Section 2.03.103 D of the New Castle County Code prohibits a person who has served as a County employee or County official from
represent[ing]or otherwise assisting any private enterprise on any matter involving the County for a period of two (2) years after termination of employment or official status with the County, 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 as a County employee or official. Nor shall any former County employee or County official disclose confidential information gained by reason of public position nor shall the person otherwise use such information for personal gain or benefit.
County Code Section 2.03.103 D is substantially identical to the post-employment prohibition recited in the Delaware Code at Title 29, chapter 58.1 The County Ethics Code is required to be at least as strict as the State Code so interpretations by the State Public Integrity Commission (hereinafter PIC) are informative. See, 29 Del.C. §5802(4).
The PIC has discussed the post employment provisions several times. In PIC Ethics Bulletin 007, issued May 22, 1998, that Commission described the State law and made reference to similar federal government provisions:
[L]ike other conflict of interest statutes, post employment provisions are meant to insure public confidence in the integrity of the government. It is said public confidence in government has been weakened by a widespread conviction that government official use their office for personal gain, particularly after leaving the government. There is a sense that a "revolving door" exists between industry and the government [which] leads to a suspicion that personal profit was the motivation. There also is public concern that former employees may use information, influence, and access acquired during government service for improper and unfair advantage in later dealings with that department or agency. Reflecting that concern, post employment laws set a "cooling off period" in certain areas which the ex-employee dealt with while working at the agency. [Citations omitted]. Similarly, the Delaware legislature sought to insure public confidence in the integrity of government. 29 Del.C. §5802. It set a two-year "cooling off period" in areas where the former employee was "directly and materially responsible," etc. 29 Del.C. §5805(d). This limits the actual or perceived unfair advantage in subsequent dealings with a department or agency. Commission Op. No. 97-18. Thus, this Commission has held that Delaware's post-employment provision is an attempt to eliminate concerns that when a State employee moves from State employment to private employment that they do not use their former State position to get a "leg-up" on others in the private sector who also seek to deal with the government. Commission Op. No 97-11. Additionally, it is to avoid the risk that after a State employee moves to the private sector that they will not exercise undo influence on their former colleagues. Commission Op. 96-75.
Prior Commission Opinions
In Advisory Opinion 02-03, a County employee, whose job involved reviewing and processing of forms and applications prepared by the public, asked whether after retirement she could accept employment in the private sector working with the same type of forms and applications. The Commission held that there was no violation of the post-employment section of the Code since in her ministerial capacity as a County employee, she would not have given an opinion, conducted an investigation; or otherwise been directly and materially responsible for such matter in the course of her official duties.
In Advisory Opinion 01-04, a former County official who served as chair of a County Board inquired whether it would violate the Ethics Code if he represented an applicant before that Board within the two-year window following his service as chairman. He provided the Commission with specific information regarding the representation, including the parties, the location of the property, and specifics regarding the particular application. The Commission concluded "under the specific facts presented to the Commission" that such representation would not violate the post-employment section of the Ethics Code. In issuing that decision, the Commission referenced the Delaware case law and State Public Integrity Commission rulings, finding that it was not a violation of the post-employment law for a former board member to represent an applicant before his former board, if the former board member had no involvement in the particular matter while serving on the board.
In Advisory Opinion 01-10, the initial query posed by the request was whether, in her proposed private post-County employment, the requesting party would be representing or assisting a private enterprise on any matter that she may have, as a County employee, given an opinion, conducted an investigation, or otherwise was directly and materially responsible for. The second query posed by the request was whether the County employee would disclose any confidential information she may have obtained by reason of her County position or use any such confidential information for her personal gain or benefit.
The Commission noted that the requesting party's current job responsibilities required her to review and process the type of forms and applications she would work with in her proposed post-County employment. The Commission found, however, that due to the ministerial and routine nature of her job, and the lack of any other factors, she was not deemed, under the facts presented, to be "directly and materially responsible" for such a "matter". The Commission determined that while it was unlikely that private sector employment might require the County employee to work on a particular filing she administered in her County job, if such a situation arose, the employee would not be precluded from working on the matter, as the responsibility she had in her County job regarding such matters was not "direct and material".
With regard to the second issue presented, i.e., whether the County employee would disclose confidential information or use it for personal gain or benefit, the requesting party stated that she did not possess any confidential information by reason of her County employment. The Commission held that if the employee had come into possession of confidential information, she would be prohibited from using such information for her own or her new employer's benefit.