The Department of Community Services has requested a waiver of the two-year post-employment restriction found in New Castle County Code Section 2.03.103D in order to contract with a retired employee to perform certain of her former County duties on a part time basis.
The waiver is denied. The Commission finds that the position would require the retiree to perform duties for which she was materially responsible immediately prior to her retirement and does not require specialized or complex skills unique to the retired employee. The Department had not described any resulting undue hardship if it may not hire the retiree. The Commission finds that the grant of a waiver is not warranted in the absence of undue hardship as it would render the Code's two year prohibition meaningless and weaken the public's confidence in the Department's hiring practices.
As a result of budgetary reductions, the Department of Community Services discontinued a program. Some of the employees were reassigned to other divisions in the Department. One of those employees was given new duties and responsibility for the start up of a new County program. The employee recently retired and the Department proposes to contract with her on a part time basis to perform the same functions and with the same program as those she performed before retirement. The Department does not indicate that the skills required in the position are unique to the retiree.
Code or Prior Opinion:
New Castle County Code Sections
In this case, the contracted employeel would be performing duties similar to those for which she had been directly and materially responsible during the course of her recent County employment. 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."
Sections 2.03.105 A and B provide authority to the Commission to grant a waiver from the prohibition:
A. Notwithstanding the provisions of this Division, upon the written request of any County Department or of any individual who is or was a County employee or County official, the Commission may grant a waiver of the specific prohibitions governing post-employment restrictions if the Commission determines that the literal application of such prohibition in a particular case is not necessary to achieve the public purposes of this Division or would result in an undue hardship on any current or former employee, official or County Department. Any such waiver may be granted only by written decision of the Commission. All requests of waivers will be handled in an expeditious manner by the Ethics Commission.(sic) Any person who acts in good faith reliance upon any such waiver decision shall not be subject to discipline or other sanction hereunder with respect to the matters covered by the waiver decision provided there was a full disclosure to the Commission of all material facts necessary for the waiver decision.
B. Any application for a waiver, any proceedings and any decision with respect thereto shall be maintained confidential by the Commission provided that:
1. Public disclosure shall be made by the Commission upon the written request of the applicant;
2. The Commission may make such public disclosure as it determines is required in connection with the prosecution of any violation of this Division;
3. The Commission shall report to appropriate Federal and State authorities substantial evidence of any criminal violation which may come to its attention; and
4. In the event that a waiver is granted, the waiver decision and the record of all proceedings thereto shall be open to public inspection.
State Ethics Code Interpretations
County Code Section 2.03.103 D and Section 2.03.105 A and B are substantially identical to the post-employment prohibition and waiver authority granted to the Delaware Public Integrity Commission (hereinafter "PIC") recited in the Delaware Code at Title 29, chapter 58.1 Since the County Ethics Code is required to be at least as strict as the State Code, interpretations by the PIC are informative. See, 29 Del.C. Sec. 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. Sec. 5802. It set a two-year "cooling off period" in areas where the former employee was "directly and materially responsible," etc. 29 Del.C. Sec. 5805(d). This limits the actual or perceived unfair advantage in subsequent dealings with a department or agency. Commission Op. No 97-18.
Conditions for Waiver under County law
New Castle County Council foresaw the probability that situations would arise which would militate against enforcement of the prohibition on post-employment contracts and provided waiver authority to the Commission in Section 2.03.105A. The Commission may grant a waiver on either of two standards: 1) if literal application of the prohibition is not necessary to achieve the public purpose of the ordinance; or 2) if application of the prohibition would result in undue hardship to the Department. [Emphasis added]
In coming to a decision about a waiver, the Commission also must scrutinize the conditions of the post-employment contract to see if the contract comports with the goal of preventing unjust enrichment of the former employee and promoting the public confidence in the integrity of County government. Compensation must be reasonable for obtaining information acquired through former employment and the contract period must be limited to only that period of time necessary to ameliorate the undue hardship to the Department. The remuneration to the employee must reflect arms' length dealing between the Department and the former employee to avoid any appearance of favoritism.
An employment contract entered into shortly after retirement merely because an official acquired special expertise in the course of paid County employment would not qualify for a waiver. In such a case, the former employee who seeks the post retirement work is representing his or her own private interests. Such a contract would create an impression in the public of unjust enrichment for a former official who capitalizes, for private benefit, on knowledge acquired in a public position. However, even if it could be argued that a former official is capitalizing on such knowledge, a waiver request may be granted if the standard of "undue hardship" to the County is satisfied.
"Undue hardship" has been defined by the PIC as "excessive hardship". This phrase means more than ordinary hardship for the County or the former employee. Ordinary hardship encompasses any loss of a productive, long-term employee which affects continuity and work flow in a government agency. As noted by the PIC, undue or excessive hardship is not created simply because it would be cheaper or easier to hire a former employee. In a number of opinions, the PIC found that if waivers were granted on grounds of cheaper cost or continuity, a former employee would always have a "leg up" and be at a competitive advantage over other vendors and the post employment bar would be meaningless. See, e.g., PIC Commission Op. 97-41. Additionally, waivers on the basis of cost or continuity raise the specter of favoritism and unfair dealing.
Justifying a contract on grounds of cost would have the net effect of not only defeating the legislative purpose of the two year cooling off period but also weakening public confidence by creating the impression that government encourages its officials and employees to trade upon their offices for future personal gain at the taxpayer's expense.
However, when undue hardship to the County has been shown to exist, the Commission has granted applications for waiver. In New Castle County Commission Waivers 06-01, 08-01, 08-02, 09-01, and 09-02 there were no other adequate internal or external resources available to a Department to complete an important project without substantial negative impact to the public.
In this case, although the retiree is clearly a valued long time employee, the retiree does not appear to possess specialized or unique skills that are unavailable on the open market within a reasonable time. The Department had not described any resulting undue hardship if it does not hire the retiree. The Commission finds that the grant of a waiver is not warranted in these circumstances as it would eviscerate the purpose of the prohibition by weakening the public's confidence in the Department's hiring practices.
The Commission finds that the position would require the retiree to perform duties for which she was materially responsible immediately prior to her retirement and does not require specialized or complex skills unique to the retired employee. The Commission finds that the grant of a waiver is not warranted in the absence of undue hardship as it would render the Code's two year prohibition meaningless and weaken the public's confidence in the Department's hiring practices.
The requested waiver is DENIED.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS 12th DAY of MAY, 2010.
Thomas P. Collins, Sr., Chairperson
New Castle County Ethics Commission
129 Del. C. Sec. 5805 (d) Post-employment restrictions.