May a County official obtain secondary employment with a vendor who has an ongoing lease agreement with the County, if the county official was instrumental in choosing the vendor and has direct and ongoing responsibilities to oversee and monitor the obligations and responsibilities of the vendor under the lease?
To avoid a conflict of interest or appearance of impropriety, a County official should not obtain secondary employment with a vendor who has an ongoing lease agreement with the County, if the county official was instrumental in choosing the vendor and he has direct and ongoing responsibilities to oversee and monitor the obligations and responsibilities of the vendor under the lease.
The requesting party is a County official. As part of his official duties, he selected a vendor to supply goods/services to his County office. The County entered into a long term lease agreement with the vendor he chose for the supply of such goods/services. The County official has direct and ongoing responsibilities to oversee and monitor the obligations and responsibilities of the vendor under the lease. Approximately one year after the lease agreement was entered, the county official was asked by the vendor to provide consulting services for the vendor. The nature of the consulting services would be for the County official, in his individual capacity, to market to other counties on an occasional basis, the same goods/services the vendor contract to provide to New Castle County under the lease agreement.
Code or Prior Opinion:
The New Castle County Ethics Code prohibits County officials and employees from engaging in conduct which would constitute a conflict of intrest or appearance of impropriety. The prohibition on conflict of interests, Section 2.03.103(A)(1), states:
No County employee or official knowingly or willfully shall use the authority of his or her office or employment1 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.
The phrase "business with which he or she is associated", as used above, includes any business in which a person is an employee. Section 2.03.102.
The prohibition on appearances of impropriety, Section 2.03.104(A), states:
No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.03.103(A)(1), 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.
If the County official were to obtain secondary employment with the vendor, he would be creating the potential for a conflict of interest. By accepting the secondary employment, the County official would be placing himself in the position of having to monitor the performance of "a business with which he is associated", his employer, since the requesting party has ongoing responsibilities to monitor the performance of the vendor under the lease agreement. Any decision to act, or decision not to act, with regard to the lease agreement, which he might have to make in his official capacity (i.e., use of the authority of his office) which would inure a personal or private benefit to the vendor itself, or which would enhance the vendor's impression of the County official, would create a conflict of interest.
Even if, however, none of the future decisions of the County official, were actually to inure to the personal or private benefit of the vendor, the proposed secondary employment would create an appearance of impropriety under the Ethics Code. Certainly, any action or non-action by the County official regarding the lease, would undermine the public confidence in the impartiality of the County and office with which the official is associated. The arrangement creates an appearance to the public that the County official's responsibilities to monitor and oversee the lease are being influenced by his employment relationship with the vendor, and that any decision he might make regarding the lease is not based upon the merits.
In so finding, the Commission again underscores the caution that County employees and officials must exercise in dealing with vendors. as noted in Advisory Opinion 96-02, (February 20, 1996). In that opinion, the Commission opined that a County employee should recuse himself from making a recommendation regarding comppeting vendor's proposals, where one vendor suggested to the employee that if its proposal was accepted, the vendor would be interested in discussing future employment with the employee. Since, in the current instance, the offer of employment occurred well after the choosing of the vedor, and the offer of employment was not made contingent on the choice f vendor, the County official here, unlike the County employee in Advisory Opinion 96-02, is not required to recuse himself from his responsibilities to monitor and oversee the lease nor is he required to disclose such offer. None-the-less, Advisory Opinion 96-02, as well as the current request, highlights the care which must be taken in dealing with vendors to the County.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON DECEMBER 20, 2001.
P. Clarkson Collins, Jr., Chairperson
1Section 2.03.102 defines "Authority of office or employment" as "the actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular County office or position of County employment."