ADVISORY OPINION 97-11-1157

Professional and Construction Services Procurement Division/Conflict of Interest

ISSUES: 1. WHETHER A CONSULTING FIRM MAY BE SELECTED BY THE COUNTY IF THE FIRM EMPLOYS INDIVIDUALS WHO ALSO WORK FOR OR REPRESENT A NON-PROFIT ORGANIZATION DOING BUSINESS WITH THE COUNTY REGARDING THE SAME PROJECT?

2. WHETHER A CONSULTANT'S REAL OR PERCEIVED BIAS PREVENTS FAIR AND IMPARTIAL EXECUTION OF THE SCOPE OF WORK.

OPINION: The Board of Ethics finds, in this specific case, the appearance of a conflict of interest in both issues. The hostile relationship between the non-profit organization and the affected citizens cast doubt in public's mind whether the consultants would be able to neutrally and impartially conduct the scope of work. Despite the fact that neither the board member nor the employee of the non-profit organization had any involvement in development of the scope of work or the consultant selection process, and despite their willingness to recuse themselves from related issues, the potential for conflict of interest was overriding. Public trust in government actions and decision-making is essential, and therefore, the county should pursue other consultants.

STATEMENT OF CIRCUMSTANCES : Since 1971, King County has pursued a policy to develop a comprehensive public trail system by purchasing and converting former railroad right of way corridors. The Land Conservancy (TLC) is a non-profit organization which purchases land it feels has intrinsic natural resource value, and then sells that land to a public entity. In 1997, TLC acquired a right of way from Burlington Northern Santa Fe Railroad with the expectation that this land would be transferred to King County for conversion to the East Lake Sammamish Trail. In anticipation of gaining the right of way, the County issued a Request for Proposal (RFP) for engineering and landscape architectural design services, and a competitive selection process ensued. Meanwhile, landowners, adversely affected by the right of way, filed suit to halt the conversion. A hostile and untrusting relationship developed between the landowners and TLC and the landowners and the county. Landowners have protested the selection of two consultant finalists because they would employ individuals who were also employees or boardmembers of TLC. Citing conflict of interest and bias, they felt these consultants would be unable to fairly and impartially conduct the scope of work. The King County Professional and Construction Services Procurement Division has requested an advisory opinion from the Board of Ethics on both of these issues.

ANALYSIS: The Board of Ethics has generally held that board membership does not preclude an individual from also working in a consultant capacity for the County. Advisory Opinion 94-07-1101, states: "Membership on a . . . board or commission by business or industry representatives does not in and of itself create a conflict of interest if these members have only an attenuated relationship to the contractual process." Earlier, in Advisory Opinion 1081, the Board offered a decision-making model when board members have potential conflicts of interest, which include disclosure to the county; public disclosure to the board in question; and abstinence from participating in discussion or voting on any issues where a conflict of interest may be involved.

In this instance, however, the Board looked further and discovered a history of mistrust and hostility between the affected property owners and TLC and between property owners and the county. The County's Master Plan scope of work asked consultants to identify trail route alternatives and gather public comment. Although employees or boardmembers of TLC offered to resign their positions or recuse themselves from board action related to the project, the pre-existing relationships cast grave doubt in the public's mind that the consultants associated with TLC would be able or willing to find route alternatives or hear the landowner's comments. The Code of Ethics establishes that public confidence in government is essential and must be sustained by establishing and enforcing rules to assure the impartiality and honesty of officials and employees in all public transactions and decisions. To safeguard this process, and based on concern about the ability of the consultants to impartially and neutrally carry out the scope of work, the Board found the existence of an appearance of conflict of interest and suggested the county seek other consultants.

References:King County Code of Ethics, section 3.04.015; Advisory Opinions 94-7-1101; 1108.

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
Kenneth E. Curl, Contracts Specialist, King County Professional and Construction Services
Procurement Division
Craig Larson, Director, Department of Parks and Recreation
Pearl McElheran, Director, Department of Construction and Facility Management
Vicki L. Beres
Jenny King
Kathy Schroeder
James Aiken