Conflict Of Interest—Public Employee Serving As Part-Time Consultant

The issue of engineer “moonlighting” has been an issue considered by the NSPE Board of Ethical Review (BER) in the past. While at one time, there was serious ethical concern over such practice on the part of employed engineers, in recent years, the issue has been somewhat muted as an ethical matter. Among the more significant considerations in this area are the extent to which such practice may constitute a conflict of interest, whether the individual is using the materials, equipment, and resources of the individual’s full-time employer in pursuing and performing part-time work, and whether such practices are consistent with the policies and procedures of the employer. Other questions arise relating to whether such practices may have an adverse effect on the professional liability of the employer and other professional practice areas. As with all such cases, a review of all of the facts and circumstances is critical to a determination of the ethical issues.

The Board noted in BER Case 97-1 that these cases frequently raise the question of whether an engineer can ethically devote sufficient attention to the responsibilities involved. In BER Case 97-1, Engineer A held a full-time engineering position with a governmental agency and was also employed on a part-time basis by an engineering firm. Finding no ethical violation, the Board noted that with regard to Engineer A’s dual role as an governmental employee and a private employee, both the state governmental agency and the engineering firm were aware of Engineer A’s activities as a dual employee and did not object to these activities. However, the Board also indicated that should a conflict-of-interest arise (e.g., where Engineer A or the firm’s activities conflict with the governmental employer’s activities or interests) Engineer A would need to carefully address those activities consistent with NSPE Code Sections III.6.b., II.4.d., II.4.e. and other applicable provisions of the NSPE Code.

Turning to the facts in the present case, the Board can easily foresee the potential for a conflict of interest for Engineer A in his relations with municipality’s work as a state highway employee and in his relations with the same municipalities as a representative for the consulting firm working on municipal airports. While the scope of his responsibilities (state highways vs. airports) are clearly different, there may be situations and circumstances where his role in one or another area could be compromised. Highways link to airports and decisions in one sphere could have an impact on decisions in another sphere. For example, there are airport and highway hubs that are inextricably linked and the traffic and airport issues are often closely related. Moreover, there are clear ethical appearance issues that would presumably need to be addressed. While as we noted in BER Case 97-1, with regard to Engineer A’s dual role as an governmental employee and a private employee, assuming both the state governmental agency and the engineering firm are aware of Engineer A’s activities as a dual employee and do not object to these activities, the Board believes based upon the engineer’s obligation to serve as faithful agent and trustee that there is a violation of the NSPE Code of Ethics under the facts and circumstances presented here.

The Board must also caution Engineer A to be mindful of the issues raised earlier relating to the need to carefully follow all applicable government procedures and policies, liability concerns, and the avoiding the use of public resources in the performance of private work.