To Seem is to Seem. To Be is to Be.
Dear Mr. Foster, being a young surveyor, I’ve never before responded to anyone’s comments in a newspaper or magazine. Yours is the first for me. I’m referring to your recent editorial musings on Ethics in the “thought leader” column in the excellent magazine The American Surveyor (April 2018), which I glanced through while in the office of a friend of mine. There was just something about your views regarding the appearance of conflict of interest that caught my attention, negatively. With some trepidation as I realize my own lack of professional and life experience, but with great respect for your superior age and knowledge, I nevertheless suggest that you have missed the center of this particular professional ethics matter by a country mile.
First though, I had to essentially eliminate from consideration nearly half of your column by striking through the unfair and biased political references to the current President of the United States. Why you chose to comment on the President and his family in a professional magazine is beyond me, unless you are so predisposed against them personally that you couldn’t think of another example. Why would you think that a father giving his son or a father-in-law giving his son-in-law advice is the same as “using the White House”? If you insist on being political about this, it would have been a far better choice if you had referred to examples of the immediate-past White House denizens’ and their families outrageous, arrogant and egregious conducts, breaches of ethics, breakings of the law and actual conflicts of interest (all at taxpayers’ expense).
Re-reading your column after I had scratched out the distracting parts, it appeared to me that your real point was: “A perceived appearance of a professional conflict of interest is the same as an actual professional conflict of interest.” More succinctly, your premise seemed to be, “If anyone thinks something is wrong, then it is wrong”. Or, how about another expression of moral bankruptcy, “Right is whatever I think it is today?” Did I condense your remarks too much? Honestly now, Mr. Foster, do you believe that nonsense is correct, or did you just toss remarks out randomly in an experiment to see if people like me would respond?
Two of the things that can be said about our world and people’s actions, reactions and perceptions to a particular professional situation are: (1) the truth is right; and (2) an infinite number of people’s actions, reactions and perceptions are wrong. Life can be very unfair. A moral, right-thinking Surveyor can be [falsely] accused of and have to defend him- or herself against the charge of a nonexistent breach of conduct by morally destitute and emotionally-guided persons (there seems to be an astonishing number of them out in the open these days). Bystanders must guard themselves against giving these people credence, from falling into the trap of believing your “Ms. Green”.
Being empirical people almost by definition, we Land Surveyors mostly base our decisions upon mathematical and demonstrative evidence. Even if we do not happen to have the highest degree of probability with which to structure our professional decisions and actions, we can also employ moral evidence, e.g., the law of conscience and common sense, by which we reveal how much we personally have conformed to the laws and intentions of our Creator. This is our best defense against claims of bias.
A conflict of interest doesn’t exist if there isn’t one. An unstable person’s voicing an imagined concern over the appearance of a conflict of interest debases a legitimate concern into the will-o-the-wisp realm of impressions and emotions, debasing an innocent and legitimate professional as well. The inmates must not be allowed to run the asylum.
While I’ve got you “on the line”, so to speak, and continuing with the subject of conflict of interest, please share with me your thoughts about this scenario:
Several years ago, the Surveyor established and marked Ms. Brown’s property lines. The Surveyor did a typically thorough and professional job. The Surveyor obtained permission from each of the neighbors to “tie in to” boundary evidence on their properties and put extra effort into Ms. Brown’s job to “make sure that it was right”. The plat and descriptions were recorded among public records. Now, years later, the Surveyor has just finished surveying the lands of Ms. Green, one of the adjoining owners. This Ms. Green had been contacted by the Surveyor during the first survey and was impressed then by the Surveyor’s conscientiousness and objectivity. This Ms. Green, though she doesn’t particularly like Ms. Brown, rightly keeps her emotions in check (where they belong) and realizes that employing Ms. Brown’s Surveyor might be an advantage to her. Naturally, in this latest survey, the Surveyor builds upon the previous survey work for Ms. Brown and, armed now with additional property line evidence from Ms. Green’s survey and from her neighbors, finds that this new data conflicts somewhat with the Surveyor’s own previous decision as to the location of the common Brown/Green property line. The Surveyor has essentially created his/her own “appearance of” a conflict of interest.
Questions:
- Ethically speaking, should the Surveyor now contact Ms. Brown, explain to her the new situation and offer to revise the previous survey work and products?
- Should the Surveyor hold his/her own previous Brown/Green line decision, thus conceivably denying one of his two clients (the current one and the previous one) some use of a small portion of rightful property?
- Should the three of them together seek arbitration?
If another Surveyor had recently surveyed for Ms. Green and found his/her decisions to be in conflict with the Ms. Brown survey, then the whole thing might end up in court or in arbitration where everybody except the attorneys or the arbiter loses, with Ms. Brown, Ms. Green and the poor (no pun intended) Surveyor being unhappy and worse off than before the experience.
Roland Edward
Cumberland, MD
Foster responds:
In response to the (young) writer who objected to my commentary, “To Seem is to Be” in this publication, I offer the following:
I included President Trump in my discussion of an appearance of a conflict of interest because he has presented us with so many examples in his own life and actions. For instance, his refusal to disclose his Federal income tax returns has created an obvious appearance of a conflict. It may well be that there is nothing in those returns that would be damaging to the President, but the mere fact of his refusal to divulge, as his predecessors have done, gives people the impression of something to hide—in other words an appearance of a conflict of interest—or worse.
The writer says that I have missed the center of this particular professional ethics matter by a country mile and goes on to conclude that my point was “(a) perceived appearance of a … conflict of interest is the same as an actual … conflict of interest.”
No. The writer has missed the point by a country mile.
My point is that an appearance of a conflict of interest can be, not the same as but as damaging as, a real conflict of interest. The distinction may be subtle but a careful reading of the article would have made it clear. My Ms. Green/Ms. Brown example demonstrates the difficult position of the surveyor who, though faithful to the interests of both neighbors, is by nature of his contract with one of them perceived by the other as having a bias in favor of his client. It is not an unusual situation for the surveyor in private practice. Ms. Green need not be “morally destitute and emotionally guided,” in the writer’s words. Property line arguments between rational neighbors are a fact of life for the surveyor in private practice.
To argue that a conflict doesn’t exist “if there isn’t one,” as the writer does, is to deny that perception can be as convincing as reality. Perhaps the writer is too young to have discovered this sad truth.
The writer presents us with his case in which the surveyor has surveyed the properties of first one, then the other of adjoining neighbors. In the second survey the surveyor discovers a “conflict” in his earlier work for neighbor #1. The writer suggests that the surveyor has created his own appearance of a conflict of interest. I would suggest that this is less an appearance of a conflict than a discovery of his own judgement error, probably due to inadequate document research. The writer wants to know what the surveyor should do.
We are not told whether the surveyor prepared a plan for recording purposes of his survey for client #1. If so, and if he has discovered an error in his work while performing survey #2 he is ethically and professionally obligated to correct the record. If there was no plan but the surveyor set points memorializing his opinion of property corners that now seem to be in error, then again he must correct his earlier, erroneous work. In either case the surveyor must make client #1 aware of the situation. (He ought, also, to notify his professional liability insurance provider if there is a possibility of litigation.)
If, in this example, the surveyor is still in some doubt concerning his decisions, or if one or the other of the two neighbors refuse to accept his final opinion, resolution may require a third survey be performed by a neutral surveyor.