Whether an assessor employed by the Assessment Division of New Castle County's Department of Finance may work simultaneously in the private sector as a real estate sales agent or appraiser. If so, whether the assessor may advertise his or her services as a realtor or appraiser on County property, e.g., on bulletin boards in County buildings.
If an assessor employed in the Assessment Division of the New Castle County Department of Finance worked at the same time in the private sector as a realtor or appraiser, this would constitute an appearance of impropriety in violation of Ethics Code Section 2-30.2.(g).
The primary responsibility of assessors for New Castle County is the valuation of real property. The value of property, as determined by an assessor, provides the basis for calculation Of the County's advalorem tax owed by the property owner.
Code or Prior Opinion:
The question presented is whether an asessor may moonlight in the private sector as a realtor or appraiser, - without violating the New Castle County's Code of Ethics.1 Analysis of this question reqires a consideration of two sections of the Ethics Code: the "conflict of interest", provision and the "appearance of impropriety" provision.
Conflict of Interest
The Ethics Coded prohibits County employees from engaging in conduct constituting a "conflict of interest",2 defined as use by a County employee "of the authority of his [ ] employment or any confidential information received through his [ ] employment for [his] private pecuniary benefit . . .". (Emphasis added.)3
No facts are presented which suggest that by moonlighting as a realtor or appraiser, a County assessor would be using his or her official position for personal financial gain.
Appearance of Impropriety
The Ethics Code also directs County employees to "avoid the appearance of impropriety."4 An "appearance of impropriety" is conduct "which does not constitute a conflict of interest bbut which undermines the public confidence in the impartiality of a govermental body with which a county [ ] employee is [ ] associated, by creating the appearance tha the decisions or actions of the county [ ] employee or the governmental body are influenced by factors other than the merits."5
The Commission concludes that the assessor's moonlighting would create a serious "appearance of impropriety." The close relationship between assessing property for County tax purposes and assisting prospective buyers and sellers in the acquisition and sale of property creates the appearance that assessors in the Assessment Division are influenced by factors extraneous to the merits, e.g., whether the rate at which a particular parcel of property is assessed is consistent with the assessor/realtor's private clients' interests.
While the assessor/realtor might perform his or her official duties without regard to private clients' interests and while the assessor/realtor might not seek to influence overtly fellow assessors in the performance of their official duties,6 nevertheless, a very negative public perception would be created. It is this negative perception, eroding public confidence in government, which lies at the heart of the "appearance of impropriety" provision. An assessor's moonlighting as a realtor or appraiser would seriously undermine public confidence in the impartiality of the Assessment Division by creating the appearance that assessments "are influenced by factors other than the merits."
Therefore, an assessor may not moonlight in the private sector as a real estate sales agent or appraiser, as this would result in an "appearance of impropriety" in violation of Ethics Code Section 2-30.2.(g)
Since the Commission has determined that an assessor's moonlighting as a realtor or appraiser would constitute an appearance of impropriety, it need not reach of the question of the propriety of advertising such services on County property. Nevertheless, the Commission wishes to state that a County assessor's use of County facilities to advertise his or her availability to private clients as a realtor dramatically underscores the appearance of impropriety created by the assessor's moonlighting. Any member of the public who stood before a County bulletin board and saw such an advertisement, and knew or later learned that this realtor was also employed as a County assessor, would be left with the impression that the assessor/realtor's official actions were influenced by his or her private clients' interests. It is conduct giving rise to such a negative impression which the Ethics Code admonishes County employees to avoid.
Therefore, an assessor may not moonlight in the private sector as a real estate sales agent or appraiser, as this would result in an "appearance of impropriety" in violation of Ethics Code Section 2-30.2.(g).
L. Susan Faw
January 7, 1994
1 New Castle County Code of Ethics, Sec. 2-30 etseq.
2 Sec. 2-30.2.(2).
3 Sec. 2-30.1. A "conflict of interest" also occurs where a County employee exercises the authority of his or her office for the private pecuniary gain of a spouse, dependent child, or business with which he or she is associated.
4 Sec. 2-30.2.(g).
5 Sec. 2-30.1.
6 The Commission has dealt previously with the question of whether an employee who moonlights at a job closely related to his official position with the County may cure any ethical problem by abstaining and referring the taking of official action to a coworker. In Advisory Opinion 92-07, Date: January 28, 1993, the Commission determined that a County inspector with County building and construction code inspection responsibilities could not undertake secondary employment in the construction industry except work not subject to inspection or outside New Castle County, and further, that the ethical problem could not be cured by having another County inspector inspect construction done by his fellow inspector, as this would still create an appearance of impropriety. The Commission wrote: "Allowing a County inspector to inspect construction done by his fellow inspector [ ] would taint the integrity of the entire inspection process by infecting it with a host of considerations irrelevant to the merits of that process. For instance, it would create the public perception that official inspections are influenced by the County inspector's relationship with or allegiance to fellow County inspectors . . . ." This reasoning applies equally here. Permitting a County assessor to assess property which was or is the subject of a fellow assessor's private employment creates the public perception that the County's property assessments are influenced by the County assessor's relationship with or allegiance to his or her fellow assessor/realtor.