California Surveyors Forums

Please don't take my comments personal, everybody can do as they see fit, its a free country, I also respect
public employees, many are friends, I hope everybody stays busy working, consulting after retirement.

As for retired private surveyors competing it is not the same because a private sector retiree is not publicly funded, except for social security (if that entitlement is still around).

I have been through a few slowdowns in my time and when you see a Public Employee
or his or her crew moonlighting and you have had to layoff hardworking people with families,
it does leave a mark.

Brian

I don't see a satisfactory resolution to the ubiquitous existence of this endeavor.

I do: Public agency executive boards make a finding that moonlighting by professional employees is contrary to public policy and forbid it as a condition of employment. Those who wish to retain their ability to moonlight need not apply for public agency positions. Done!

Jim,

That is most certainly a valid option.

I have placed the language I posted on the CLSA Legislative Committee's agenda for the March meeting.

Being on the agenda means the Legislative Committee will discuss it as concept. If the committee approves the concept it goes to the Board of Directors for their approval to allow the committee to move forward. If you have an opinion, one way or the other, please let your chapter Director - or any other Director - know your position. It will be sometime in April, at the soonest, before it goes before the Board of Directors.

Lastly, if anyone wants to get more involved please contact the committee chairman, your director, the president etc.

DWoolley

Just for the sake of the discussion - where does the private surveyor who serves as a contract surveyor for a city, county or multiple jurisdictions fit into this discussion? This logic could also extend to anyone performing work for government agencies as a contractor in a private capacity. These are all being funded by the taxpayer too are they not?

For what its worth, we have a strict policy against moonlighting by doing professional work within our county, or performing work which interferes with their normal job performance. But this policy does not extend to an employee performing work outside our jurisdiction, so long as it does not hamper their day to day duties as noted. We also have strict policies in place against use of any county resources for non-county purposes. Discipline up to and including termination of employment is the consequence of not following these policies.

By what right can you tell someone what they can and what they can't do on their own time? Stealing taxpayer resources to do a side job is one thing and it needs to be dealt with harshly, but to tell somebody they can't pick up a small job here and there because you don't like the competition? Is restraint of trade a laudable goal?

Have you considered the consequences of this proposal? If the CLSA represents only the private surveyor's interest, how will that effect its membership? Do you fellows really want to drive a wedge between members? This organization is already hanging on by a thread.

Surveying is a great job. It's the best thing that ever happened to me, but when I see surveyors, public and private, constantly shooting themselves in the foot time after time it makes me wonder if we are all that smart.

By what right can you tell someone what they can and what they can't do on their own time?

By contract. If a prospective employee doesn't like the terms, he doesn't sign on the dotted line. It's really quite simple.

Is restraint of trade a laudable goal?

Not unless it serves a larger public purpose. Professional licensure imposes a very large restraint on trade, but the countervailing benefit of reliable professional work and the concomitant reduction in unproductive legal entanglements has been found to be a net positive. The same claim can be made about prohibiting licensed public employees from moonlighting -- the employees are adequately (if not more so, but that's a different argument) compensated, and the agencies accept responsibility for preventing its employees from undermining a healthy private-sector economy.

This is, has, and remains a controversial topic. I have done a lot of research across the states and it is clear, this topic is most closely associated with the notion of ethics. My comments are not intended to denigrate anyone in the public sector. I had assumed that everyone adheres and embraces the same fundamental ethics and that, of course, is a naive notion. Nonetheless, it is meritorious - and naive.

Because of the nature of land surveying, moonlighting is, perhaps, more convenient. If you have a vehicle, you can do it. Perhaps this business should be predicated upon the concept of business ethics.

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One more to think about.

http://www.pallamaryandassociates.com/a ... f%2Bethics

I am of the opinion an agency person can moonlight if they choose- that's what my proposal says - for the reasons I stated earlier. My issue is when an agency person, working full time, is named in responsible charge on another business Organizational Record. Especially when he isn't there to supervise the work. In fact, the proposal I wrote would have the same negative effect on a private surveyor being on multiple Organizational Records, without a distintinction between public or private.

If the agency person wants to knock out a job or two over a weekend, have at it.

DWoolley

Oops!

http://www.statejournal.com/story/17038 ... eying-case

Here is the case and it involves the private sector:

http://www.courtswv.gov/supreme-court/d ... 1-0074.pdf

From the previous article:

Understanding the Risks
A lot of moonlighters simply don’t know or understand that
they’re playing with fire. They may tell themselves that
they won’t get into trouble if they’re very careful. But they
don’t grasp what many other A/Es have learned the hard
way: you don’t have to make a mistake in order to get sued,
and if there’s a problem on a project, chances are everyone
remotely involved will be brought into the lawsuit.
Moonlighters often fail to practice sound risk management,
even though most projects that involve moonlighting have
limited scopes and budgets and, therefore, a high probability
of litigation. Moonlighters may not have the experience
or resources to evaluate the risks of a potential client or
project. Such jobs often dispense with written contracts,
or may involve highly onerous ones. In addition, young
moonlighters won’t be working with the backup of their
firms’ usual oversight and professional supervision. They’re
on their own.

More serious is the issue of breach of professional ethics
and conduct. If the employee accepts projects that should
have gone to your firm, or if the employee—without your
knowledge—hints to his or her client that the employee is
really working under the sponsorship of your firm, well, you
have bigger problems than a moonlighting staff member.

Put It in Writing
How should your firm handle the issue of moonlighting?
Whatever you do, don’t ignore the matter.
Decide on a rule and educate your staff. Regardless of how
you choose to handle moonlighting, it’s crucial that your
employees understand exactly what is expected of them and
why.
Make sure your firm’s employee manual clearly addresses
the issue. Some firms require their staff to sign a document
indicating they understand the rule and that, with or without
the firm’s consent, the firm has no liability or responsibility
for these services.
If you permit moonlighting, even under strict controls, do
what you can to protect your firm. For example, you might
insist that the outside client acknowledge that the services
are being provided by the individual and not in his or her
capacity as a firm employee, and have the outside client
agree to waive claims against the firm.
You might consider asking your employees to agree to
indemnify and defend you against claims arising from
moonlighting services. While employees are unlikely to have
the resources to defend anyone (much less themselves),
such a document might help underscore how seriously your
firm takes the liability issue. Discuss these options with your
attorney.

For what its worth, we have a strict policy against moonlighting by doing professional work within our county, or performing work which interferes with their normal job performance. But this policy does not extend to an employee performing work outside our jurisdiction

I'd be interested in learning the rationale behind prohibiting moonlighting within the jurisdiction but allowing it outside the jurisdiction. What's different between those two situations that justifies such a limitation?

Jim Frame wrote:

For what its worth, we have a strict policy against moonlighting by doing professional work within our county, or performing work which interferes with their normal job performance. But this policy does not extend to an employee performing work outside our jurisdiction

I'd be interested in learning the rationale behind prohibiting moonlighting within the jurisdiction but allowing it outside the jurisdiction. What's different between those two situations that justifies such a limitation?

Jim, not that I think it is valid or not, the blanket moonlighting prohibition (of any kind, professional services or not) is used to prevent preferential treatment in code enforcement, permitting, processing, etc. ... or just the appearance of such preference.
Often very strictly enforced, even down to babysitting and lawn mowing.

Biting my tongue...

Peter pretty much hit the reasons - its about conflict of interest and preferential treatment issues. As an example, we don't want someone in the mapcheck section to have any influence on maps that they would have a business interest in. If an employee submits work outside our jurisdiction, these particular ethical issues are not in play.

In my personal opinion, if they are doing work outside of our jurisdiction, on their own time with their own resources, that is their choice and right to do so. With respect to whether they are paying all taxes and insurance costs that the responsible practitioner is paying, I think the argument could be made that the bottom end our professional ranks have this problem already, i.e. it is more than just the public guy working on weekends that is part of this particular problem.

The Conflict of Interest portion of the Code of Professional Conduct, Board Rule 476 (b)(4) covers this:

"A licensee, while engaged by a governmental agency as an officer, employee, appointee, agent, or consultant of that agency shall not engage in a professional land surveying business or activity that may be subject to that licensee's direct or indirect control, inspection, review, audit, or enforcement on behalf of that agency, unless the circumstances are disclosed to and approved by that agency in writing prior to such engagement."

Thanks Warren! That is good. I wonder how many agencies issue a letter of permission. I would love to see on!

The employee doesn't need a letter if they are working outside the agency's jurisdiction. The government should not be arbitrary; policy is required to have a legitimate purpose.

It is legitimate for the government employer to prohibit its employees to have a conflict of interest or engage in incompatible activities.

It would be a stretch to say the County of A prohibiting its employees to work in the County of B is legitimate policy.