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Prohibited Representation

Commissioners: Dennis Clower , Loren Grober, Eugene McCoy, Ernest Price



          Whether a County official, who was a former State of Delaware employee when the substance of a lawsuit arose, may manage the defense of the County in the lawsuit and exercise discretion in regard to that litigation if the conduct of the State of Delaware is an issue in the matter.1


           An appearance of impropriety will not be created if the official represents the County and exercises discretion for its benefit in litigation in which the conduct of an agency of the State of Delaware is at issue because the official had no involvement in the State conduct when he was a State employee.


          The Advisory Opinion request relates that the County official was formerly employed by the State of Delaware and that in his current County position he has official duties related to a lawsuit recently filed by a private claimant against New Castle County in which the conduct of the State is at issue. The substance of the lawsuit, but not the lawsuit itself, arose when he was still a State employee. The official reports that when he was employed by the State he had no involvement in the matter, that he neither worked in nor represented the State agency that will be involved in the lawsuit and he did not supervise any persons so involved. He indicates that the representative of the claimant has presented concerns to him about his compliance with the New Castle County Ethics Code because of his former State employment and he is requesting guidance from the Commission.
          The Official reports that the County has not yet responded to the lawsuit but, under his direction, will contend that the conduct of a State of Delaware agency precludes the County from granting the relief desired by the claimant. The request states that the State agency involved agrees that the County's denial of relief based on the State's conduct was lawful and appropriate. In his current County position, the official is responsible for managing the lawsuit and exercising discretion regarding strategy and the selection of outside counsel to represent the County in court. He advises that he has recommended the retention of a law firm which currently represents the State agency against the same claimant in a related but separate matter. The County has retained that law firm for numerous past and current cases which have been filed against it by the same claimant. The official notes that using this firm could result in significant cost savings to the County because of the firm's experience with the parties and familiarity with the particular issues in this case.

Code or Prior Opinion:

Code provisions
There is no issue of conflict of interest raised in this request for guidance because there is no potential for personal or private pecuniary benefit for the official on the facts asserted.2 The only relevant code provision appears to be Section 2.03.104 (A) which prohibits conduct which undermines public confidence in the impartiality of a governmental body. Section 2.03.104 states in pertinent part:
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.
Commission Precedent
          Absent obvious error or facial conflict, the Ethics Commission assumes "that the requesting party requested the opinion in good faith and disclosed truthfully all material facts to the Commission . . . ." Advisory Opinion 01-10 at 5; see also Section 2.04.102(I). The Commission believes that the standard for judging appearance of impropriety for judicial public officials, which 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." is equally applicable to the conduct of County officials and employees. In determining the relevant circumstances, the courts advise the Commission to look at the totality of facts. In re Williams, 701 A.2d 825, 832 (Del. Super. 1997); Advisory Opinion 05-06.


           In this matter, the relevant circumstances include the facts that the County defense in the lawsuit is not in conflict with the State position on the matter, that the County official was not directly or materially involved with the issues involving the State agency in his former employment3, that the official has no allegiance to any employer other than the County, that the law firm the official recommended for retention has performed substantial prior and current representation of the County against the same claimant, that the retention of the law firm may improve the County's defensive position in the lawsuit and result in substantial cost savings to the taxpayers.


          The Commission finds that on the totality of these circumstances, a reasonable person would believe that the official's decisions will be made with impartiality and competence for the benefit of the County and on no other basis than the merits of the matters before him. In this matter, the official's public duty is to exercise his discretion to represent the County in a vigorous manner without fear of what some might interpret as tactical allegations meant to undercut the ability of the County to mount that type of defense.4
          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.
Dennis S. Clower, Chairperson
Decision: Unanimous


1 The jurisdiction of the Ethics Commission is limited to interpreting and enforcing the New Castle County Ethics Code which covers County officials and employees. Questions concerning lawyer's codes of ethics applicable to matters in courts of law are not within the jurisdiction of the Commission and will not be considered in this Opinion. It is the Commission's understanding that the requester is consulting an eminent judicial authority to review whether other types of issues are involved.

2 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).

3 The post employment provision found at Section 2.03.103D is not applicable here because the official is a former State employee, not a former County employee. The County post employment provision is almost identical to the State provision administered by the Public Integrity Commission pursuant to 29 Del. C. §5805 and precludes representation in matters involving the State for a period of two years after termination of employment or official status with the State, if the person gave an opinion, conducted an investigation or otherwise was directly and materially responsible for such matter in the course of official duties.(Emphasis added)

4 The official has unique and extensive litigation experience of a type not otherwise found in the County Law Department, as has the law firm hired to represent the County. If the official or the firm were barred from participation in the lawsuit, the County's ability to defend would be significantly eroded and the claimant's position correspondingly advantaged. The courts have caution that there is significant potential for abuse when procedural rules are subverted for use as weapons in litigation, In re Infotechnology, Inc., 582 A.2d 215, 218 (Del. 1990), and the Commission is mindful of that concern.