Whether a Member of Council who is not currently a member of the County Employees Pension Plan or the Employees Retirement System may vote on an ordinance which would permit the member, along with other County employees, to buy into one of the plans.
A vote on the ordinance does not create a conflict of interest because the New Castle County Ethics Code does not prohibit a vote where an ordinance would "affect to the same degree . . . a subclass consisting of an industry, occupation, or other group which includes the County official . . .".
An ordinance was introduced to reopen the buy-in and transfer options of the County Employees' Pension Plan and the Employees' Retirement System to current employees, excluding police officers and certain employees covered under another specified plan. According to the request for an Advisory Opinion, County Council members, apparently designated as County employees for the purpose of this ordinance, either already belong to one of the plans or may buy in if the ordinance succeeds.
Code or Prior Opinion:
This question of the ethical propriety of a vote is controlled by the reasoning of Advisory Opinion 96-05, issued June 30, 1996. In that Opinion the Commission found that Pension Board and County Council Members could vote on an ordinance which would permit them as well as other County officials and employees to buy into and transfer between the County Employees Pension Plan to the Employees Retirement System. That Opinion was premised on prior New Castle County Code section 2-172 which recited an exception to the private conflict rule when an ordinance affects to the same degree a subclass consisting of an industry, occupation, or other group which includes the Members.1
Language almost identical to Code section 2-172 was reenacted in section 2.03.103A(1) in the 2000 Code revision. The current Code section states, in pertinent part:
No County employee or County official shall use the authority of his or her office or employment . . . for the personal or private benefit of himself or herself . . . This prohibition does not include an action . . . 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 County employee . . .
As in 1996, Council Members are part of a subclass of persons who conduct the business of New Castle County who are affected in the same degree by the ability to enter, switch, or increase participation in the pension plans. Thus, under the plain meaning of section 2.03.103A(1) Council Members are not using the authority of office for personal or private benefit when they vote on this ordinance.2
Therefore, the Council Member would not violate the Conflict of Interest provisions of the New Castle County Ethics Code by voting on the pension ordinance.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS 14th DAY OF JANUARY, 2004.
Dennis S. Clower, Chairperson
1 New Castle County Code section 2-172(a) stated in pertinent part:
Conflict of Interest means use by a county official or county employee of the authority of his or her office or employment . . . for the private pecuniary benefit of himself or herself . . . . [C]onflict of interest does not include an action . . . which affects to the same degree . . . a subclass consisting of an industry, occupation or other group which includes the county official or county employee. . . .
It could be argued that by not including the word "pecuniary" in section 2.02.103A(1) the scope of the conflict provisions were significantly broadened.
2 Additionally, even if a conflict were to be found, it could be argued that recusal from vote would not be required because of the non-delegatable responsibility of a Council Member to vote. Section 2.03.103 A(2) states:
In any case where a person has a legal and/or statutory responsibility with respect to action or nonaction on any matter where the person has a personal or private interest and there is no provision for the delegation of such responsibility to another person, the person may exercise responsibility with respect to such matter, provided that promptly after becoming aware of such conflict of interest, the person files a written statement with the Commission fully disclosing the personal or private interest and explaining why it is not possible to delegate responsibility for the matter to another person. If the matter is one in which the legal and/or statutory responsibility requires the person to vote upon the issue, the written statement filed with the Commission shall be read into the public record prior to the time the person's vote is cast. Any person choosing to abstain from voting on an issue where [he] or she has a conflict shall state the reasons for his or her conflict on the record; an abstaining voter need not file the written statement with the Commission required when acting on, rather than abstaining from, an issue involving a conflict.
However, the recusal issue is not before the Commission and this Opinion does not extend to that matter.