ADVISORY OPINION 98-06-1159
Natural Resources/Board Member Conflict of Interest

ISSUE: WHETHER AN AGRICULTURAL COMMISSION BOARD MEMBER MAY SUBCONTRACT WITH THE COUNTY AFTER TAKING AN ACTIVE ROLE IN THE DEVELOPMENT OF THE CONTRACT WITHOUT A CONFLICT OF INTEREST UNDER THE CODE OF ETHICS.

OPINION: The Board of Ethics finds a conflict of interest exists in this instance and that the agriculture commissioner be removed from contract consideration. Board and commission members who hold responsible volunteer positions advising the county on substantive issues, must recognize the potential for conflict when private interests and public service overlap. The agriculture commissioner gained a prohibited competitive edge when she took an influential role in the development of a contract and subsequently applied as a subcontractor. Board and commission members must first disclose potential conflicts and then recuse themselves from participation in order to sustain public trust in the way county employees conduct business.

STATEMENT OF CIRCUMSTANCES: The King County Agriculture Commission asks the Board of Ethics to issue an advisory opinion regarding the potential conflict of interest of one of its commission members. Earlier this year, the Commission delegated a subcommittee to develop, together with county staff, a Request for Proposal (RFP) for local marketing and promotion of local farm products. The Commission issued the RFP to the general public and received several proposals. The review committee was made up of Commission members and county staff. During the review process, the committee noticed that one proposal listed a subcontractor who also served as a subcommittee member involved in the development of the RFP. At no time in meetings or during the RFP development did the commissioner indicate an interest in applying. While the review committee did select the main contractor of that proposal, they have withheld a decision on the inclusion of the subcontractor until the Board issues an advisory opinion.

ANALYSIS: Board and commission members, as defined by King County Code 3.04.017(D), are county employees and therefore subject to the jurisdiction of the Code of Ethics. The subsection states in relevant part: "The term ‘county employee’ also includes county elected officials and members of county boards, commissions, committees, or other multi-member bodies . . .."

The Agriculture Commission is a volunteer group created by ordinance in 1994 to advise the council and executive on agricultural policies and programs. The Commission is part of the Resource Lands and Open Space Section of the Department of Natural Resources. The fifteen voting commissioners represent the diversity of the agricultural economy, various agricultural operations, and the regions of

the county. As such, they bring valuable expertise to important matters affecting the county which often relate to their professional lives and personal interests.

Board and commission members, as citizens empowered to make significant decisions and recommendations, are guided by the Code of Ethics to assure the public that their actions shall present no actual or apparent conflict of interest between the public trust and private interest. Recognizing the potential for conflict, the Board of Ethics issued Advisory Opinion 1081, in which it identified a three-step decision-making model to be used when board and commission members wish to avoid potential conflict of interest in the course of their service to the county:

• disclosing potential conflicts of interest in advance to the appropriate department director of division manager;
• publicly disclosing conflicts of interest at board, commission, and committee meetings; and,
• abstaining from participation in discussion or voting on any issue where a conflict of interest may be involved.

Further, the Board cautioned that "These actions should be followed with regard to all major decisions including, but not limited to the consideration of contracts and policy recommendations, even if only advisory in nature." In the present instance, the commissioner failed to disclose to department staff or fellow commissioners her intention to apply for the contract she herself helped develop, nor did she recuse herself from contract decision-making.

In Advisory Opinion 1101, the Board again addressed the issue of conflict of interest by board or commission members and stated clearly:

Mere membership on a board or commission by an industry or business representative would not create a conflict of interest when members often have only an attenuated relationship to the contractual process. It is when a board or commission member participates in decision making and gains, or appears to gain, a competitive advantage through this participation that a conflict of interest arises.

The Code of Ethics subsection 3.04.030(A) provides in relevant part that a county employee shall have a conflict of interest if the employee directly or indirectly receives or has any financial interest in the sale of any service when such financial interest was received or obtained with the prior knowledge of the county’s intentions. The commissioner, as developer of the contract, had a financial interest in the awarding of the contract and possessed prior knowledge unavailable to the public in general. As an insider, the commissioner knew of contract details in advance of the public, took part in privileged discussions, and helped write the specifications, all of which provided this individual with an unfair competitive advantage over all other applicants.

Regarding the development of the proposal which was selected by the Agriculture review committee, County support staff reported the commissioner in question participated only in the development of her portion, and had no part or influence in the overall proposal. Otherwise, the entire selection process would be suspect and convey the same appearance of conflict of interest.

References: King County Code of Ethics, sections 3.04.017(D); 3.04.030(A); Advisory Opinions 1081; 1101

ISSUED THIS ___________ DAY OF _______________, 199__.

Signed for the Board: _________________________.

Dr. Lois Price Spratlen, Chair

Members:

Mr. Roland Carlson
Judge Paul M. Feinsod
Lembhard Howell, Esq.
Rev. Paul Pruitt

LPS/cac

cc:

Ron Sims, King County Executive

King County Councilmembers
Duncan Fowler, Director Ombudsman, Office of Citizen Complaints
Carl Johansen, Deputy Prosecuting Attorney
Richard Tucker, Section Manager, Department of Natural Resources
Steven Evans, Program Administrator, Department of Natural Resources