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<Scott Cullen>
posted
Following the various industry forums, one can find a fairly frequent debate that revolves around the interaction - or perhaps even conflict - between an environmental ethic or "green" ethic and business practices or other applicable duties and ethics. Examples include the "Liberty Tree" [ http://tree-tech.com/board/?topic=topic2&msg=1042 and http://tree-tech.com/board/?topic=topic2&msg=1056 and
http://tree-tech.com/board/?topic=topic4&msg=305 ] and "Christmas Tree" [http://tree-tech.com/board/?topic=topic13&msg=52 ] threads on Knothole and the "Original TPO" and "Trees vs Development" (type) threads on UKTC [ http://www.oak-wood.co.uk/uktc/ ]. While this has been addressed before [ e.g. http://tree-tech.com/board/?topic=topic13&msg=14 ], it deserves another look.

Many arborists are passionate about the environment in general and trees in particular and are to be admired - or at least respected - for their commitment and ethical behavior in that regard. An over-riding environmental ethic may someday become incorporated into our general societal ethic... on a par with "thou shalt not kill" or "thou shall not bear false witness" or "love thy neighbor as thyself." But as we enter the millenium, that is not the case generally. Private property rights are the rule. And, even for arborists there are other duties, ethics and rights which mean that trees are not always the primary consideration.

People have rights, established and limited by law, to use and enjoy their property. Businesses have the right to serve property owners in a responsible fashion. It is interesting that the ISA Code of Ethics (1992) [http://www2.champaign.isa-arbor.com/AboutISA/ethics.html ] provides that members shall "Hold paramount the safety and health of all people and endeavor to protect property and the environment in the performance of professional responsibilities." Note that the environment is the last in sequence.

Consultants - particularly when they function as experts in the courts - have very particular duties. The facts and independent and objective inquiry are paramount. Dealga O'Callaghan points out in a UKTC thread 01/05/00 that these duties are clearly set forth in Part 35 of the Civil Procedure Rules [http://www.open.gov.uk/lcd/] and the Academy of Experts in the UK. In the US the Federal Rules of Evidence [http://www.law.cornell.edu/rules/fre/overview.html], the Federal Rules of Civil Procedure [http://www.law.cornell.edu/rules/frcp/overview.htm] and various Federal District and state court rules apply. For ASCA members the ASCA Code of Ethics and Standards of Professional Practice apply.

Every individual is entitled to (morally sound) beliefs. Every individual is free to avoid activities which conflict with their own beliefs. If you believe that cutting down trees is wrong you can exclude tree removal from your practice. If you believe that cutting down trees is wrong you can advocate that belief and try to get the rest of the world to agree with you. But under the value and belief systems that exist today, other arborists may hold different views and also be practicing ethically. Experts may share some of your beliefs but recognize that there are other beliefs or duties - that are not inferior to yours - that guide their practice.

I think the point here is that indignation and outrage should be reserved for undeniably "bad" acts and that the industry and the environment are both served by informed practice and discourse. Get the facts, undertsand them, use them. Use them to change things if you believe that's needed. But useful judgments of ethical behavior must look to established belief systems. The "Catch 22" of holding your own personal ethic out as superior is that the opposite view can do the same thing.
 
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<Russ Carlson>
posted
Reply to post by Scott Cullen, on January 06, 2000 at 07:44:36:

The issue here seems to really be the confusion between what I will call professional ethics and personal ethics or beliefs. A personal ethic might include the belief that cutting trees down is wrong, for whatever reason. But that should not misconstrued as a professional ethic that is shared by others of the same profession.

Understanding the difference is important in knowing how to deal with situations involving these ethics. At the least, each individual should be aware of the difference of opinion on these issues, and whether they really are professional or personal. And the individual may have to decide if personal beliefs will unduly influence his conduct. If so, then perhaps disclosure of the difference in beliefs is necessary, or maybe simply refusing the assignment is best.
 
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<Scott>
posted
Reply to post by Russ Carlson, on January 06, 2000 at 07:44:36:

Yes Russ, I think you've hit the nail on the head. I'll add another bit to the discussion. My interest in exploring this was not because of or to suggest that either (or any) position is "right" or "wrong" or "inferior" or "superior." It was to foster an understanding of "ethical" and "unethical."

Ethics are beliefs or belief systems. Ethical behavior follows a belief, unethical behavior violates it. So for something the be "unethical" it must be a violation of belief. If you violate your own beleif you are unethical. If I violate mine I am unethical. If either of us violate commonly held beliefs we are unethical. If our beliefs are not commonly held with society or ISA or ASCA or whatever and we differ personally in our beliefs, am I unethical if I violate your belief but not my own? Are you unethical if you violate my belief to follow your own?

That's why organizations like ASCA develop "codes" of ethics.
 
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<Dealga OCallaghan>
posted
Reply to post by Russ Carlson, on January 06, 2000 at 07:44:36:

Russ you are right. However, refusing the assignment is a 'cop out' and a luxusry we are not allowed in the UK. As Scott pointed out and I have stated in the UKTC debate, we are bound by part 35 of the Civil Procedure Rules.

In Britain, when we act as experts, our over-riding duty is to the Court, not to any party to the proceedings. With that duty understood, we are bound to produce all evidence, of whatever nature, within in our reports - so if a person feels cutting trees is wrong he/she can include that, with justification in their expert report without any negatives attaching.

Part 35 also gives to Court the Power to appoint a Single Joint Expert to assist it to eliminate the need for a plethora of experts. The Court also makes the point that an expert hired by a party to rebut another expert is ipso facto not an expert but a rebuttal witness.

I hope this assists the debate.
 
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<Russ Carlson>
posted
Reply to post by Scott, on January 06, 2000 at 21:57:40:

If we follow this line of thought to its conclusion, then we are all unethical all the time, since someone, somewhere holds an opposite belief.

The key to understanding this is the priority of the belief systems, and deciding which must take precendence. Although I may personally believe all old trees should be preserved, my belief must defer to the professionally accepted ethic that removal is warranted in some cases. I must then use judgement to decide how much my personal belief can be allowed to influence the professional ethic.

This also pulls into consideration the obligation of trust (ASCA Standards of Professional Practice 3.7, Primary Duties- Public Trust). Your client expects you to adhere to acceptable practice, not just personal beliefs.

This whole issue is not easy to resolve, and there are no clear and decisive answers. But that is why we have the SPP, to serve as a roadmap for finding our way.
 
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<Dealga OCallaghan>
posted
Reply to post by Russ Carlson, on January 07, 2000 at 12:28:42:

I agree with you Russ. The accepted Professional Ethic of our representative organisations is the way to go. Over here in the UK if one is giving evidence as an expert, one has to sign a declaration, part of which states: -

"I further understand that should the Court decide that I have not been independent in my views, I can be reported to my professional organisation"

The issue goes further in that the key case over here about professional negligence was one of medical negligence, when the judge in his decision stated that: -

"A person cannot be held guilty of negligence if he has followed a procedure that would normally be recommended by a reasonable body of medical men skilled in that particular procedure. It matters not that there may be an minority opposing view."

Significantly the judge went on the say: -

"The applies equally to all other professions. It is recommended therefore that professionals should follow the recommendations contained in specilaist publications of their respective professional organisation, for example ...."

Our Courts have decided that the recommendations and publications of the respected professional organisations are the guidelines. Which raises an interesting problem about such matters as topping trees - can any of us cite a professional publication that recommends it or states that it is good practice? I already know the answer - but does this not put the arborist who recommends it at risk of a professional negligence suit?

In case you are wondering why I mention this, there is a school of thought over here that thinks if you top out trees, you cause them to use less water and thus their effect on soil movement, that can lead to foundation damage in buildings can be controlled!! No I am serious really.
 
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<Scott Cullen>
posted
Reply to post by Dealga OCallaghan, on January 10, 2000 at 10:23:38:

Dealga, you touch on a number of issues. I'll try to separate them.

ROLE. I think it is important to distinguish the role in which an individual is acting. As you point out, in UK practice "expert" has a particular meaning in the context of CPR Part 35.2. Here in the US, "expert" may mean a testifying expert in a court setting and there are likewise particular duties and ethical reponsibilities. But here, "expert" may have other connotations. Lew Bloch pointed out in an earlier thread that the state of MD licenses him as a "tree expert." So it is not the label that matters, it's the ROLE and the particular duties and freedoms that attach. The ASCA SPP explicity distinguishes roles and duties. An ASCA member may properly practice as an Advocate, taking sides and departing from the duty of Impartiality. But the Advocacy Role MAY NOT be combined with the Forensic Expert or Appraisal Roles. The duties which attach may vary if an individual is acting as a consultant or a contractor. There are many individuals who do both, thogh not necessarily at the same time.

PROFESSIONAL vs. TRADE. Notwithstanding all the hype in the industry about Professional Arborists, there is a real difference between a Professional - with a capital "P" - and a tradesperson or businessperson. There are differences between Professional and Commercial standards of care. There's an earlier thread that goes into more detail.

TOPPING, STANDARDS and BREACH. This is not quite so clear cut as it might seem. The literature is clear on the negative impact of topping. This is not cutting edge information and should be widely known and understood by any competent arborist - wearing a trade hat or a professional hat. So it would seem clearly improper to represent that topping is not at all detrimental to a tree when the facts are clearly at odds with any such representation. And if an individual is publically judged by the consensus standard it's unethical. Probabaly fraudulent. But if the individual says to those concerned, "topping will damage this tree, it will make it unsafe ultimately, maybe within 10 years... but we can top it now, putting light on your garden and plant a replacement tree over there where it won't shade the garden, let it grow into the space and take the topped tree down within 10 years," has there been any misrepresentation? Has a service been rendered? Can a case be made that the service was in the public interest as well, keeping part of the canopy longer and minimizing visual impact? Or say a tree is topped to make the child day care center under it safe for the five years before the center is to be retired and the grounds turned into a wildlife refuge, the tree into nesting habitat. These might fall into the area of controversy that Peter Torres described as 'esthetics" in an earlier thread. Topping is not good practice IF long term tree retention and landscape performance are the goal. There is a real difference to be made in managing a resource with a plan and stepping outside standard practice with a medical patient or a legal client. Society imposes higher duties and narrower ranges of tolerance because of the nature of what is being protected and the greater vulnerability of the person placing trust in the professional.
 
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<Dealga OCallaghan>
posted
Reply to post by Scott Cullen, on January 10, 2000 at 14:23:27:

Scott

I agree with much of what you say and the separations you have attempted. However, in the UK, we cannot act as advocates, we can only be expert witnesses or witnesses of fact. The main role I play in Court Proceedings is that of an Expert and as a Single Joint Expert more frequently. Therefore, the CPR Rules apply fully at all times.

I conceed to your examples of topping, but clearly what I was getting at is the false premise upon which topping is n=based over here, i.e. it will reduce water loss through transpiration and thus less moisture is lost from the sil therefore the amplitude of movement of a clay soil is lower, therefore my foundations will move less, therefore the crack in my masonary will not get any larger.

Now we all know this is absolute "BullS**T" but the problem arises when a home owner claims against the Municipality beacuse a highway / stree tree is implicated -the response of the City Council is go top all the trees, then we can be seen to be doing somthing and thus our liability is reduced. The trees remain in the streets with little thought given to the problems that can arise from topped trees later on. Given that one would have to remove a minimum of 50% of the crown to have any effect, however slight, well you can figure out the problems.

The Court decision I referred to did empahsis that the organisation had to be a Professional one, i.e one that is Chartered, not just an 'ad hoc' body set up and given a name. Chartered Institutes carry a lot of weight over here and that is why the arborists are working towards becoming a Chartered Institute. This would have the effect of elevating Arboriculture to the highest professional ranks - but I fear much of our industry is not ready for that yet.
 
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<lewbloch>
posted
Reply to post by Dealga OCallaghan, on January 10, 2000 at 14:57:43:

Speaking of topping, and tree law, there was a case (to be in my book) where the court accepted testimony from a "tree surgeon" that the standard method of preventing Eucalyptus trees from becoming a hazard is to top them, and he performed this service to clients 10-15 times a year. GO FIGURE, HUH!
very treely,
Lew
 
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<Scott>
posted
Reply to post by Dealga OCallaghan, on January 10, 2000 at 14:57:43:

You missed my point on "experts," I think. The role you are describing is that of an "expert" as defined by CPR 35.2. The duties are clear. I don't believe that the duties of an expert testifying in court here in the US are that different. Advocacy is NOT proper in this role. What I was trying to make clear is that consulting arborists do many things besides court work. And your duties may not be the same in those other roles.

Advocacy is NOT proper working in an appraisal role. This is true in an ASCA context and under the rules of every appraisal organization I have reviewed. It is reflected in Federal and State laws. Advocaying is NOT proper whenever a consultant represents him-herself to be Impartial.

But Advocacy may be proper in other roles. Say you as a consultant are hired to lobby for the preservation of a certain tract of woods. You have the knowledge and the presentation skills to be convincing. Well then, that's your job. You may depart from a duty to be Impartial. This is not to say you can be untruthful or distort facts.... you still have a duty of Public Trust.

As to topping, I understand the particular mis-use... or at least poor management... of topping vis-a-vis subsidence. That is a very specific set of circumstances that has very widespread implications. But it seems to me that knowledge is the key... not the creation of so called ethical breaches which encumber responsible management.

As to Chartered status, I wonder if it makes sense to charter an entire industry which really is a trade. I'm not sure that the entire working base has the qualifications to carry out the responsibilities, nor that the duties which attach are in the best interest of a commercial, contracting enterprise. It may make great sense to created a professional or chartered tier for "consultants" or resource managers or other decision makers. I think the analogy is that professional engineers design skyscrapers and construction companies build them. The steeple jacks run around on high steel and operators run the tower cranes to get the job done. Would you chater them all?
 
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<Dealga OCallaghan>
posted
Reply to post by Scott, on January 10, 2000 at 17:45:12:

The issue of Charter is important over here. The idea is not to Charter the whole industry, that could not be done as many are contractors. It is the consulting / consultant area that it is aimed at.

Our client base in UK Consulting are all chartered institute members, i.e. RTPI, RIBA, RICS, ISE, Law Society, etc. In order for consulting arborists to be taken as seriously as Landscape Artichokes, we need the Charter and, as harmonisation of European Legislation proceeds it is becoming more so.

There are about 2,000 or so people operating in a consulting capacity and these need the succor of a Chartered Institute. It is a natyral progression and outside the remit and ability of the Arboricultural Association and or the ISA Chapter. It would in effect be a PA of the Chapter, but Chartered in its own right.
 
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<Scott>
posted
Reply to post by Dealga OCallaghan, on January 11, 2000 at 06:37:56:

As long as I've been around this industry the lament has been "why are we not taken as seriously as the Landscape Architect, or the real estte appraiser or the engineer or whatever, whatever?" "Chartered" or registered or certifed status is one answer. A continuing question is whether the arborist community is ready to satisfy similar education, training and supervised experience requirements. Whereas LAs, engineers, lawyers, etc. have mandatory and rather uniform degree requirements and advanced qualification examinations for government or private organization registration, arborists remain largely self-educated and certification levels are typically of minimum competence. How will a chartered scheme address this issue?
 
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<Dealga OCallaghan>
posted
Reply to post by Scott, on January 11, 2000 at 12:57:43:

Scott

We will be taken seriously when we start insisting upon it. I can't speak for the US, but over here, because of or Legal Framework, arborists are often in the 'driving seat'. The other professions cannot do without us - up to now its been up to the individual arborist to throw their weight around such that the others begin to listen. The only way to do that short term is to learn the language. We must learn to speak 'Surveyor'/ 'Real Estate'/'Planning'/'Builder'/'Engineer' etc.

The key lies in a simple psychological approach developed by Maslow & McGreggor. They produced a hierarchy of need for the human condition. Levels 1 to 4 deal with necessities, i.e. food, shelter, security, belonging etc. In order to talk with people and not be seen to be talking down to them, you have to get them to Level 4 or above - then you can talk to them on an even playing field and you will get a response. Hence learn to put arboriculture across in the other languages.

As to Chartered Status, you raise a number of points. The first one I will address was the last point you made. How will Chartered Status help? See the preceeding paragraph. If we are Chartered, then we have levelled a lot of the playing field before we start. Arborists and their professional clients are both chartered - this will make things easier.

What you say about the other professions is largely true in terms of examinations etc. However, this is an essential part of being chartered and I don't see why arboriculture should be different. Its like saying arboriculture is an exception to normal business practice because we work with trees. No its not!! Therefore, if we continue down the chartered route, we have to develop those same standard examinations, professional practices etc. otherwise we may as well not bother. It's not impossible, (actually it is very possible), as there is a BSc(Honours) Degree available in the UK in arboriculture. This is currently available at Myerscough College either as a full time programme or a part time one. As of next year it will be available via the I/Net. Myerscough and Clemson are developing this jointly. With a Primary Degree Qualification availabale, another major stumbling block to charter goes. Development of Professional Practices is also ongoing and with that will come the full Chartered Status. We in the UK are going down this route very fast indeed and will get there - the US will have to follow, or at least the Consulting Sector will.

Part of the requirement is in place and in the mind set already through the ISA Certification Programme - it requires CEUs, these are mandatory. True its not degree level but it is a start and in the mind set - taking it further will not be difficult. Those that are poorly qualified or self eduatced will be provided with a number of routes to higher qualifications from their own offices or places of work - its all there for the taking. But if we don't take the opportunity, we may as well pack up and go home and let arboriculture die as a Bona Fide Profession - I'm not for that.
 
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<Scott>
posted
Reply to post by Dealga OCallaghan, on January 11, 2000 at 19:53:59:

"The first one I will address was the last point you made. How will Chartered Status help?" Well, that's not exactly what I said. I agree with you that an advanced status (chartered, registered, certifed, whatever) can only help. But may question was "How will a chartered scheme address this issue [educational disparity between the typical arborist and the typical chartered professional)?" I very much agree with your next paragraph. We must get educated and set the highest standards of achievement. We CANNOT say "well we don't need all that paper stuff because we deal with trees, it's different." But for every complaint about not being taken seriously there's a protest about having to sit in a classroom or learn how to read statutes or ethical codes. I'd guess the biggest hurdle in getting acceptance of a chartered program - unless it's imposed from above - is the fear of the current lot that they will get left behind unless they meet new standards they are likewise fear they cannot meet or maybe don't have the energy to meet. The usual solution is "grandfathering" in the old lot. My thinking on that has evloved to a position that (using buzzwords together) the grandfather clause should be encumbered by a "sunset" clause. In other words current practitioners have x years to get up to snuff. The older group can comfortably practice to retirement if it's something less than x years away. The younger group have a comfortable period to get up to snuff. And those on the cusp must figure uout if they want to retire early or get an education that may not get fully amortized. The CEU-CPD substitute for a degree is a good one and nothing wrong with retroactive recognition of documented units IF the demonstrable quality and ability to perform are to the same standard. But the impact of the whole effort is diminished if the bar for the chartered arborist is significantly lowere than for those you want to be considered on par with... RICS, Landscape Archcitects, PEs whatever.

You're also right. We have to learn to talk the talk and walk the walk. Architect speak and engineer speak and developer speak and planner speak. And truth be told some of that is pure windowdressing. Some of the presteige of those other professionas is a carefully cultured and hollow mystique. But they've made it work and if you are going to play the same game you've got to recognize it and follow the rules you can't change.
 
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<Dealga OCallaghan>
posted
Reply to post by Scott, on January 12, 2000 at 13:06:42:

Bingo! you have got the situation right with one exception - chartered status does not allow 'grandfather clauses' However, the organisation that adopts it can. Say the UK/I Chapter represnts us antakes the charter, the it could say "we are going for charter and it will take X years" that's the nobel compromise.

Bear in mind also that 'chartered status' is really only essential for the consulting sector. The other sectors can aspire to it and achieve it if they like, but it is not as relevant to the commercial arborists - see your analogy between architects and engineers and the construction industry.
 
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