Advisory Opinion 94-4-1092
Public Health/Contracting with Department

ISSUE: WHETHER AN EMPLOYEE RESPONSIBLE FOR WRITING, DESIGN, AND DESKTOP PUBLISHING WORK MAY ALSO CONTRACT WITH HIS OR HER OWN DEPARTMENT TO PERFORM THOSE SAME SERVICES?

Opinion: The Board of Ethics finds that when an employee attempts or appears to influence the award of a contract by virtue of his or her County employment, there is a clear perception that independent judgement and action have been impaired. Furthermore, the awarding of a contract to a County employee for the same type of work performed in an official capacity could result in a conflict of interest under the Code of Ethics. In this instance, the Department should end the contractual relationship with the employee.

Statement of Circumstances: Prior to becoming a King County employee, the employee responded for a solicitation for proposals to provide writing, design, and desktop publishing services to the Department of Public Health. The employee's proposal was selected through a competitive process. Shortly after receiving the contract, the employee accepted an offer of employment from the department to perform this same type of work, but on a different project. The department anticipates a request from the employee to renew or award a reissued contract. The Board of Ethics has been asked to determine whether the employee may continue to contract with the department without incurring a conflict of interest under the Code of Ethics?

Analysis: The intent of the Code of Ethics is not only to prevent situations which could lead to a conflict of interest, but to also prevent actions which could be perceived as impairing the standards of impartial decision-making and the exercise of independent judgement. In this particular issue, the employee's official responsibilities as a County employee appear to be primarily of a ministerial nature; however, the employee is also, in his or her contractual role, a participant in a County action. The County action is the award of a contract. In addition, the employee is being compensated by the County in an official capacity, i.e., as an employee, and also on a contractual basis for providing writing, design, and desktop publishing services.

Under these circumstances, the employee could incur a conflict of interest under section 3.04.030 (E) of the Code of Ethics which provides that a conflict of interest shall be deemed if the employee directly or indirectly:

Participates in, influences, or attempts to influence, directly or indirectly, the selection of, or the conduct of business, or a transaction with a person doing or seeking to do business with the county if the employee has a financial interest in or with said person;

To a reasonable and prudent person, the contractual arrangement between the department and the employee creates a situation which gives the appearance of impairing the independent decision-making process with regard to a renewed or reissued contract. Although the employee may not be directly attempting to influence his or her selection to receive a renewed contract, the fact that a contract could be awarded to a County employee for the same type of work performed in an official capacity clearly creates a perception of unfair advantage.

References: King County Code of Ethics, section 3.04.030 (E).

ISSUED THIS ___________ DAY OF ___________________, 199__.

Signed for the Board: Dr. J. Patrick Dobel, Chair

Members:

Dr. J. Patrick Dobel, Chair
Timothy Edwards, Esq.
Rev. Paul Pruitt

JPD/mag

cc:

Gary Locke, King County Executive
Metropolitan King County Council Members
Susan Baugh, Director-Ombudsman, Office of Citizen Complaints
Robert I. Stier, Senior Deputy Prosecuting Attorney and Counsel to the Board of Ethics
David Lurie, Director, Department of Public Health
Emiko Mizuki, Support Services Manager, Department of Public Health
Department Directors and Division Managers