September 19, 2012
Opinion No. 2012-05 - REVISED
Patricia Long
2322 SW 20th Street
Topeka, Kansas 66604
Synopsis: A state employee may be substantially involved in the preparation of or participate in the making of a contract with any business in which the brother of the employee’s husband has a substantial interest. Thus, a state employee is allowed to participate in the review of proposals, the selection of bids and/or the negotiation process for the new contracts resulting from the RFP for child welfare programs delivered by licensed child placing agencies if the company that employs the brother of employee’s husband submits a bid.
Cited herein: K.S.A. 46-229; K.S.A. 2011 Supp. 46-233.
Dear Ms. Long:
This opinion is in response to your letter dated July 30, 2012, wherein you request an opinion from the Kansas Governmental Ethics Commission, concerning application of the state 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 applicability of K.S.A. 46-215 et seq., and the Commission’s opinion does not address whether some other statutory system, common law theory, or agency rule or regulation applies to your inquiry.
FACTUAL STATEMENT
You request this opinion in your capacity as a program administrator for the Division of Prevention and Protection Services of the Department for Children and Family Services (DCF). You explain that your responsibilities include administration and oversight of the foster care and adoption programs. Services under these child welfare programs are delivered by licensed child placing agencies under contract with DCF. The contracts are the result of negotiated, competitive bids submitted in response to a request for proposals (RFP). The next RFP is being developed and you are participating in the RFP development process.
You indicate that your husband’s brother is employed by TFI Family Services Inc. (TFI)
TFI was one of the successful bidders during the last procurement process. You state that whether TFI submits a proposal or not, you would like to participate in the review of proposals, the selection of bids and/or the negotiation process for the new contracts resulting from the RFP.
QUESTION
Do the conflict of interest laws prohibit or limit your participation in the review of proposals, the selection of bids and/or the negotiation process for the new contracts if TFI submits a proposal?
ANALYSIS AND OPINION
K.S.A. 2011 Supp. 46-233(a) places restrictions on a state employee’s participation in state contracts. That statute states in pertinent part as follows:
(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. . . .1
“Substantially involved in the preparation or participate in the making of a contract” means “having approved or disapproved a contract or having provided significant factual or specific information or advice or recommendations in relation to the negotiated terms of the contract.”2 Based on your assertion that you would participate in the review of proposals, the selection of bids and/or the negotiation process for the new contracts resulting from the RFP, you would be substantially involved in the preparation or participation in the making of a contract that resulted from the RFP.
The next issue to consider is whether your husband’s brother is a member of your “immediate family,” which is not defined in K.S.A. 2011 Supp. 46-233 or anywhere in the state level conflict of interest laws. “Family member” is defined in a regulation concerning nepotism under the state level conflict of interest laws, K.A.R. 19-40-4(b)(1). That definition includes “parent, child, or sibling related by marriage as denoted by the suffix of ‘in-law’.” It is significant that the nepotism law uses the more general term, “family member,” while K.S.A. 2011 Supp. 46-233 uses the qualifier “immediate” before “family.” We believe that “immediate family” is more limited than “family member.” Black’s Law Dictionary defines “immediate family” as a “[t]erm generally referring to one’s parents, wife or husband, children, and brothers and sisters.”3 It is our opinion that the term “immediate family” as used in K.S.A. 2011 Supp. 46-233 includes parents, children, brothers and sisters, and a spouse, but does not include persons related by marriage as denoted by the suffix of “in-law.”
Your husband’s brother is thus not a member of your “immediate family.”
A final issue to determine is whether a member of your immediate family has a “substantial interest” in TFI, Inc. The answer is found in K.S.A. 46-229(b):
If any individual or an individual’s spouse, either individually or collectively, has received during the preceding calendar year compensation which is or will be required to be included as taxable income on federal income tax returns of the individual and spouse in an aggregate amount of $2,000 from any business or combination of businesses, the individual has a substantial interest in that business or combination of businesses.
The brother of your husband would have a substantial interest in TFI from the time his taxable income from TFI equals or exceeds $2,000. However, he is not considered to be a member of your immediate family.
Therefore, as a state employee, you may be substantially involved in the preparation of or participate in the making of a contract with any business in which your husband’s brother, has a substantial interest. This allows you to participate in the review of proposals, the selection of bids and/or the negotiation process for the new contracts resulting from the RFP for child welfare programs delivered by licensed child placing agencies if TFI, Inc. submits a bid.
Sincerely,
G. Daniel Harden, Chairman
By Direction of the Commission
GDH:CN:dlw
1Emphasis added.
2K.S.A. 2011 Supp. 46-233(e)(2).
3Black’s Law Dictionary 750 (6th ed. 1990).
