Advisory Opinion 95-02-1118

Safety & Claims/Post-Employment Restriction

ISSUE: WHETHER A PROJECT MANAGER WHO DEVELOPED THE COUNTY'S DRUG AND ALCOHOL TESTING PROGRAM MAY COME BACK AND CONDUCT DRUG AND ALCOHOL TESTING AS AN INDEPENDENT CONTRACTOR?

Opinion: The Board of Ethics finds that an employee who acted as a project manager for the County's Drug and Alcohol Testing Program may not come back to conduct drug and alcohol testing for the County, either as a contractor or subcontractor, within one year of leaving County employment. During this period, the employee could not compete for a contract to perform testing, nor could the County offer him such a contract.

One of the primary purposes of the post-employment restriction is to ensure that former employees do not gain an unfair competitive advantage over other citizens in conducting business with the County. In addition, the restriction ensures that no County employee will derive a financial benefit as a result of County service in the public interest.

Statement of Circumstances: The project manager for the King County Drug and Alcohol Testing Program is a temporary employee assigned to the Safety and Claims Management Division. As a project manager, the employee drafted County policies and procedures relating to drug and alcohol testing, developed training criteria for County management and employees, coordinated training sessions, and prepared and distributed informational materials about the program to affected employees, unions, and department directors.

Upon completion of this project, the employee would like to establish his own business to provide mobile on-site specimen collections and breath alcohol testing, and would contract his services to employers subject to Department of Transportation regulations for drug and alcohol testing. One of these employers would be King County. The employee has asked the Board of Ethics whether he would have a conflict of interest under the Code of Ethics under these circumstances?

Analysis: In Advisory Opinion 1019 the Board considered whether temporary employees were subject to the Code of Ethics, and also whether post-employment limitations were applicable. At that time, the Board concluded that temporary employees were subject to the Code, and that post-employment restrictions therefore applied. The Board further determined that many temporary employees are responsible participants in County actions. That is, they are held accountable for decisions; they exercise discretionary judgement; and, they have an ability to control or affect decisions through their influence or make recommendations that are given substantial weight by formal decision-makers.

In Advisory Opinion 1062, the Board reiterated these principles when it considered whether a former temporary employee who had worked for DDES could request a permit from his former division, and expressed concern that employees, including former ones, who occupy or occupied responsible positions may give the appearance of unfair advantage over other citizens when they immediately come back to do business with a former department (K.C.C. 3.04.020 B).

The fact that the employee in this request is a project manager directly involved in the development of the County's Drug and Alcohol Testing Program establishes him as a responsible employee who participates in County actions as defined by the Code of Ethics. K.C.C. 3.04.017 defines "County action" as:

any action on the part of King County, including, but not limited to:
1. Any decision, determination, finding, rule, or order; and,
2. Any grant, payment, award, license, contract, transaction, sanction, or approval, or the denial thereof, or the failure to act with respect thereto. 'County action' shall not include actions of the county's judicial branch but shall include employees of the department of judicial administration.

while the term "participate" is defined as:

. . . to be involved in a county action personally and substantially as a county employee either directly, or through others through approval, disapproval, decision, recommendation, the rendering of advice, investigation, or otherwise.

The employee therefore would be subject to the post-employment restriction contained in K.C.C. 3.04.035 B which prohibits County employees "from attempting to influence for compensation their former departments within one year after termination of county employment." In this particular case, the impact of the project manager's work extends well beyond a single County division or department and he proposes to be involved in testing among those departments which would be directly affected by a program he developed.

Based on this analysis, the Board concludes that the project manager cannot be involved in drug and alcohol testing for King County for a period of one year after he leaves County employment. This would not restrict the employee from conducting testing for other employers affected by the Department of Transportation's drug and alcohol regulations.

References: King County Code of Ethics, sections 3.04.017 (C and J), 3.04.035 (B), and Advisory Opinions 1019, 1062, and 1090.

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
Susan Baugh, Director-Ombudsman, Office of Citizen Complaints
Robert I. Stier, Senior Deputy Prosecuting Attorney and Counsel to the Board of Ethics
Ruben Nieto, Director, Office of Human Resource Management
Tim Drangsholt, Manager, Safety and Claims Management
Gary Kiyonaga, Administrative Services Manager, Public Works
Ron Takemura, Project Manager, Alcohol and Drug Testing Program