unfair competition- cannon code

[Dave Karoly, PLS]

I get the part about freedom liberty and doing what you want on your own time. But we have weekends for a reason and generally.they serve the purpose of rest and relaxation and time to do something other than WORK. The weekend provides time to be with family, friends and to engage in life enriching activities. So if you are working 7 days a week is it possible that your efforts suffer at your day job and in fact you are cheating your employer by not coming in on monday refreshed,rested and recharged and ready to put in a full weeks work for a full weeks pay?

I don't disagree with you, Dane.

[Dave Karoly, PLS]

If I am reading the complaint and resolution correctly, Mr. Gilbert was apparently moonlighting while being employed by a government agency. He performed a lot of surveys and processing of documents and he was referred to the JPPC multiple times for poor work and not filing his surveys.

The complaint was filed against his license while he was running a side business, as a moonlighter, and not as a government employee.

The Board finally went after him in his capacity running a side business (moonlighting) and as opposed to the complaint being pursued to prosecution, Mr. Gilbert gave up his license and the surveys were never filed or completed.

Meanwhile he still works for a government agency, he draws a regular paycheck and has all of his benefits. With regards to any investigations or complaints with regards to his government job, nothing happened. It is because he was running a side business that he got in trouble. He did not get in trouble due to anything he did in his government job. Is that correct? And he still has a full time job?

He appears to have separated from State employment in mid-2012, that is the same year he surrendered his license.

[mpallamary]

Thanks! Learning more.

[mpallamary]

Here are some thoughts from years ago.

[Dave Karoly, PLS]

I don't think there is anything inherently wrong with doing side jobs as long as the fees charged are sufficiently high and the costs of the business are born by the practitioner.

Just for me personally, I determined it wasn't worth the amount of time I had to devote to the project vs the fees I received. The risk-reward didn't make sense partly because I couldn't handle large, more profitable jobs. The decision was made for me because the work stopped. Then a couple of years later I had an opportunity to start up again. I think I picked up a small project, did it, then it came to, I don't want to do this anymore. The next time I got a call I referred it out, dang that felt so good, that is standard practice now. But I haven't had an inquiry in quite a while.

Especially now that my income has recovered and grown substantially since the pit of 2008 I'd rather do what interests me or spend time with Jameson, my grandson. I'd retire and take care of him full time if I could.

I have a total station and accessory equipment I don't use, gathering dust.

Nothing frustrates honest hardworking public employees more than hearing the stories of private surveying going on out of orange vans. I point out the drunks down in Orange County were turned into the TV station by a frustrated coworker after several months of trying to get management to do something. Nothing will make a public agency move faster than a Director severely embarrassed in the press, unfortunately.

[Jim Frame]

Be careful with that broad brush that you don't paint yourself in an uncomplimentary color.

Evan, my remarks weren't meant to suggest that there's currently anything illegal or statutorily unethical about moonlighting; rather they were meant to state my opinion that public agency employees should be barred by employment contract and legislated professional ethics from doing so. By the same token, I don't begrudge any public agency employee who takes full advantage of what I generally see as unconscionably lavish pension and OPEBs, but I'd like to see those compensation packages brought back to the real world.

Not that all public agency compensation is equal, of course. No doubt some agencies have rational policies, but there are many examples of agencies -- particularly local agencies -- in which bargaining groups have negotiated over-the-top retirement benefits seldom seen in the private sector except at the highest executive level, benefits that represent an outsized-and-growing portion of the agency budget. When an entry-level firefighter can earn $100k to start, retire at 50 with 3%, and 500 people line up overnight for a chance to apply for that job, something is very, very wrong.

[mpallamary]

Here is another article from Wisconsin to consider. I remember the case wherein the moonlighter's company was sued and his employer was not aware of what happened. It didn't matter as he was still sued.

[dmi]

Sorry Jim, what is out of line is the private sector.

[Jim Frame]

Sorry Jim, what is out of line is the private sector.

If you're talking about the magnitude of the disparity between corporate CEO and rank-and-file worker pay, I agree. But the public sector isn't immune to irrational disparities. Allowing well-paid employees to retire at 50, 55 or even 60 with defined-benefit pensions and high-end lifetime medical benefits is simply unsustainable.

[Mr. Smith]

Without the private sector the public sector does not exist because we (the private sector) pay for it all, We (the evil Corporations)
pay the public sector's wage, rents, lands, retirement, tax.....every last drop.

Brian

[E_Page]

The freedom and liberty of the employee is not the paramount consideration in private sector employment., why should it be the paramount consideration in public sector employment.? .

Where are you getting this "paramount consideration" stuff. My point is that there seems to be a double standard building here in what a public employee may or may not do with their income or free time vs. what a private employee may do.

The State of California has enacted a several laws to prevent the types of conflicts described in the articles posted by Mike. There will always be a few bad actors that will be found in all avenues of employment. In many of the conflicts cited, particularly in Will County, it seems that they could be seen as private sector business people working their way into governmental positions of authority and then using that authority to benefit their own businesses, their private sector clients, and those willing to buy a little goodwill.

[Mr. Smith]

"As a practical matter, I don’t think my business is affected much by moonlighters. Most of the clients they attract are price-shopping small-dollar clients, so there’s not a lot lost. But there are exceptions, and I do have objections, to wit:

As a taxpayer, I don’t want to subsidize the business of a competitor. I’m already providing him with a generous compensation package, and it’s that very compensation that allows him to outfit his side business and then undercut my fees. (I don’t buy the argument that moonlighting outside the jurisdiction of one’s public agency employer makes any difference; it’s one taxpaying licensee or another that he’s undercutting.)

If someone wants to set up shop in his garage and undercut me as a full-time practitioner, have at it. But I have a problem when he lives comfortably off of taxpayer dollars and then cherry-picks my clients and jobs."




DITTO

[mpallamary]

A civil dialogue is a wonderful thing. It is the basis for fixing things. Good discussion all around.

[E_Page]

Sorry Jim, what is out of line is the private sector.

If you are trying to infer that from my comments, you are making a poorly considered, ridiculous extrapolation from what I said. If you are trying to twist my comments in order to manufacture a point to ridicule, you are making misrepresentations. Your comment is far from insightful and not the slightest bit witty.

Evan, my remarks weren't meant to suggest that there's currently anything illegal or statutorily unethical about moonlighting; rather they were meant to state my opinion that public agency employees should be barred by employment contract and legislated professional ethics from doing so. By the same token, I don't begrudge any public agency employee who takes full advantage of what I generally see as unconscionably lavish pension and OPEBs, but I'd like to see those compensation packages brought back to the real world.

I agree with you about the pensions. The State, and some local agencies connected to PERS have begun instituting tiered plans. Hired before XX/XX/19XX; you get in on the platinum plan, before YY/YY/20YY, you get the gold plan; after ZZ/ZZ/201Z, you can have the silver plan... that is if the whole system doesn't collapse from the weight of its own mismanagement, in which case we may be lucky to get pennies on the dollar of what was presented when we were hired. Personally, I would prefer a system that allows the employee more control over their retirement accounts. I've seen where some employees who spent their entire adult working lives with some level of government retire in their mid 50s with a pension nearly equal to their working salary. That's overboard.

Likewise, when many govt employees were complaining about how unfair the furloughs were a few years back, I was grateful to have a steady income. Just in case it gives you some sense of justice, I doubt that I will be able to retire until I'm at or near mandatory retirement age.

Years ago, and still with some agencies, there used to be a tradeoff in that working for the public sector (at least in surveying and other technical & professional fields) meant that you would generally make 10% to 15% less than your private sector counterparts on average, but that you would have a steadier income, less susceptible to the economic cycles, have benefits commensurate with those offered by many larger private employers, and have a pension that would greatly help provide for a comfortable retirement assuming that you've paid off your home and other major debts before then.

Some of that still holds true, depending upon one's particular vocation, location, agency, and (increasingly) date of hire. As a public employee in bad economic years, I was making, on average probably 15% to 20% more than my private sector counterparts. In good economic times, I'll make that much less, and probably more like 2/3 or 1/2 of my counterparts who own practices. I don't begrudge anyone that level of income when they are able to make it. Due to my family circumstances, I chose to go back to the relative stability of public sector employment.

What I objected to that I read in your statement was the idea that it is somehow a betrayal to the public if I spend part of my earned income on tools of the profession which would enable me to perform survey work outside of my agency employment. That is how practically every practice has ever started, by someone's employee saving to purchase equipment and eventually go into business. Assuming that I still have enough health to run a part-time practice, I want that option to supplement my retirement income someday.

Theoretically, a private sector employee is compensated according to the value they bring to the company. If an employee is looking for ways to increase income, the options are 1) advocate for a raise, 2) get a better job, 3) find something to do outside of hours that the employer has paid for. Employer and employee have more control over the first two choices than do their public sector counterparts. A private sector employer can offer a raise or a promotion if he feels the value is there.

In the public sector, the first is limited by an employees time in service. No raises until one's anniversary date and after a certain number of years, no raises unless everyone in the agency gets a similar cost of living adjustment. The 2nd is limited by specific allocations of a set number of defined positions. No one gets a promotion until someone in a higher position retires or leaves. A trend in many agencies for many years has been that when a higher position is vacated by retirement, job classifications are rewritten such that much of the responsibility of the recently vacated position is now in the job description of the next highest ranking employee, without benefit of promotion. The 3rd has certain statutory limitations to prevent the conflict of interest abuses as seen in the articles Mike provided.

Obviously, a private sector employee cannot ethically moonlight in a way that 1) competes with his primary employer, 2) diminishes the value that he is paid for by his primary employer, or 3) uses the time, materials, or resources paid for by the primary employer, or 4) exposes one's primary employer to any general or professional liability. Beyond that, if the primary employer has the expectation that employees should not engage in income producing activities outside of their primary employment, then the employer has the responsibility to provide enough work to provide that employee with as much work as they are willing and able to do, and to compensate them generously enough that a reasonable person wouldn't want to work outside of their primary employment.

Unlike in the private sector, there are laws for the public employee as to 3 of the 4 conditions I listed above (all but #2, which can be difficult to objectively quantify). In some cases, where the private sector employee who violates one or more of those principles exposes himself to termination, the public sector employee may be exposing himself to prosecution of a crime. Where the private sector employee is not legally compelled to make any financial disclosures to an employer (outside of any specific employment contract provisions), the public sector employee, once having reached a level of exercising independent judgment, is required by law to report any financial interests and income which may present the potential for a conflict to arise.

Without the private sector the public sector does not exist because we (the private sector) pay for it all, We (the evil Corporations)
pay the public sector's wage, rents, lands, retirement, tax.....every last drop.

[/quote]

Correct. And that recognition is reflected in part of Dave K's last comment: "Nothing frustrates honest hardworking public employees more than hearing the stories of private surveying going on out of orange vans. I point out the drunks down in Orange County were turned into the TV station by a frustrated coworker after several months of trying to get management to do something. Nothing will make a public agency move faster than a Director severely embarrassed in the press, unfortunately."

I for one have never attacked the private sector while holding the public sector up as some bastion of virtue. You won't even find me begrudging the millionaire CEOs of the big corporations their compensation. Nor will you find me referring to "the evil corporations" except in sarcasm toward the label, and with an EIB emphasis on "eeeeeevil".

I recently had occasion to inventory my experience. It's currently at just over 50% private sector (about 2 more years and it will be 50/50). It has been my experience that there is about the same amount of corruption in each, but that corruption manifests itself a bit differently. There is, at least in surveying, about the same average level of competence among licensees and LSITs in one sector as in the other (that is that IMO, surveyors in both sectors could stand a bit more training and self directed study). There is also, on average, about the same degree of conscientiousness toward doing a proper job, although the bell curve is, in my observation over my early career and more recently, much wider in the public sector (The hardest working, most conscientious as well as the laziest, and most careless surveyors I've worked with have been in the public sector).


But I am quite irritated at what appears to be repeated attempts to denigrate all public sector employees for having performed or for continuing to perform side work on their own time, in business ventures funded by their own savings, and many performing to acceptable to very high standards of care/practice based on accounts of a few who have abused their positions, their licenses, and/or the trust placed in them.

As the conversation progresses, it is becoming increasingly clear that moonlighting, however you wish to define it is simply one avenue of attack and that the underlying issue is a resentment of the compensation, benefits, and retirement that many public sector employees receive or are promised. People aren't much responding to the substance of any of the comments made by me or other public sector employees because accepting that there are those who care about a job well done, and that the examples of the bad actors are the exception rather than the rule doesn't fit the narrative.

I appreciate Jim's effort to clarify his statements. A couple of you appear to have nothing of substance to add, so have posted, in one case, a truth presented as if intended as a damning statement which actually comes across as tired rhetoric, and in another, just a really unintelligent attempt at a sarcastic witticism that really should be beneath the dignity of the person who posted it. And then another who appears to be trying to gin up a movement to, I don't know, advocate for laws limiting the ability of a public sector employee to engage in work outside of their primary employment. Those laws are already in place. Or maybe to advocate for laws that demand the proper amount of oversight when in responsible charge or for ensuring that all phases of a project are performed at least to the minimum standards expected of any professional who would perform that job. Those laws are already in place as well.

The problem isn't really that there are public sector surveyors running around performing poor surveys or not adequately supervising work they are supposedly supervising, or that there aren't laws designed to prevent that. And as both Jim F and Dave W pointed out, the economic impact on full-time practitioners is minimal (although I would contend that public sector moonlighting combined with unlicensed surveying can and has had a significant impact in some areas at certain times).

The real problem is twofold. First, not enough of the poor practitioners are being reported, either to BPELSG for their professional failings, or to their employers for doing private surveying using public time and resources. Second, I know that there are some people turning in some of these bad actors, but that BPELSG may not be doing anything in those particular cases. I'm not going to get into that one at this point. A couple of you know exactly where I'm coming from. That is a different problem that needs a different solution.

[dmi]

I am merely trying to participate in the discussion. I thought that I had done so in a civil fashion. But if I have failed to be civil then please excuse me I am not condemning anyone or anything. I most certainly am not attacking public sector workers. I do not begrudge them their pay or benefits. I think that private sector workers would be better off if they demanded better benefits that are on par with public sector workers. I do not have much patience for private sector workers bellyaching about what someone has or has been able to negotiate for themselves. So what if I don't like the bellyaching, to bad for me it is a free country. All I have done is pose questions based upon my experience as an employee, a manger and as a business owner. If you drew anything else from my comments then these comments have been misunderstood and misconstrued . I am sorry if I have contributed the confusion.

[mpallamary]

I would welcome the opportunity to engage in an old fashioned debate on this topic in a formal setting if there are any takers.

I will be writing an article on this and I welcome criticism and civil commentary. Indeed, the measure of a man's debate skills is a function of his willingness to stick to the facts and not pursuing ad hominem attacks on those with opposing views. As a general rule, the more times one invokes the name(s) of those who disagree, those are indicators of ad hominem attacks.

An unwillingness to personalize a debate over the facts is a good measure of a man under any scenario.

[Jim Frame]

Likewise, when many govt employees were complaining about how unfair the furloughs were a few years back, I was grateful to have a steady income.

For what it's worth, below is a graph of my net profit over the last 22 years or so. "Steady income" isn't something that this small-business owner is familiar with. I'm not complaining, mind you, and I don't have any reason to believe that my very small business is representative of professional land surveying practices. However, it definitely informs my attitude toward moonlighting by public agency employees.

[David Kendall]

The freedom and liberty of the employee is not the paramount consideration in private sector employment., why should it be the paramount consideration in public sector employment.? .

Oh, please elaborate on this!! What are the 'paramount considerations' of each sector in your opinion??

In mine, the private sector employees cater to the clients budget and the bosses profit. The public sector employees are beholden to their retirement and keeping their position long enough to get it all the while shouting 'protect the public'.

These are obviously terrible generalities. My perspective is that this entire thread's conversation is about professional ethics. Unfortunately no amount of legislation or righteous rants are going to change those whose shade is a bit greyer than I feel it should be. There will always be scofflaws and hustlers regardless of the number of laws.

This has been a thought provoking discussion for me to follow. Thank you all for sharing your perspectives!

Maybe the solution is to have more philosophical content on the state-specific exam and less photogrammetry and construction staking calculations. Personally I wouldn't mind leaving all of that mess to the engineers so I could focus more on the art of leaving quality footsteps.

[mpallamary]

Of all the topics Curt Brown felt was important, ethics was at the top of the list. He felt very strongly about government employees moonlighting. He was opposed to it as are many other professionals.

As a society and a profession, we must strive for higher standards and we must raise the bar. I have always felt that if an individual feels they are brave enough and smart enough to start, run, own, and operate a small business, they should do that. It takes exceptional skill and business savvy to run any kind of business.

I have been self employed since 1981 and in order to become a successful business person I had to get the proper education and I worked days and nights and weekend and holidays and I had to take personal responsibility for everything I did and for everything my employees did. If they made a mistake it was my mistake. I did not have the luxury of hiding behind a veil or the protections afforded a government employee or the safety afforded by having a full time taxpayer funded job.

I am always intrigued when I run into a government employee who boasts and brags that he/she has their own business, which essentially involves side jobs working out of their garage or the trunk of a car, all the while, doing so with the comfort of a steady pay check and luxurious health benefits and a pension, in good times and bad times while I have to provide all of these items by the sweat of my brow.

I feel the profession and my business is threatened by people like this. Often, they spend considerable time on the Internet and pursuing other matters while at work, on the taxpayer's time, promoting their business and other matters.

This last week, I had several critical deadlines and I worked till two and three in the morning and I just paid an exorbitant amount of taxes and health insurance out of my own pocket for this luxury, The taxes I paid financed the moonlighters all the while I meet my other obligations including office rents, utilities, and equipment charges and, when I do not work I do not get paid. That is what owning a business is about. It is not about carrying around some sweaty business cards and telling people that you "have your own business" while showing up for your regular job at some state agency or county office.

If you want to be a business owner, be one. All you need is courage and nothing more. if you want to compete with a small business owner, become one.

“Whenever governments adopt a moral tone - as opposed to an ethical one - you know something is wrong.”
― John Ralston Saul, The Unconscious Civilization

[JasonCamit]

Just a curious question. What if a person's side business is a family farm? Should the neighboring farmers throw up their arms and claim moonlighting and complain about his/her steady pay, benefits, and retirement? Or if you have several rental properties? Should rental management agencies lobby for more legislation to prevent you from doing this if you have a full time government job or private job for that matter? There are many ways to produce more income besides your full time job.

The question is, how do you do this in a professional and ethical way? If you have the answer to this question, I do not see how anyone can tell you how to provide for your family.

[Mr. Smith]

"What if a person's side business is a family farm? Should the neighboring farmers throw up their arms and claim moonlighting and complain about his/her steady pay, benefits, and retirement?"

Yes if the record job is "Government Farmer" Since the private sector farms pay for the Government farmers wage, retirement, land, gear, seeds etc.
It has a feel of a conflict of interest when the Government farmer runs a side business as private farmer. I am not saying it is illegal, just on its face
there seems to be a conflict.

How about this business plan: an individual retires from serving as county surveyor for 100k / yr. then goes into business
cherry picking or undercutting local land surveyors in the area.

This is not against the law but seems wrong to me, I get it, the retired public employee has a right to work, but, just does not feel right.

Brian

[T. S. Higgins]

How about this business plan: an individual retires from serving as county surveyor for 100k / yr. then goes into business
cherry picking or undercutting local land surveyors in the area.

This is not against the law but seems wrong to me, I get it, the retired public employee has a right to work, but, just does not feel right.

Brian

What if that person retires from a private surveying firm and then goes into business cherry picking or undercutting local land surveyors in the area? What if a different person retires from a private accounting firm, gets his surveying license, and then begins cherry picking the "easy" jobs and bidding on those while collecting the dividends from a well invested retirement portfolio?

I'm just trying to figure out if it's an issue with the pension plan format or just the idea that a retiree is working at all.


My only issue is when the worlds collide between side work and the full time position. If they're using company time to do side work (research, phone calls, etc), then obviously it's a huge problem. If it's something they're doing on the weekend that doesn't have any interaction with their full time position, it becomes less of an issue... how likely is it really that they're going to win any bids with a timeline restricted by 1-2 days of labor a week?

[Warren Smith]

Brian,

I'll give you a crystal ball into my business plan for retirement: to consult with surveyors on those thorny boundary establishment surveys. Far from wanting to compete with my colleagues, I hope to bring some gravitas as a value added commodity. I don't see this as being lucrative, rather as a means to impart some meager insight into what I have encountered in my career - both private and public sector.

Of course, there is always the lecture circuit, but that is far more competitive!

[Warren Smith]

I took a night class in the mid 70s at Sacramento City College that Roy Minnick taught - "Business for Surveyors". Roy ran Landmark Enterprises, selling survey texts, while working for the State Lands Commission. The course focused on sole proprietorship, but he delved into such topics as amortization of equipment purchases to offset taxable income from a day job, while adding assets.

All good business sense.

The ethics of moonlighting is another matter. As Evan has pointed out, statutes exist to regulate conflict of interest, use of public property for private gain, incompetent or negligent practice, and the like.

If a market exists for "low hanging fruit" surveys, it may be best served by those without a lot of time to devote to intense research, calcs, and analysis. Other than during lean economic times, that market is not likely to be part of a sustainable business model. And private practitioners with very low overhead are the potential financial victims of that competition.

I don't see a satisfactory resolution to the ubiquitous existence of this endeavor. Capitalism provides for opportunity, within regulated bounds concerning consumer protection.

[William Magee]

Kinda, sorta related.

I know this feller who is in a class by himself when it comes to seismic design and analysis. He gives 120% back in that he has written books to help the profession in general and students specifically, he gives seminars (which have helped countless engineers pass the seismic portion of the licensure test), he has a very active part of SEAOC & ASCE, all while maintaining a very active role in family and community. My friend fires on all cylinders and is plain and simply just a brilliant and very active individual who can handle a large volume of work with ease.
He also has a 9-5 job as part of a city's structural engineering staff, primarily responsible for reviewing building plans.
In his "free" time, he assists a clientele list he has developed, in communities outside of the city he is employed. His expertise in the seismic world has his phone ringing constantly. Of course, with all his various endeavors, he simply only takes those jobs he wants. He cherry picks.
He has somewhat of a disadvantage, in that he carries insurances such as E&O and a number of other costs which constitute overhead. However in the balance with all things, his "moonlighting" is a small part of his income which leaves him with low ratio of gross income to overhead. In addition, he is in a tax bracket which means his "extra" profit is generally re-invested for tax liability purposes.
My friend is a bright man. I harbor no jealousies, only admiration. Even though we could be considered competitors, I would have no problem referring work his way should the situation arise.