Advisory Opinion 1080
Harborview Project/Former Employee as Subcontractor

ISSUE: WHETHER FORMER COUNTY EMPLOYEE WHO PERFORMED DESIGN REVIEW WORK ON A PROJECT MAY NOW BID ON THAT SAME PROJECT AS A SUBCONTRACTOR?

Opinion: Based on our understanding of the former employee's limited involvement in determining the specifications of the Harborview Project, the Board of Ethics finds there is no conflict of interest if the former employee bids as a subcontractor on this project. The former employee must, however, continue to disclose her previous County employment for a period of two years. The Board cautions that this opinion applies to this particular instance and that someone who is more intimately involved in determining specifications would incur greater difficulties under the Code of Ethics.

Statement of Circumstances: From January to June 1993, the requestor worked as an employee for King County on the Regional Justice Center Project. During the last 30 days of her employment with the County, the employee performed design review work on the Harborview Project and made recommendations to the County as to the constructability of the building from a design standpoint. The former employee would now like to bid to perform subcontract work on the Harborview Project and would like to know if this action would be a violation of the Code of Ethics.

Analysis: The individual in this instance possessed substantial responsibilities as a King County employee. She was extensively involved in feasibility discussions concerning the construction of the Harborview Project; this included conducting studies of the exterior design and frame, completing cost analyses of materials to be used in construction, and identifying incomplete specifications for the project. She also participated in the review process with project architects. After terminating her employment with the County, the individual signed a limited contract with the County to continue participating in design review meetings. The contract continues to be in effect at the time of this Advisory Opinion.

Request for Proposals (RFPs), in which all prime contractors and subcontractors will be asked to submit their bids for work on the Harborview Project, have been sent out and the former employee would like her company to be able to bid competitively to general contractors to perform labor and provide materials relating to concrete forming, placing and finishing; and/or for installing millwork and casework, as well as performing general carpentry. During the RFP process, prime or general contractors and subcontractors bid only on a specific set of specifications or drawings and these are a matter of the public record.

Under the Code of Ethics, section 3.04.017(J) the term "participate" means to

be involved in a county action personally and substantially as a county employee either directly, or through others through approval, disapproval, decision, recommendation, the rendering of advice, investigation, or otherwise.

While County action means any action on the part of King County, including, but not limited to:

1. Any decision, determination, finding, ruling or order; and 2. Any grant, payment, award, license, contract, transaction, sanction, or approval, or the denial thereof, or the failure to act with respect thereto.

That the former employee in this instance can be said to have substantially participated in the design review process relating to the Harborview Project cannot be denied. However, her participation does not appear to have resulted in the ability to influence a County action, and she was not personally involved in any action which may have given her company an advantage over other competitors. Furthermore, because the former employee would like to bid as a subcontractor, rather than as a prime or general contractor, she is not directly attempting to influence the County for compensation and is thus not precluded from bidding on the basis of the one-year post-employment restriction contained in section 3.04.035(B) and which states:

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.

It is the Board's understanding in this circumstance that decision-making power more generally applies to the prime or general contractor, rather than the subcontractor; therefore, the work planned by the subcontractor would not directly pose a conflict under the Code of Ethics. However, the former employee is subject to the requirement that she disclose her previous County employment prior to participating in any County action for a period of two years following such employment.

References: King County Code of Ethics, sections 3.04.017(J); 3.04.030(C and E); 3.04.035(B).

ISSUED THIS ___________ DAY OF ___________________, 199__.

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

Dr. J. Patrick Dobel, Chair
Rev. Paul Pruitt
Timothy Edwards, Esq.

JPD/mag

cc:

Tim Hill, King County Executive
King County Council Members
Susan Baugh, Director-Ombudsman, Office of Citizen Complaints
Quentin Yerxa, Deputy Prosecuting Attorney and Counsel to the Board of Ethics
Leslie Harper-Miles, Acting Project Director, Harborview Project