Advisory Opinion 95-07-1128

Transit/Conflict of Interest

ISSUE: WHETHER SUBSECTIONS 3.04.030 G AND I OF THE CODE OF ETHICS APPLY TO A COUNTY EMPLOYEE WHO WORKS FOR THE COMMUTE TRIP REDUCTION (CTR) CONTRACT SERVICES SECTION OF METRO AND WHO ALSO OPERATES AN OUTSIDE CONSULTING BUSINESS RELATING TO TRANSPORTATION ISSUES?

Opinion: Based on the information provided, the Board of Ethics finds that the employee would not have a conflict of interest under subsections 3.04.030 G and I of the Code of Ethics. However, to avoid even the appearance of a conflict, the employee should not privately contract with any client for whom she has official responsibility as a Metro employee.

Statement of Circumstances: An employee in Metro's CTR Contract Services Section is funded through a City of Seattle ISTEA grant to create and promote an employer transportation program for business districts and jurisdictions unaffected by the state's CTR law. The employee uses marketing and communications skills to accomplish her work. Although the employee currently works full-time, the grant-funded nature of her position makes it likely that it may be reduced to half-time in the future. In 1992, the employee opened an outside consulting firm to assist employers or local jurisdictions to achieve the objectives of the CTR law, and also to record meeting minutes for planning commissions and city councils. The employee asks the Board of Ethics whether subsections G and I of the Code of Ethics apply to her outside work. These sections provide that an employee shall have a conflict of interest if that employee directly or indirectly:

Within one year of entering county employment awards a county contract or participates in a county action benefiting a person that formerly employed him or her provided, that participation other than contract award may be authorized in a memorandum by the appointing authority following written disclosure by the affected employee and that such authorization shall be filed with the ombudsman and the clerk of the council. (K.C.C. 3.04.030 G)

Engages in or accepts compensation, employment or renders services for any person or a governmental entity other than King County when such employment or service is incompatible with the proper discharge of official duties or would impair independence of judgment or action in the performance of official duties. (K.C.C. 3.04.030 I)

The intent of the CTR Law is to require local governments in counties with the greatest automobile-related air pollution and traffic congestion problems to develop and implement plans to reduce single-occupant vehicle commute trips. While the law is specifically designed to address counties with populations exceeding 150,000, and its major employees-private or public employers with more than 100 employees-counties, cities or towns which adopt CTR plans may enter into interlocal agreements with other jurisdictions or local transit agencies to develop and implement these plans.

Analysis: Based on the Board's review of issues in this request, the Board concludes that subsection 3.04.030 G of the Code would not be violated by the employee. This subsection defines two areas of potential conflict-the awarding of a contract to a former employer, and participation in an action which benefits a former employer. It is the Board's understanding that the employee in this instance has no involvement in the contractual process. Furthermore, while a former employer might benefit from the employee's marketing and promotion of alternative transportation options, this is a general benefit which accrues to the citizens of King County and therefore poses no conflict.

With regard to subsection 3.04.030 I, the employee asks several related questions, including, whether she is considered to be 'working' for a company if she is not paid; whether she has a conflict if she uses different skills than are used in her official capacity at Metro; and, whether she has a conflict if she performs the same kind of work for outside clients, as long as she restricts her outside activities to clients whom she is not contractually obligated to serve as a Metro employee?

An employee may have a conflict under K.C.C. 3.04.030 I even if he or she is not being paid, because this provision of the Code includes consideration of whether an employee 'renders service' for another entity. For example, an employee may serve on the board of a non-profit agency for which he or she is uncompensated, but have an official responsibility for allocation of public funds to that agency. This would be a conflict. On the issue of unrelated work, the Board has issued a number of advisory opinions on outside employment, and has consistently applied the rule that if the nature of the outside employment or service is unrelated to the type of work an employee performs for the County, and if conducted on the employee's own time with no use of County resources, there is no conflict of interest. Therefore, if the employee in this instance records planning or city council meeting minutes, there would be no conflict.

Finally, to avoid the appearance of a conflict, the employee should not contract with any client in a private capacity for the same type of work she is under obligation to provide as a Metro employee. While CTR law benefits all citizens, this type of activity could create the appearance of a conflict because the employee would be receiving additional compensation for work performed in an official capacity.

References: King County Code of Ethics, subsections 3.04.030 G and I. Chapter 70.94 RCW.

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 Councilmembers
Jan Davies, Acting Director-Ombudsman, Office of Citizen Complaints