Advisory Opinion 1090
Public Works/Post Employment Restrictions

ISSUE: WHAT RESTRICTIONS DO SECTIONS 3.04.035 (B) AND (C) OF THE CODE OF ETHICS PLACE ON FORMER COUNTY EMPLOYEES?

Opinion: On the basis of these considerations, the Board of Ethics finds that the intent and effect of sections 3.04.035 (B) and (C) is to limit the ability of former employees to influence for compensation their former departments or divisions, or to assist others in influencing departments and divisions, when those former employees:

• Participated in county actions substantially and personally and either directly or indirectly through others through approval, disapproval, decision, recommendation, the rendering of advice, investigation, or otherwise; or when they,
• Were considered responsible for taking a County action on behalf of King County, provided that responsibility is defined as having been held accountable for decisions either formally or informally, and that the employee exercised discretionary power in his or her decision-making.

Former employees may not influence their former departments or divisions for compensation, or assist another person in such action, if they were responsible participants in County actions and when they exercised discretionary decision-making authority. However, the intent of these sections is to restrict former employees from participating or engaging in work activities which would not result in the perception that there was a direct attempt to influence a former division or department. The one-year post-employment restriction is not intended to limit former employees with only ministerial responsibility. All former County employees must disclose their previous County employment for a period of two years.

Statement of Circumstances: An employee in the Department of Public Works has requested that the Board of Ethics provide an interpretation of two sections of the Code of Ethics which relate to post employment restrictions. Section 3.04.035 (B) 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 the public knowledge or public 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;

while section (C) provides that:

No former county employee may assist any person for compensation or share in compensation received by any person on matters concerning which the former employee is prohibited from participating personally. (Ord. 10841 1, 1993: Ord. 9704 5, 1990: Ord. 6144 2, 1982).

The Board is asked to clarify both the intent and effect of these sections.

Analysis: The Board has decided two Advisory Opinions which serve as the basis for an interpretation of these sections of the Code. In Advisory Opinion 1062, a former employee had worked as a Fire Protection Engineer in the Department of Development and Environmental Services (DDES) and was responsible for reviewing automatic sprinkler system plans. Four months after leaving County employment, he asked whether he could submit permit applications for residential sprinkler system plans to DDES. In Advisory Opinion 1080 a former County employee who had performed design review work for a County project wanted to come back and bid on the same project as a subcontractor. In both opinions, the Board considered the former employee's level of responsibility, the extent to which each had participated in County actions, and the extent to which it was likely that each could influence a County action after leaving County employment.

In Advisory Opinion 1062 the Board concluded that employees, including former ones, who occupy responsible positions often possess a level of inside knowledge which could present the appearance of an unfair advantage over other citizens (Code of Ethics, section 3.04.020). This is particularly true when they conduct business with a former department, and when a County action involves discretionary decision-making. In considering whether a former employee could bid on a County project as a subcontractor, the Board concluded that although the former employee had substantially participated in the design review process for the Harborview Project, her participation did not appear to result in an ability to influence a County action and she had not been personally involved in any action which may have given her company an advantage over other competitors. In addition, the former employee was not directly attempting to influence the County for compensation.

The intent of sections 3.04.035 (B) and (C) is not to unduly restrict the activities of all former County employees who might want to conduct business with the County, but rather to maintain the public's confidence that former officials and employees will not derive a direct personal benefit from actions and decisions made while they were public employees. This intent was clearly articulated in Ordinance 10841 which amended section 3.04.035 (B). Although the amendment was designed to mitigate post employment restrictions for career service employees subject to a reduction in force, the amendment did not permit former employees to 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 public record." [Emphasis added]. As in the Board's Advisory Opinions, the amendment explicitly acknowledged that responsibility and participation in County actions were key factors in any decision to apply the one-year post employment restriction, while implicitly maintaining the principle that certain former employees could be perceived as having a competitive advantage in County actions when they conducted business with a former department or division.

References: King County Code of Ethics, sections 3.04.020 (B), 3.04.035(B) and (C); Advisory Opinions 1039, 1062, and 1080.

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 Councilmembers
Susan Baugh, Director-Ombudsman, Office of Citizen Complaints
Robert I. Stier, Senior Deputy Prosecuting Attorney and Counsel to the Board of Ethics
Paul Tanaka, Director, Department of Public Works
Gary Kiyonaga, Administrative Services Manager, Department of Public Works
Department Directors and Division Managers