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Prohibited Representation

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



          Whether a County official, who formerly served in a confidential capacity to another branch of County government, would violate the New Castle County Ethics Code if the official defends the County in litigation in which the claimant is represented by person who was a former official in that other branch of government when the requesting official was employed there.1


           A violation of the Ethics Code will not occur if the requesting official represents the County in litigation which is unrelated to duties performed in another branch of County government.


          The Advisory Opinion request relates that the requester is a County official who was formerly employed by another branch of County government and, in that capacity, advised officials of that branch in a confidential manner related to their County duties. The requester holds a professional license which requires adherence to rules regarding the disclosure of confidences received during a professional relationship. In the requester's current County position, the requester is charged with managing or representing the County government as a whole in certain legal actions. A former official of the other branch of County government now serves as representative of a private claimant in one or more of those legal actions. That representative used the services of the requester when both served in the other branch of County government. When in the former position, the requester did not advise the representative on his official conduct related to the current legal action but advised him in confidential matters related only to his public duties at that time.

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 Additionally, although the requester provided confidential advice to the representative when they were employed in the other branch of government, the change in the requester's County position does not implicate the Ethics Code restrictions on disclosure of confidential information because the requester remains in County service and is aware of the professional restrictions related to the former service.3 The only potentially relevant code provision is Section 2.03.104 (A) which prohibits conduct that 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 re Williams, 701 A.2d 825, 832 (Del. Super. 1997). In determining the relevant circumstances, the courts advise the Commission to look at the totality of facts. Advisory Opinion 05-06.


           In this matter, the relevant circumstances include the facts that the requester provided no private confidential advice unrelated to official conduct to the representative as part of the requester's duties in the other branch of government, that the representative is not a claimant in the legal actions but acts only in a representational capacity for the claimant, and that the requester's duty to maintain confidences gained by reason of public position is not implicated by the requester's transfer to another County position.


          The Commission finds, on the totality of these circumstances, that a reasonable person would not believe that the official's representation of the County in the litigation would create an appearance of impropriety by undermining the public confidence in the impartiality of a governmental body with which the requester is or has been associated. 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 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.

2 Section 2.03.103. Prohibitions relating to conflicts of interest, states in pertinent part:
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 Section 2.03.104. Code of conduct, states in pertinent parts:
E. No County employee or County official shall engage in any activity beyond the scope of such public position which might reasonably be expected to require or induce such County employee or County official to disclose confidential information acquired by such employee or official by reason of such public position.
F. No County employee or County official shall, beyond the scope of such public position, disclose confidential information gained by reason of such public position nor shall such employee or official otherwise use such information for personal gain or benefit.
          Certain County employees are required to hold professional licenses in order to maintain their County positions and as a condition of maintaining those licenses they must conform their conduct to rules established for ethical behavior in those professions.