Whether an employee in the Land Use department would violate the Ethics Code if she accepts secondary part-time employment performing a function similar to her County job for a private employer who provides services for a governmental jurisdiction in another State.
Since the outside employer does not do business with the Land Use Department nor require regulation by it, the employee may accept the employment. If the outside employer does business with the Land Use department or is regulated by it by it in the future, the employee may not continue in the employment because she would violate the appearance of impropriety provisions of the Code.
A County employee asks whether she would violate the Code of Ethics if she accepts part time employment with a business that provides professional services to a governmental jurisdiction in another State. The other governmental jurisdiction has no business relationship with New Castle County. Although the employee intends to perform a function in the secondary employment that is similar to those she performs in her County position and may use the same skills or abilities acquired in her County position, there does not appear to be opportunity for improper use of confidential information obtained by virtue of her County position. The requester states that the proposed employer conducts does not conduct any business with nor is it regulated by New Castle County.
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."1 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.2 The Code also has rules regarding formation of County contracts when an official or employee is associated with the business seeking the contract. When an employee is associated with such a business, Section 2.03.103(C) prohibits the County from entering into a contract valued in excess of $500.00 without public notice and competitive bidding.3
Prior Commission Opinions
The Ethics Commission has long ruled that secondary employment is not prohibited "where there is no nexus between an employee's or official's County job and secondary employment". See Advisory Opinion 94-05. However, when that nexus exists, the Code may restrict and, in some cases prohibit, County employees from secondary employment. For example, in Advisory Opinion 92-07, the Commission found that an employee who performs inspections for the County must not be associated with a business which does any construction subject to County inspection. The Commission ruled that a County inspector had to limit work he did as an individual to construction which would not be subject to County inspection, either by virtue of the nature of the construction or its location outside the County's geographic jurisdiction. It further advised that a County inspector may not be associated with a business which does any construction subject to County inspection. "[A]llowing a County inspector to inspect construction done by his fellow inspectors or by a business with which the fellow inspector is associated creates an appearance of impropriety." Id at 3.
In Advisory Opinion 97-07, an employee was prohibited from taking secondary employment in a business regulated by New Castle County even though the employee intended to work in a different county for the private employer and had agreed to abstain from reviewing any work performed by the private employer in New Castle County. The Commission expressed concern that reviews of the private employer's work by the employee's co-workers would create an appearance that department approvals were granted because of the fellow employee's relationship with the secondary employer, not because of the merits of the work. See also, Advisory Opinions 00-01 and 06-02.
In Advisory Opinion 04-09, a senior County employee was prohibited from joining an outside business venture with his son in another State because the son was also in a business regulated by the employee's County department. The Commission found that the joint venture, even if conducted solely in another jurisdiction, would create a situation in which the employee would be associated with business which was regulated by his department and that a reasonable person, with knowledge of these facts, would perceive that because of the employee's status in the department, the ability of lower level personnel to impartially carry out their duties in regard to the son would be impaired.
In Advisory Opinion 05-04, the Commission reiterated that rule that the County may not form professional services contracts valued in excess of $500.00 with businesses associated with County officials or employees unless a public notice and bid process is used.
Since there is no evidence that the employee has used her County position, authority, or confidential information to obtain the benefits of the secondary employment, a conflict of interest does not exist. Additionally, if there is no reason to believe that the proposed employer either has or expects to have business with or before the County Department of Land Use, an appearance of impropriety does not arise. However, should the secondary employer undertake a business relationship with the County in the future, the concerns expressed in Advisory Opinions 92-07 and 97-07 about the effect of such an association on co-workers and the public would arise. Continuing the employment under the latter circumstance would create an appearance of impropriety in violation of the Ethics Code.
A further consideration for the employee in accepting the position is that a business association between the employee and the secondary employer could negatively impact the secondary employer's future ability to do business with the County, if such should be desired. Once the employee associates with the secondary employer, the New Castle County Code prohibits the County from entering into a contract in excess of $500.00 with the secondary employer unless public notice and competitive bidding takes place. See Advisory Opinion 05-04. Since public bidding generally does not occur for professional services contracts, the secondary employer would be precluded from entering into contract with the County in the future.
Since the secondary employer does not do business with the Land Use Department or require regulation by it, the employee may accept the employment since it presents no conflict of interest or appearance of impropriety. If the outside employer undertakes a business relationship with the Land Use department or is regulated by it, the employee may not continue the employment because it would create an appearance of impropriety. 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.
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.
3New Castle County Code Sec.2.03.103. Prohibitions relating to conflicts of interest.
A. . . .
B. . . .
C. Restrictions on contracting with the County. No County official or County employee his or her spouse, child, parent, step-parent or sibling of the whole or half-blood or any business with which the County official or County employee or his or her spouse, child, parent, step-parent or sibling of the whole or half-blood is associated or who has a legal or equitable ownership of more than five (5) percent (more than (1) percent in the case of a corporation whose stock is regularly traded on an established securities market) shall enter into any contract with the County (other than an employment contract) or any subcontract with a County contractor unless such contract or subcontract was made or let after public notice and competitive bidding. Such notice and bidding requirements shall not apply to contracts not involving more than five hundred dollars ($500.00) per year if the terms of the contract reflect arms’ length negotiations, if the subcontractor is a sole source provider, or if there are exigent circumstances. There will be a rebuttable presumption of a knowing and willing violation of the section only if the contract or subcontract is awarded to a spouse or child of the County employee or official.