Advisory Opinion 91-10-1032
Plumbers/Loan/COI

ISSUE: DOES AN EMPLOYEE WHO HAS SUPERVISORY RESPONSIBILITY FOR ENFORCING A CODE VIOLATE THE KING COUNTY CODE OF ETHICS BY ACCEPTING A LOAN AT BELOW MARKET RATE FROM THE SPOUSE OF A REPRESENTATIVE OF A MANUFACTURER OR DISTRIBUTOR OF MATERIAL SUBJECT TO THE UNIFORM PLUMBING CODE?

Opinion: Based on the facts presented, the Board finds no conflict of interest and concludes that the employee's receipt of the loan is not in violation of the King County Code of Ethics.

The Board's conclusion that no conflict exists is based on the fact that no issue currently exists regarding the material in question which would require either action or the exercise of discretion by the Plumbing Inspector, or the Plumbing Appeals Board because the material polybutylene is currently "allowed" under the authorizing Uniformed Plumbing Code (UPC). If in the future, the material was taken from the list of acceptable materials, it is the Board's opinion that the employee's previous acceptance of a loan disqualifies him from any involvement in a process where the use of that material becomes an issue. This disqualification would apply to the Chief Plumbing Inspector's involvement in making an exception to the code providing for the use of polybutylene and all activity when the material might otherwise become an issue.

Given the possibility that the Chief Plumbing Inspector's advice could substantively influence the decision of the Board, and given the importance of the appearance of a conflict of interest, the chief Plumbing Inspector should recuse himself from all participation, including any and all formal and informal deliberations, or investigations regarding polybutylene.

Statement of Circumstances: The Chief of Environmental Health wants to know if the Chief Plumbing Inspector's receipt of a loan from the spouse of a personal friend who is said to be a lobbyist for the polybutylene industry constitutes a violation of the Code.

The employee in question accepted a loan from the spouse of a friend who is said to be a representative of a manufacturer or distributor for material which is subject to the Uniform Plumbing Code.

The King County Code of Ethics prohibits loans to employees from persons doing business with the County under certain circumstances. The Board of Ethics closely examined this matter to see if it involves one of those circumstances prohibited by the Code.

FACTS:

• The employee in question who has received a loan is the Chief Plumbing Inspector for the County.

• The spouse of a friend of the Chief Plumbing Inspector loaned him money which was used toward his purchase of vacation property.

• The material in question is polybutylene, which is a piping currently allowed under the authorizing Uniformed Plumbing Code (UPC) but is expected to be delisted in the 1991 edition of the UPC.

• The Plumbing Appeals Board consists of five (5) members of the plumbing advisory board representing journeyman plumbers, plumbing contractors, professional mechanical engineers, sanitary engineers, and the public.

• The Chief Plumbing Inspector (referred to as the "administrative authority") serves as an ex-officio member of the Board. He schedules the meetings and notifies Boardmembers and appellants of the time and place.

• The Chief Plumbing Inspector (administrative authority) is also on hand at Appeals Board meetings to respond to questions regarding technical matters.

• The Chief Plumbing Inspector is not a voting member of the Plumbing Appeals Board.

• The Plumbing Appeals Board has the authority to allow delisted materials to be used in the construction of facilities.

• Either the appellant or the administrative authority (the Chief Plumbing Inspector) may appeal the decision of the Board to the King County hearing examiner.

• The Board may make recommendations to the administrative authority (the Chief Plumbing Inspector) for changes in the code when an appeal heard by the Board indicates the need for a change in the code.

Analysis: Section 3.04.030 C describes a conflict when an employee accepts any thing of value on more favorable terms than those granted to other 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****.

Section 3.04.030 D states that a conflict of interest exists when an employee accepts, directly or indirectly, any gift, favor, loan, retainer, entertainment, travel expense, compensation or other thing of value from 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. The Board took a close look at the responsibility of the employee in question as it pertains to his role on or with the Plumbing Appeals Board. This is because of the ability of the Board to waive certain restraints and allow materials (including polybutylene) to be used if they become delisted from the Uniformed Plumbing Code. An employee's acceptance of a personal loan from an individual who represents the interest of the manufacturer or distributor of the material subject to review by the Plumbing Appeals Board would be a conflict of interest if the employee's involvement with the Board is substantive. On the basis of the facts presented, it appears that the Chief Plumbing Inspector does not have voting authority. The Chief Plumbing Inspector does, however, have the ability to influence the Board and to appeal the decision of the Plumbing Appeals Board. Either of these circumstances constitutes substantial participation.

AUTHORITY RELIED UPON

King County Code of Ethics:

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 with constituents or 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 from 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 ****.

KING COUNTY PLUMBING CODE:

16.32.170

A. Board of Appeals shall be established and shall consist of the five (5) members of the plumbing advisory board representing journeyman plumbers, plumbing contractors, professional mechanical engineers, sanitary engineers, and the public. The administrative authority shall serve as an ex-officio member of the board. The board of appeals shall elect a chairman and a secretary who shall serve at the pleasure of the board.

B. The Board of Appeals shall determine whether a correct interpretation of the code has been made by the administrative authority shall file a written petition for appeal to the board. Appeals shall be heard at reasonable times at the convenience of the board, but not later than thirty (30) days after receipt of such petition. The appellant shall cause to be made at his own expense any test or research required by the board for the substantiation of any claims(s) made by the appellant.

C. Decisions of the Board shall be in writing; shall be distributed to the administrative authority and the appellant; and shall apply only to the appeal being heard. Either the appellant or the administrative authority may appeal the decision of the board to the King County hearing examiner. The board may make recommendations to the administrative authority for changes in the code where an appeal heard by the board may indicate the need for a code change. (Ord. 6746S. 19,1984).

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
Robert Stier, Deputy Prosecuting Attorney
Rella Foley, Ombudsman, Office of Citizen Complaints
Dick Andersen, Chief Plumbing Inspector
Carl Osaki, Principal Environmental Health Specialist
Gloria Rodriguez, Manager, Administrative Services Department of Public Health