Relevant provisions in the definition section of the Ethics Code, Section 2.03.102, include the following:
Appearance of impropriety means conduct which is prohibited by Section 2.03.104A.
Conflict or conflict of interest means conduct which is prohibited by Section 2.03.103.
Recusal means, including but not limited to, withdrawing from sponsorship, deliberation, vote, research, preparation, discussion, negotiation, contract formation, policy making, planning, decision making, and/or implementation of a matter. It also includes a prohibition on conducting, in an official capacity, any private or public discussion of a measure raising a conflict or improper appearance. As soon as a potential conflict or improper appearance arises or is recognized, an official or employee must end direct or indirect participation, advice, input, direction, recommendation, or discussion, as well as refraining from vote, if the person is a not an elected official. Elected officials may choose to avoid recusal and may vote if they follow the alternate process described in Subsection 2.03.103.A.2.
Code of Conduct Provisions
Certain portions of the New Castle County Ethics Code are relevant to this opinion, including Sections 2.03.101.B; 2.03.103.A.1 and A.2; 2.03.104.A:
Sec. 2.03.101. - Purpose of Division.
D. This Division is intended to establish a minimum standard for ethical conduct and financial disclosure. Elected officials may superimpose conduct rules for officials and employees which are more strict, but not less strict, than these minimum standards. The Ethics Commission has jurisdiction to decide whether superimposed rules fall below the minimum standards expressed in this Division.
Sec. 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).
2. In any case where a person has a legal and/or statutory responsibility with respect to action or non-action on any matter where the person has a personal or private interest and there is no provision for the delegation of such responsibility to another person, the person may exercise responsibility with respect to such matter, provided that promptly after becoming aware of such conflict of interest, the person files a written statement with the Commission fully disclosing the personal or private interest and explaining why it is not possible to delegate responsibility for the matter to another person. If the matter is one in which the legal and/or statutory responsibility requires the person to vote upon the issue, the written statement filed with the Commission shall be read into the public record prior to the time the person's vote is cast. Any person choosing to abstain from voting on an issue where or she has a conflict shall state the reasons for his or her conflict on the record; an abstaining voter need not file the written statement with the Commission required when acting on, rather than abstaining from, an issue involving a conflict.
Sec. 2.03.104. - Code of conduct.
A. No County employee or County official shall engage in conduct which, while not constituting a violation of Subsection 2.03.103.A.1., 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 decisions or actions of the County employee, County official or governmental body are influenced by factors other than the merits.
Case Law and Commission Precedent
The New Castle County Ethics Code prohibits conduct on the part of County officials or employees which either creates the appearance of impropriety even where no direct conflict of interest is present. Specifically, conduct which creates an appearance of impropriety is prohibited by Section 2.03.104(A) of the New Castle County Code. To determine if an appearance of impropriety exists, the Delaware courts have stated that “[t]he test is… if the conduct would create in reasonable minds, with knowledge of all relevant facts, a perception that an official’s ability to carry out [his or] her duties with integrity, impartiality and competence is impaired.” Hanson v. Delaware State Public Integrity Com’n, 2012WL3860732, at *16 (Del.Super. 2012), aff’d, 69 A.3d 370 (Del.Supr. 2013); and “[t]he test for appearance of impropriety is whether the conduct 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 [the official’s] responsibilities with integrity, impartiality and competence is impaired.” In re Williams, 701 A.2d 825, 832 (Del.Super. 1997). The courts have advised the Commission to look at the totality of the facts presented, and this Commission has historically applied this standard when reviewing the conduct of County officials and employees.
In Advisory Opinion 10-11, a County employee sought advice from the Commission as to whether he may accept a position on the board of a nonprofit given that his department made recommendations on grants to members of a larger community which the nonprofit represented. In its opinion allowing the employee to serve on the board, the Commission noted that the “[b]oard’s purpose is limited to making advisory operational recommendations regarding a division in the requester’s department but those recommendations are not made to the department but to a separate County entity…which has discretion to support, change or ignore [the recommendations].“ This service on the board, however, was conditioned upon the employee’s recognition and knowledge that he must recuse himself from any matters which involved either the County or the nonprofit or any recommendations made to his department by the board.
In Advisory Opinion 15-09, the Commission was asked whether a County employee of the Department of Community Services could serve as an uncompensated member of a nonprofit that advocated on housing issues. While the Commission advised that the County employee may serve on the board of the nonprofit advocacy organization, it cautioned the employee against engaging in any conduct that was or could be perceived as a conflict of interest by recusing herself from any County process that involved the nonprofit and ensuring that both the County and the nonprofit were made aware of her requirement to recuse from any matter with potential conflict.
In Advisory Opinion 15-03, the Commission was asked whether an appointed official could serve as a member of a nonprofit board which has occasionally received federal funds that are administered by the official’s department. In concluding that the official may join the board of the nonprofit, the Commission required the official to disclose potential areas of improper appearance to both the nonprofit and the appropriate County authority and to recuse him or herself from any activities which may cause the appearance of conflict, including policy making, promotion, or other activities concerning the nonprofit’s relationship with the County.
In Advisory Opinion 13-02, a County employee wanted to serve as an unpaid volunteer to advise a nonprofit on its budgetary and fiscal matters. Because the requester would serve in a volunteer capacity, with no financial benefit to himself or his family, the Commission approved the request on the condition, however, that the requester recuse himself from involvement in any matters associated with issues of change in valuation policy by the County that may affect the nonprofit.
In Advisory Opinion 15-12, the requestor, an elected County official, asked the Commission whether he may serve on the advisory board of a local nonprofit heritage association. The Commission decided that, conditionally, the requestor may serve in that capacity, as long as he recused himself from participation in all County matters that involved the nonprofit organization and that he took the steps necessary to inform the public and County employees and officials of his involvement with the nonprofit association.
The Commission commends the requestor’s desire and willingness to serve his community in this manner. The Commission further commends the requestor for recognizing the need to bring this matter before the Commission in the form of a request for an advisory opinion prior to accepting his nomination by the Mayor of the City of New Castle to the City’s Planning Commission. It is important that the requestor’s service in this manner must not “undermine 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 decisions or actions of the County employee, County official or governmental body are influenced by factors other than the merits,” as prohibited in Ethics Code Section 2.03.104.A.
The issues that come before the County and the requester’s department are dynamic and complex, and the members of the public are oftentimes not fully knowledgeable of the details involved in such issues. The fact that the term “New Castle” exists in both the name of the requestor’s employer and the name of the Planning Commission to which he is being appointed lends itself to the possibility of confusion on the part of the general public despite the fact that the entities are not related. This presents the potential for misinterpretation even when there is no inappropriate action on the part of the County employee. Any such potential for confusion on the part of the public must be prevented or minimized through the diligent exercise of the recusal mechanism by the requestor provided in the Code in any and every situation where the City of New Castle is a topic for the purposes of the requestor’s County employment, and the County is a topic for the purposes of the City of New Castle’s Planning Commission.
Section 2.03.104.A.1 prohibits the creation of an impression in the reasonable mind of a 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 in which he serves will look as though it is showing partiality in a given matter. Prior Commission decisions are instructive on the issues raised by this request for an advisory opinion. The requestor is an employee in the Land Use Department. He is interested in the well-being of his community and would like to serve on the City of New Castle Planning Commission. The work and jurisdiction of the County Land Use Department does not specifically overlap into the work and jurisdiction of the City of New Castle Planning Commission. Nevertheless, the New Castle County government impacts regional issues which may be topics of discussion at Planning Commission meetings. As such, while the potential for actual conflict is minimal, the requester must remain vigilant in his awareness of actual or potential conflict, and must follow the processes set forth in the Ethics Code, and outlined in this Commission’s prior advisory opinions, with respect to recusal from any issues regarding the Planning Commission which come before the County for consideration or action, and vice-versa. Toward that end, to diminish the potential for actual or potential conflict, the requester must inform County departments, boards, and commissions of his involvement with the City of New Castle Planning Commission. In addition, the requester must inform the Planning Commission that, in the event that the requester’s involvement with the Planning Commission requires him to engage in any activity or issue that involves the New Castle County government, he must recuse from any participation in such activity or issue.
Under the facts presented, the requester may proceed with his appointment to the City of New Castle Planning Commission. The requester must disclose the potential areas of conflict or improper appearance to both the Planning Commission and any appropriate New Castle County governmental entity, and the requester must recuse himself from any activities which may cause the appearance of conflict, including policy making, promotion, giving of advice, or other activity concerning the Planning Commission’s potential interaction with the County. The requester must clearly disclose to all parties, with respect to his participation and activities with the Planning Commission, that, at no time, he is acting or speaking on behalf of New Castle County. Similarly, the requester must clearly disclose to all parties, with respect to his participation and activities with the County, that, at no time, he is acting on behalf of the City of New Castle Planning Commission.
In rendering this advisory opinion, this Commission has applied the New Castle County Ethics Code, which establishes the minimum level of ethical conduct required of County officials and employees.
BY AND FOR THE NEW CASTE COUNTY ETHICS COMMISSION ON THIS
14TH DAY OF JUNE, 2017.
Eric J. Monzo, Esquire, Chairperson
New Castle County Ethics Commission