Whether a County official with significant land use policy and implementation responsibilities may accept outside employment with a private business which does land use business in New Castle County.
The official may accept employment with such a business as long as he recuses himself from all issues affecting the employer, including indirect policy making and discretionary implementation matters which affect the employer's business in a degree different from other businesses in the same industry or class, and he will be required to seek clarification regarding his involvement in policy decisions affecting his employer on a case by case basis with the Ethics Commission.
The Commission received a request for an Advisory Opinion from an elected official. who is asking for guidance on whether he may be associated with a business which does land development in Delaware as well as in other states.1 His understanding with the proposed employer is that he would not participate in any of its activities in New Castle County. The official has very significant policy making as well as discretionary policy implementation authority for New Castle County land use issues.
Code or Prior Opinion:
The Ethics Code has two general and two specific provisions affecting the official's request for guidance. The general provisions are conflict of interest and appearance of impropriety; the specific conflict provisions are representation of a private interest before the County and acquiring a financial interest in a private business.
Conflict of Interest
Section 2.03.l03(A)(1) of the Ethics 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 associate. There will be 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).
Section 2.03.103(B) of the Code prohibits officials from assuming representation of a private entity before the County government. It states as follows:
B. Restrictions on representing another's interest before the County.
1. 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 em
2. No county official may represent or otherwise assist any private enterprise with respect to any matter before the County. This prohibition is to be considered personal to the County official and is not, for purposes of the New Castle County Ethics Code only, deemed to impact other members of a firm, business, or other employer by which the County official is employed.
3. This subsection shall not preclude any County employee or County official from appearing before the County or otherwise assisting any private enterprise with respect to any matter in the exercise of his or her official duties.
Appearance of Impropriety
Section 2.03.104(A) of the Code prohibits conduct which would create an appearance of impropriety, as follows:
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.
Prior Commission Opinions
A County official may engage in outside private employment, without limitation, if that private business has no relationship to his official duties. SeeAdvisory Opinions 94-05, 98-08, 99-06. In such a case, there can be no conflict of interest or appearance of impropriety. However, even when the private business is entirely unrelated to the County position, an official may not use his public office to assist the private business: he may not refer clients of his County office to the private business, Advisory Opinion 94-02; he may not solicit business from County customers for the private enterprise, Advisory Opinion 93-02; he may not influence, even indirectly, the selection of the business or its associates for County work, Advisory Opinion 94-06; he may not use his position as a County official to advance his interests in the private business, Advisory Opinion 04-11.2
When outside employment has some nexus with County Government by regulation or contract, the official is quite limited in his range of conduct. If a private business is expected to seek or require the exercise of authority by the official or his department, the official may not accept employment from it. SeeAdvisory Opinions 93-01, 04-093,04-14. If the private employer or another business jointly associated with it comes before him or his agency, he must recuse himself from any act of authority regarding either business. Advisory Opinions 04-11, 04-09, 05-05. Finally, he may not accept employment in a private business for performing the same duties in the private business that he performs in his public office. Advisory Opinions 01-05, 01-03.
Conflict of Interest
The Commission notes that the elected official making the request for guidance is widely known for his involvement in land use issues. Furthermore, because of his many years in his position, he has become an expert on the subject, acquiring knowledge the prospective employer reasonably seeks. His proposed employment, while using skills developed through his County job, does not involve the same duties. Personal use of the knowledge he has incidentally accrued while performing his County function is not contraindicated in this situation as he would not be using the authority of his office in performing the outside employment. Thus, the proposed employment is not a conflict in that regard.
Additionally, as the official points out in his request for guidance, conflicts arising from official action on matters directly concerning the proposed employer in New Castle County will be avoided by the official's complete recusal from such issues.4 Such recusal will prevent benefit and representation conflicts as well as the appearance of impropriety in matters directly related to the employer. However, there are significant problems inherent in a policy maker's acceptance of employment with a business involved in land use and development in New Castle County which do not lie in issues of financial benefit to the official but, rather, are found in the public perception of his official conduct and its affect on the impartiality of County government.
Appearance of Impropriety
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, the Commission takes notice that it has been frequently and publicly stated that the primary purpose of county government in Delaware is to affect and control land use. The most relevant circumstance in this request for guidance is the official's significant discretionary responsibility to create and implement County policy to affect all land use type businesses operating in New Castle County.
Since the policy making and implementation nature of the official's job can affect the function and profitability of the proposed employer, the official may create the improper appearance to the reasonable member of the public that his decisions are not being made on the merits of the question before him because of his relationship to the land development employer. Section 2.03.103A(1) of the Code precludes such conduct on the part of this official except when "an action [has] 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."5
Thus, if the official accepts the employment, the Commission finds that he must recuse himself from all direct matters involving the proposed employer and from all discretionary acts related to policy development and implementation which could be reasonably seen to affect the employer's business in a manner different from other business of the same industry or class. In addition, in the future, he will be required to seek clarification regarding his involvement in policy decisions affecting his employer on a case-by-case basis with the Ethics Commission to determine whether his conduct comports with the 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 13th DAY OF April, 2005.
John McMahon, Vice Chairperson
1 Sec. 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 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.
2 These restrictions also extend to enterprises or businesses which are owned or associated with members of the official's or employee's immediate family, as that term is defined in New Castle Code Section 2.03.102.
3 In Advisory Opinion 04-09, the fact situation involved a senior County employee and outside employment owned by the employee's son. The senior official was not permitted to accept employment with the son if the son's business operated in New Castle County, even though the senior employee would not perform any work for the sons's business in this County. The Commission determined that recusal "was not satisfactory because of the breath of managerial authority" held by the employee and "the close family relationship involved" as well as the impact of this knowledge on the impartiality of lower level employees. The situation described in the instant request does not involve any familial relationships and a similar impact.
4 Sec. 2.03.103A(2) provides:
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.
5 Section 2.03.103A(1) of the conflict of interest provisions states in pertinent part:
. . . 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).