The Chairman of a County board has asked whether a member of his board may vote on a regulatory application from a nationwide business with which the board member, as a member of the public, contracts for services. The board member does not have a financial interest in the business as defined by the New Castle County Ethics Code1 and has no financial interest in the real property that is the subject of the application.
The board member may vote on the application. There is no conflict of interest in exercising County authority in regard to the application since no financial benefit from the vote will accrue to the board member or his family or to a business with which he is associated. Alternatively, even if there were some slight financial benefit to him as a customer of the business in terms of a general reduction of the charge for or enhancement of his service, that benefit would affect the board member to the same degree as a class of the public consisting of the substantial subgroup of the applicant's County customers. Thus, there can be no reasonable perception that his vote would be based upon factors other than the merits of the application.
A member of a regulatory board has the authority to vote on the application of a company for a permit that will affect the use of real property in which he has no financial interest. The application for the permit also does not have any affect his ownership of, or equitable interest in, any real property. The applicant business has millions of customers across the nation and many thousands of customers in New Castle County. The board member is a customer of that nationwide business, paying a small monthly fee for service based on an advertised, competitive fee schedule that is not expected to change as a result of the resolution of the application for the permit
Code or Prior Opinion:
Sec. 2.03.103. Prohibitions relating to conflicts of interest.
A. Restrictions on exercise of official authority.
1. No County employee or official knowingly or willfully shall use the authority of his or her office or employment or any confidential information received through his or her holding County office or employment for the personal or private benefit of himself or herself, a member of his or her immediate family or a business with which he or she is associated. This prohibition does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the County official or employee, a member of his or her immediate family or a business with which he or she or a member of his or her immediate family is associated. There will be a rebuttable presumption of a knowing or willful violation of this section if the action benefits the County official or employee, his or her spouse, or his or her dependent children (whether by blood or by law).
Sec. 2.03.104. Code of Conduct.
A. No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.03.103(A) (1), undermines the public confidence in the impartiality of a governmental body with which the County employee or County official is or has been associated by creating an appearance that the decision or action of the County employee, County official or governmental body are influenced by factors other than the merits.
In Advisory Opinion 04-01 the Commission held that Council members could vote for certain pension legislation which would benefit them as County employees because the ordinance in question affected to the same degree a subclass consisting of an industry, occupation, or other group that included the Council persons. In Order C03-02, the Commission held that an elected official who received a pension from a previous employer did not accrue private benefit or create an appearance of impropriety when he voted on an ordinance that the previous employer was known to favor because his pension was calculated on past years of service, could not be affected by his vote and his constituents were diversely benefited by the ordinance. In Advisory Opinion 95-05 the Commission ruled that an appearance of impropriety would be created if a board member voted on the board's retention and compensation of certain professionals with whom he had a business relationship in his private capacity which generated income for him.
Since no financial interest of the board member, his immediate family or a business with which he is associated will be affected as a result of the vote, there is no issue of conflict of interest here. However, existence of a conflict is not a predicate for examination of whether an appearance of impropriety would be created by the vote. The standard used by the Commission for judging whether an appearance of impropriety would be created is one that has been developed for judicial public officials and has been described in Delaware courts as "conduct [which] would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the official's ability to carry out [official duties] with integrity, impartiality and competence is impaired." In determining the relevant circumstances, the courts advise the Commission to look at the totality of facts. In re Williams, 701 A.2d 825, 832 (Del. Super. 1997). That standard is equally applicable to the conduct of County officials and employees. Advisory Opinion 05-06.
The totality of circumstances here reveals that the board member has no financial interest in the applicant or the real property, that his ownership of real property will not be affected by the outcome of the vote on the application, that the contractual relationship with the applicant involves the board member's payment for services according to advertised rates, and that whatever benefit or detriment, if any, created by the vote on the application will have approximately equal effect on the large group of the applicant's New Castle County customers. Under these circumstances, a reasonable member of the public would not believe the board member's ability to carry out his County duties with integrity, impartiality and competence is impaired.
The board member may vote on the application.
In issuing this Advisory Opinion, the Ethics Commission is applying the New Castle County Code of Ethics, which establishes the minimum level of ethical conduct required of County officials and employees. The Commission cautions, however, that each County department, board, or other unit of County government is free to, and may impose as part of its own policy, additional or greater restrictions on its officials and employees than those set forth in this Opinion.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS 14th DAY OF DECEMBER, 2005.
John McMahon, Acting Chairperson
1 Sec. 2.03.102. Definitions.
Business with which he or she is associated means any business in which the person is a director, officer, owner or employee, or a business in which a member of the person's immediate family is a director, officer, owner or has a financial interest.
Financial interest means any interest representing more than five (5) percent of a corporation, partnership, sole proprietor ship, firm, enterprise, franchise, organization, holding company, joint stock company, receivership, trust or any legal entity organized for profit.