Whether an elected official may vote on a land use measure affecting the community in which he maintains his home.
If the measure subject to the official's vote affects his financial interests or those of his family or a business with which he is associated, he must recuse himself from all further participation in the matter. If the measure has no beneficial or detrimental affect on his financial interests, those of his family or an associated business, and surrounding circumstances do not otherwise create an appearance that he is biased or cannot act impartially, his vote will not violate the Ethics Code.
A County official has asked whether he would violate the Code of Ethics if he exercises his vote on a land use measure brought by a property owner in the community in which the official resides and which will affect new homes in that community. The official had no prior involvement in the subject matter of the measure in his capacity for the County and he is an elected official and cannot delegate his duty to vote. The request does not provide information regarding the effect of the measure on the value of existing homes in the community.
Code or Prior Opinion:
The conflict of interest rules at New Castle County Code Section 2.03.103(A)(1) prohibit the use of official authority by a County official or employee "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." The Ethics Code's conduct rules at Section 2.03.104(A) recite a prohibition on conduct creating an appearance that the decisions or actions of a County official are influenced by factors other than the merits of the matter for decision, thereby undermining public confidence in the impartiality of the governmental body with which the official is associated.
Prior Commission Opinions
In Advisory Opinion 05-23 the Commission found that if an official exercised County authority regarding a land use matter no conflict of interest or appearance of impropriety would arise since the official's ownership of real property would not be affected by his vote and any benefit or detriment flowing from the vote would have approximately equal and de minimis affect on a large subclass of the public which included the official. In Advisory Opinion 04-11, the Commission found that although an elected official's spouse did not represent a property owner in the matter pending before the official, she did have a business relationship with the property owner in other matters and an appearance of impropriety would arise if the official sponsored and/or voted on the measure brought by the property owner. The Commission concluded that a reasonable member of the public would question the official's ability to cast his vote impartially because of the spouse's business association with the property owner and continued sponsorship and vote would violate the Code. In Complaint Order 05-04, the Commission held that an official unintentionally created an appearance of impropriety when he cast his vote on a matter intertwined with another measure in which a property owner and the official's spouse had a business relationship.
This request is controlled under the reasoning of Advisory Opinion 05-23. If the official, his family, or a business with which he is associated does not have a financial interest which will be beneficially or adversely affected by the matter presented for vote, there is no potential for conflict of interest. The Commission presumes that County officials and employees act with integrity and good faith unless circumstances show otherwise. Unless undisclosed facts demonstrate that there are other circumstances in this matter creating the reasonable perception that that the official's conduct would be influenced by factors other than the merits of the measure at issue, a vote will not create an appearance of impropriety.
If the official determines that his vote would violate the Ethics Code, either because of a financial interest or other circumstances impairing his integrity, impartiality or competence, he must follow the directives of Code Section 2.03.102(A)(2). That section requires him to place complete information about the conflict or impairing circumstances on the public record before the vote and to recuse himself. Alternatively, that Section provides an opportunity for him to cast his vote if he communicates the potential conflict in writing to the Ethics Commission in advance of the vote and if he places the conflict information on the public record immediately before he exercises his public vote. This alternative procedure permits the Commission to review the proposed conduct in light of Ethics Code provisions and provide timely advice in order to avert a violation of the Code. Since the elected official's conflict notice to the Commission is a matter of public record, he or she could also choose to include any guidance he or she received from the Commission in the record before exercising his vote.
If the measure subject to the official's vote affects his financial interests or those of his family or a business with which he is associated, he must notify the Commission in accord with New Castle County Code section 2.03.103(A)(2) and recuse himself from all further participation in the matter. If the measure has no beneficial or detrimental financial affect on him, his family or an associated business, and the circumstances do not otherwise create an appearance that he is biased or cannot act impartially on the measure, voting will not violate the Ethics Code.
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 12TH DAY OF APRIL, 2006.
John McMahon, Chairperson
1New Castle County Code Section 2.03.102 defines Business as “any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. That section defines the phrase business with which he or she is associated as “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.”
New Castle County Code Section 2.03.103. Prohibitions relating to conflicts of interest, states in pertinent part:
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).
2New Castle County Code 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) [conflict of interest], 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.