But What About Me? Ethics for Local Public Employees

We recently noticed that the majority of our inquiries, blogs, and training focuses on conflicts of interest and ethics questions related to elected officials. We often forget that staff also face these issues. Let’s look at how local agency staff can avoid any pitfalls.

MRSC’s Ethics and Conflicts of Interest topic page provides an extensive resource for local agencies looking for information on contracting conflicts of interest and other ethics issues. First off, the law.

Ethics and Conflict of Interest Laws and Rules

Chapter 42.23 RCW prohibits municipal officers from using their positions to secure special privileges or special exemptions for themselves or others, and from entering into certain contracts or having other personal financial interests with their jurisdictions.

RCW 42.23.020(2) defines “municipal officer” rather broadly beyond just elected officials and department heads but it does not necessarily include all administrative staff. If your agency clearly wants the statute to apply to all employees (and volunteers, and appointees to advisory boards) it will need to adopt a rule or policy saying so.

In addition to chapter 42.23 RCW, state law and some local laws address other potential conflicts of interest and ethical situations, including:

Conflicts of interest outlined in a local ethics code;

• Local nepotism rules, which regulate the hiring of and contracting with relatives;
• The doctrine of incompatible offices, which prohibits an individual from simultaneously holding two public offices that are “incompatible” with one another;
• The appearance of fairness doctrine, which requires government decision-makers to conduct quasi-judicial hearings and proceedings in a way that is fair and unbiased in both appearance and fact; and
• The common law conflict of interest doctrine as recognized in Smith v. Centralia, 55 Wash. 573 (1909), a case in which the Washington Supreme Court found that the common law principle preventing municipal officers from adjudicating their own cause is a “a maxim as old as the law itself.”

Additionally, if you belong to a professional organization or are required to maintain a state license, you may be subject to professional discipline for violating your organization’s ethics rules. For example, the American Public Works Association has an online training module for ethics; the American Planning Association has an Ethics in Planning webpage; the National Institute of Governmental Purchasing has a Code of Ethics; and even government lawyers in Washington State are subject to the Rules of Professional Conduct for Lawyers.

Now that we’ve outlined the law, let’s talk about how it plays out in different areas. Assume for the sake of this discussion that your agency has adopted some conflict-of-interest ordinance or personnel policy that applies to all staff.

Here are some sample local government ethics policies:

• Jefferson County Code of Ethics Policy and Procedures (2015)
• Port of Seattle Employee Code of Conduct (2018)
• Vancouver Employee Ethics Policies (2008)

Dual employment – staff members and elected officials

Employment is a “contract” so the prohibition in Chapter 42.23 against having a financial interest in a contract would apply to the elected position. This generally prevents a staff member from also being, or married to, an elected official for the same agency (see our blog Conflict of Interest and the Spouse). But there is an exception in RCW 42.23.040(6) for contracts up to $1,500 per month, or in some cases, $18,000.

There are also specific carve-outs for rural public hospital districts, school bus drivers, and school district employees. Also, staff cannot hold a second position in the same agency if one position supervises the other one. You may be able to work around that by changing the reporting requirements for one of the positions. Since those are very fact-specific challenges, consult your agency attorney first.

Contracting

If you are responsible for any part of the purchasing or contracting process for your agency, you should avoid any action that financially benefits you or a close family member. For example, if you work for a parks and recreation department and also have a private business teaching yoga classes it might be a conflict of interest if you make the decisions for the department as to who gets contracts to teach those classes. (This also has possible wage and retirement benefits implications if the private class is substantially similar to the agency job description).

If you are responsible for disposing of surplus agency equipment, you may also be prohibited from purchasing that equipment. (You may be able to do so if your agency uses a third-party auction house and the auctions are “blind”). Check out the City of Vancouver’s Surplus Personal Property Disposal Policy and Procedures (2009) as a sample. 

If you are a plan review engineer and also have (or work for) a private transportation management consulting firm, you should not accept jobs where your private work is something you would review for your agency.

Depending on the size of your agency, you may be able to “firewall” the agency decision so that you have no real (or apparent) influence on the decision. Even then your agency will want to be sensitive to the mere appearance that you have personally benefited from the agency’s decision.

Gifts 

If your agency has adopted by reference RCW 42.23.070(2)’s prohibition on accepting gifts (or something very similar) — be careful. A strict reading of the statute means you can’t even accept a cup of coffee from a vendor or contractor.

Many agencies follow the rules for state employees in RCW 42.52.150,, which allows a state employee to accept gifts of minimal value if it is clear that there is no attempt to influence a future decision or reward a past one. I’ve always characterized the minimum value rule as reflecting the reality that most people aren’t trying to bribe government officials. And even if they are, staff can’t be “bought” for a cup of coffee and an apple fritter (even if it’s a really good apple fritter). Companies that work with your agency may drop off snacks, flowers, etc., especially around the winter holidays. Most agencies allow staff to accept low-value (and non-alcoholic) gifts on behalf of the office and to share them at the counter or in the break room.

If your agency has a minimum value rule, make sure it includes a process where your supervisor or agency council can review potential gifts and approve them.

Discounts and conference attendance (and goodies)

MRSC’s position is that both are ok. The purpose of RCW 42.23.070(2) is to prevent any type of purchase of influence or special treatment, but, in most circumstances, that concern likely has no relevance to a discount offered to all government employees, or to a random drawing and award of a prize or the receipt of promotional items. Of course, if a vendor gifted you a car while only handing out pens to everyone else at the conference, then RCW 42.23.070(2) may be implicated.

Many agencies will also allow a vendor to pay for staff’s attendance at professional conferences as part of the vendor contract. This is a little trickier, so talk to your agency attorney first. The closer the staff member is to being a decision-maker in the issuance or supervision of the contract, the more likely it is that there is a real or apparent conflict of interest present.

Membership on advisory boards and volunteering

Can agency staff sit on advisory boards, or volunteer to do good things in their agency’s jurisdiction? Yes, if you keep a few things in mind.

Remember that RCW 42.23.040 allows a municipal officer to be an unpaid board member of a nonprofit, but they must declare the interest and cannot vote on contracts related to that nonprofit. Also, consider the overlap between your agency job and the volunteer activity. Washington’s wage laws do not allow agency employees to volunteer to do the job (or a closely-related job) that the employee is otherwise paid for.

Using our parks and recreation example from earlier, if your day job is teaching recreation classes at your district you probably cannot volunteer to teach the same or similar classes at district facilities. And, if your job regularly requires you to appear before an advisory board, such as a design review board or a lodging tax advisory committee, you probably cannot also sit on that board or committee.

For a policy example, see the City of Colville's Resolution No. 09-15 (2015), which adopts a policy for city employees who volunteer for city emergency services.

Conclusion and Resources

Most conflict and ethics questions for staff are straightforward. Agencies can protect themselves and their employees by adopting clear policies and having a system of checks and balances in place to review possible issues.

Here are additional resources:

• MRSC webpage (not already cited in article) Local Codes of Ethics
• MRSC blogs on Ethics and Conflicts of Interest
• AskMRSC Inquiries: Is there a conflict if a Lodging Tax Advisory Committee member applies for funding?