Johanna Bishop, James Keeley, Miguel Gonzalez, Paula Jenkins-Massie, Christopher Simon, Gerald Turkel
The New Castle County Ethics Code at Section 2.03.101D permits an elected official to establish ethical rules of conduct for a division under his or her supervision which are stricter than those imposed on employees by the Ethics Code.The Commission retains the authority to judge whether department rules meet the minimum standard expressed in the Code.1
New Castle County Code Section 2.03.104(A)(1) prohibits the creation of an impression in the reasonable member of the public that an official or employee’s official action is affected by personal interests which impairs his or her competence, integrity and honesty, or that the department where he or she serves is not impartial.2
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 such an appearance 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.
In Advisory Opinion 07-07, the Commission stated, “This Commission has long ruled that secondary employment is not prohibited ‘where there is no nexus between and employee’s or official’s County job and the secondary employment.’ [citations omitted] However, when that nexus exists, the Code may restrict and, in some cases, prohibit County employees from secondary employment.” That Opinion also noted that secondary employment which undermines public confidence in the proper functioning of a governmental department may be prohibited.
In Advisory Opinion 07-04, an employee was cautioned that he could not become an employee of an outside business if the business was a subcontractor on a project outside the County for a contractor which performed regulated business within the County.
In Advisory Opinion 06-15 an employee was prohibited from providing services to his spouse’s business if it had a direct or indirect nexus with his department.
Since the duties of the proposed secondary employment are virtually identical to the duties currently performed by the requester for the County, services to an outside entity in any way affiliated with the County could create questions of loyalty and confidentiality in the mind of the reasonable member of the public. Further, the requester’s current status with the County has the disagreeable potential to make her attractive on a basis other than the merits of her work to organizations that hope to become affiliated with, do business with, or are regulated by the County, a situation which would be unfair to equally skilled competitors which provide those same services.
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.
New Castle County Ethics Commission
2New 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 an appearance that the decision or action of the County employee, County official or governmental body are influenced by factors other than the merits.
. . .