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THE AICP CODE OF ETHICS (AND MORE!) Massachusetts Association of Planning Directors Annual Conference Springfield MA – June 7 & 8, 2012 Robert P. Mitchell FAICP, Planning Consultant - Boston Peter C. Lowitt FAICP, Director/Land Use Administrator, Devens Enterprise Commission – Devens Dwight H. Merriam FAICP, Partner, Robinson & Cole – Hartford & Boston Ethics “Ethics is a system or code of morals of a particular person, group or profession.” Webster’s “Always do right. This will gratify some people and astonish the rest." Mark Twain “Ethics are what you have when no one is looking.” Unknown Perception vs. Reality The AICP Code Code of Ethics and Professional Conduct Adopted 2005; Revised 2009 (Ethics Codes for planners go back to 1959) 4 sections: A. B. C. D. Aspirational Values & Ideals Rules of Conduct Procedures Planners Convicted of Serious Crime A.1 - Our Overall Responsibility to the Public “Our primary obligation is to serve the public interest and we, therefore, owe our allegiance to a conscientiously attained concept of the public interest that is formulated through continuous and open debate. We shall achieve high standards of professional integrity, proficiency, and knowledge. To comply with our obligation to the public, we aspire to the following principles: Eight Principles are Listed Code A.1 Shall be conscious of the rights of others Shall have special concern for long range consequences Shall pay special attention to interrelatedness of decisions Shall provide timely, adequate, clear and accurate information to all Shall give people opportunity to have meaningful impact on plans and programs that affect them. Include people who lack influence or organization. Shall seek social justice by working to expand choice and opportunity Shall promote excellence of design and endeavor to conserve & preserve integrity and heritage of natural & built environment Shall deal fairly and evenhandedly with participants in the planning process A.2 - Responsibility to Our Clients and Employers We owe diligent, creative, and competent performance of the work we do in pursuit of our client or employer’s interest. Such performance, however, shall always be consistent with our faithful service to the public interest. Code A.2 Shall exercise independent professional judgment Shall accept the decisions of clients/employers unless the course of action is illegal or inconsistent with our primary obligation to serve the public interest Shall avoid a conflict of interest or appearance of such A.3 - Our Responsibility to Our Profession and Colleagues We shall contribute to the development of, and respect for, our profession by improving knowledge and techniques, making work relevant to solutions of community problems, and increasing public understanding of planning activities. Ten Principles are listed. Code A.3 Shall protect & enhance integrity of the profession Shall educate the public about planning issues & relevance to their everyday lives Shall describe & comment on work & views of other professionals in a fair and professional manner Shall share the results of experience & research that contributes to the body of planning knowledge Shall examine the applicability of planning theories, methods, research, practice & standards to the facts & analysis of each situation Code A.3 (Continued) Shall contribute time & resources to the professional development of students, interns, young planners & colleagues Shall increase the opportunities for underrepresented groups to become planners and help them advance in the profession Shall continue to enhance our professional education & training Shall systematically & critically analyze ethical issues Shall contribute time & effort to those lacking planning resources; and shall volunteer for professional activities Code B - Rules of Conduct We adhere to the following Rules of Conduct, and we understand that our Institute will enforce compliance with them. If we fail to adhere to these Rules, we could receive sanctions, the ultimate being the loss of our certification. Note: there are 26 separate rules under this section. Code B Shall not fail to provide adequate, timely, accurate information Shall not accept an illegal assignment or one in violation of AICP rules Shall not advocate for a position that is adverse to a position advocated for in past 3 years (with exceptions) Shall not, as salaried employee, take another planning job without disclosure and approval Shall not as public employee accept other compensation or advantage related to our employment. Shall not accept work that in addition to salary results in financial gain for you and/or your family unless disclosed & approved Shall not use for personal advantage confidential information Code B (Continued) Shall not as public employee/official engage in private conversations over matter which we have authority to decide (no ex parte communications) Shall not engage in private conversations with decision makers if prohibited by law, rule or regulation Shall not misrepresent the qualifications, views & findings of other professionals Shall not solicit clients or employment through false/misleading claims or harassment Shall not misstate our education, experience, training etc. Shall not offer to sell services by stating/implying ability to influence decision by improper means Shall not use the power of office to obtain special advantages that are not public knowledge and in the public trust Code B (Continued) Shall not accept work beyond out professional competence Shall not accept work for a fee, or pro bono that cannot be performed with the promptness required Shall not use others’ work to seek recognition or acclaim Shall not coerce other professionals to make findings not supported by evidence Shall not fail to disclose interests of our clients/employers when participating in the planning process Shall not unlawfully discriminate against another Shall not withhold information from AICP if facing a charge of ethical misconduct Shall not retaliate against someone who has filed ethical misconduct charges against you or another planner Code B (Continued) Shall not threaten ethics misconduct charge to gain advantages Shall not file frivolous charges of ethical misconduct Shall neither deliberately nor recklessly commit any wrongful act that reflects adversely on the profession Shall not fail to notify AICP Ethics Officer if convicted of a “serious crime” as defined by Code section D, nor shall we identify ourselves as AICP if so convicted. Code Procedures Code Procedures: Describe the way that one may obtain either a formal or informal advisory ethics ruling, and Detail how a charge of misconduct can be filed, and Describe how charges are investigated, prosecuted, and adjudicated. Code Procedures Informal and Formal Advice Only the Ethics Officer, who is the APA Executive Director, is authorized to give advice Formal advice is Binding Formal Advice: Findings within 21 days Forwarded to the Ethics Committee Ethics Cases 2009 -2011 2009 2010 2011 11 4 4 9 2 2 Cases Dismissed 4 2 2 Charge Withdrawn 1 Other 4 2 2 Total Cases Cases Resolved Cases Pending 2 ETHICS SCENARIOS & QUESTIONS Socializing Is it unethical, as a regulatory planner, to socialize with your paid consultants as peers? They may buy drinks or dinner, but you will also sometimes buy. Is the perception bad? On a related topic, what if a planner is at a conference with several of the consultants that he/she works with and is invited to go to dinner? One of the consultants picks up the tab. Another pays for cabs. A third picks up drinks after dinner. Is there any conflict? Climate Conflicts You are the planner for a town and have been preparing a climate action plan to bring before the Town Council. During the recent election the entire Town Council was replaced with a group of climate change deniers who have told you in no uncertain terms, that bringing the climate change action plan forward will result in your termination. What do you do? What aspects of the Code of Ethics apply? Conflict of Interest - Family Is it a conflict of interest for a board member to vote on an application for a grocery store to be located in proximity to where his parents live? Is it a conflict of interest for a board member to vote on an affordable housing development application when her sister is an abutter to the site of the development? Conflict of Interest - Family No – The court found no prohibited conflict of interest because there was no evidence that the board member did his parent’s grocery shopping or that the parents would shop at this particular store (N.J. Superior Court) Yes – A board member is prohibited from participating in a particular manner in which she has knowledge that an immediate family member has a financial interest. Under the conflict of interest law, an abutter is presumed to have a financial interest in matters on abutting property. Mass. Ethics Commission – (Board member fined $2000) Community Values The Fruits of Your Labors You are a public sector planner working with a consulting firm in your community on a redevelopment plan. After several weeks, based on the quality of your work, the head of the firm offers you a position within the firm. Are there ethical considerations that would prevent you from accepting this position? Ethics - Resources AICP Code of Ethics www.planning.org/ethics/index.htm American Planning Association – Ethical Principles of Planning www.planning.org/ethics/ethicalprinciples.htm MA State Ethics Commission www.mass.gov/ethics Vermont Land Use Education & Training Collaborative – Rules of Procedures & Ethics Manual www.vpic.info/pubs/rules_proc.pdf Canadian Institute of Planners Professional Practice Manual Code of Practice www.cip-icu.ca Proposal to establish an “Intergovernmental Ethics Panel for Ecological Civilization” to be discussed at Rio +20 Conference in late June. MASSACHUSETTS ETHICS & OPEN MEETING LAW Open Meeting Law Effective July 1, 2010, the Legislature repealed the 3 separate Open Meeting laws (state, county, local), and enacted a new consolidated statute applicable to all government levels. MGL c. 30A, §18–25. The Attorney General now interprets and enforces the OML. The AG’s Division of Open Government (“DOG”) administers the OML. Remote Participation Emergency Regulation Issued May 25, 2012 (In effect until August 22, 2012) Remote Participation Remote Participation may be allowed subject to procedures & restrictions. These include: • May be approved by Mayor, Select Board, Town Council • May be revoked by Mayor, Select Board, Town Council • Adopting body may impose additional regulations that restrict use of remote participation. (Emergency regulation 5.25.12 – 8.22.12) • A quorum must be physically present at the meeting site • Members participating remotely and all present at meeting location must be audible to each other • Remote members may vote and shall not be deemed “absent” Remote Participation (Continued) • The Chair must determine that one or more of the following factors make physical attendance unreasonably difficult: Personal illness Personal disability Emergency Military service Geographic distance • Technology – the following media are acceptable: telephone, internet, satellite enabled audio or video conferencing, or any other technology that allows remote participants & all persons present to hear each other. • With video technology, the remote participants must be visible to all persons present at meeting location. Remote Participation (Continued) The Public Body determines which of the remote technology may be used. The Chair decides technical difficulty issues. Meeting suspension is encouraged. If connection is lost, meeting minutes must reflect that fact and time of occurrence. Chair must announce use of remote technology, member using it, and reason for its use. All votes must be roll call votes. Remote members may participate in executive session but must state that no one else is present or able to listen in. “Intentional Violation” Attorney General has proposed new language to strengthen the “Intentional Violation” section of the OML. “Intentional Violation means an act or omission by a public body or a member thereof, that knowingly violates M.G.L. c30A, sec. 18-25. Conduct in violation of … (this section) shall be considered evidence of an intentional violation where the public body or … member acted with specific intent to violate the law; acted with deliberate ignorance of the law’s requirements; or was previously informed by receipt of a decision by from a court of competent jurisdiction or advised by the Attorney General, … that the conduct violates … (such section). Where a public body or member has made a good faith attempt at compliance with the law but was reasonably mistaken about its requirements, or acted in good faith compliance with the advice of the body’s legal counsel, such conduct will not be considered an intentional violation…” (NOTE: potential $1000 fine) OML Resources AG’s Open Meeting Law Website: http://www.mass.gov/ago/openmeeting Open Meeting Law: MGL c. 30A, §18-25 Code of Massachusetts Regulations, 940 CMR 29.00 Office of the Attorney General Division of Open Government One Ashburton Place Boston, MA 02108 (617) 963-2540 Email: [email protected] Ethics Commission Ethics Commission has proposed amendments regarding: Accepting gifts < $50 – disclosure may be required Paid travel – distinction between travel/expense paid by domestic entity and foreign entity (disclosure) Event attendance – attendance at legitimate event where some/all expenses paid/waived requires prior written authorization from appointing authority on standard State form. Ceremonial gift/privilege – may accept ceremonial gift/privilege from sponsor/organizer of event if such is not a lobbyist and you perform an action related to the event Retirement gifts – gifts received prior to retirement ok as long as they are not from a lobbyist Ethics Commission- Resources Ethics Commission Website www.mass.gov/ethics Contact Information: State Ethics Commission One Ashburton Place, Room 619 Boston, MA 02108 Phone (617) 371-9500 Fax (617) 723-5851 Attorney of the Day (617) 371-9500