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Ethics Code Complaint

Commissioners: Dennis S. Clower, Wendy Jamison, V. Eugene McCoy, John McMahon, Ernest Price


Order Text:

           Whether an elected official's sponsorship and/or vote on a matter allegedly favoring his own and his adult son's private interests as well as those of his business associates created a conflict of interest or appearance of impropriety.
           A Council Person's sponsorship and/or vote on an ordinance that creates no personal or private benefit to the Council Person, to a member of his family or a business with which he is associated does not create a conflict of interest or appearance of impropriety.
          The Commission received a complaint that an elected official intended to vote on an ordinance which allegedly benefited the official's former employer and current business associates and would have the effect of accruing a direct personal financial benefit to the elected official and his adult child. The complainants were members of an organization of persons opposed to the passage of the ordinance who filed identically written complaints. An investigation revealed that the official had retired from his position with the employer a year earlier but was receiving a pension related to his years of service and that he did not hold the other business positions alleged by the complainants. The investigation also showed that the official's adult son was associated with the former employer. There was no substantiation of the claim that the official or his adult child would accrue any financial or other type of benefit from passage of the legislation different from the general public. The complainants did not dispute that the elected official's constituency included persons not associated with the official's employer who were favorable to and could benefit from the ordinance. The investigation determined that the ordinance was neutral on its face and passed on a vote of 5-2, including the official's vote with the majority. The supporters and opponents of the legislation cited partisan political and economic rationales which are reflected in the County's general constituency. During the investigation, the complainants requested to withdraw their complaint citing passage of the legislation.1
Application of Relevant Ethics Code Provisions
          The New Castle County Ethics Code has two main provisions: conflict of interest and appearance of impropriety.
          The conflict of interest provisions do not apply to these facts because the elected official did not use the authority of his office to receive a personal or private benefit for himself or a member of his immediate family or for a business with which he is associated.2 Immediate family is defined in code section 2.03.102 as "a spouse or dependent child of a County official or employee whether by blood or operation of law". Business with which he or she is associated is also defined in that section and means 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. Finally, a financial interest is defined there as any interest representing more than five (5) percent of a corporation, partnership, sole proprietorship, firm, enterprise, franchise, organization, holding company, joint stock company, receivership trust, or any legal entity organized for profit.
          A conflict of interest is created when an official sponsors, participates in discussion, or votes on a matter in which he, his spouse or minor child, will receive a private benefit or a business with which he is associated has a financial interest. The first premise of the complaint, that the official and adult child would accrue a personal or private benefit from passage of the legislation, was found to be without any foundation in fact. The remaining allegation is that the former employer, the source of the official's retirement pension, had an interest in the legislation because passage would arguably increase the opportunity of its members to obtain certain contracts and reduce the financial gain for opposing bidders.
          However, the ordinance itself is neutral to such effect and reaches only to financial gains for employees under such contracts, regardless of the nature of the successful bidder. The investigation revealed no evidence related to increased opportunity for the former employer and uncovered only a dispute of fact as to whether the legislation would increase the cost of such contracts to the buyer. Furthermore, the official's former employer is only one of a number of numerous similar entities allegedly equally affected by the legislation. A conflict of interest is not reflected by these facts.3
          Nevertheless, employers of the type responsible for the official's pension are known to look favorably on this type of legislation so the question arises whether the retirement relationship between the official and former employer create an appearance of impropriety that the official's conduct stems from that relationship rather than the merits of the legislation. Such an appearance can exist even where there is no conflict of interest and no wrongdoing on the part of an employee or official. New Castle County Code section 2.03.104A states:
No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.02.103(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 a appearance that the decision or action 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 elected officials.
          In determining the relevant circumstances, the courts advise the Commission to look at the totality of facts. In this case the totality of facts are that the official has no relationship to the employer other than that of a pensioner, that his pension is calculated on his years of service and is unaffected by his conduct in regard to the legislation, that his constituents, including persons not associated with his former employer, have strong positions both for and against the legislation, and that the legislation was the result of long-term, significant national political discourse and philosophy far more broad than the individual interests of the official.
          The Commission concludes that a reasonable person, with knowledge of these facts, would not perceive an appearance of impropriety on the official's part or inability to conduct his duties in a fair and responsible manner.
          The Commission finds no violation of the New Castle County Code of Ethics in the official's sponsorship of and vote on the legislation. The complaint is dismissed.
Dennis S. Clower, Chairperson
Decision: Unanimous


1The New Castle County Code prohibits filing complaints that are without probable cause and made primarily for a purpose other than that of reporting a violation of the ethics code. Section 2.04.103K. The Commission is mindful that complaints can be used as a tactical measure to attempt to disqualify an official from voting on legislation not favored by the complainant. Assuming the good faith of the complainants' erroneous allegations about the official's financial relationships, the Commission remains concerned about the complainant's purpose in making the complaint in light of their request to withdraw it after the legislation passed.

2 The conflict of interest provision, New Castle County Code section 2.03.103 A (1), (2), states in pertinent part:
  1. No County official or County employee 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 . . .
  2. 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.
3 Absent a conflict of interest, an elected official has the duty and responsibility to conduct the public's business by casting his vote. The right of a legislator to represent the voter is such a significant responsibility that it should be barred only in the most clear and convincing case of conflict of interest. Even in that event section 2.03.103A2 of the Ethics Code recites a procedure for public disclosure of the conflict but permits a vote (see footnote 2).