Advisory Opinion 96-10-1149
Public Health/Outside Employment

ISSUE: WHETHER REFERRALS TO A COUNTY EMPLOYEE'S OUTSIDE COUNSELING PRACTICE COULD CREATE A CONFLICT OF INTEREST UNDER THE CODE OF ETHICS?

Opinion: A conflict of interest would occur if the county employee refers clients to his or her own private counseling practice, or if the county employee's co-workers make specific and direct referrals to the county employee in his or her capacity as a private counselor. These situations impair impartial and independent judgement. County agencies that provide referral lists may not specifically recommend one contractor or provider of services over another to their clients or members of the public. Specific referrals or endorsements create the appearance of special consideration or treatment.

Statement of Circumstances: The AIDS Prevention Unit (APU) in the Department of Public Health provides HIV counseling and testing services to at-risk populations. The Washington Administrative Code provides that any facility that offers these services must also offer a referral list for mental health counseling. The APU clinical team developed a referral list comprised of community referral agencies and individually registered counselors. One of these counseling agencies is an informal organization of independent counselors each of whom also maintains a private practice. These counselors agree to see low-income clients. The organization is not incorporated, and each participating counselor receives no financial benefit from clients served by other participating counselors. The counselors rotate the responsibility of checking voice-mail, and attempt to place the prospective client with a participating counselor.

One of the participating counselors is a .5 FTE employee in the APU who works as a disease intervention specialist. The employee may provide the organization's referral number to clients who come to Public Health, but does not accept these clients into his own private practice. Other disease intervention specialists at the APU, however, also refer clients to the organization, and some of these are referred to the county employee's private practice. A supervisor in the Department of Public Health has asked the Board to determine whether these referrals are a conflict of interest under the Code of Ethics.

Analysis: The King County Code of Ethics limits outside employment when such employment conflicts, or would appear to conflict, with official duties and responsibilities, or when such employment could result in special treatment, competitive advantage, or the enhancement of a private interest at the expense of the public interest. Under K.C.C. 3.04.030(I), a county employee is deemed to have a conflict if that employee:

Engages in or accepts compensation, employment or renders services for any person or a 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 Board can distinguish two potential conflicts of interest in this case. A conflict would occur if the employee refers Public Health clients to his own private counseling practice; or, if the employee's colleagues at the APU directly refer clients to the employee's private counseling practice. In either case, there is a potential that the employee's independent judgment could be impaired, or that employees in the APU may be perceived as granting favorable treatment to a fellow county employee. The county employee in this instance clearly acknowledges that a conflict of interest would exist if he referred clients from APU into his own counseling practice, and refrains from such referrals. This decision meets the requirements of the Code of Ethics and thereby removes one basis for conflict.

With regard to the second issue-referrals by colleagues to the outside counseling organization-the Board is concerned whenever county agencies or employees refer clients or customers to a specific contractor or provider of services. This creates the appearance that the county favors one contractor or provider over another. For example, in Advisory Opinion 1056 the Board of Ethics considered whether a county agency could provide a contractor referral list to public clients. The Board decided that a referral list would not violate the Code of Ethics if referrals included on the list are unrestricted, i.e., all who are qualified to provide a service are listed; if distribution of the list is open and public; and, if no county employee had a financial interest in or with any persons on the list.

The APU's clinical team developed a list that clearly meets these criteria: qualified community and independent providers of mental health services are available to all clients who come to the APU for assistance. There are also several factors that mitigate against a conclusion that the county employee has a real or apparent conflict of interest based on financial benefit. The county employee was not a participant on the clinical team that established the list of service providers; clients are not directly referred to the county employee's private counseling practice by the APU; and, the private counseling organization employs a random method for the assignment of clients to its respective counselors.

Provided the information provided to the Board is accurate and circumstances do not change, the county employee's private counseling practice would therefore not create a conflict of interest under the Code of Ethics.

References: King County Code of Ethics, subsections 3.04.020(B) and 3.04.030(I), Advisory Opinion 1056.

ISSUED THIS ___________ DAY OF ___________________, 199__.

Signed for the Board: Roland H. Carlson, Acting Chair

Members:

Roland H. Carlson, Acting Chair
Rev. Paul Pruitt
Dr. Lois Price Spratlen

RHC/mag

cc:

Gary Locke, King County Executive
King County Councilmembers
Rella Foley, Interim Director-Ombudsman, Office of Citizen Complaints
Dr. Alonzo Plough, Director, Seattle-King County Department of Public Health
Robert I. Stier, Senior Deputy Prosecuting Attorney and Counsel to the Board of Ethics
Frank Chaffee, Health Program Coordinator, AIDS Prevention Unit, Public Health