Advisory Opinion 95-04-1120

Public Health/Post-Employment Restriction

ISSUE: WHETHER A FORMER COUNTY EMPLOYEE MAY BE HIRED ON A CONSULTING SERVICES CONTRACT BY HIS/HER FORMER DEPARTMENT TO CONTINUE PERFORMING HIS SAME DUTIES AND TO TRAIN A REPLACEMENT EMPLOYEE?

Opinion: A systems analyst is considered a responsible employee under the Code of Ethics and is subject to the one-year post-employment restriction. Such employee may not enter into an immediate contractual arrangement with the same County Agency upon terminating County employment because the employee would appear to have a competitive advantage in the contractual arrangement which would result from his previous employment with the County and his access to specialized information.

The primary purpose of the post-employment restriction is to ensure that public employees do not gain an unfair competitive advantage for contracts by virtue of their County service, and that they do not derive direct or indirect benefit from actions or decisions made in the public's interest.

Statement of Circumstances: A systems analyst for the Epidemiology, Planning, and Evaluation Unit of the Seattle-King County Department of Public Health has been employed by King County since 1990. During this time he developed a user-friendly software package-VISTA-to provide statistics needed for community health assessment. While there is widespread interest in VISTA among other public health agencies, the system's complex processing requirements necessitate the development of a new system which the employee would like to pursue as a commercial venture once leaving the County. However, the complexities of the present system require a well-trained individual to assume the employee's former duties and responsibilities, and this cannot be accomplished before the employee resigns his position. The employee requests an advisory opinion from the Board of Ethics to determine whether he can enter into a consulting services contract with the Department of Public Health immediately upon resignation to perform data management tasks, to continue and complete work on tasks already begun, and to properly train a replacement in his former position?

Analysis: In previous advisory opinions relating to potential conflicts of interest, the Board established that responsibility as a County employee is not primarily a function of job title, but of work activity. A systems analyst who designs a software package which assists the County in evaluating community health needs would be considered a responsible employee by the Board of Ethics, and therefore the post-employment restriction contained in K.C.C. 3.04.035 B must be seriously considered in this instance. This subsection of the Code provides that:

All other county employees are prohibited from attempting to influence for compensation their former departments within one year after termination of employment: provided that such prohibition shall not apply to former deputy prosecuting attorneys with respect to their representation of defendants in criminal proceedings; and, provided that such prohibition shall not apply to former career service employees whose termination of county employment is solely the result of a reduction of force due to lack of work, lack of funds, or considerations of efficiency, so long as such former employee does not participate in work related to any application, permit, approval or contract on which, while a county employee, he or she personally participated or acquired information in the course of official duties which is not available as a matter of public knowledge or record. For two years after leaving the county's employ, former employees are required to disclose past county employment prior to participation in any county action.

The primary purpose of the post-employment restriction is to ensure that public employees do not gain an unfair competitive advantage for contracts by virtue of their County service, and that they do not derive direct or indirect benefit from actions or decisions made in the public's interest.

In this particular request, the problems posed by the intended contractual arrangement are not mitigated by the employee's arguments that an immediate contractual arrangement is required to allow for private development of a new software system; that the tasks performed by the employee are critical to the functioning of a County agency; and, that only the employee can perform these tasks with efficiency and accuracy. The Board is extremely skeptical of all claims of indispensability which individuals may use to justify continued financial benefit resulting from public employment. When the employee proposes to continue his work with the County on a contractual basis, he invites the perception that he will derive a greater benefit from a contractual arrangement than by continuing to act as a County employee.

The Board is also concerned about the perception that the employee will benefit from specialized knowledge gained as a result of his County employment. In this instance, it is the Board's understanding that the VISTA software system, and the geocodes it uses to manipulate data, are relational to specific information needed by the Epidemiology, Planning, and Evaluation Unit. Therefore, the systems analyst was able to develop the geocodes and the associated software system only through his employment with the County. The conflict of interest provisions in the Code of Ethics, as well as the post-employment restrictions, are designed to prevent precisely this kind of financial benefit for both County employees and former County employees.

Although this request appears to be analogous to the Board's decision in Advisory Opinion 1079, it is not. That opinion addresses a unique situation and, unlike most other advisory opinions, may not be applied to other situations.

References: King County Code of Ethics, sections 3.04.035 B.

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
Ron Carlson
Dr. Lois Price Spratlen

JPD/mag

cc:

Gary Locke, King County Executive
Metropolitan King County Council Members
Jan Cloonan, Acting Director-Ombudsman, Office of Citizen Complaints
Robert I. Stier, Senior Deputy Prosecuting Attorney and Counsel to the Board of Ethics
Dr. Alonzo Plough, Director, Seattle-King County Department of Public Health
Dr. James W. Krieger, Chief, Epidemiology, Planning and Evaluation Unit, Public Health
Sandra Ciske, Manager, Epidemiology, Planning and Evaluation Unit, Public Health