Advisory Opinion 96-08-1148

Board of Ethics/Post Employment Restrictions

ISSUE: WHETHER COUNTY EMPLOYEES SUBJECT TO A REDUCTION IN FORCE MITIGATES APPLICATION OF THE CODE'S POST-EMPLOYMENT RESTRICTIONS?

Opinion: Under limited circumstances, former county employees subject to a reduction in force, and whose positions are eliminated from a county department or division, may work for their former agency. These circumstances include working as a subconsultant or subcontractor; working as an extra-help or temporary project employee provided that the hourly rate of pay does not exceed the former employee's hourly compensation; or, working as an independent consultant to the former agency provided that the hourly rate of pay does not exceed an hourly compensation based on the salary and benefits of the former employee.

Statement of Circumstances: The Board of Ethics has been asked to clarify the application of the post-employment restrictions contained in K.C.C. 3.04.035(B) and (C) to county employees who lose their positions as a result of a reduction in force.

In Advisory Opinion 1090, the Board underscored that the intent of these sections 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. The post-employment restrictions are specifically intended for former county employees who exercised discretionary judgment and participated in county actions, and continue to apply without mitigation. With regard to the specific application of these restrictions to employees affected by a reduction in force, the Board renders this advisory opinion.

Analysis: There are limited circumstances in which a former county employee, whose position has been eliminated through a reduction in force, may work on behalf of a former division or department within the one-year restricted period. These circumstances include situations where:

1. A former county employee may come back and work as a subcontractor or subconsultant to a former department, as long as the former employee was not personally involved in any action which may give him or her an advantage over others (Advisory Opinion 1062). However, a former employee may not come back as a consultant or contractor within the one-year period.
2. A former employee may be hired as an extra-help employee by the former department provided that the pay range does not exceed the former employee's hourly compensation before the reduction in force.
3. A former employee may be hired as a temporary project employee for a specific project of specified duration provided that the pay range that does not exceed the former employee's hourly compensation; or,
4. The former employee may be hired as an independent consultant, e.g., is working on his or her own behalf and not on behalf of another person, or assisting another person, and the former employee's hourly compensation does not exceed a combination of their salary/wages and benefits while a county employee. For example, a former county employee worked 40 hours a week, earned a salary of $35,000, and had a benefit package totaling $10,000. If the annual salary is added to the benefit total, then divided by the number of full-time hours worked, 2080, the hourly rate of pay would be $21.63 ($45,000 ' 2080).

These guidelines would remain in effect for one-year after a former employee's position is eliminated as a result of a reduction in force. The guidelines maintain the legislative intent of the post-employment restriction which is to ensure that former county employees do not achieve a personal benefit, competitive advantage, or financial gain by virtue of their previous employment with county government. The guidelines apply only to those employees affected by a reduction in force, and do not apply to employees who may leave their county positions for other reasons.

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: Roland H. Carlson, Acting Chair

Members:

Roland H. Carlson, Acting Chair
Rev. Paul Pruitt
Dr. Lois Price Spratlen

RHC/mag

cc:

Gary Locke, King County Executive
Metropolitan King County Councilmembers
David Krull, Director-Ombudsman, Office of Citizen Complaints
Robert I. Stier, Senior Deputy Prosecuting Attorney and Counsel to the Board of Ethics
Department Directors and Division Managers