Advisory Opinion 91-06-1022
KCCMRC#1

ISSUE: WHETHER OR NOT MARKETING RECYCLABLE MATERIALS COMMISSION MEMBERS' DEVELOPMENT OF MARKETS FOR RECYCLED MATERIALS CONSTITUTES A CONFLICT OF INTEREST?

Opinion: The Board believes that the scope of the Commission's influence and level of its involvement means that the Commission substantially "participates" as defined by the Code. Given this level of substantial impact, as well as the fact that by its very constitution, members of the Commission are drawn from organizations directly affected by the Commission's recommendations, the board believes that the Commission should conduct itself with special concern to maintain the fairness and legitimacy of its decisions.

The Board notes that the Commission already demonstrates this concern in its award of contracts by asking members whose organizations might be affected to recuse form deliberations and decisions which affect the organizations.

The Board believes that to ensure fairness of deliberations, equal access to all individuals, impartial judgment in decisions, as well as protecting the appearance of fairness in deliberations and ensuring all vendors equal and fair access on decisions, that this policy should be extended to all major recommendations which the Commission may make which relates to county policies or actions which have economic impacts on organizations employing Commission members.

Consequently, the Board advises that Commission members should recuse themselves from all deliberations, formal and informal, and voting on any recommendations, actions, or decisions which the Commission makes which might affect the economic welfare of the organization with which they are affiliated. Not to do so would constitute a conflict of interest.

Statement of Circumstances: The chair of the King County Commission for Marketing Recyclable Materials has solicited the King County Board of Ethics for an Advisory Opinion regarding possible conflicts of interests involved when members (including venders doing business with the County) sit on the commission which is mandated to develop a market for recycled materials. The Request for an advisory opinion came by way of a letter containing a large number of hypothetical examples designed to solicit advice on the processes for addressing circumstances of conflict of interest when they arise.

Analysis: The Board has read the enabling legislation and listened to the comments from the Recycling Commission's staff and members. The enabling legislation suggests a limited function to encourage markets for recycling products with little conflict of interest implication. In the one area where an obvious conflict of interest might occur - awarding contracts - the Commission carefully insures that individuals whose companies or organizations might be affected by the decision recuse themselves from decisions and deliberations.

However, the testimony of staff and members suggests that the Commission in fact possesses a far wider scope of operation and influence. The Commission develops and makes policy recommendations to King County agencies and the King County Council on a wide variety of policies which can encourage recycling. The Commission, given its expertise, possesses considerable weight and influence in the policy process to the extent that its draft legislation or proposals might be adopted with little revision. Also, the Commission is involved in a very specific level of detail in its recommendations for actions which have significant impact on vendors and consultants doing many members are affiliated. Additionally, the Commission has a sizable budget to support this work and is expected to augment this budget with proposals to outside agencies. Finally, the Commission has the authority to award contracts to further its own aims including publicizing its efforts in public education campaigns to further its goals.

AUTHORITY RELIED UPON

King County Code 3.04.017 Definitions

D. "County employee" or "employee", means any individual who is appointed as an employee by the appointing authority of a county agency, office, department, council, board, commission or other separate unit or division of county government, however designated, but does not include employees of the count's judicial branch. The term 'county employee' also includes county elected officials and members of county boards, commissions, committees, or other multi-member bodies, but does not include officials or employees of the county's judicial branch but does include employees of the department of judicial administration.

J. "Participate" means, in connection with a transaction involving the county, to be involved in a county action personally and substantially as a county employee ether directly, or through others through approval, disapproval, decision, recommendation, the rendering of advice, investigation, or otherwise.

Section 3.04.020 Just and equitable treatment.

B. Obligations to Citizens. No county employee shall grant any special consideration, treatment or advantage beyond that which is available to every other citizen.

King County Code 3.04.030 Conflict of interest. No county employee shall engage in any act which is in conflict with the performance of official duties. A county employee shall be deemed to have a conflict of interest if the employee directly or indirectly:

C. Accepts or seeks for others, directly or indirectly, any employment , travel expense, service, information, compensation, gift or thing of value on more favorable terms than those granted to other county employees or the public generally, from any person, doing business, or seeking to do business with the county for which the employee has responsibility or with regard to which he or she may participate, provided that this subsection shall not apply to the receipt by elected officials, or by employees who are supervised directly by an elected official, of meals, refreshments or transportation within the boundaries of King County when given in connection with meetings which are informational or ceremonial in nature;

D. Accepts, directly or indirectly, any gift, favor, loan, retainer, entertainment, travel expense, compensation or other thing of value form any person doing business or seeking to do business with the county when such acceptance may conflict with the performance of the employee's official duties. A conflict shall be deemed to exist where a reasonable and prudent person would believe that the gift, compensation, thing of value, or more favorable terms, was given for the purpose of obtaining special consideration or to influence county action.

F. Discusses or accepts an offer of future employment with any person doing or seeking to do business with the county if either:

1. the employee knows or has reason to believe that the offer of employment was or is intended, in whole or in part, directly or indirectly, as compensation or reward for the performance or nonperformance of a duty by the employee during the course of county employment or to influence county action pertaining to the business, or
2. the employee has responsibility for a matter upon which the person is doing or seeking to do business with the county unless the employee has first disclosed in writing to his or her appointing authority that the employee intends to discuss future employment with a specific person and the appointing authority has designated, in a memorandum filed with the ombudsman and the clerk of the council, a method of providing for an alternative decisionmaker with regard to matters involving such person for which the employee otherwise would have responsibility;

G. 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;

H. Is an employee, agent, officer, partner, director or consultant of any person doing or seeking to do business with the county, unless such relationship has been disclosed as provided by this chapter;

I. 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.

King County Code 3.04.035 Conflict of Interest - former employees and members of county boards and commissions.

A. A conflict of interest shall be deemed to exist if any individual who has served as a member of a county board or commission, does within a period of two years after the termination of such service, appear before such board or commission, or receives compensation for any services rendered on behalf or in assistance of any person in relation to any action with respect to which such individual was directly concerned and in which he or she personally participated, either directly or indirectly, during the period of his or her service. The foregoing will also apply during the same period of time to any individual who is a partner, associate, or member of a person with which the former board or commission member has a financial interest;

B. All other county employees are prohibited from attempting to influence for compensation their former departments within one year after termination of county employment: provided, that such prohibition shall not apply to former deputy prosecuting attorneys with respect to their representation of defendants in criminal proceedings. For two years after leaving the count's employ, former employees are required to disclose past county employment prior to participation in any county action;

C. 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.

Section 3.04.030 Conflict of Interest.

C. Except as authorized by law and in the course of his or her official duties, no county employee shall use the power or authority of his or her office or position with the county in a manner intended to induce or coerce any other person to provide such county employee or any other person with any compensation, gift, or other thing of value directly or indirectly.

I. 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.

Section 3.04.037 Duty to notify supervisor. Any employee who becomes aware that he or she may have a potential conflict of interest which arises in the course of his or her official duties shall notify in writing his or her supervisor or appointing authority of such potential conflict. Upon receipt of such notification the supervisor or authority shall take action to resolve the potential conflict of interest, including but not limited to designating within a reasonable time an alternative employee to perform the duty which is involved in the potential conflict. The disposition of the potential conflict shall be stated in writing in files maintained by the supervisor or official. The supervisor or official may request an advisory opinion from the board of ethics before disposing of such potential conflict. (Ord. 9704 S 8, 1990).

ISSUED ON THE _________________ day of _________________, 1991.

Signed for the Board: Dr. J. Patrick Dobel, Chair

Members:

Timothy Edwards, Esq.
Dr. Judith Woods
Dr. J. Patrick Dobel, Chair

JPD:dwm

cc:

Tim Hill, King County Executive
King County Councilmembers
Rella Foley, Ombudsman, Office of Citizen Complaints
Members, King County Board of Appeals/Equalization