The Designer Who Also Sat on the Committee
A registered designer sits on a municipal committee that advises council on development matters. The designer's firm is retained by a developer to prepare building permit drawings for a 120-unit residential project. At the same time, the designer is asked by the committee chair to provide an informal opinion on a neighbouring developer's application, which competes with the designer's client for the same servicing capacity. The designer prepares a short memo for the committee criticizing the neighbouring application's stormwater design, without disclosing the retainer. The neighbouring developer's consultant later learns of the memo and complains. Separately, the designer's firm has been asked by the municipality to review a third project as a peer reviewer, and the firm's principal asks whether the firm can accept both the peer review and continue acting for the first developer.
1. Analyse the conflict of interest in the memo. What should the designer have done?
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This is a textbook undisclosed conflict.
The designer had a direct pecuniary interest in the outcome: their client competes with the neighbouring developer for servicing capacity, and an adverse opinion on the neighbour's stormwater design could advantage the client. Providing that opinion to a committee that advises council - without disclosing the retainer - is a failure on several fronts:
- Duty to the public interest. A designer advising a public body must give objective advice. The memo presented as neutral analysis was, in substance, advocacy for a client.
- Disclosure obligation. The minimum step was to disclose the retainer to the committee chair and either recuse or give the opinion with the conflict clearly stated and the committee able to weigh it accordingly.
- Fairness to the neighbouring developer. The neighbour had no notice that its submission was being assessed by a party with an adverse interest.
- Integrity of the committee's advice. Council may have relied on a tainted opinion.
What should have happened:
- Disclose the retainer in writing to the chair before doing anything.
- Decline to provide the opinion, or provide it only with a full written disclosure and an invitation to the committee to seek independent advice.
- Keep the client's file and the committee role separated - no use of committee information for the client's benefit.
Remedy now: withdraw the memo, disclose the conflict to the committee and to the neighbouring developer, and support an independent review of the stormwater question. Concealment would compound the problem.
2. Can the firm accept the peer review of the third project while continuing to act for the first developer? Identify the tests and the answer.
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It depends on the relationship between the projects, but the default answer is 'not without a rigorous screen and full disclosure.'
Tests to apply:
- Direct adversity. Is the third project competing with, adjacent to, or otherwise connected to the first developer's project? If yes, the firm cannot review it - the firm's judgment would be compromised and the appearance of independence destroyed.
- Confidential information. Does the firm hold confidential information from the first developer that is relevant to the third project (servicing strategy, phasing, cost assumptions, negotiation positions)? If so, a screen is required, and in a small firm a screen may be impossible.
- Public perception. A peer reviewer must be, and be seen to be, independent of the applicants whose work it reviews. A firm with an active developer client in the same market may fail this test even where the projects are unrelated.
- Consent. If the conflict is waivable, the municipality and the affected parties must give informed consent in writing.
Likely answer: the firm should decline the peer review unless it can show the projects are unrelated, no confidential information crosses, an effective screen is in place, and the municipality consents after full disclosure. In a small firm, the practical answer is to decline. Accepting both and hoping no one notices is the worst outcome - the same error as the undisclosed memo.
3. What should the designer disclose to the municipality regarding the peer review, and what records should be kept?
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Disclosure to the municipality:
- The existence and nature of the retainer with the first developer, in writing, before accepting the peer review.
- Any connection between the first developer's project and the third project (shared servicing, shared consultants, adjacency).
- The screening measures proposed (who will do the review, what information is walled off, who supervises).
- Any prior involvement by the firm with the third project.
- Confirmation that the reviewer will not use information from one engagement in the other.
Records to keep:
- The written disclosure and the municipality's written response or consent.
- The conflict check performed at intake, dated, showing what was searched.
- The screen documentation: file access restrictions, staffing assignments, a signed undertaking from the reviewer.
- The peer review file kept physically and electronically separate from the developer file.
- A record of any advice given and the basis for it.
Why this matters: if the peer review is later challenged, the firm's position depends entirely on what it can show it did at the time. A verbal assurance to a municipal contact is worth little. The record is the defence - and, more importantly, the mechanism that keeps the advice honest.