Advisory Opinion 94-11-1112
Public Safety/Receipt of Compensation

ISSUE: WHETHER IT WOULD BE A CONFLICT OF INTEREST FOR AN OFFICER IN THE DEPARTMENT OF PUBLIC SAFETY TO ACCEPT AN APARTMENT VALUED AT $500.00 IN RETURN FOR OFF-DUTY SECURITY WORK?

Opinion: The Board of Ethics finds that it would not be a conflict of interest for an officer to accept compensation for outside employment as long as this employment meets departmental guidelines for such activities, does not interfere with the performance of official duties on behalf of King County, and there is a clear contractual relationship between the employer and employee for off-duty work, with compensation being equal to the fair market value of the services being provided. Any County employee who become aware of a potential conflict while engaged in outside employment must notify his or her respective supervisor in writing.

Statement of Circumstances: An apartment complex located in Federal Way hires off-duty police officers to perform security for the complex. The officers work 5 hours per week at $25.00 per hour. The apartment manager has suggested that an officer could live in an apartment unit in exchange for off-duty security work. Rent at the complex is $500.00. An officer could be paid $500.00 and write a check for the rent or, an IRS 1099 tax form could be used as payment. The officer would be responsible for any tax liability, as well as for utilities and any costs in excess of the $500.00. The Department of Public Safety would like to know whether receipt of compensation under these circumstances would be a conflict of interest under the Code of Ethics?

Analysis: In reviewing requests for advisory opinions on outside employment, the Board's primary concern is that the area of outside employment does not present a conflict, or a potential for conflict, with the employee's official duties and responsibilities. As section 3.04.030(I) of the Code of Ethics states, "a County employee shall be deemed to have a conflict of interest if he or she directly or indirectly":

Engages in or accepts compensation, employment or renders services for any person or a governmental entity other that King County when such employment or service is incompatible with the proper discharge of official duties or would impair independence of judgement or action in the performance of official duties.

The Board is aware that it is common practice for police officers to engage in security work outside of County employment and that the Department of Public Safety has policy guidelines in place to govern such employment. If an employee meets those guidelines, and is engaged in approved outside employment which does not conflict with the performance of official duties, the question of potential conflict is resolved and therefore not an issue under the Code of Ethics.

The Board is concerned, however, about the manner of compensation for this outside employment, because a reasonable person might not be able to distinguish whether the offer of an apartment is intended as compensation for official duties performed as a police officer, or for unofficial duties as an after-hours security guard. In the absence of a contractual relationship between the police officer and the apartment manager or owner, it might appear that the officer was receiving a gratuity for his or her services in violation of the Code of Ethics. It is therefore incumbent upon both the officer and the department to ensure that such perceptions do not hold. This can be accomplished by establishing a clear contractual relationship between the officer and the apartment owner/manager. If at any time the officer becomes aware that a potential for conflict exists with his or her official duties, the employee is to notify his or her supervisor in writing (K.C.C. 3.04.037).

References: King County Code of Ethics, section 3.04.030(I), 3.04.037.

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

JPD/mag cc:

Gary Locke, King County Executive
Metropolitan King County Council Members
Susan Baugh, Director–Ombudsman, Office of Citizen Complaints
Robert I. Stier, Senior Deputy Prosecuting Attorney and Counsel to the Board of Ethics
James E. Montgomery, Sheriff-Director, Department of Public Safety
Kyle Aiken, Legal Advisor, Department of Public Safety