Marketing Exploitation Decision — Whether to Market the City Engineer Position as a Cost-Savings Advantage to Prospective Developer Clients
Firm A refrains entirely from referencing its city engineer appointment in soliciting or retaining private developer clients, ensuring that any private engagements are obtained through channels independent of its publicly conferred inspection authority and that competitive advantages derive solely from technical capability.
Firm A continues to communicate the cost efficiencies of its dual role to prospective developer clients but provides full written disclosure of the dual engagement to both the city and each developer client, treating transparency as sufficient to cure any improper competitive advantage concern.
Firm A communicates genuine economies of scale and process efficiencies to prospective developer clients without explicitly referencing its city inspection authority or promising favorable regulatory outcomes, treating the cost savings as a legitimate competitive differentiator grounded in operational efficiency rather than regulatory access.
Should Firm A treat proactive disclosure of each dual engagement to the city and formal city consent as sufficient to cure the structural conflict of interest, or must Firm A achieve complete role separation by declining developer engagements regardless of disclosure?
Engineer (Firm A): City-Retained Engineer Developer Client Conflict Proactive Disclosure Decision — Whether Disclosure and Consent Can Cure the Structural Conflict or Whether Role Separation Is Required
Firm A treats the structural conflict as non-curable by any disclosure or consent mechanism and declines all private developer engagements within the jurisdiction, recognizing that the divided loyalty inheres in the simultaneous role acceptance and cannot be dissolved by agreement or procedural safeguard.
Firm A proactively discloses to the city every instance in which a prospective private developer client is also subject to Firm A's city inspection authority and obtains formal written city consent before accepting each such engagement, treating disclosure-plus-consent as sufficient to satisfy its professional obligations under the model applicable to contingent conflicts.
Firm A discloses each dual engagement to the city, obtains city consent, and arranges for a qualified independent inspector to perform city inspection on any project for which Firm A also serves as the developer's private engineer, applying the BER 75-7 abstention model by ensuring a substitute decision-maker handles all conflicted inspection assignments.
Should Firm A accept simultaneous roles as city-retained engineer and private consultant to developers whose work it inspects, or decline the private developer engagements to preserve its fidelity to the city as principal client?
Firm A BER 82-4 Dual-Role: Whether to Accept or Decline Simultaneous City Engineer and Private Developer Inspection Roles Within the Same Jurisdiction
Refuse to accept any private developer clients within the city whose projects are subject to Firm A's city inspection authority, maintaining exclusive fidelity to the city as principal client and eliminating the structural divided loyalty at its source.
Accept private developer engagements while proactively disclosing each instance of dual engagement to the city and obtaining formal city consent, relying on the BER 74-2 framework that permits dual municipal and private roles in small municipalities where public interest is served by consolidated engineering services.
Accept private developer engagements but implement a formal recusal protocol modeled on BER 75-7, whereby Firm A abstains from city inspection of any project for which it also serves as the developer's private engineer, delegating those inspections to an independent engineer to preserve objectivity on conflicted projects.
Engineer A BER 82-4 Multi-Jurisdiction Dual-Role Municipal Engineer
Should Firm A perform city-mandated inspection of developer infrastructure that Firm A itself designed, or must it recuse from self-review and arrange for independent inspection of its own design work?
City-Retained Engineer Self-Design-Review Prohibition: Whether Firm A Should Inspect Infrastructure It Also Designed for the Same Private Developer
Decline to perform city inspection of any infrastructure Firm A itself designed, and proactively arrange for a fully independent engineer to conduct the city-mandated review of that work, disclosing the self-review conflict to the city as the basis for the recusal.
Proceed with city inspection of Firm A's own design work while implementing enhanced documentation protocols — including detailed checklists, third-party peer review of inspection findings, and full disclosure to the city — on the theory that procedural rigor and transparency can adequately substitute for structural independence.
Disclose the self-review scenario to the city before proceeding, obtain the city's explicit written consent to Firm A inspecting its own design work, and rely on the city's informed authorization as sufficient ethical clearance under a BER 74-2 type public interest analysis for resource-constrained municipalities.
Should Firm A market its city engineer appointment to prospective private developer clients by advertising a 50% cost savings on inspection fees, or must it refrain from using its publicly conferred position as a commercial differentiator in soliciting private engagements?
Firm A Marketing Exploitation of City Engineer Position: Whether to Advertise City Inspection Role as a Cost-Savings Advantage to Prospective Private Developer Clients
Immediately discontinue any advertising, solicitation, or representation to prospective private developer clients that references Firm A's city engineer position or the cost savings flowing from it, obtaining private developer engagements solely through channels independent of the city appointment.
Inform the city of Firm A's marketing practice and obtain the city's explicit acknowledgment before continuing to reference the city engineer role in developer solicitations, on the theory that transparent disclosure to the principal client converts the marketing conduct into a permissible competitive communication rather than an exploitation of public position.
Continue to communicate genuine cost efficiencies to prospective developer clients — such as reduced coordination overhead and streamlined permitting familiarity — without explicitly referencing the city engineer appointment or the inspection fee structure, relying on the distinction between legitimate competitive communication of service value and improper exploitation of a publicly conferred advantage.
Every project in which Firm A serves as both designer/inspector for a developer AND as the city's mandatory review authority becomes an active conflict-of-interest situation; the independence of the city's review process is compromised for all such projects
Concurrent with Firm A Accepts Developer Clients, ongoing
The structural conflict of interest becomes an active reality when Firm A simultaneously holds authority as the city's mandatory review engineer and accepts private developer clients whose work it must review. The latent conflict created by the ordinance is now operationally present in every project where Firm A serves both roles.
Dual Public-Private Employment Ethics Standard — Firm A Application
Dual Public-Private Employment Ethics Standard
Addresses the ethical obligations of Firm A in simultaneously serving the city (public role) and private developers (private role), particularly regarding the appearance of impropriety and faithful agency to both principals when the two roles intersect.
Engineer A Accepts Multiple Public and Private Roles (BER 82-4)
Appearance of conflict of interest across overlapping jurisdictions
Potential for private consulting work to benefit from positional knowledge gained in public roles
Risk that review and recommendation functions shade into de facto decision-making
Not directly participating in final approval decisions on work in which he had a private interest
Operating within the letter of the amended Code provisions distinguishing decisions from recommendations
Providing engineering services across multiple public entities
Public service through engineering expertise
Technical distinction between recommendation and decision authority
Maximize professional engagement across multiple public and private clients within the same jurisdiction, providing comprehensive engineering services
Conflict of interest analysis under amended Code
Multi-jurisdictional engineering administration
Role boundary management across public and private engagements
Duty to avoid situations creating appearance of impropriety across overlapping roles
Spirit of conflict of interest avoidance (arguably)
In BER Case 82-4, Engineer A made deliberate decisions to simultaneously serve as county engineer, city engineer, project administrator for the county airport authority, administrator of a city block grant program, and private consultant to firms developing city and county project proposals. The Board found these roles permissible under the amended Code because Engineer A reviewed and recommended rather than made final 'decisions.'
Engineer A BER 82-4 Review-Recommendation Non-Decision Boundary Application
Review-Recommendation vs Decision Dual-Role Permissibility Boundary Recognition Capability
Engineer A demonstrated the capability to structure his multi-jurisdiction dual-role activities (county engineer, city engineer, airport authority administrator, block grant administrator) so that he reviewed, recommended, formulated, and oversaw plans without actually participating in decisions with respect to services he provided in private practice
BER 82-4 precedent case involving Engineer A's simultaneous service as county engineer, city engineer, airport authority project administrator, and city block grant administrator while providing private consulting services
Engineer A's activities were found to constitute review, recommendation, formulation, and oversight rather than decision-making, placing them within the permissible boundary under amended Code Section II.4.d
the Board found that his activities were within the meaning of the amended Code provisions and did not constitute 'decisions' under Section II.4.d.
Engineer Serves Dual Clients Simultaneously (BER 62-7)
Divided loyalties between commission and developer with potentially opposing interests
Self-assessment of own recommendations on behalf of the commission
Avoidance of self-interest in professional decisions
Serve both the county commission's engineering needs and the private developer's design needs, likely seeking to maximize engagement and revenue
Duty of undivided loyalty to each client
Obligation not to pass engineering judgment on one's own work
Prohibition against self-dealing in a position of public trust
In BER Case 62-7, the engineering consultant made a deliberate decision to accept retention by both a county commission (as de facto engineering staff) and a private developer whose project required extensive negotiation with that same commission. This placed the engineer in the position of passing engineering judgment on his own work and recommendations.
Engineer Solicitation and Competition Ethics Standard — Firm A Marketing Practice
Engineer Solicitation and Competition Ethics Standard
Firm A uses its position as the city's engineer as a marketing tool, openly telling prospective clients that they can save 50% on inspection costs by using their firm.
Governs whether Firm A's use of its city engineer position as a marketing tool to solicit private developer clients — by advertising a 50% cost savings — constitutes ethically permissible solicitation or an improper leveraging of a public role for private commercial gain.
Firm A Accepts Developer Clients Concurrently
private consulting engineering firm, principal decision-makers
Divided loyalty between city client and private developer clients
Potential appearance of favoritism in review and inspection outcomes
Risk that developer clients receive less rigorous independent inspection than they require
Technically providing contracted engineering services to multiple clients
Expand revenue base by serving both the city and private developers within the same jurisdiction
Client relationship management across multiple engagements
Conflict of interest identification and management
Ongoing, concurrent with city engagement
Duty of loyalty to the city as primary client (NSPE Code Section II.4.d)
Duty to represent the separate and differing interests of each client adequately
Obligation not to accept compensation from multiple parties on the same project without full disclosure and consent
Obligation to avoid situations where self-interest divides professional loyalty
Obligation to disclose conflicts of interest to all affected clients
Firm A made an ongoing, deliberate decision to simultaneously accept private developer clients within the same city for which it serves as consulting engineer, creating a structural dual-loyalty arrangement. This placed Firm A in the position of reviewing and inspecting work from the same class of clients it also serves professionally.
Firm A Accepts Developer Clients Concurrently → Dual-Role Conflict Materializes
Firm A made an ongoing, deliberate decision to simultaneously accept private developer clients within the same jurisdiction where it held public review authority, causing the structural conflict of interest to become an active reality when Firm A simultaneously holds authority over both sides of the review relationship.
Had Firm A declined all private developer clients within the jurisdiction, the dual-role conflict would not have materialized even with the city engagement intact
Developer clients being subject to the very review process Firm A administered
Firm A's existing retention as city engineer with review and approval authority
Firm A's volitional acceptance of private developer engagements in the same jurisdiction
Firm A holding city review authority + accepting private clients subject to that authority = sufficient to constitute a conflict under Section II.4.d
No additional harm or adverse decision needed, the structural relationship itself was sufficient to trigger the ethical violation
Firm A BER Dual-Precedent Municipal Engineer Dual-Role Permissibility Synthesis
BER Dual-Precedent Municipal Engineer Dual-Role Permissibility Synthesis Capability
Firm A required — but failed to exercise — the capability to identify and synthesize BER precedent cases governing dual-role municipal engineer arrangements, correctly determining that the factual conditions making such arrangements impermissible (private-client review conflicts, self-review of own publicly-contracted work) were present in its situation.
Firm A's dual role as city inspection engineer and private developer consultant implicated BER precedent cases governing the permissibility of dual-role municipal engineer arrangements.
Firm A proceeded with the dual-role arrangement without apparent awareness of or compliance with BER precedent establishing the conditions under which such arrangements are impermissible.
Firm A BER Five-Precedent Dual-Role Conflict Spectrum Synthesis
The BER Board demonstrated the capability to synthesize five precedent cases (BER 62-7, 74-2, 82-4, 75-7, 67-12) into a coherent framework for determining that Firm A's multi-hat arrangement violated Section II.4.d
BER Board analysis of Firm A's dual-role arrangement involving city-retained inspection and private developer design services
Systematic review and application of five BER precedent cases to conclude that Firm A's simultaneous roles as developer designer, city plan reviewer, and city inspector were irreconcilably conflicted
Firm A (as subject of BER analysis) / BER Board (as applying body)
Firm A City Engineer Position Marketing Exploitation Prohibition
Present case: Firm A used its city engineer position to openly market private services to prospective developer clients
Dual Role Self-Review Marketing Exploitation Prohibition Constraint
Firm A was prohibited from using its position as city engineer to openly market private services to prospective developer clients, including by advertising cost savings derived from its insider position as the city's reviewer, because such marketing exploitation compounded the underlying conflict of interest and independently violated the prohibition on improper competitive conduct.
NSPE Code of Ethics Sections II.4.d, III.6; BER Case precedent
We are also uncomfortable with Firm A using its position as city engineer to openly market his services with prospective clients.
Duration of Firm A's city engineer engagement
Firm A Compensating-Party Benefiting-Party Misalignment Recognition
Compensating-Party Benefiting-Party Misalignment Structural Conflict Recognition Capability
Firm A lacked the capability to recognize that being compensated by developers for services benefiting the city created a structural conflict; the BER Board identified this as a particularly troubling aspect of the arrangement
Firm A's arrangement where developers paid for city-benefit inspection services
BER Board's identification that Firm A was expected to perform review and inspection services for one client (city) while being compensated by another client (developer), creating irreconcilable incentive misalignment
Firm A (lacked) / BER Board (identified)
We are particular troubled by the fact that Firm A is expected to perform review and inspection services for one client while being compensated for those services by another client.
Firm A Competing Stakeholder Interest Faithful Agent Boundary
Competing Stakeholder Interest Faithful Agent Boundary Capability
Firm A required — but failed to exercise — the capability to recognize and maintain the boundary between its faithful agent obligations to the city and its private commercial interests in serving developer clients, correctly identifying that its financial interest in retaining developer clients was creating pressure to subordinate the city's inspection interests to those of the developers.
Firm A's dual role created a structural tension between its faithful agent obligations to the city and its financial interest in retaining private developer clients.
Firm A's marketing of inspection cost savings to developers demonstrates that it was actively prioritizing its private commercial interests over its faithful agent obligations to the city.
Firm A Competitive Fairness Non-Exploitation of City Contract Position
Firm A's use of its city engineer position to market private services to developers created an inherently unequal competitive environment, as other engineering firms lacked access to the same insider position and could not offer equivalent cost savings derived from public role access.
Competitive Procurement Fairness Constraint
Firm A was prohibited from leveraging its privileged position as the city's inspection agent to gain unfair competitive advantage over other engineering firms competing for private developer design and inspection contracts within the city.
NSPE Code of Ethics; principles of fair and open competition in professional engineering
Throughout Firm A's simultaneous holding of the city inspection mandate and private developer solicitation activities
Firm A Developer-Client Inspection Objectivity Preservation
City-Retained Inspection Engineer Developer-Client Inspection Objectivity Preservation Capability
Firm A required — but failed to exercise — the capability to recognize that its financial interest in retaining private developer clients structurally compromised its ability to conduct impartial city-mandated inspection of those same developers' construction projects, and to determine that this objectivity impairment required either declining private client relationships with inspected developers or recusing from inspection of developer-clients.
Firm A inspected private developer construction on the city's behalf while simultaneously providing private design and inspection services to those same developers.
Firm A actively solicited private developer clients from among the pool of developers subject to its city inspection authority, creating a systematic objectivity impairment across its inspection program.
these inspection services are solely for the purpose of ensuring the construction of infrastructure within the development, which is to be turned over to the city, is constructed in accordance with the city's design standards
Firm A Developer-Client Marketing Exploitation Prohibition Self-Application
City-Retained Engineer Developer-Client Marketing Exploitation Prohibition Self-Application Capability
Firm A required — but failed to exercise — the capability to recognize that advertising quantified inspection cost savings to prospective developer clients based on its city inspection role constitutes a prohibited exploitation of the public agency position, and to refrain from such solicitations.
Firm A used its city engineer/inspection position as an explicit marketing tool with quantified cost savings claims directed at prospective private developer clients.
Firm A openly told prospective clients they could save 50% on inspection costs by using the firm, directly monetizing its city inspection role as a private competitive advantage.
Firm A Developer-Compensated Public Inspection Dual-Interest Structural Conflict
The local ordinance required developers to pay Firm A's fees for city-mandated inspection, while Firm A also sought private design and inspection contracts from those same developers, creating a financial dependency that structurally compromised Firm A's ability to act as an impartial agent of the city.
Developer-Compensated Public Inspection Dual-Interest Non-Acceptance Constraint
Firm A was prohibited from accepting or continuing private design and inspection engagements with developers whose projects it was simultaneously reviewing and inspecting on the city's behalf, because the developer-pays compensation structure created an irresolvable financial incentive to favor the paying developer over the city's interests.
NSPE Code of Ethics; Local Land Development Ordinance; BER Case 62-7
The developer must pay the city's expenses for having Firm A review the drawings.
Throughout any period in which Firm A simultaneously held the city inspection mandate and private developer engagements
Additionally, during construction the developer must also pay for inspection services, to be provided by Firm A on the city's behalf.
Firm A Developer-Compensated Public Review Conflict
Present case: Firm A received compensation from developers for review and inspection services rendered on behalf of the city under the local ordinance
Firm A was prohibited from performing review and inspection services for the city (as beneficiary) while being compensated for those services by the private developers (as regulated parties), because this compensation structure created an irresolvable financial incentive to favor the paying developer over the public authority's interests.
NSPE Code of Ethics; Local Land Development Ordinance
Duration of Firm A's developer-compensated public review and inspection services
Firm A Developer Fee-Payment Impartiality Non-Compromise
Under the local ordinance, developers were required to pay Firm A's fees for both plan review and construction inspection services rendered on the city's behalf, creating a financial relationship between Firm A and the regulated parties that could compromise impartiality.
Regulated-Party Fee-Payment Public Review Impartiality Non-Compromise Constraint
Firm A's obligation of impartiality and faithful agency to the city was not diminished by the fact that developers paid Firm A's fees for plan review and inspection services; Firm A was prohibited from allowing the developer's status as fee-payer to influence the rigor or outcome of its public review and inspection function.
NSPE Code of Ethics; Local Land Development Ordinance; faithful agent principles
Throughout all plan review and construction inspection activities where developer fee-payment was operative
Firm A Disclosure Insufficiency Recognition for Developer-Client Inspection Conflict
Disclosure Insufficiency Recognition for Self-Review Conflict Capability
Firm A required — but failed to exercise — the capability to recognize that even if it disclosed its private developer client relationships to the city, disclosure alone would be insufficient to cure the structural conflict of interest arising from inspecting the work of its own private clients, and that the only permissible resolution was declining either the private client relationships or the city inspection role with respect to those developers.
The conflict between Firm A's city inspection role and its private developer client relationships was structural and irremediable through disclosure alone.
Firm A made no disclosure and continued both roles, but even disclosure would have been insufficient given the structural nature of the self-review conflict.
Firm A Dual-Role City Engineer Conflict of Interest Recognition
Dual-Role City Engineer Conflict of Interest Recognition Capability
Firm A required — but failed to exercise — the capability to recognize that its dual role as city plan reviewer and construction inspector while simultaneously serving private developers subject to that review authority creates an irreconcilable conflict of interest, including understanding that the firm cannot adequately represent the separate and sometimes differing interests of both the city and private developer clients simultaneously.
Firm A served as city-retained inspection engineer while also providing private design and inspection services to developers whose projects it was inspecting.
Firm A's simultaneous service to the city and to private developers subject to city inspection, combined with its active marketing of the arrangement, demonstrates failure to recognize the conflict.
Firm A Dual-Role City Engineer Conflict of Interest Recognition Deficit
Firm A lacked the capability to recognize that its dual role as city-retained plan reviewer/inspector and private design consultant for developers subject to that same review authority created an irreconcilable conflict of interest that violated Section II.4.d
Firm A's simultaneous service as city-retained inspection engineer and private design consultant for developers
BER Board's finding that Firm A's arrangement violated Section II.4.d and that the firm could not adequately represent the separate and sometimes differing interests of its clients
Firm A is a private consulting engineering firm that regularly prepares drawings for developers and at the same time reviews those drawings at developer expense for the benefit of the city, and also performs inspection services at developer expense for the benefit of the city.
Firm A Dual-Role Irreconcilable Conflict Identification
Firm A required — but failed to exercise — the capability to recognize that simultaneously serving as the city's plan review and construction inspection agent while also providing design and inspection services to private developers subject to that same review authority creates an irreconcilable conflict of interest that cannot be managed through disclosure alone.
Firm A simultaneously held the city inspection role and provided private design and inspection services to developers whose projects it was inspecting on the city's behalf.
Firm A's failure to recognize or act on the irreconcilable conflict is evidenced by its open continuation of both roles and active marketing of the dual arrangement.
Firm A Dual-Service Developer Inspection Conflict Non-Acceptance
Firm A held the city's plan review and construction inspection mandate while simultaneously providing private design and inspection services to developers within the same city, creating a structural self-review conflict.
Firm A was prohibited from simultaneously serving as the city's plan review and construction inspection engineer and as a private design and inspection consultant to the same developers whose projects it was inspecting on the city's behalf, because the structural conflict of interest rendered both roles ethically impermissible to hold concurrently.
NSPE Code of Ethics; BER Case 62-7; BER Case 94-5 (Dual Role Self-Review Conflict Prohibition)
Throughout the duration of Firm A's engagement as the city's retained inspection engineer
Firm A Improper Competitive Advantage Recognition in City Inspection Role
Improper Competitive Advantage Recognition Capability
Firm A required — but failed to exercise — the capability to recognize that leveraging its privileged position as the city's inspection agent to gain competitive advantage over other engineering firms in the private developer services market — including by advertising quantified cost savings — constitutes advancement through improper methods prohibited by professional ethics codes.
Firm A used its city inspection role to undercut competitors in the private developer services market by offering cost savings unavailable to firms without the city inspection contract.
Firm A openly advertised 50% inspection cost savings to prospective developer clients, directly leveraging its city inspection position as a competitive differentiator against other private engineering firms.
Firm A Improper Competitive Method — 50% Cost Savings Advertisement
Firm A's 50% cost savings advertisement was premised on its ability to reduce inspection scope or combine public and private inspection activities by virtue of its insider position as the city's engineer, constituting an improper competitive method.
Improper Competitive Method Prohibition Constraint
Firm A was prohibited from advertising to prospective developer clients that they could save 50% on inspection costs by retaining Firm A, because this advertisement constituted an improper competitive method that exploited Firm A's insider public role rather than competing on demonstrated merit.
NSPE Code of Ethics Section III.6; BER precedent on improper competitive methods
Throughout Firm A's marketing activities directed at developers within the city
Firm A Improper Competitive Method — City Position Marketing
Present case: Firm A openly marketed private services to prospective developer clients using its city engineer position as a selling point
Firm A was prohibited from using its privileged position as the city's plan review and construction inspection engineer as a marketing tool to solicit private developer clients — including by advertising cost savings derived from its insider position — because such solicitation constituted an improper competitive method that exploited a public role for private commercial gain.
NSPE Code of Ethics Section III.6; faithful agent obligations
Duration of Firm A's city engineer engagement and associated marketing activities
Since the beneficiary of the services in question is the city, the marketing technique suggests that Firm A may be offering developers less than the full range of services required to perform the services adequately but sufficient enough to cause the work to be approved by the city.
Firm A Incumbent Multi-Contract Structural Conflict Proactive Disclosure to City
Incumbent Multi-Contract Firm Structural Conflict Proactive Disclosure Capability
Firm A required — but failed to exercise — the capability to proactively disclose to the city the full nature and extent of its private consulting relationships with developers whose projects it was inspecting on the city's behalf, including articulating specifically how the dual-client arrangement created a structural conflict of interest in the inspection program.
Firm A held private consulting relationships with developers subject to its city inspection authority without disclosing this conflict to the city client.
No disclosure to the city of Firm A's private developer client relationships is indicated; instead, Firm A openly marketed the arrangement as a benefit to prospective developer clients.
Firm A Marketing Exploitation of City Engineer Position
Firm A openly told prospective developer clients they could save 50% on inspection costs by using the firm, directly leveraging its insider public role as a competitive marketing advantage.
Firm A was prohibited from using its position as the city's plan review and construction inspection engineer as a marketing tool to solicit private developer clients, including by advertising that developers could save 50% on inspection costs by retaining Firm A for private services.
NSPE Code of Ethics Sections III.2, III.6; BER Case precedent on improper competitive methods
private consulting engineering firm, principals and marketing decision-makers
Creates appearance that city approval is commercially available through Firm A's dual role
Potentially compromises the rigor of city-side inspection to maintain developer client relationships
Suggests Firm A may provide developers less than the full independent inspection services they need
Undermines public confidence in the impartiality of city review and inspection
Avoidance of conduct that demeans the profession
Faithful agency to the city as primary client
Integrity and honesty in professional representations
Public trust in engineering oversight functions
Attract private developer clients by leveraging the implicit promise that work reviewed by Firm A in its city role would be more readily approved, thereby reducing developers' total inspection expenditure
Honest and transparent client communication
Understanding of the boundaries between public trust roles and private commercial activity
Ongoing, active marketing decision concurrent with city engagement
Duty not to use confidential or positional information from one client engagement to benefit another
Duty to avoid conduct that creates the appearance of impropriety or compromises impartiality
Obligation not to exploit a public trust role for private commercial gain (NSPE Code Section II.4.d)
Obligation to act in the public interest, not personal financial interest
Obligation to provide developers the full range of independent inspection services they require
Prohibition against solicitation of clients through misleading or ethically compromised representations
Firm A made a deliberate decision to openly use its position as the city's engineer as a marketing tool to attract private developer clients, explicitly promising prospective clients 50% savings on inspection costs by hiring Firm A. This transformed a public trust role into a private commercial advantage.
Firm A Markets City Role to Developers → Cost Savings Claim Becomes Marketing Outcome
Firm A made a deliberate decision to openly use its position as the city's engineer as a marketing tool, promising developers cost savings, a promise that became a realized market outcome as the dual-role structure enabled Firm A to deliver the claimed 50% savings on inspection costs, financially entrenching the conflicted arrangement.
Without Firm A marketing its city role, developers would not have engaged Firm A specifically to exploit the dual-role cost advantage; the savings outcome was contingent on the marketing action activating developer demand
Developer willingness to engage Firm A based on the cost savings promise
Firm A's actual ability to influence or streamline review processes by virtue of holding both roles
Firm A's deliberate use of its city engineer role as a marketing instrument
The ordinance structure requiring developers to pay for review (creating the cost baseline against which savings were measured)
Marketing of city role + ordinance-created cost structure + Firm A's dual-role leverage = sufficient to produce the realized cost savings outcome
The marketing action transformed a latent conflict into an active commercial advantage, making the savings claim self-fulfilling
Firm A Multi-Client Simultaneous Representation Feasibility Assessment
Multi-Client Interest Simultaneous Representation Feasibility Assessment Capability
Firm A required — but failed to exercise — the capability to assess whether simultaneous representation of the city (as inspection agent) and private developers (as design and inspection clients) was ethically feasible, and to correctly determine that the nature of the concurrent relationships made adequate representation of all clients impossible.
Firm A simultaneously served the city as inspection agent and private developers as design and inspection consultant, with the city's and developers' interests in inspection outcomes being directly opposed.
Firm A proceeded with simultaneous representation of both the city and private developers without assessing or acknowledging the feasibility problem.
The developer must pay for separate inspection services in order to protect his interests.
Firm A Multi-Hat Adequate Representation Impossibility Self-Recognition Deficit
Firm A lacked the capability to recognize that simultaneously wearing the hats of private developer designer, city plan reviewer, and city construction inspector made it structurally impossible to adequately represent the separate and sometimes differing interests of all clients
Firm A's simultaneous roles as private developer designer, city plan reviewer, and city construction inspector
BER Board's conclusion that Firm A could not adequately represent the separate and sometimes differing interests of its clients under the facts presented, and that the multitude of hats made adequate representation impossible
The Board cannot see how an engineer can wear the multitude of hats herein described and still represent the best interest of his clients.
We cannot see how Firm A can adequately represent the separate and sometimes differing interests of its clients under the facts presented.
Firm A Multi-Hat Dual-Client Adequate Representation Impossibility
Present case: Firm A simultaneously prepared developer drawings, reviewed them for the city, and inspected construction for the city — all while being compensated by developers
Firm A was prohibited from simultaneously preparing drawings for private developers, reviewing those same drawings as the city's plan reviewer at developer expense, and performing inspection services as the city's inspector at developer expense — because the cumulative weight of these simultaneous roles made it impossible for Firm A to adequately represent the separate and sometimes differing interests of its clients.
Duration of Firm A's simultaneous designer/reviewer/inspector roles
Firm A NSPE Code Section II.4.d Violation Reaffirmation
Present case: Board's reaffirmation that Firm A's multi-hat arrangement violated Section II.4.d based on cumulative precedent
The Board reaffirmed that Firm A's circumstances — simultaneously preparing drawings for developers, reviewing those drawings for the city, and inspecting construction for the city while being compensated by developers — constituted a violation of NSPE Code Section II.4.d's conflict of interest prohibition.
Duration of Firm A's multi-role engagement
Firm A Ordinance-Scoped Inspection City-Interest-Only Fidelity
The local ordinance expressly limited Firm A's inspection mandate to ensuring infrastructure met city design standards for city acceptance, while separately requiring developers to obtain their own inspection services to protect their own interests.
Ordinance-Scoped Public Inspection City-Interest-Only Fidelity Constraint
Firm A was bound by the local ordinance to conduct construction inspection solely for the purpose of ensuring developer-built infrastructure met city design standards for city acceptance, and was prohibited from allowing its private commercial relationships with developers to influence the scope or rigor of that inspection.
Local Land Development Ordinance; NSPE Code of Ethics faithful agent provisions
The ordinance states specifically that these inspection services are solely for the purpose of ensuring the construction of infrastructure within the development, which is to be turned over to the city, is constructed in accordance with the city's design standards.
Throughout all construction inspection activities conducted by Firm A on the city's behalf
Firm A Public Agency Position Private Marketing Non-Exploitation Self-Monitoring Deficit
Public Agency Position Private Marketing Non-Exploitation Self-Monitoring Capability
Firm A lacked the capability to monitor and prevent its use of the city engineer position as a marketing tool to attract private developer clients, openly advertising cost savings derived from its public agency role
Firm A's marketing practice of advertising 50% inspection cost savings to developers by virtue of its city engineer position
Firm A's open marketing of private services to prospective developer clients using its city engineer position, which the BER Board found troubling and indicative of a systematic incentive structure undermining inspection objectivity
Firm A Public Agency Role Commercial Exploitation Recognition
Public Agency Role Commercial Exploitation Recognition Capability
Firm A required — but failed to exercise — the capability to recognize that using its position as the city's plan review and construction inspection engineer as a marketing tool to attract private developer clients, including explicitly advertising 50% inspection cost savings, constitutes a prohibited exploitation of the public agency role that compounds the underlying conflict of interest.
Firm A actively marketed its city inspection role to prospective private developer clients, promising quantified cost savings based on the dual-role arrangement.
Firm A openly told prospective developer clients they could save 50% on inspection costs by using the firm, directly leveraging its city inspection role as a competitive marketing advantage.
Firm A Reduced-Scope Inspection Marketing Incentive Prohibition
Present case: Firm A's marketing technique (including 50% cost savings advertising) suggested offering developers inspection sufficient for approval but less than fully adequate for city protection
Developer-Fee-Compensated Public Review Reduced-Scope Marketing Incentive Prohibition Constraint
Firm A was prohibited from marketing its services to developers in a manner suggesting that developers would receive less than the full range of inspection services required to adequately protect the city — i.e., inspection sufficient only to cause work to be approved rather than to fully protect the city's interests — because such marketing exploited the developer-compensation structure to offer a reduced public service as a commercial inducement.
NSPE Code of Ethics; faithful agent obligations to municipal client
Duration of Firm A's marketing activities to prospective developer clients
Firm A Self-Design-Review Conflict Prohibition
Present case: Firm A prepared developer drawings and then reviewed those same drawings as the city's plan reviewer
Firm A was prohibited from simultaneously preparing drawings for private developers in a private capacity and reviewing those same drawings in its city-retained capacity, because this self-review arrangement rendered the firm incapable of serving as an impartial agent of the public authority.
Firm A is a private consulting engineering firm that regularly prepares drawings for developers and at the same time reviews those drawings at developer expense for the benefit of the city.
Duration of Firm A's simultaneous designer and city reviewer roles
The Board reaffirms the view that the circumstances described are in violation of Section II.4.d.
Firm A Self-Design-Review Prohibition Recognition Deficit
Dual-Role City Engineer Self-Review Structural Boundary Maintenance Capability
Firm A lacked the capability to recognize and maintain the structural boundary prohibiting it from reviewing and inspecting, in its city-retained capacity, drawings and construction that Firm A itself had prepared in its private consulting capacity
Firm A's practice of preparing developer drawings in private capacity and then reviewing those same drawings as city-retained plan reviewer
BER Board's identification that Firm A regularly prepared drawings for developers and at the same time reviewed those drawings at developer expense for the benefit of the city — a direct self-review violation
Firm A marketing to prospective developer-clients before developer retaining Firm A for private design/inspection services
Firm A uses its position as the city's engineer as a marketing tool, openly telling prospective clients that they can save 50% on inspection costs by using their firm
Firm A marketing to prospective developer-clients
developer retaining Firm A for private design/inspection services
City Ordinance Governing Land Development
In accordance with local ordinance governing land development, private developers are required to submit plans to the city for review and approval.
Establishes the legal framework requiring private developers to submit plans for city review and approval, mandating developer payment for Firm A's review and inspection services, and defining the scope of those inspection services as solely ensuring infrastructure meets city standards before turnover.
Municipal Engineer Accepts Private Firm Role (BER 74-2)
Potential appearance of self-dealing in recommending or approving own firm's work
Tension with conflict of interest principles established in BER Case 62-7
Complying with state law requiring municipal engineer retention
Serving the public interest by providing competent engineering to municipalities lacking in-house capacity
Public interest in access to competent engineering services
Serving small municipalities that lack engineering resources
Provide comprehensive engineering services to a small municipality that could not otherwise access competent engineering, while maintaining private practice
Duty to avoid self-assessment of own firm's work
Strict avoidance of conflict of interest situations (in tension with BER 62-7 standard)
In BER Case 74-2, the engineer made a deliberate decision to serve simultaneously as the statutory municipal engineer and as a consultant within a private firm providing engineering services to the same municipality. The Board found this permissible given the public interest rationale and the engineer's consultant (non-employee) status.
Municipal Engineer Dual Role Ethics Standard — Firm A Application
Municipal Engineer Dual Role Ethics Standard
Governs Firm A's simultaneous role as the city's reviewing/inspecting engineer and as a private consulting firm offering design and inspection services to the very developers whose plans it reviews on the city's behalf, raising conflict of interest and faithful agency concerns.
NSPE Code Section II.4.d - Conflict of Interest in Dual Public-Private Roles
National Society of Professional Engineers
Although it was arguable that under the older Code provisions, Engineer A's activities would have constituted a conflict as he may have in fact participated in consideration of actions, the Board found that his activities were within the meaning of the amended Code provisions and did not constitute 'decisions' under Section II.4.d.
Board of Ethical Review in determining whether Firm A's activities constitute a conflict of interest violation
The specific Code provision governing whether an engineer in a public advisory or administrative role participates in 'decisions' regarding work performed by the engineer's own private firm, used as the primary normative standard to evaluate Firm A's conduct
Amended version referenced in BER Case 82-4
Primary normative authority governing Firm A's ethical obligations in its dual role as city engineer and private consulting firm, including obligations regarding conflict of interest, faithful agency, and solicitation practices.
Firm A's role transitions from discretionary consultant to mandatory gatekeeper; all developers seeking city approval must now fund and engage Firm A for review, structurally embedding a potential conflict of interest into the regulatory framework
Initial phase, prior to Firm A accepting developer clients
The city formally enacts an ordinance requiring developers to fund engineering review and inspection services exclusively through Firm A, creating a mandatory dependency relationship. This legal instrument transforms an optional consulting arrangement into a compulsory one with city-backed authority.
Ordinance Establishes Mandatory Review → Dual-Role Conflict Materializes
The city formally enacts an ordinance requiring developers to fund engineering review and inspection services, creating the structural and financial framework within which Firm A's simultaneous public authority and private client relationships produced an active conflict of interest when Firm A simultaneously holds authority over both sides of the review relationship.
Without the ordinance, Firm A would lack the formal public review authority that creates one pole of the conflict; alternatively, an ordinance with built-in conflict-of-interest provisions would have prevented the conflict from materializing even with Firm A's appointment
Absence of conflict-of-interest provisions within the ordinance itself
Firm A's appointment as the reviewing engineer under the ordinance (conferring public authority)
Firm A's concurrent private developer client relationships (creating the conflicting private interest)
Ordinance creating mandatory developer-funded review (establishing the financial and regulatory structure)
City (ordinance design); Firm A (exploitation of ordinance structure), shared
Ordinance structure + Firm A's dual roles = sufficient structural conflict, regardless of whether any specific biased decision was made
The ordinance's developer-funding mechanism was particularly significant: it created a direct financial relationship between Firm A and the developers it was supposed to independently review
Private Developer Fee-Paying Developer Subject to City Inspection
{'entity_type': 'Private land developer', 'regulatory_obligation': 'Submit plans for city review and approval', 'fee_obligation': "Pay city's expenses for plan review and construction inspection", 'independent_inspection_obligation': 'Retain separate inspection for own interest protection', 'dual_relationship_risk': 'Potential private client of same firm conducting city inspection'}
Private developers are required by ordinance to submit plans for city review, pay for Firm A's plan review and construction inspection on the city's behalf, and separately retain independent inspection services for their own protection — while simultaneously being potential private clients of Firm A.
{'type': 'funds_inspection_by', 'target': 'Firm A'}
{'type': 'must_separately_retain', 'target': 'Independent inspection services'}
{'type': 'potential_private_client_of', 'target': 'Firm A'}
{'type': 'regulated_by', 'target': 'City'}
Fee-Paying Developer Subject to City Inspection
private developers are required to submit plans to the city for review and approval
The developer must pay for separate inspection services in order to protect his interests
The developer must pay the city's expenses for having Firm A review the drawings
openly telling prospective clients that they can save 50% on inspection costs by using their firm
the developer must also pay for inspection services, to be provided by Firm A on the city's behalf
Public Official Conflict of Interest Standard — Firm A Application
Public Official Conflict of Interest Standard
Applies to Firm A's exploitation of its public-role position (city engineer) to gain private commercial advantage by marketing reduced inspection costs to developers whose submissions it reviews on the city's behalf.
Was it ethical for Engineer A to serve as city engineer and also provide review and inspection services for private developers within the city?
Does the fact that developers directly compensate Firm A for city-mandated review and inspection services create a financial dependency that structurally compromises Firm A's impartiality toward the city, independent of any separate private consulting relationship?
When Firm A also designs infrastructure for a private developer and then inspects that same infrastructure on the city's behalf, does the self-review prohibition apply, and should the Board have explicitly addressed this scenario as a distinct and aggravated form of the dual-role conflict?
Should the city bear any institutional responsibility for establishing an ordinance structure that foreseeably creates a compensating-party conflict of interest by requiring developers to pay the city's engineer directly, and does that structural flaw affect the ethical analysis of Firm A's conduct?
Is Firm A's active marketing of a 50% cost savings to prospective developer clients an independently sufficient basis for an ethics violation, even if the underlying dual-role engagement were otherwise permissible under a BER 74-2 type analysis?
Does the Small Municipality Public Interest Justification invoked in BER 74-2 — which permits a consulting firm to serve as municipal engineer while also performing private work — irreconcilably conflict with the Divided Loyalty Irreconcilability principle invoked in BER 62-7, and if so, which principle should govern when a firm actively exploits its public role to solicit private clients within the same jurisdiction?
Does the Abstention-Based Conflict Mitigation principle applied in BER 75-7 — which permits an engineer serving on a commission to provide private services so long as they abstain from conflicted votes — conflict with the Structural Conflict Non-Curable by Disclosure principle affirmed for Firm A, and what distinguishes the two cases such that abstention is sufficient in one context but insufficient in the other?
Does the Review-Recommendation versus Decision Distinction applied in BER 82-4 — which permits an engineer to hold multiple public roles when they only recommend rather than decide — conflict with the Objectivity Compromised principle applied to Firm A's inspection role, given that inspection findings are functionally determinative of whether developer infrastructure is accepted by the city even if formally labeled as recommendations?
Does the Public Welfare Paramount principle — which might support permitting Firm A to serve as city engineer to ensure competent infrastructure oversight in a resource-constrained municipality — conflict with the Client Interest Primacy principle requiring Firm A to act as faithful agent to the city, when Firm A's private developer engagements create financial incentives to approve rather than rigorously scrutinize developer-submitted plans?
From a deontological perspective, did Firm A violate its categorical duty of loyalty to the city as its principal client by simultaneously accepting compensation from private developers for services rendered ostensibly on the city's behalf, regardless of whether any actual harm to inspection quality resulted?
From a consequentialist perspective, did the aggregate harm produced by Firm A's dual-role arrangement — including compromised inspection integrity, distorted competition among engineering firms, and erosion of public trust in municipal oversight — outweigh any efficiency benefits the city or developers may have gained from consolidated engineering services?
From a virtue ethics perspective, did Firm A demonstrate the professional integrity expected of a public-serving engineer when it openly advertised its city engineer position as a marketing tool promising developers a 50% cost savings, thereby subordinating the virtue of impartiality to commercial self-interest?
From a deontological perspective, does the structural impossibility of Firm A simultaneously fulfilling its duty to the city — requiring rigorous, uncompromised inspection — and its duty to developer clients — whose approval interests may conflict with full enforcement of city standards — constitute an irreconcilable breach of professional duty that no amount of disclosure or procedural safeguard can remedy?
If Firm A had proactively disclosed to the city every instance in which a prospective private developer client was also subject to Firm A's city inspection authority, and the city had formally consented to each such engagement, would that disclosure and consent have been sufficient to cure the structural conflict of interest, or would the underlying divided loyalty have persisted regardless?
If Firm A had adopted the abstention model applied in BER Case 75-7 — recusing itself from city review and inspection of any development project for which it also served as the developer's private engineer — would that structural separation have been sufficient to render the dual-role arrangement ethical, or would the residual marketing exploitation of the city engineer position have remained an independent ethical violation?
If the local ordinance had explicitly prohibited the city's retained engineering firm from providing any services to private developers subject to that firm's review and inspection authority, would Firm A's conduct have been unambiguously unethical from the outset, and does the absence of such an explicit prohibition in the actual ordinance diminish or eliminate Firm A's independent professional obligation to avoid the conflict?
If Firm A had never marketed its city engineer position to prospective developer clients and had instead obtained its private developer engagements through entirely independent channels, would the dual-role arrangement have been ethically permissible under the precedent established in BER Case 74-2, or would the structural conflict between city inspection duties and developer client interests have rendered it unethical even without the marketing exploitation?
Firm A's conduct is formally classified as an ethics violation; the dual-role arrangement is declared incompatible with Section II.4.d absent full disclosure and consent; the marketing of the city role to private clients is declared impermissible; the case joins the body of BER precedent available for future reference
Conclusion of the BER's analysis, present case decision
The Board of Ethical Review formally determines and reaffirms that Firm A's conduct, simultaneously serving as city review engineer and private design/inspection consultant to developers whose work it reviews, and marketing the cost savings of that dual role, constitutes a violation of Section II.4.d of the NSPE Code of Ethics. This determination is the culminating outcome of the case.
city retaining Firm A as consulting engineer meets ordinance requiring developers to fund Firm A's review/inspection
City engages the services of a private consulting engineering firm, Firm A... In accordance with local ordinance governing land development, private developers are required to submit plans to the city for review and approval. The developer must pay the city's expenses for having Firm A review the drawings.
city retaining Firm A as consulting engineer
ordinance requiring developers to fund Firm A's review/inspection
Entity1 ends exactly when Entity2 begins
construction inspection by Firm A during construction phase of development
during construction the developer must also pay for inspection services, to be provided by Firm A on the city's behalf
Entity1 occurs entirely within the duration of Entity2
Defeasibility edge from tensionresolution
source_field=tensionresolution; confidence=0.75
The structural conflict was found to override any claim of good intentions; the Board concluded a conflict of interest existed
source_field=tensionresolution; confidence=0.8
The Board acknowledged the tension but proceeded to apply the conflict-of-interest finding to the present facts, effectively reaffirming BER 62-7 as the controlling precedent for the Firm A scenario
source_field=tensionresolution; confidence=0.9
Public interest in competent engineering access was found to justify the dual-role arrangement in BER 74-2, creating a tension with BER 62-7 that the Board acknowledged as difficult to reconcile
source_field=tensionresolution; confidence=0.82
source_field=tensionresolution; confidence=0.88
The self-interest created by the dual-client arrangement was found to override any claim of objective judgment, confirming the conflict of interest finding
The prohibition on self-recommendation resolves the tension by removing the engineer from the advisory chain on their own work, even if they cannot be removed from the submission role
source_field=tensionresolution; confidence=0.83
source_field=tensionresolution; confidence=0.85
Abstention was found sufficient to cure the conflict in BER 75-7, but this permissibility was distinguished from the Firm A scenario where the structural conflict was irreconcilable regardless of any abstention mechanism
source_field=tensionresolution; confidence=0.87
The advisory-versus-decisional distinction resolved the tension in favor of permissibility for BER 82-4, while the present Firm A case was distinguished on the grounds that Firm A's structural position was more analogous to BER 62-7
source_field=tensionresolution; confidence=0.92
The structural nature of the conflict was found to require categorical prohibition rather than disclosure-based mitigation
The Board found the structural conflict irreconcilable and reaffirmed the violation, distinguishing the Firm A scenario from the permissible arrangements in BER 74-2 and BER 82-4
source_field=tensionresolution; confidence=0.93
Disclosure is insufficient; categorical prohibition on the dual-role arrangement is required because the conflict is structural, not merely informational
The Board found this misalignment to be an independent ethical concern beyond the structural dual-role conflict, suggesting that the payment arrangement itself compromises service integrity
Public welfare in the form of impartial infrastructure inspection overrides any commercial interest Firm A may have in attracting developer clients through its public position
source_field=tensionresolution; confidence=0.78
Fairness in competition requires that competitive advantages derive from merit and qualifications, not from structural exploitation of public positions; the cost-savings promise based on dual-role structure is an impermissible competitive advantage
The faithful agent obligation requires that the city engagement be conducted solely in the city's interest; commercial exploitation of the agency role for private gain violates this obligation regardless of whether the city has formally objected
The Board found this marketing practice to be an independent ethical concern, suggesting it creates an irreconcilable appearance of impropriety regardless of the engineer's actual service quality
The prohibition on exploiting public positions as marketing tools prevails over competitive market norms; the structural advantage derived from a public trust position cannot be legitimately marketed to regulated parties regardless of competitive context
The structural irreconcilability of the dual role means the conflict cannot be resolved through disclosure or consent; categorical avoidance of the private developer engagements is required
Objectivity as a professional virtue requires that the inspection function be structurally insulated from commercial relationships with the inspected parties; the dual-role arrangement makes this impossible
Public welfare was found to require prohibition of the arrangement rather than mere disclosure or mitigation, because the structural incentives created by the dual-role and payment misalignment could not be adequately managed through transparency alone
The non-self-serving obligation prevails: the public trust character of the city inspection role prohibits its use as a commercial marketing platform regardless of competitive market norms
engineer abstention from discussion and vote (BER Case 75-7) before permit decision on engineer's private client work
an engineer serving on a commission could ethically provide services to the private owners because the engineer had abstained from the discussion and vote on permit applications
engineer abstention from discussion and vote (BER Case 75-7)
permit decision on engineer's private client work
plan review by Firm A (city role) overlaps design services by Firm A (private developer role)
Firm A is a private consulting engineering firm that regularly prepares drawings for developers and at the same time reviews those drawings at developer expense for the benefit of the city
design services by Firm A (private developer role)
Entity1 starts before Entity2 and ends during Entity2
plan submission by developer before review and approval by Firm A on city's behalf
private developers are required to submit plans to the city for review and approval. The developer must pay the city's expenses for having Firm A review the drawings.
review and approval by Firm A on city's behalf
The Board justified the municipal engineer dual-role arrangement in BER 74-2 on the ground that public interest was best served by providing small municipalities with the most competent engineering services they could acquire, reflecting th
The Board found that a commission-member engineer could ethically provide private services to owners appearing before the commission because the engineer had abstained from discussion and voting on permit applications, while cautioning that
The Board found that Engineer A's activities of reviewing, recommending, formulating, and overseeing plans did not constitute 'decisions' under the Code, distinguishing his role from the prohibited conflict scenario and permitting his simul
The county commission engineer's self-interest in the developer's project — arising from his simultaneous retention by the developer — compromised his ability to render objective professional judgment on behalf of the commission on work in
The county commission engineer's simultaneous retention by the commission (to approve plans) and by the private developer (whose plans required approval) created an irreconcilable division of loyalty because the engineer was required to pas
The Board reaffirmed that Firm A's simultaneous role as city-retained plan reviewer and inspector of private developer work — while also providing design services to those same developers — constitutes a violation of Section II.4.d because
Firm A simultaneously serves as the city's plan review and construction inspection engineer for private developers and provides private design and inspection services to those same developers, creating an irreconcilable conflict between its
Firm A cannot objectively inspect construction by developers who are also its private design and inspection clients, as the commercial relationship creates financial incentives to favor those developer clients in the city inspection process
Firm A, as the city's faithful agent for plan review and construction inspection, uses that agency role to generate private commercial business from the very developers whose work it is charged with impartially reviewing on the city's behal
The Board's reaffirmation that the Firm A arrangement violates the Code — without suggesting that disclosure to affected parties could cure the conflict — reflects the principle that structural conflicts arising from the engineer's simultan
The city's ordinance requiring Firm A to inspect developer construction exists to protect the public's interest in receiving infrastructure that meets city design standards before it is turned over to the city; Firm A's dual-role conduct co
Firm A uses its city-agent position — a position of public trust — as a marketing platform to attract private developer clients, structuring its public role to generate commercial self-interest rather than serving the city's interest in imp
The Board expressed discomfort with Firm A using its position as city engineer to openly market private services to prospective developer clients, recognizing this as exploitation of a public trust position for private commercial gain and a
Firm A openly tells prospective developer clients that they can save 50% on inspection costs by using Firm A — directly leveraging its city inspection contract as a commercial selling point to attract private clients who are subject to that
Firm A's promise of 50% inspection cost savings to developer clients — a savings achievable only because Firm A holds the city inspection contract — creates an unfair competitive advantage that no other engineering firm can match without ho
Firm A openly markets its dual role to prospective developer clients, treating disclosure of the conflict as a commercial advantage rather than a cure; but the structural nature of the conflict means that open disclosure cannot restore the
The Board indicated that a part-time county engineer who also acts as private consultant submitting developer plans to the county for approval should not offer any recommendation for their approval, because doing so would be a useless act g
Engineer A was obligated to refrain from taking any action to influence decisions as administrator of the city block grant program or project administrator of the county airport authority in matters where his private consulting interests we
The county commission engineering consultant was obligated to recognize that simultaneously serving the commission (whose interests included objective plan approval) and the private developer (whose interests included favorable plan approva
The Board's concern that Firm A may be providing inspection and review services calibrated to developer satisfaction rather than city protection standards reflects the paramount obligation to protect the public interest — the city's residen
The Board identified as particularly troubling that Firm A was compensated by private developers to perform review and inspection services whose primary benefit ran to the city, creating structural pressure to provide services adequate to s
The county commission engineering consultant was obligated to refrain from simultaneously serving as the commission's engineering staff (including approving plans submitted by others) and as the retained engineer for a private developer who
The commission member engineer in BER 75-7 was obligated to abstain from discussion and vote on permit applications involving private owners for whom the engineer simultaneously provided private engineering services, and to refrain from tak
Engineer A, serving simultaneously as county engineer, city engineer, airport authority project administrator, and city block grant administrator while also providing private consulting services, was obligated to ensure that his activities
Firm A was obligated to refrain from reviewing and inspecting, in its city-retained capacity, drawings and construction that Firm A itself prepared for private developers — constituting impermissible self-review that eliminated the independ
Firm A was obligated to refrain from simultaneously providing private design and inspection services to developers whose projects it was inspecting on the city's behalf, as the structural conflict between its city inspection role and its pr
Firm A was obligated to act as a faithful agent and trustee of the city in all plan review and construction inspection activities, carrying out its engagement in the manner most beneficial to the city's interests and not allowing its privat
Firm A was obligated to maintain full objectivity and impartiality when inspecting construction by developers who were also its private design or inspection clients, ensuring that commercial relationships with those developers did not influ
Firm A was obligated to ensure that all inspection decisions were made solely in accordance with the city's design standards and the city's interests, without any subordination of those standards to the interests of private developer client
Firm A was obligated to proactively disclose to the city the full nature and extent of its private consulting relationships with developers whose projects it was simultaneously inspecting on the city's behalf, so that the city could make an
Firm A was obligated to proactively and affirmatively disclose to the city the full nature and extent of its private consulting relationships with developers whose projects Firm A was simultaneously inspecting on the city's behalf, includin
Firm A was obligated to ensure that its inspection services were calibrated to the full standard required by the city for public protection — not to the minimum level sufficient to cause developer work to be approved — recognizing that the
Firm A was obligated to refrain from accepting an arrangement in which private developers compensated Firm A for inspection and review services whose purpose and beneficiary was the city — recognizing that this payment structure created an
Firm A was obligated to refrain from simultaneously preparing drawings for private developers in a private capacity, reviewing those same drawings on behalf of the city, and performing construction inspection services for the city at develo
Firm A was obligated to refrain from using its position as the city's plan review and construction inspection engineer as a marketing tool to attract private developer clients, including refraining from advertising the 50% inspection cost s
Firm A was obligated to refrain from leveraging its privileged position as the city's inspection agent to gain unfair competitive advantage over other engineering firms in the private developer services market, including refraining from pro
Firm A was obligated to recognize that wearing the multiple simultaneous hats of private developer designer, city plan reviewer, and city construction inspector made adequate representation of the separate and sometimes differing interests
Firm A was obligated to refrain from using its position as city engineer to openly market private services to prospective developer clients, including refraining from advertising cost savings achievable only because Firm A held the city ins
The part-time county engineer who simultaneously acted as private consultant submitting plans of a private developer to the county for approval was obligated to refrain from offering any recommendation for approval of those plans in the cou
The municipal engineer in BER 74-2 was permitted to serve as municipal engineer while the firm also provided capital improvement engineering services, based on the public interest justification that small municipalities require access to co
BER 67-12 Part-Time County Engineer Private Plan Submitter
{'public_role': 'Part-time county engineer', 'private_role': 'Private consultant submitting developer plans to county', 'ethics_finding': 'Should not offer recommendation for approval of own privately-submitted plans — useless act and Code violation'}
Served as part-time county engineer while also acting as private consultant submitting plans of a private developer to the county for approval — found that the engineer should not offer any recommendation for approval of plans submitted in the private consultant capacity, as doing so would be a useless act inconsistent with the Code.
{'type': 'client', 'target': 'County (BER 67-12)'}
{'type': 'client', 'target': 'Private Developer (BER 67-12)'}
when an engineer serves as a part time county engineer and as a private consultant and in the latter capacity submits the plans of a private developer to the county for approval, he should not offer any recommendation for their approval
it is basic to the Code that an engineer will not submit plans or other work which he does not believe represents the best interests of his client
{'appointment_basis': 'State law mandate', 'employment_status': 'Consultant, not bona fide employee', 'concurrent_firm_services': 'Capital improvements engineering', 'ethics_finding': 'Not unethical — public interest served by providing competent services to small municipalities'}
Served as municipal engineer pursuant to state law requiring every municipality to retain one, with the engineer's firm also retained for capital improvement engineering services — found not to be a bona fide employee, and the arrangement found ethically permissible as serving the public interest of small municipalities.
{'type': 'client', 'target': 'Municipality (BER 74-2)'}
{'type': 'employer', 'target': 'Own consulting firm'}
Consulting Firm Principal Appointed Municipal Engineer
a state law required every municipality to retain a municipal engineer with that engineer's firm usually retained for engineering services for capital improvements
it was not unethical for him to serve as 'municipal engineer' and participate in a consulting firm providing engineering services to the municipality
the engineer was not a bona fide 'employee' of the municipality but a consultant
BER 75-7 Commission Member Private Services Engineer
{'commission_role': 'Member of local commission with engineering permit authority', 'private_services': 'Engineering services to private owners with permit applications before the commission', 'compliance_mechanism': 'Abstention from discussion and vote on relevant permit applications', 'ethics_finding': 'Ethically permissible with abstention; caution against influencing favorable decisions'}
Served on a governmental commission with permit authority while providing private engineering services to private owners appearing before the commission — found ethically permissible because the engineer abstained from discussion and vote on relevant permit applications, with caution against taking any action to influence favorable decisions.
{'type': 'client', 'target': 'Private Owners (BER 75-7)'}
{'type': 'member_of', 'target': 'Local Commission (BER 75-7)'}
Commission Member Abstaining Private Services Engineer
care must be taken that the engineer in such a situation not have taken any action to influence the favorable decision on the permit
BER Case 67-12 Part-Time County Engineer Private Plan Submission Non-Recommendation Obligation
Duration of part-time county engineer's simultaneous private consulting engagement in BER Case 67-12
Government Role Self-Approval of Private Work State
Part-time county engineer submitting private developer plans to the county for approval and the prohibition on offering recommendations for their approval
Board guidance that engineer should not offer any recommendation for approval of own-submitted plans
Part-time county engineer submitting private developer plans to the county for approval
BER Case 75-7 Commission Member Private Service Abstention Mitigation
Duration of engineer's simultaneous commission membership and private service provision in BER Case 75-7
The Board concluded there that an engineer serving on a commission could ethically provide services to the private owners because the engineer had abstained from the discussion and vote on permit applications
Abstention-Based Conflict Mitigation Adequacy State
Engineer serving on a commission providing private engineering services to permit applicants while abstaining from discussion and vote on those applications
Board finding of ethical permissibility conditioned on abstention and non-influence in BER Case 75-7
The Board cautioned, however, that care must be taken that the engineer in such a situation not have taken any action to influence the favorable decision on the permit
Engineer accepting private service engagement from parties whose permit applications come before the commission on which the engineer serves
BER Case 82-4 Multi-Role County-City-Airport-Grant Administrator Permissibility
Duration of Engineer A's simultaneous multi-role engagements in BER Case 82-4
Engineer A, who was in full time private practice, was retained by the county as county engineer for a stipulated monthly fee
Dual Public-Private Employment Conflict State
Engineer A serving simultaneously as county engineer, city engineer, airport authority project administrator, city block grant administrator, and private consultant to firms developing city/county project proposals
Board finding that Engineer A's activities did not constitute 'decisions' under amended Code Section II.4.d
Engineer A also served as project administrator for the county airport authority
Engineer A had been retained as a consultant by several private firms to help develop city and county project proposals
Engineer A was administrator of the city block grant program
Engineer A was retained by the city as city engineer for a stipulated annual fee
Engineer A accepting simultaneous public and private roles across county, city, airport authority, and grant administration
BER Cases 62-7 and 74-2 Precedent Irreconcilability
From the Board's acknowledgment of the tension through its current determination
In all honesty, it is difficult to reconcile these two cases, as the two cases were based in pertinent part on identical language
Precedent Reconciliation Difficulty Acknowledged State
Board's explicit acknowledgment that BER Cases 62-7 and 74-2 are difficult to reconcile despite being based on identical code language
Board's reaffirmation of violation finding in the current case, effectively aligning with BER Case 62-7
Board's analysis revealing that two prior cases with identical code language reached different outcomes
Firm A Dual Role City Engineer and Private Developer Consultant
Ongoing from the time Firm A accepted the city engagement while also serving private developers
Private developers subject to city review
City engages the services of a private consulting engineering firm, Firm A, to provide design review and construction inspection
Firm A's simultaneous engagement as city's review/inspection engineer and as private consultant to developers within the same city
Not terminated — persists throughout the described arrangement
Firm A also provides design and inspection services for private developers within the city
City engagement of Firm A for design review and construction inspection under local ordinance, while Firm A continues private developer work
Firm A Public-Role Marketing to Developer Prospects
Throughout Firm A's active marketing of city-engineer-role services to developers
We are also uncomfortable with Firm A using its position as city engineer to openly market his services with prospective clients
Public Authority Role Exploited for Private Commercial Solicitation State
Firm A's use of its city engineer position to openly market services to prospective developer clients
Firm A openly marketing its city engineer position as a commercial advantage to prospective developer clients
Firm A Reduced-Scope Public Service Marketing Suspicion
Concurrent with Firm A's dual-role marketing activities
the marketing technique suggests that Firm A may be offering developers less than the full range of services required to perform the services adequately but sufficient enough to cause the work to be approved by the city
Reduced-Scope Public Service Marketing Incentive State
Firm A's suspected practice of offering developers a review scope sufficient for approval but less than fully adequate
Board's observation that Firm A's marketing technique suggests reduced-scope review as a commercial inducement
Ordinance-Scoped Inspection Dual-Interest Structural Conflict
Ongoing throughout the described arrangement
The ordinance states specifically that these inspection services are solely for the purpose of ensuring the construction of infrastructure within the development
Ordinance-Scoped Inspection Dual-Interest Structural Conflict State
The structural conflict created by Firm A holding the city's inspection mandate (scoped by ordinance to city interests only) while also offering private inspection services to the same developers
Not terminated — structural condition persists
they can save 50% on inspection costs by using their firm
Ordinance establishes that city inspection is solely for city standards compliance, while simultaneously requiring developers to obtain separate inspection — and Firm A offers to serve both roles
{'county_role': 'County engineer — reviewing plats and construction drawings, recommending to developers and commissions', 'city_role': 'City engineer — recommending to city council on completed engineering work', 'airport_role': 'Project administrator for county airport authority industrial park', 'block_grant_role': 'Administrator of city block grant program', 'private_consulting': 'Retained by several private firms for city and county project proposals', 'ethics_finding': "Not a violation under amended Code — activities were review/recommendation, not 'decisions'"}
Retained simultaneously as county engineer (monthly retainer), city engineer (annual retainer), project administrator for county airport authority, and administrator of city block grant program — while also consulting privately for firms developing city and county project proposals. Found not to have violated the amended Code because his activities constituted review/recommendation/formulation rather than 'decisions' under Section II.4.d.
{'type': 'client', 'target': 'City (BER 82-4)'}
{'type': 'client', 'target': 'City Block Grant Program'}
{'type': 'client', 'target': 'County (BER 82-4)'}
{'type': 'client', 'target': 'County Airport Authority'}
{'type': 'client', 'target': 'Several private firms'}
Multi-Jurisdiction Dual-Role Municipal Engineer
the Board found that his activities were within the meaning of the amended Code provisions and did not constitute 'decisions' under Section II.4.d
Public Welfare Paramount Invoked in Firm A Multi-Role Assessment
Firm A inspection and review service quality standards
Client Autonomy in Engineering Service Provider Selection
Small Municipality Competent Engineering Access as Public Interest Justification
The Board's concern that Firm A may be providing inspection and review services calibrated to developer satisfaction rather than city protection standards reflects the paramount obligation to protect the public interest — the city's residents — over the commercial interests of the developer clients
When commercial incentives created by a payment structure may cause an engineer to under-deliver on public protection services, the public welfare paramount principle requires that the arrangement be prohibited rather than merely disclosed
the marketing technique suggests that Firm A may be offering developers less than the full range of services required to perform the services adequately but sufficient enough to cause the work to be approved by the city.
The Board cannot see how an engineer can wear the multitude of hats herein described and still represent the best interest of his clients
BER-67-12 Part-Time County Engineer Private Plan Approval Recommendation Non-Issuance
BER Case 67-12: Engineer served as part-time county engineer while also acting as private consultant submitting developer plans to the county for approval; the Board found that recommending approval of one's own submitted plans is both ethically impermissible and logically superfluous.
Part-time county engineer / private consultant (BER 67-12)
Part-Time County Engineer Private Plan Approval Recommendation Non-Issuance Obligation
The part-time county engineer who simultaneously acted as private consultant submitting plans of a private developer to the county for approval was obligated to refrain from offering any recommendation for approval of those plans in the county engineer capacity.
Whenever plans submitted in the private consultant capacity came before the county for approval
BER-74-2 BER-62-7 Precedent Reconciliation Acknowledgment
The Board explicitly acknowledged that BER 62-7 (conflict found) and BER 74-2 (no conflict found) are difficult to reconcile despite being based on identical code language, demonstrating the meta-ethical obligation of ethics adjudication bodies.
Precedent Case Reconciliation Acknowledgment and Principled Distinction Obligation
The Board was obligated to acknowledge the difficulty of reconciling BER 62-7 and BER 74-2 — which reached different conclusions based on identical code language — and to articulate principled distinctions justifying the different outcomes.
At the time of issuing the current BER decision
BER-82-4 Engineer A No Influence on Decisions Abstention Compliance
BER Case 82-4: The Board found nothing to suggest Engineer A had taken any action to influence decisions in his public administrative roles, which was a key factor in finding his conduct permissible.
Abstention-Conditioned Commission Member Private Services Permissibility Obligation
Engineer A was obligated to refrain from taking any action to influence decisions as administrator of the city block grant program or project administrator of the county airport authority in matters where his private consulting interests were engaged.
Throughout all concurrent public administrative and private consulting engagements
BER 62-7 County Commission Engineering Consultant
{'retaining_authority': 'County commission', 'concurrent_private_client': 'Private development company', 'staff_substitute_function': True, 'conflict_finding': 'Conflict of interest found — self-interest and divided loyalties'}
Retained by county commission lacking engineering staff to perform all engineering and advisory services including sewage/water studies, sanitary district financing, and plan approval; simultaneously retained by private developer for housing development involving contract negotiations with that same commission — found to have a conflict of interest.
{'type': 'client', 'target': 'County Commission'}
{'type': 'client', 'target': 'Private Developer (BER 62-7)'}
{'type': 'conflict_with', 'target': 'County Commission (as regulator of private developer)'}
Commission-Retained Staff Substitute Engineer
The Board found that the engineer was in a position of passing engineering judgment on behalf of the commission on work or contract arrangements which the engineer performed or in which he participated
The engineer was also retained by a private company to perform engineering design for a development of several thousand housing units
Conflict of Interest State — Firm A City and Developer Dual Engagement
Firm A's professional situation where its financial interest in attracting developer clients competes with its obligation of impartiality as the city's review and inspection engineer
Firm A uses its position as the city's engineer as a marketing tool
Firm A simultaneously accepts city engineering authority role and private developer consulting engagements in the same jurisdiction
Firm A Competitive Fairness Non-Exploitation of City Position
Firm A's marketing of cost savings achievable only through its dual city-inspector/private-designer role constituted exploitation of a public trust position to distort fair competition among private engineering firms.
City-Retained Inspection Engineer Competitive Fairness Non-Exploitation Obligation
Firm A was obligated to refrain from leveraging its privileged position as the city's inspection agent to gain unfair competitive advantage over other engineering firms in the private developer services market, including refraining from promising cost savings to developers that were only achievable because Firm A held the city inspection contract.
Throughout all marketing activities directed at private developer clients
Firm A Developer-Compensated Public Review and Inspection Services
Throughout Firm A's engagement in developer-compensated city review and inspection
We are particular troubled by the fact that Firm A is expected to perform review and inspection services for one client while being compensated for those services by another client
Compensated-by-Regulated-Party Public Review Conflict State
Firm A's receipt of compensation from developers for review and inspection services rendered on behalf of the city
reviews those drawings at developer expense for the benefit of the city, and also performs inspection services at developer expense for the benefit of the city
Firm A accepting compensation from developers for services whose beneficiary is the city
Firm A Multi-Hat Adequate Representation Impossibility
The Board found that Firm A's simultaneous roles as developer designer, city plan reviewer, and city inspector created a conflict so fundamental that adequate representation of all clients was impossible.
Multi-Hat Dual-Client Adequate Representation Impossibility Recognition Obligation
Firm A was obligated to recognize that wearing the multiple simultaneous hats of private developer designer, city plan reviewer, and city construction inspector made adequate representation of the separate and sometimes differing interests of all clients impossible, and to structurally separate these incompatible roles.
At the time of accepting and throughout the concurrent engagements
Precedent Reconciliation Obligation Acknowledged by Board
Comparative Case Precedent Distinguishing Obligation
The Board explicitly acknowledged that BER 62-7 and BER 74-2 are difficult to reconcile despite being based on identical code language, demonstrating the intellectual honesty obligation of ethics adjudicating bodies to acknowledge tensions in their own prior decisions
Intellectual honesty in ethics adjudication requires explicit acknowledgment of precedent tensions rather than silent application of one precedent while ignoring the other
Precedent Reconciliation Obligation in Ethics Board Reasoning
Firm A Public Role Marketing Exploitation Prohibition
Firm A openly tells prospective private developer clients that they can save 50% on inspection costs by using Firm A, directly leveraging its city inspection contract as a commercial marketing advantage.
Public Agency Role Marketing Exploitation Prohibition Obligation
Firm A was obligated to refrain from using its position as the city's plan review and construction inspection engineer as a marketing tool to attract private developer clients, including refraining from advertising the 50% inspection cost savings available to developers who also retain Firm A for private services.
Throughout the duration of Firm A's city inspection engagement and any associated marketing activities
Firm A regularly prepared drawings for developers and then reviewed those same drawings on behalf of the city, creating a self-review situation that is structurally irreconcilable with the independent review function.
City-Retained Engineer Self-Design-Review Prohibition Obligation
Firm A was obligated to refrain from reviewing and inspecting, in its city-retained capacity, drawings and construction that Firm A itself prepared for private developers — constituting impermissible self-review that eliminated the independent engineering judgment the city's review function was designed to provide.
Whenever Firm A reviewed or inspected work it had prepared in a private capacity
Non-Self-Serving Obligation Violated by Firm A Marketing Conduct
Free and Open Competition as Engineering Ethics Boundary Condition
Firm A uses its city-agent position — a position of public trust — as a marketing platform to attract private developer clients, structuring its public role to generate commercial self-interest rather than serving the city's interest in impartial inspection
The city engaged Firm A to serve the city's interest in ensuring compliant infrastructure; Firm A's use of that engagement as a commercial marketing tool converts the advisory/oversight role into an instrument of self-interest, violating the non-self-serving obligation
Firm A Conflict-Exploiting Dual-Role Engineering Firm
Objectivity Compromised by Dual-Client Self-Interest in BER 62-7
BER 62-7 county commission plan approval function
Client Interest Primacy Over Engineer Personal Advantage in Faithful Agent Role
The county commission engineer's self-interest in the developer's project — arising from his simultaneous retention by the developer — compromised his ability to render objective professional judgment on behalf of the commission on work in which he had participated
Objectivity requires that professional judgment be rendered free from self-interest; when the engineer has a financial stake in the outcome through a parallel client relationship, objective judgment is structurally impossible
This obviously involved the self interest of the engineer and divided his loyalties
he was put into the position of assessing his recommendations to two clients with possibly opposing interests
Part-Time County Engineer Plan Submission Recommendation Prohibition in BER 67-12
BER 67-12 part-time county engineer private plan submission scenario
The Board indicated that a part-time county engineer who also acts as private consultant submitting developer plans to the county for approval should not offer any recommendation for their approval, because doing so would be a useless act given the engineer's obligation to submit only work believed to represent the client's best interests
The ethical constraint on the part-time municipal engineer extends to the specific prohibition on recommending approval of the engineer's own privately submitted plans — a constraint that arises from the structural impossibility of objective self-review
Part-Time Municipal Engineer Competitive Disadvantage Acknowledgment and Ethical Constraint
when an engineer serves as a part time county engineer and as a private consultant and in the latter capacity submits the plans of a private developer to the county for approval, he should not offer any recommendation for their approval.
To do so is a useless act because it is basic to the Code that an engineer will not submit plans or other work which he does not believe represents the best interests of his client
Public Position Marketing Exploitation Prohibition Applied to Firm A
Firm A marketing activities directed at private developers
The Board expressed discomfort with Firm A using its position as city engineer to openly market private services to prospective developer clients, recognizing this as exploitation of a public trust position for private commercial gain and as creating an appearance of impropriety
Using a public oversight role as a marketing tool to attract private clients from among the regulated parties is ethically impermissible because it corrupts the public trust and creates incentives to compromise the rigor of public oversight functions
Conflict-Exploiting Public Position as Marketing Tool Prohibition
BER Case 62-7 County Commission Engineer Dual-Role Conflict
Duration of engineer's simultaneous county commission and private developer engagements in BER Case 62-7
the engineer was in a position of passing engineering judgment on behalf of the commission on work or contract arrangements which the engineer performed or in which he participated
Engineer retained by county commission passing judgment on work or contract arrangements in which the engineer personally participated as a private consultant
Board finding of conflict of interest in BER Case 62-7
Engineer accepting simultaneous retention by county commission and private developer with overlapping subject matter
Firm A Public Role Marketing Tool Exploitation
Ongoing — described as an established practice of openly telling prospective clients
Firm A's active use of its city engineer position to market private services to developers, including advertising 50% cost savings
Not terminated — described as an ongoing practice
Firm A begins marketing its city engineer role to private developer prospects, advertising cost savings from dual engagement
Public Position Marketing Exploitation — Firm A 50% Savings Promise
Firm A openly tells prospective developer clients that they can save 50% on inspection costs by using Firm A — directly leveraging its city inspection contract as a commercial selling point to attract private clients who are subject to that very inspection authority
The 50% savings promise is only achievable because Firm A holds the city inspection contract; marketing this structural advantage to regulated parties converts the public trust position into a private commercial instrument, which is categorically prohibited
Public Welfare Paramount — Infrastructure Inspection Integrity
Firm A City-Retained Development Inspection Engineer
The city's ordinance requiring Firm A to inspect developer construction exists to protect the public's interest in receiving infrastructure that meets city design standards before it is turned over to the city; Firm A's dual-role conduct compromises the integrity of this public protection mechanism
The public welfare principle requires that inspection services conducted on behalf of a public body be genuinely impartial and directed toward public protection; commercial relationships between the inspector and the inspected party undermine this public welfare function
Structural Conflict Non-Curable by Disclosure — Firm A Marketing
Conflict of Interest Disclosure in Advisory Engagements
Firm A openly markets its dual role to prospective developer clients, treating disclosure of the conflict as a commercial advantage rather than a cure; but the structural nature of the conflict means that open disclosure cannot restore the impartiality that the city's inspection function requires
Firm A's open marketing of the dual-role arrangement demonstrates that disclosure of the conflict is being used as a commercial tool rather than as a transparency remedy; the structural conflict between public inspection authority and private commercial service cannot be cured by openness
Disclosure Insufficiency for Structural Conflict of Interest
BER-62-7 County Commission Engineer Divided Loyalty Recognition
BER Case 62-7: Engineer simultaneously served commission and developer in matters where their interests were potentially opposing, including contract negotiations between the two parties.
County commission engineering consultant (BER 62-7)
The county commission engineering consultant was obligated to recognize that simultaneously serving the commission (whose interests included objective plan approval) and the private developer (whose interests included favorable plan approval) created an irreconcilable division of loyalty that made adequate representation of both clients impossible.
At the time of accepting the dual engagement
Divided Loyalty Irreconcilability Invoked in BER 62-7 County Commission Engineer
BER 62-7 County Commission Engineering Consultant dual-client arrangement
The county commission engineer's simultaneous retention by the commission (to approve plans) and by the private developer (whose plans required approval) created an irreconcilable division of loyalty because the engineer was required to pass professional judgment on behalf of one client on work performed for the other
Good intentions do not cure structural divided loyalty; the engineer's position itself made impartial service to both clients impossible regardless of subjective intent
Divided Loyalty Irreconcilability in Dual-Client Engineering Roles
The engineer was in a position of passing engineering judgment on behalf of the commission on work or contract arrangements which the engineer performed or in which he participated. This obviously involved the self interest of the engineer and divided his loyalties.
Even if the engineer acted with the best of intentions, he was put into the position of assessing his recommendations to two clients with possibly opposing interests
the Board concluded that a conflict of interest existed
Dual-Role Conflict of Interest Affirmed for Firm A City Engineer Inspection Role
Firm A dual-role city inspection and private developer design arrangement
The Board reaffirmed that Firm A's simultaneous role as city-retained plan reviewer and inspector of private developer work — while also providing design services to those same developers — constitutes a violation of Section II.4.d because the firm cannot adequately represent the separate and sometimes differing interests of its clients
The structural impossibility of representing both the city's inspection interests and the developer's design interests is the core ethical violation; the multitude of roles makes adequate representation of any single client's interests impossible
Dual-Role Conflict of Interest in City Engineer Engagements
Firm A is a private consulting engineering firm that regularly prepares drawings for developers and at the same time reviews those drawings at developer expense for the benefit of the city, and also performs inspection services at developer expense for the benefit of the city
We cannot see how Firm A can adequately represent the separate and sometimes differing interests of its clients under the facts presented
the Board reaffirms the view that the circumstances described are in violation of Section II.4.d
Firm A Dual-Service Private Developer Prohibition
Firm A holds the city's plan review and construction inspection contract for private developer projects while also providing private design and inspection services to those same developers within the city.
Dual-Role City Engineer Private Developer Service Conflict Prohibition Obligation
Firm A was obligated to refrain from simultaneously providing private design and inspection services to developers whose projects it was inspecting on the city's behalf, as the structural conflict between its city inspection role and its private developer client relationships was irreconcilable.
Throughout the duration of Firm A's city inspection engagement
Objectivity Compromised — Firm A Inspection of Private Developer Clients
Objectivity in the city inspection role requires freedom from commercial relationships with the inspected parties; Firm A's private developer client relationships structurally compromise its ability to conduct impartial inspections on the city's behalf
Small Municipality Public Interest Justification Invoked in BER 74-2
BER 74-2 municipal engineer dual-role arrangement
Dual-Role Conflict of Interest Prohibition in Public-Private Engineering
The Board justified the municipal engineer dual-role arrangement in BER 74-2 on the ground that public interest was best served by providing small municipalities with the most competent engineering services they could acquire, reflecting the legislature's intent in requiring every municipality to retain a municipal engineer
The public interest in competent engineering access for small municipalities serves as an affirmative justification that can overcome otherwise-scrutinized dual-role arrangements when the arrangement is structured to minimize actual conflicts
The Board reasoned that the public interest was best served by providing to small municipalities the most competent engineering services which they could acquire. It was assumed that the state law was intended to achieve that end.
It was assumed that the state law was intended to achieve that end
The Board reasoned that the public interest was best served by providing to small municipalities the most competent engineering services which they could acquire
Abstention-Based Conflict Mitigation Applied in BER 75-7
BER 75-7 commission member dual-role arrangement
The Board found that a commission-member engineer could ethically provide private services to owners appearing before the commission because the engineer had abstained from discussion and voting on permit applications, while cautioning that no action to influence favorable decisions was permissible
Full abstention from both discussion and voting — combined with no informal influence — is the minimum condition for permissibility of private services to parties appearing before a commission on which the engineer serves
Abstention-Based Conflict Mitigation Permissibility Principle
BER-75-7 Commission Member Engineer Abstention Compliance
BER Case 75-7: Engineer served on a governmental commission with permit authority while providing private engineering services to private owners appearing before the commission; the Board found this permissible because the engineer abstained from discussion and vote.
The commission member engineer in BER 75-7 was obligated to abstain from discussion and vote on permit applications involving private owners for whom the engineer simultaneously provided private engineering services, and to refrain from taking any action to influence the favorable outcome of those permit decisions.
Whenever permit applications from private engineering clients came before the commission
Client Interest Primacy Violated — City as Firm A's Principal
Competitive Employment Freedom With Confidentiality Constraint
Firm A, as the city's faithful agent for plan review and construction inspection, uses that agency role to generate private commercial business from the very developers whose work it is charged with impartially reviewing on the city's behalf, subordinating the city's interest in impartial oversight to Firm A's commercial interests
The city's interest is in receiving impartial, objective inspection services; Firm A's commercial relationship with developers creates incentives that could compromise that impartiality, and the marketing conduct demonstrates that Firm A is treating the city engagement as a vehicle for private commercial gain rather than as a faithful agency obligation
Compensating-Party Benefiting-Party Misalignment Identified for Firm A
Firm A triangular payment-service-benefit arrangement
The Board identified as particularly troubling that Firm A was compensated by private developers to perform review and inspection services whose primary benefit ran to the city, creating structural pressure to provide services adequate to satisfy the paying developers rather than services fully adequate to protect the city as beneficiary
The misalignment between who pays (developers) and who benefits (city) creates an incentive structure that may cause Firm A to calibrate service quality to developer satisfaction rather than city protection standards
Compensating-Party–Benefiting-Party Misalignment Conflict Principle
Dual-Role Conflict Invoked by Firm A City Inspection Engagement
Firm A simultaneously serves as the city's plan review and construction inspection engineer for private developers and provides private design and inspection services to those same developers, creating an irreconcilable conflict between its public oversight role and its private commercial role
In this context, the dual-role conflict is irreconcilable because Firm A is simultaneously the city's agent for ensuring developer compliance with city standards and a commercial service provider to those same developers — the two roles have structurally divergent interests that cannot be reconciled
Firm A City Infrastructure Standard Primacy in Inspection
The city ordinance specifies that inspection services are solely for ensuring infrastructure to be turned over to the city is built to city design standards; Firm A's dual private developer client relationships create financial incentives that could compromise this mandate.
City-Retained Inspection Engineer City Infrastructure Standard Primacy Obligation
Firm A was obligated to ensure that all inspection decisions were made solely in accordance with the city's design standards and the city's interests, without any subordination of those standards to the interests of private developer clients who also retained Firm A for private services.
During all construction inspection activities conducted on the city's behalf
Firm A Faithful Agent City Client Interest Primacy
Firm A is retained by the city to conduct plan review and construction inspection on the city's behalf, creating a faithful agent relationship that requires undivided loyalty to the city's interests — a duty compromised by Firm A's simultaneous private developer client relationships and marketing exploitation of the city role.
Firm A was obligated to act as a faithful agent and trustee of the city in all plan review and construction inspection activities, carrying out its engagement in the manner most beneficial to the city's interests and not allowing its private developer client relationships or commercial self-interest to influence its conduct as the city's agent.
Throughout the duration of Firm A's engagement as the city's plan review and construction inspection engineer
BER-82-4 Engineer A Multi-Role Review-Recommendation Non-Decision Boundary
BER Case 82-4: Engineer A in full-time private practice retained by county and city for engineering roles, also serving as project administrator for airport authority and city block grant program, while retained as consultant by private firms to develop city and county project proposals.
Review-Recommendation Non-Decision Dual-Role Permissibility Boundary Obligation
Engineer A, serving simultaneously as county engineer, city engineer, airport authority project administrator, and city block grant administrator while also providing private consulting services, was obligated to ensure that his activities in public roles remained within the review-and-recommendation category rather than constituting final decisions on matters in which he had a private interest.
Throughout all concurrent public and private engagements
Fairness in Competition Violated by Firm A Cost-Savings Promise
Firm A's promise of 50% inspection cost savings to developer clients — a savings achievable only because Firm A holds the city inspection contract — creates an unfair competitive advantage that no other engineering firm can match without holding the same public contract, distorting the private engineering services market
The competitive advantage Firm A offers is not based on superior qualifications or efficiency but on a structural market distortion created by its public role; this violates the principle of fair and equal competitive access in professional engineering markets
Firm A Competitive Fairness Non-Exploitation of City Contract
Firm A promises prospective private developer clients 50% savings on inspection costs — savings achievable only because Firm A holds the city inspection contract — thereby using a public trust position to distort fair competition among private engineering firms.
Firm A was obligated to refrain from leveraging its privileged position as the city's inspection agent to gain unfair competitive advantage over other engineering firms in the private developer services market, including refraining from promising developers cost savings that were only achievable because Firm A held the city inspection contract.
Throughout any marketing or solicitation activities directed at private developers within the city
Firm A Developer Client Conflict Disclosure to City
Firm A provides private design and inspection services to developers within the city while holding the city's inspection contract, without documented disclosure of this dual-service arrangement to the city.
City-Retained Engineer Developer Client Conflict Proactive Disclosure to Municipal Client Obligation
Firm A was obligated to proactively disclose to the city the full nature and extent of its private consulting relationships with developers whose projects it was simultaneously inspecting on the city's behalf, so that the city could make an informed decision about whether to continue the arrangement or require structural separation.
Prior to and throughout the period of dual-service engagement
Firm A Developer Client Conflict Proactive Disclosure to City
Firm A simultaneously held private design and inspection relationships with developers whose work it was inspecting on behalf of the city, creating a structural conflict requiring full disclosure to the municipal client.
Firm A was obligated to proactively and affirmatively disclose to the city the full nature and extent of its private consulting relationships with developers whose projects Firm A was simultaneously inspecting on the city's behalf, including the specific developers involved, the nature of private services provided, and Firm A's assessment of whether the conflict was manageable.
Before and throughout all concurrent city inspection and private developer engagements
Firm A Developer Client Inspection Objectivity Preservation
Firm A simultaneously holds city inspection authority over private developer projects and provides private services to those same developers, creating a financial incentive to approve or overlook construction deficiencies.
City-Retained Inspection Engineer Developer Client Inspection Objectivity Preservation Obligation
Firm A was obligated to maintain full objectivity and impartiality when inspecting construction by developers who were also its private design or inspection clients, ensuring that commercial relationships with those developers did not influence inspection findings or approvals on the city's behalf.
Disclosure Insufficiency for Structural Conflict Affirmed in Firm A
The Board's reaffirmation that the Firm A arrangement violates the Code — without suggesting that disclosure to affected parties could cure the conflict — reflects the principle that structural conflicts arising from the engineer's simultaneous review and design roles are irreconcilable and cannot be cured by transparency alone
When a conflict is structural — arising from the engineer's simultaneous occupancy of roles with inherently opposing obligations — disclosure to affected parties cannot restore the independence and objectivity that each role demands
the Board reaffirms the view that the circumstances described are in violation of Section II.4.d.
Firm A Compensating-Party Benefiting-Party Misalignment Non-Engagement
The Board was particularly troubled that Firm A was expected to perform review and inspection services for the city while being compensated for those services by the private developers whose work was being reviewed and inspected.
Compensating-Party–Benefiting-Party Misalignment Conflict Non-Engagement Obligation
Firm A was obligated to refrain from accepting an arrangement in which private developers compensated Firm A for inspection and review services whose purpose and beneficiary was the city — recognizing that this payment structure created an irreconcilable incentive to calibrate service quality to developer satisfaction rather than to the full standard required by the city.
Throughout all city inspection engagements funded by private developers
{'entity_type': 'Private consulting engineering firm', 'conflict_type': 'Regulatory position exploited for commercial marketing', 'marketing_claim': '50% savings on inspection costs for private developer clients', 'disclosure_status': 'Open and explicit — not concealed'}
Firm A openly uses its city engineer/inspection position as a marketing tool to attract private developer clients, promising 50% savings on inspection costs — directly exploiting its regulatory role for commercial advantage and creating a structural conflict of interest that undermines impartiality.
{'type': 'competes_for', 'target': 'Private Developer private engineering contracts'}
{'type': 'conflicts_with_obligations_to', 'target': 'City'}
{'type': 'leverages_position_of', 'target': 'City-retained inspection authority'}
Conflict-Exploiting Dual-Role Engineering Firm
Firm A Inspection Quality Non-Subordination to Developer Approval Incentive
The Board expressed concern that Firm A's marketing approach and dual-role structure suggested it may be offering developers inspection services adequate for approval rather than adequate for full city standard compliance and public protection.
Inspection Quality Non-Subordination to Developer Approval Incentive Obligation
Firm A was obligated to ensure that its inspection services were calibrated to the full standard required by the city for public protection — not to the minimum level sufficient to cause developer work to be approved — recognizing that the commercial relationship with developers created a structural incentive to provide approval-sufficient rather than protection-sufficient inspection.
Throughout all city inspection engagements
BER-74-2 Municipal Engineer Small Municipality Public Interest Dual-Role
BER Case 74-2: State law required every municipality to retain a municipal engineer; the engineer was a consultant (not bona fide employee), and the firm was also retained for capital improvement engineering services.
Small Municipality Dual-Role Arrangement Public Interest Justification Recognition Obligation
The municipal engineer in BER 74-2 was permitted to serve as municipal engineer while the firm also provided capital improvement engineering services, based on the public interest justification that small municipalities require access to competent engineering services and state law was intended to achieve that end.
Review-Recommendation vs Decision Distinction Applied in BER 82-4
BER 82-4 multi-jurisdiction dual-role arrangement
The Board found that Engineer A's activities of reviewing, recommending, formulating, and overseeing plans did not constitute 'decisions' under the Code, distinguishing his role from the prohibited conflict scenario and permitting his simultaneous service as city and county engineer while providing private consulting services
The material distinction between formal decision-making authority and advisory/recommendatory functions is determinative in conflict of interest analysis under the amended Code provisions
Review-and-Recommendation Versus Decision-Making Distinction in Conflict Analysis
Engineer A did not actually participate in 'decisions' with respect to services solicited or provided by him or his organization in private or public engineering practice but rather reviewed, recommended, formulated, and oversaw plans.
Engineer A did not actually participate in 'decisions' with respect to services solicited or provided by him or his organization in private or public engineering practice but rather reviewed, recommended, formulated, and oversaw plans
Therefore the Board concluded that one who serves as both city and county engineer for a retainer fee may provide private engineering consulting services to the city and county
Firm A City Position Marketing Non-Exploitation
Firm A openly marketed its dual role to prospective developer clients, using its city inspection position as a commercial advantage and promising cost savings achievable only through the dual arrangement.
City-Retained Engineer Public Role Private Marketing Non-Exploitation Obligation
Firm A was obligated to refrain from using its position as city engineer to openly market private services to prospective developer clients, including refraining from advertising cost savings achievable only because Firm A held the city inspection contract.
Firm A Multi-Role Structural Conflict — Design, Review, and Inspection for Same Parties
Throughout Firm A's concurrent engagement in all three roles
Multi-Hat Public-Private Simultaneous Representation Impossibility State
Firm A's simultaneous roles as designer for developers, reviewer of developer drawings for the city, and inspector for the city compensated by developers
Not terminated within the case; Board finds violation of Section II.4.d
Firm A accepting simultaneous engagements to prepare developer drawings, review those drawings for the city, and perform city inspection services paid by developers
BER-62-7 County Commission Engineer Conflict of Interest Non-Engagement
BER Case 62-7: Engineer retained by county commission to perform all engineering and advisory services, including approval of plans submitted by others, while simultaneously retained by a private company to design a large housing development involving extensive contract negotiations with the commission.
City-Retained Inspection Engineer Private Developer Dual-Service Prohibition Obligation
The county commission engineering consultant was obligated to refrain from simultaneously serving as the commission's engineering staff (including approving plans submitted by others) and as the retained engineer for a private developer whose plans and contract arrangements required commission approval.
Throughout the duration of both concurrent engagements
{'entity_type': 'Private consulting engineering firm', 'retention_basis': 'City engagement for plan review and construction inspection', 'funding_source': 'Developer-paid fees passed through city', 'inspection_scope': 'City design standards compliance for infrastructure turnover'}
Private consulting engineering firm retained by the city to provide design review and construction inspection of private development projects, funded by developer fees, with inspection scope limited to ensuring city design standards are met for infrastructure to be turned over to the city.
{'type': 'funded_by', 'target': 'Private Developer'}
{'type': 'inspects_construction_of', 'target': 'Private Developer'}
{'type': 'retained_by', 'target': 'City'}
{'type': 'reviews_plans_of', 'target': 'Private Developer'}
City-Retained Development Inspection Engineer
inspection services, to be provided by Firm A on the city's behalf
Firm A City-Retained Engineer Multi-Role Conflict Non-Engagement
Firm A is a private consulting engineering firm that regularly prepares drawings for developers and simultaneously reviews those drawings and performs inspection services at developer expense for the benefit of the city, in violation of NSPE Code Section II.4.d.
Firm A was obligated to refrain from simultaneously preparing drawings for private developers in a private capacity, reviewing those same drawings on behalf of the city, and performing construction inspection services for the city at developer expense — recognizing that this combination of roles creates an irreconcilable conflict of interest that prevents adequate representation of the city's interests.
Throughout all concurrent private design and city inspection engagements