This 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 was 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 approvals were granted because of the fellow employee's relationship with the secondary employer, not because of the merits of the work.
In Advisory Opinion 01-01 the Commission found no violation of the Ethics Code for a plan examiner to have secondary employment with a business which manufactured construction materials that did not do business with the County, submit plans for County review, or apply for licenses or permits from the County. The Commission further noted that the construction materials produced by the business were of a generic nature and not identified by manufacturer in any plans submitted by other businesses.
The advisory opinions described above reflect consideration of Ethics Code principles which must be addressed in analyzing this employee's request for advice: conflict of interest, restrictions on representing another's interest before the County, and appearance of impropriety.
Conflict of Interest
As long as the proposed secondary employment is not subject in any way to the regulatory authority of his department, the employee will not violate the conflict of interest provisions of the Ethics Code. Section 2.03.l03 (A)(1) of the Code sets forth the activities prohibited as a conflict of interest, as follows:
No County employee or County official 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 County 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.
Restrictions on representing anothers' interest
However, in certain situations where the secondary employment is not in conflict because the exercise of official authority cannot directly inure to the personal benefit of the employee or associated business, the provision of the Ethics Code restricting representation of another's interest may be violated. Section 2.03.102 B (1) of the Code prohibits an employee from taking any personal position on behalf of a private enterprise before his own department. It states:
No County employee or County official may represent or otherwise assist any private enterprise with respect to any matter before the County Department with which the employee or official is associated by employment or appointment.
Thus, if any of the employee's secondary employment business matters were presented to his department for review or approval, he would be in violation of this Code provision.
Appearance of Impropriety
Even if Section 2.03.102 B (1) did not exist, the appearance of impropriety provisions of the Code would be violated if the employee's secondary employment were regulated by his department. Section 2.03.104(A) of the Ethics Code states:
No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.03.l03 (A)(l) [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 decisions or actions of the County employee, County official or governmental body are influenced by factors other than the merits.
The standard for judging appearance of impropriety for judicial public officials 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 re Williams, 701 A.2d 825, 832 (Del. Super. 1997). The Commission believes that standard is equally applicable to the conduct of County employees.
In determining the relevant circumstances, the courts advise the Commission to look at the totality of facts. In this case, if the employee's outside employment became subject to the regulatory authority of his department, the reasonable person with knowledge of the facts may perceive that, because of the coworker relationship, the employee's secondary business would be treated in a manner different from the treatment of the general public.