The Department of Public Safety 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 County duties on a part-time basis.

            The request for the waiver is dismissed. The Commission finds that a post-employment waiver is not required in this case because the retiree did not give an opinion, did not conduct an investigation, and was not otherwise directly and materially responsible for the creation of the proposed new program in the course of his former official duties.

             The Department of Public Safety wishes to create an extension of another State’s training program in New Castle County. Historically, it has sent New Castle County officers to that State for training. A recently retired uniformed County officer obtained significant experience as a volunteer member of the staff of the other State’s program while he was in the employ of the County and on its payroll. The County benefitted from his function in the program because his participation allowed other County officers to attend the program at no cost. The retired officer’s status with the program is not and was not part of the description for his uniform position with New Castle County.

 

            New Castle County currently has no similar program. The Department wishes to contract with the retired officer to act as the civilian administrator and function as the lead instructor of the New Castle County extension, duties similar to those he performed for the other State. The other State is willing to provide one half of the retired officer’s salary for the part-time position.

New Castle County Code Sections

Section 2.03.103D 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 2.03.105A and B provide authority to the Commission to grant a waiver from the prohibition:

A.             Notwithstanding the provisions of this Division, upon the mwritten 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 2.03.103D and Section 2.03.105A and B are substantially identical to the postemployment 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. §5802(4).

The PIC has discussed the postemployment 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.

            Neither the training program extension nor the position of civilian administrator/instructor currently exist in New Castle County. The retiree’s former position was as a uniformed officer and the Department indicates that that the uniformed position did not require volunteer teaching duties at the out of state facility. Even though the retired officer was on the County payroll when he obtained the expertise relevant to the proposed position, the retired officer did not give an opinion, did not conduct an investigation, or was not otherwise directly and materially responsible for the creation of the proposed new program in the course of his preretirement duties. Therefore, a postemployment waiver is not required by the Department.

           The Administration may accept the services and funding from the nonprofit for the benefit of the public since the nonprofit does not have a business or regulatory relationship with the County and the gifts would not create an appearance of impropriety in the mind of the reasonable citizen.

 

           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.

 

 

 ______________________

Gerald Turkel, Chairperson

New Castle County Ethics Commission

 

 

Decision: Unanimous

 

 

¹29 Del. C. §5805(d) Post-employment restrictions.