Whether the child of a County employee may accept a scholarship to college from a union whose members apply to the requesting employee for permits.
The administrator may offer employment to the intern as long as the administrator creates an impermeable barrier between the intern’s work in the County office and that in the private business
An unpaid intern, with significant professional skills, works three days a week at a County office.The intern informed the administrator of the office that he could not continue the internship without some form of income.The County office’s budget does not include a salaried position for the intern. The administrator of the County office maintains a separate, unrelated private business. He wants to offer the intern employment in that business on a two day per week basis that is outside of the internship schedule.The offer of work at the administrator’s private business will not be contingent upon the intern remaining in the unpaid position.The continuing internship will be independent of acceptance of the offer of private employment.
Code or Prior Opinion:
Ethics Code Provisions
Ethics Code Section 2.03.103A1 prohibits an employee or official from using his or her County authority for personal benefit. Similarly, Code Section 2.03.104D prohibits an employee or official from using his or her County office to secure unwarranted privileges, private advancement or gain.
New Castle Ethics Code Section 2.03.104A prohibits conduct which undermines public confidence in the impartiality of a governmental body where a County employee is associated by creating the appearance that the official actions and decisions of the employee or Department are influenced by factors other than the merits. An improper appearance is created when a reasonable member of the public "with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, [would hold] a perception that the official's ability to carry out [official duties] with integrity, impartiality and competence is impaired."
The standard for judging the creation of an appearance of impropriety for judicial public officials has been described in Delaware courts as "conduct [which] would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the official's ability to carry out [official duties] with integrity, impartiality and competence is impaired." In re Williams, 701 A.2d 825, 832 (Del. Super. 1997). In determining the relevant circumstances, the courts advise the Commission to look at the totality of facts. The Commission has long applied this standard to the conduct of County officials and employees.
Prior Commission Advisory Opinions
his request is one of first impression.
The intern is not an employee of the County so New Castle County Ethics Code issues do not arise if he accepts a part-time position with the administrator’s private business. However, even though he is unpaid, the intern may not convert any County resources to his private use or risk being accused of some form of theft. The administrator is a County official and is governed by the Code. He may not use his office for the benefit of his private business nor engage in conduct which makes the reasonable member of the public doubt his competence, impartiality or fairness.
The intern approached the administrator and told the administrator that he could not continue the internship without some form of income. The administrator wishes to continue the internship for the benefit of the County and offer the intern paid work at his private business as a means of retaining the intern in the County office.
Those compensated services cannot be held to be an unwarranted benefit to the administrator. The administrator was able to evaluate the fitness of the intern for private employment because he observed the quality of the intern’s work in the County office. Other persons in that office who review the intern’s work product can make a similar evaluation. The administrator’s motive in making the employment offer is to retain cost- free services for the County at the price of making payment for the intern’s services to his private business.
In order to prevent an appearance of impropriety, an impermeable barrier must be erected between the intern’s duties in the County office and those in the private business. The internship and the paid employment must be independent and not contingent, leaving the intern free to terminate either job at his own discretion and without adverse effect. Additionally, the intern may not perform any private work in the County office. If these conditions are observed by both the administrator and the intern, the public will be confident in the administrator’s ability to carry out his duties with integrity, impartiality and competence.
The administrator may offer employment to the intern as long as he creates an impermeable barrier between the intern’s work in the County office and that in the private business
In issuing this Advisory Opinion, the Ethics Commission is applying the New Castle County Code of Ethics, which establishes the minimum level of ethical conduct required of County officials and employees.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON
THIS 14th DAY OF NOVEMBER 2012.
Gerald Turkel, Chairperson
New Castle County Ethics Commission
1New Castle County Code Section 2.03.103. – Prohibitions relating to conflicts of interest.
A. Restrictions on exercise of official authority.
1. No County employee or official knowingly or willfully shall use the authority of his or her office or employment 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. There will be a rebuttable presumption of a knowing or willful violation of this section if the action benefits the County official or employee, his or her spouse, or his or her dependent children (whether by blood or by law).
. . .
New Castle County Code Section 2.03.104. Code of conduct, in pertinent part:
A. No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.02.103(A)(1) [Conflict of Interest], 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 a appearance that the decision or action of the County employee, County official or governmental body are influenced by factors other than the merits.
. . .
D. No County employee or County official shall use such public office to secure unwarranted privileges, private advancement or gain.