August 18, 1999
Opinion No. 1999-34
J. A. Robertson
Administrator, Child Support Enforcement Program
P.O. Box 497
415 S. W. 8th Street, 2nd Floor
Topeka, KS 67601-0497
Dear Mr. Robertson:
This opinion is in response to your letter of August 18, 1999,
in which you request an opinion from the Kansas Governmental Ethics
Commission concerning the state level conflict of interest laws
(K.S.A. 46-215 et seq.). We note at the outset that the
Commission's jurisdiction is limited to the application of K.S.A.
46-215 et seq., and whether some other statutory system,
common law theory or agency rule or regulation applies to your
inquiry is not covered by this opinion.
FACTUAL STATEMENT:
We understand that you request this opinion in your capacity as
the Administrator for the Child Support Enforcement Program (CSE)
of the Kansas Department of Social and Rehabilitation Services
(SRS). You have explained that the CSE is working with the Office
of Judicial Administration (OJA) to establish the Kansas Payment
Center (KPC) which will be a new statewide unit designed to receive
and disburse court ordered child support payments. A Procurement
Negotiating Committee (the Committee) has been established to
select a vendor and negotiate a contract on behalf of the state.
This committee consists of Jim Robertson, the Administrator of CSE;
John Oliver, from the Division of Information Services (DISC); and
Fran Welch, purchasing Officer for the Department of
Administration. A Proposal Review Team (the review team) has been
organized to analyze the technical aspects of the submitted
proposals. The review team will prepare a report to the Committee
and make recommendations as to which proposals are suitable for
further negotiations. The review team consists of two CSE
employees, Jamie Corkhill and Monica Becker, as well as four
representatives from OJA.
You have indicated that some concerns have arisen involving one
of the proposals and three current SRS employees: Dennis and Gina
Hoffman, who are husband and wife, and Jamie Corkhill. One of the
proposals indicates that Gina Hoffman has been interviewed,
qualified, and given a contingent offer of employment, should that
particular contractor receive the contract for the KPC. You have
informed us that Ms. Hoffman is currently employed by SRS in the
Administrative Services Commission as director of a project to
enhance the CSE mainframe computer system. Although she works
closely with the CSE program and its staff, she is not within the
CSE hierarchy and did not participate in drafting the terms, nor
did she furnish information for the request for proposals. In
addition, she will not be involved in the award of the
contract.
In Ms. Hoffman's current position with SRS, she is responsible
for authorizing her staff to prepare Task Proposal Requests (TPR)
to obtain needed services from prospective bidders. Under this
procedure the TPR is sent to qualified vendors who then submit bids
to the purchasing agent. The purchasing agent then arranges them
based on cost and a selection team reviews the bids to determine if
the candidates are qualified. The qualified lowest bid receives the
contract. One of the vendors who has submitted a proposal for the
KPC contract, has been awarded a TPR contract in the past. You have
informed us that Ms. Hoffman has not been involved in the
preparation of any TPR's other than to authorize her staff to
proceed, and she has not participated in the selection process
involving this KPC bidder.
Dennis Hoffman, Gina Hoffman's husband, is the Director of the
CSE Field Operations. He is not, however, a part of the Committee
or the review team, and he did not participate in drafting the
terms, nor did he furnish information for the request for
proposals. At the time the requests for proposals were opened,
however, Mr. Hoffman did supervise Monica Becker who is a key
person on the review team. SRS took immediate steps to transfer
supervision of Ms. Becker from Mr. Hoffman to Jim Robertson, the
CSE administrator. Jim Robertson now supervises both Ms. Becker and
Mr. Hoffman.
Finally, Jamie Corkhill is a CSE attorney who is a member of the
review team. Ms. Corkhill's role has been to help draft the request
for proposal and to participate in analyzing the proposals for the
Committee. She is not a member of the actual Committee which will
select the successful bidder. One of the KPC proposals lists four
companies, otherwise unaffiliated with the bidder, that the bidder
has selected as "strategic business partners." The bidder does not
give specifics about these relationships or use conventional terms
such as "supplier" or "subcontractor." When Ms. Corkhill reviewed
the list of names this vendor furnished, she realized that she has
a "substantial interest," as defined by K.S.A. 46-229, in one of
the bidder's proposed strategic business partners. Her interest
consists entirely of corporate stock valued at more than $5,000 but
far less than 5% of the company.
QUESTIONS:
I. Do either Gina or Dennis Hoffman have a substantial interest,
as defined in K.S.A. 46-229, in the bidder's business by virtue of
the bidder's contingent offer of employment to Gina Hoffman?
II. Have either Gina or Dennis Hoffman been substantially
involved in the preparation of or participated in the making of
this contract?
III. May Gina Hoffman accept immediate employment with this
bidder if it were to receive the KPC contract?
IV. Has SRS adequately addressed the need to separate Mr.
Hoffman from the procurement process?
V. Is it permissible for Jim Robertson to continue to serve on
the Committee while continuing to supervise Dennis Hoffman?
VI. Does Ms. Corkhill's interest in the "strategic business
partner" prohibit her from being a member of the review team?
OPINION:
K.S.A. 1998 Supp. 46-233(a) which involves participation in the
making of contracts applies to this situation. It states in
pertinent part:
"(a) (1) No state officer or employee shall in the
capacity as such officer or employee be substantially involved in
the preparation of or participate in the making of a contract with
any person or business by which such officer or employee is
employed or in whose business such officer or employee or any
member of such officer's or employee's immediate family has a
substantial interest and no such person or business shall enter
into any contract where any state officer or employee, acting in
such capacity, is a signatory to, has been substantially involved
in the preparation of or is a participant in the making of such
contract and is employed by such person or business or such officer
or employee or any member of such officer's or employee's immediate
family has a substantial interest in such person or business.
"(2) Except as otherwise provided in this subsection,
whenever any individual has participated as a state officer or
employee in the making of any contract with any person or business,
such individual shall not accept employment with such person or
business as an employee, independent contractor or subcontractor
until two years after performance of the contract is completed or
until two years after the individual terminates employment as a
state officer or employee, whichever is sooner. . . .
. . .
(d) Subsections (a) and (b) shall not apply to the
following:
(1) Contracts let after competitive bidding has been
advertised for by published notice; and
(2) Contracts for property or services for which the price or
rate is fixed by law.
Because you intend to issue this contract pursuant to the
advertised competitive bid process, the restrictions listed in
subsection (a), above, do not apply. Therefore, the Commission
finds no prohibitions to the scenarios you have described.
In closing, the Commission notes that although the SRS employees
may not be prohibited from participating in this contract or
accepting employment with this bidder, they may wish to consider
that their actions may have an appearance of impropriety.
Sincerely,
Daniel Sevart, Chairman
By Direction of the Commission
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