Advisory Opinion 91-10-1019
Interns Temp Current/Post Employment

ISSUE: ARE INTERNS AND TEMPORARY EMPLOYEES "EMPLOYEES" AS DEFINED BY THE KING COUNTY CODE OF ETHICS?

AND

MOST INTERNS AND TEMPORARY EMPLOYEES DISCLOSE THEIR DISCUSSIONS WITH POTENTIAL EMPLOYERS AND RELINQUISH THEIR RESPONSIBILITIES WHILE THEY ENGAGE IN THOSE DISCUSSIONS?

AND

WHAT IS THE DEFINITION OF "RESPONSIBLE" AS IT IS USED IN THE KING COUNTY CODE OF ETHICS?

AND

WHAT POST EMPLOYMENT LIMITATIONS APPLY TO INTERNS OR TEMPORARY COUNTY EMPLOYEES WHO FIND WORK WITH PERSONS WHO DO BUSINESS WITH THE COUNTY?

Opinion: Depending upon the degree of their participation, interns and temporary employees may be classified as "responsible" when carrying out their assigned duties.

If employees have significant "responsibility" delegated to them or if "responsibility" evolves as a part of their work activity, they must first report their involvement in writing to their appointing authority if they plan to discuss or accept an offer of future employment with any person doing or seeking to do business with the County in their area of responsibility. There, after, the supervisor will designate an alternative employee-"decision maker" to carry out the work activity of the employee in all interactions with business. Section 3.04.030 F (2) of the Code explicitly discusses this process.

Like wise, interns are not prohibited from discussing future employment with a specific person who does business or seeks to do business with the County in their area of responsibility. Yet if they undertake discussions, they too must disclose the intent in writing to their appointing authority.

Upon receipt of written notification of an employee's intention to discuss future employment with a person who does business or seeks to do business with the County, when the employee has work related responsibility with the future employer, appointing authorities must designate an alternative decisionmaker. The appointing authority must then file a memorandum with the Ombudsman and the clerk of the Council describing the method of selection to be used in providing an alternative decisionmaker.

Interns and temporary employees are included in, Section 3.04.035 B of the Code which states that:

All other County employees are prohibited from attempting to influence for compensation their former department, 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 County's employ, former employees are required to disclose past County employment prior to participation in any County action;

Additionally, Section 3.04.035 (C) extends this prohibition to all King County employees and reads:

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.

The Board believes that given the definition of "County employee", interns and temporary employees are "covered" and therefore not exempted from the King County Code as it presently exists. However, there should be a distinction made which could appropriately be proposed as amendatory language to the Code that would legislatively exempt post employment activities of:

Employees who are participants in bona fide internships that are maintained in conjunction with educational institutions in the State of Washington.

Statement of Circumstances: The Director of the Solid Waste Division has asked questions of the King County Board of Ethics regarding the nature of the word "responsibility" as defined by the Code of Ethics, also the status and obligations of interns and employees in regard to future employment.

Analysis: Determining whether a person has "responsibility" for a matter under the Code of Ethics is not primarily a function of job title, but of work activity. The term is not capable of a universally applicable definition, but the Board has used a number of criteria to guide its deliberations. A non-exhaustive list includes the following:

• Does the employee substantially participate in decisions relating to persons doing business with the County?
• Are the employees held accountable for the decisions either formally or informally?
• Does the employee exercise discretion with regard to the action or decision or is his or her involvement merely ministerial?
• In addition to the formal power to affect an action, does the employee have the ability to control or affect the processes or decisions because of his or her influence or because his or her recommendations are given substantial weight by the formal decisionmakers?
• The Board has interpreted the definition of "participate" found in Section 3.04.017 J of the Code to closely parallel both the terms "responsible" and "decisionmaker". If an employee is substantially participating in an action or decision, the Board believes he or she is also responsible for making decisions concerning the subject or the activity.

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 County'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 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 either directly, or through others through approval, disapproval, decision, recommendation, the rendering of advice, investigation, or otherwise.

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:

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;

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

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 County'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.

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
Bob Stier, Deputy Prosecuting Attorney
Rella Foley, Ombudsman, Office of Citizen Complaints