Advisory Opinion 95-07-1127

WPCD/Conflict of Interest

ISSUES: WHETHER AN EMPLOYEE IN THE HAZARDOUS WASTE MANAGEMENT PROGRAM OF THE WATER POLLUTION CONTROL DEPARTMENT MAY:

• CONDUCT INDUSTRIAL WASTEWATER TREATMENT SEMINARS FOR INDUSTRIAL CLIENTS AND THE GENERAL PUBLIC ON HIS OWN TIME?
• WRITE AND PUBLISH TECHNICAL PAPERS ON PRETREATMENT AND POLLUTION PREVENTION ON HIS OWN TIME?
• MARKET HIS GUIDEBOOK ON INDUSTRIAL WASTEWATER TREATMENT THROUGH METRO?
• WORK ON HIS OWN TIME AS AN INDEPENDENT CONSULTANT FOR PERMITTED INDUSTRIES TO HELP THEM COMPLY WITH COUNTY DISCHARGE REQUIREMENTS?

Opinion: The Board of Ethics finds that the County employee:

• may conduct a seminar related to his work for the Water Pollution Control Department as long as he does not use his job title or official position to promote the seminar; as long as the seminar is conducted without the use of County resources; and, as long as he has no official responsibilities with regard to permitted industries who participate in the seminar;
• may publish technical papers on his own time without incurring a conflict;
• may not allow Metro to endorse, recommend, or otherwise promote his book, except for providing reference in a bibliographic list or as a qualified source on the same basis as other publications;
• may either work as an independent consultant to permitted industries or perform official duties with regard to permitted industries, but may not do both without incurring a conflict of interest under the Code of Ethics.

Statement of Circumstances: A Hazardous Waste Section staff engineer has recently published a guidebook on industrial wastewater treatment. Using information generally available to the public, the engineer obtained the names of industries under permit to the Industrial Waste Section of the Water Pollution Control Department, and distributed notices promoting the book and a proposed seminar. Cost for the seminar will be $150.00 per participant. These activities were accomplished on the employee's own time and using his own resources. The employee asks if he may continue with these activities without violating the Code of Ethics? Likewise, he asks if he could incur a conflict if he wrote and published technical papers about pretreatment and pollution prevention, as long as he did so on his own time with his own resources?

The engineer wrote his book because there was no comprehensive document to give to businesses which explain the development and installation of an industrial wastewater treatment system. Therefore, may Metro may tell businesses about his book? Can the engineer work as an independent consultant to assist permitted industries to comply with County discharge requirements?

Analysis:

Conducting Seminars for Compensation

Subsection 3.04.020 A of the Code of Ethics provides in relevant part 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.

The Board accepts that the seminar and book were developed by the employee on his own time and using his own resources, therefore this subsection would not be violated.

With regard to the larger issue of whether a County employee may conduct a seminar for personal profit when the subject of the seminar is directly linked to the official duties and responsibilities of the employee, the Board has greater concerns. Subsection 3.04.020 C of the Code of Ethics provides that:

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 thing of value directly or indirectly.

While subsection D states that:

No county employee may ask for or receive, directly or indirectly, any compensation, gift, or thing of value, or promise thereof, for performing or for omitting or deferring the performance of any official duty, or action by the county other than the compensation, costs or fees provided by law.

The employee primarily works with Small Quantity Generators (SQGs) which are normally not permitted industries; however, employee also acts as an in-house consultant to the Industrial Waste Section and provides advice on pretreatment equipment to permitted industries. The Board accepts that the employee does not promote his seminar or book to businesses during the conduct of official business, but the employee's ability to financially benefit and further a private interest is enhanced by his official position. A potential conflict of interest may also emerge in situations where a permitted industry has participated in the seminar, and the employee subsequently provides advice to the same industry as a member of Metro's staff.

To avoid the appearance that the employee may be using his official position to attract attendees, the employee may not use his job title or official position at Metro to promote his seminars. He may also not participate in official duties relating to permitted industries, if those industries have participated in his seminar.

Promoting Privately Published Materials through County Agencies

Under the Code's conflict of interest provisions, a County employee is deemed to have a conflict of interest if that employee directly or indirectly:

Participates in, influences, or attempts to influence, directly or indirectly, the selection of, or the conduct of business or a transaction with a person doing or seeking to do business with the county if the employee has a financial interest in or with said person.

In this instance, the employee is clearly in a position to influence whether Metro promotes his book and he would derive a direct financial benefit from such promotion. This would clearly violate the Code. County agencies may not endorse, recommend, or otherwise promote the private interests of an individual. There is no objection to having the employee's book appear in a bibliographic reference or as a qualified source as long as the book is accorded the same treatment as other publications on the list.

Writing and Publishing on Own Time

There is no violation of the Code if an employee writes and publishes technical papers or other materials, as long as no County resources or time are used in the effort.

Working as an Independent Consultant

Subsection 3.04.030 I of the Code of Ethics provides that an employee shall have a conflict of interest if that employee directly or indirectly:

Engages in or accepts compensation, employment or renders services for any person or 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.

The Code also prohibits an employee from entering into a business relationship outside County government with any person with regard to a matter for which the employee has responsibility (K.C.C. 3.04.030 K).

The employee visits permitted industries in an official capacity to provide advice on pretreatment equipment, and participates in an Industrial Waste Section workgroup to review discharge limitations that affect all industrial waste discharges. Within the context of the Code, the employee in this instance is therefore a participant in County actions affecting permitted industries. In this case he could incur a conflict if he visited a permitted industry in an official capacity and worked for the same industry as an independent consultant. This raises the important question of whether the employee would be acting as an official of the regulatory body, or as the paid representative of a regulated industry? The 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.

References: King County Code of Ethics, section 3.04.020, subsections 3.04.030 I and K.

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
Robert I. Stier, Senior Deputy Prosecuting Attorney and Counsel to the Board of Ethics
Dave Galvin, Program Manager, Hazardous Waste Management Program, WPCD
Gunars Sreibers, Acting Program Manager, Industrial Waste Section, WPCD