Advisory Opinion 95-12-1138

Public Health/Outside Employment

ISSUE: WHETHER A COUNTY EMPLOYEE'S PROPOSED OUTSIDE EMPLOYMENT POSES A CONFLICT A INTEREST WHEN PERFORMING WORK SIMILAR TO OFFICIAL RESPONSIBILITIES, BUT FOR DIFFERENT CLIENTELE?

Opinion: The fact that county employees may engage in outside employment which is related to work performed for the county does not necessarily result in a conflict of interest. Conflict of interest concerns result whenever an employee exercises official duties and responsibilities related to an outside activity; or when impartial and independent judgement is impaired; or when it might appear that there is an attempt to obtain special consideration from the county or to influence a county action. If the outside employment activity involves clientele who may also be served by the county employee's agency, the county employee must disclose and recuse from participating in any official actions relating to these clientele.

Statement of Circumstances: An Environmental Health Specialist in the Department of Public Health serves as an in-house consultant to King County residents, and advises on indoor air quality issues. The Indoor Air Quality Program is an unfunded program and serves primarily as a referral agency; however, the in-house consultant may occasionally visit a residential site to evaluate air quality conditions. King County exercises no regulatory authority with regard to indoor air quality. The employee proposes to engage in outside employment for a laboratory where he would serve as the lead indoor air quality consultant. His clientele would be predominantly insurance companies; although, he may do limited work for commercial businesses. He has asked the Board of Ethics whether this proposed outside employment will create a conflict of interest under the Code of Ethics?

Analysis: The King County Code of Ethics limits outside employment when such employment conflicts, or would appear to conflict, with official duties and responsibilities, or when such employment could result in special treatment, competitive advantage, or the enhancement of a private interest at the expense of the public interest. Under K.C.C. 3.04.030(I), a county employee is deemed to have a conflict if that employee:

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.

In this case, the potential for conflict could arise from two sources: the fact that the county employee will be performing the same work for an outside employer as he performs for the county; and, the issue of clientele. The fact that a county employee engages in outside work related to his or her expertise is not a conflict, unless incompatible with official duties and responsibilities, or in circumstances where impartial and independent judgement may be impair. This situation is most likely to arise when the county employee participates in county actions which relate to the conduct of business with an outside employer. The county employee in this instance has no official duties and responsibilities relating to his prospective outside employer, and the outside employer is not listed on any referral list which the employee may provide to the public. The issue of whether clientele might create at least the appearance of conflict is a more difficult. In the employee's official position, he works only with residential clients. As a consultant for the outside employer, his clientele will be predominantly commercial and business clients; although, there is potential for residential work. The Board decided an analogous issue in Advisory Opinion 1127. At question was whether a county employee could engage in outside employment as a consultant to permitted industries while he also served as an in-house consultant to the county's Industrial Waste Section? As an in-house consultant, the employee provided advice on pretreatment equipment to permitted industries. In this opinion, the Board allowed that:

The county employee may either engage in official duties relating to permitted industries, or work as an independent consultant to permitted industries. He may not do both without incurring a conflict of interest.

The same standard would apply to this issue. The employee may serve as a consultant to residential clients in his official position, or as a consultant to residential clients for an outside laboratory, but he may not do both. He must also disclose and recuse from participating in any county action with regard to any clients he has consulted with as a result of his outside employment.

While any potential conflict of interest issues in this request have been satisfactorily resolved, the Board is increasingly concerned about the ability of full-time county employees to engage in outside employment without violating K.C.C. 3.04.020(A). This subsection provides that:

No county employee shall request or permit the use of county-owned vehicles, equipment, materials or property or the expenditure of county funds for personal convenience or profit. Use or expenditure is to be restricted to such services as are available to the public generally or for such employee in the conduct of official business.

Employees who may engage in outside employment without incurring a conflict of interest, must also meet their obligations under K.C.C. 3.04.020, and safeguard against the use of public property for personal convenience or profit.

References: King County Code of Ethics, subsections 3.04.020(A) and 3.04.030 (I), Advisory Opinion 1127.

ISSUED THIS ___________ DAY OF ___________________, 199__.

Signed for the Board: Timothy G. Edwards, Chair

Members:

Timothy G. Edwards, Chair
Rev. Paul Pruitt
Ron Carlson
Dr. Lois Price Spratlen

TGE/mag

cc:

Gary Locke, King County Executive
King County Councilmembers
David Krull, Director-Ombudsman, Office of Citizen Complaints
Dr. Alonzo Plough, Director, Seattle–King County Department of Public Health
Robert I. Stier, Senior Deputy Prosecuting Attorney and Counsel to the Board of Ethics
Carl Osaki, Chief, Environmental Health Division, SKCDPH
Wallace Swofford, Supervisor, Chemical and Physical Hazards, Environmental Health Division, SKCDPH