Whether New Castle County's Department of Community Development and Housing may grant a home rehabilitation loan to a homeowner who satisfies all requirements of an established loan program but is employed by the County.
Yes. Such action would not violate the New Castle County Ethics Code ("Ethics Code").
H.O.M.E.1 is a New Castle County Department of Community Development and Housing ("CD&H") program which provides low and def erred interest home repair loans to qualified homeowners for necessary repairs and improvements to owner-occupied properties in New Castle County, outside the cities of Wilmington and Newark.
Since the program is designed to assist low to moderate income homeowners, to qualify for a low or deferred interest loan, a homeowner must meet certain income criteria.
A homeowner who is employed by New Castle County has applied for an H.O.M.E. loan to rehabilitate his home.2 This homeowner satisfies all requirements and is thus otherwise eligible. However, CD&H asks whether it may properly grant this homeowner's application since he is employed by the County.3
The only provision of the Ethics Code which is implicated is Section 2-30.2(g), which provides: "County officials and county employees shall avoid an appearance of impropriety." "Appearance of impropriety" is defined as:
The conduct of a county official or county employee which does not constitute a conflict of interest but which undermines the public confidence in the impartiality of a governmental body with which a county officer or employee is or has been associated by creating an appearance that the decisions or actions of the county official, county employee or the governmental body are influenced by factors other than the merits.
CD&H's decisions as to whether to grant H.O.M.E. loan applications are based upon objective criteria, e.g., whether the applicant's home is located in New Castle County but outside the cities of Newark or Wilmington, whether the homeowner's income is below a certain limit. Since the approval process for H.O.M.E. loans by CD&H involves only the application of objective criteria, the process allows no room for consideration of "factors other than the merits." Therefore, no appearance of impropriety arises.
Were a contrary conclusion reached, a low to moderate income homeowner employed by the County would be deprived of a benefit generally available to low and moderate income homeowners in New Castle County and would thus be penalized solely because of his or her employment with the County.4
L. Susan Faw
December 4, 1992
1 H.O.M.E. is an acronym for "Housing Overhaul Made Easy."
2More specifically, this homeowner is employed by a department other than CD&H. However, this fact is not material to the conclusion reached.
3The Ethics Code governs the conduct of "County officials" and "County employees" as those terms are defined by the Code. This homeowner is not a "county employee", defined as follows: "An individual employed by the county who is responsible for taking or recommending official action of a non-ministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimis nature upon the interests of any person." See Section 2-30.1. Definitions.
4Additional support for the view that the Ethics Code was not designed to deprive persons employed by the County of benefits ordinarily available to the general public or a subclass is found in the definition of "conflict of interest." Under the Code, a county official or employee is prohibited from using the authority of his office or employment or confidential information received through his office or employment for his private pecuniary benefit. However, a "conflict of interest" does not include action "which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other groups which includes the county official or county employee . . . ." See Section 2-30.1. Definitions.