Secondary Income as Unfair Competition

Should the National Society of Consulting Soil Scientists adopt policy condemning unfair competition by government employees? What is the basis for such a policy? What type of activism would be forthcoming from the Society based on such a policy?  Please discuss.  Anonymous participants and responses welcome, just please identify yourself at the end of your contribution.

History

1990s: In response to the demand for soil scientists outpacing the availability, health district employee soil scientists adapt a page from the playbook of academic soil scientists and make themselves available to consult.  They provide expert testimony on septic system failures in support of litigant homeowners. They set up businesses to perform septic system site assessments.  To avoid conflicts of interest, they perform this work outside the the boundaries of their health district.

2000s: NRCS soil scientists in Midwestern states, previously prohibited by Federal guidelines from engaging in their profession in the private sector, prevail in being able to participate in the business of soil science. The practice expands to wetland delineation and stormwater consulting. Apparently starting in Georgia and Indiana, by the end of the decade NRCS soil scientists also consult in Alabama, Florida, Illinois, Ohio, Pennsylvania, and beyond.

2008: With housing activity tapering off in 2007, the Society receives reports in January 2008 from our North Central region that NRCS soil scientists are dramatically undercutting the market for on site septic permits, purportedly charging substantially less than the market will bear. Society corroboration of allegations is unsuccessful.  Unfair competition is determined to be the main ethical concern, but, without project specific facts, little progress is made on formulating a plan for action.

2009: North Carolina passes HB 617 which states:

The days leading up to bill passage produced a reinvigorated discussion of both conflict of interest and unfair competition from public servants who also consult. Related posts in 2009:

• Re: [carolinaschapter] House Bill 617
• Secondary consultants: Conflicts of Interest
• Secondary consultants: Unfair Competition
• Re: [carolinaschapter] Re: a response

2010: Vocal advocacy for the Society to address the threat of secondary income as unfair competition and as a conflict of interest continues apace.  One contention is that ethical breaches are unavoidably inherent when any public servant engages in consulting as a secondary income.  NSCSS members continue to debate the basis of this contention, and differ on whether it can be applied universally.

Established NSCSS Policy

NSCSS Mission Statement: Two elements from our Mission Statement apply

• To represent the diverse consulting, service and business interests of professional soil scientists,
• To foster professional and ethical conduct in the soil science discipline.

NSCSS Goals: one Goal applies - Elimination of unfair competition from taxpayer-supported entities. Activists contend that public servants continue in their off-hours as representatives of, and therefore extensions of, a tax supported entity.  Their clients view the moonlighting public servant in the context of their public position, and that taxpayer-supported context is the basis of an unfair competitive advantage. Activists contend therefore that this goal requires the Society to oppose consulting as a second income. And if it isn't clear enough, it needs to be rewritten. Discussion please. 

NSCSS Code of Ethics: NSCSS has several members in good standing who consult to supplement their living, with their primary income source being in public service. This would be in direct violation of the above interpretation of the Society's unfair competition goal.  However, there have been no complaints filed based on these apparent offenses. Furthermore, the Society Code of Ethics in no way prohibits public sector employees from consulting as a source of secondary income. We have Society members who initiated their transition to consulting from public service by engaging in part-time consulting.  Society members have responded to the economic downturn by taking jobs in the public sector, and continue their consultancy on a part-time secondary footing.  None of these are in apparent conflict with our code of ethics. If it turns out that they are in violation of our goal to eliminate unfair competitive advantage for taxpayer supported entities, the code of ethics can be revised accordingly by the Board.

Registry Code of Ethics: At least one one Registrant is a public sector soil scientist who also consults. The Registry Code of Ethics (as available in the Registry Application packet) requires:

In the Registry Code, unfair advantage is treated only in the context of confidential information.  Nothing in the Registry Code indicates that NSCSS has a basis to condemn out of hand public servants pursuing consulting as a second income. Accordingly if an ethical complaint were brought against these individuals, it would be evaluated on specific cicumstances, not on simple act of having a soil science job on the side.  Accordingly a complaint will need to demonstrate to the satisfaction of the Examiners that a Registrant engaged in specific, verifiable conflicts of interest, involving specific clients and client projects, in order for NSCSS to take action. 

Forward from Here

Current policy by the Society does not compel addressing this concern in the ways advocated by Society activists. That does not mean that the situation is not of great concern, because it certainly is. 

• For our Society to take an activist stand on this concern, policies and guidelines must first be established by the Board of Directors.
• These policies will need to be carefully considered in the context of the Sherman Act, which prohibits garnering market power by suppressing competition through coordinated anticompetitive conduct. Established to further business interests, NSCSS is particularly vulnerable to allegations of anticompetitive conduct. (added 02/25/2010)
• Consistency demands that after policies have been decided, then our mission, our goals, and our various codes, should be rewritten in support.

The above takes time, and, as the Board has yet to discuss this, it is difficult to predict if that is where the Society is heading.  Therefore it is incumbent upon us to use this discussion format to explore how the Society can address these issues here and now.




Philip Small, RPSS
NSCSS Secretary