Whether a County employee 1 should make a recommendation regarding various competing vendors' proposals, where one vendor (hereinafter "Vendor") has suggested to the employee that if its proposal were accepted, Vendor would be interested in discussing future employment of the employee.
To avoid an appearance of impropriety, the County employee should decline to make a recommendation regarding the competing vendors' proposals.
The County employee is one of several employees, each of whom were to evaluate various competing vendors' proposals and, at the conclusion of the evaluation process, vote in favor of one. During the evaluation process, Vendor's representative asked the employee how long he planned to work for the County and stated that if Vendor's proposal were accepted, Vendor would be interested in discussing possible future employment.
The County employee asks whether he should decline to vote on the competing vendors' proposals under these circumstances.2
Section 2-173(c) of the New Castle County Ethics Code bars a county employee from accepting a promise of future employment, if based on the employee's intention that his official judgment would be influenced thereby.3 This section is inapplicable because, interalia, Vendor's comment hardly constitutes a "promise of future employment." However, this section underscores the caution County employees must exercise in their dealings with vendors. Were the employee to participate in the vote for competing vendors' proposals and subsequently accept employment with Vendor, he would be vulnerable to allegations that he violated Section 2-173(c).
While there is no violation of Section 2-173(c), this does not mean that Vendor's comment creates no ethical issue for the employee.
Section 2-173(g) provides: "County officials and county employees shall avoid an appearance of impropriety" - defined as
[t]he conduct of a county official . . . which undermines the public confidence in the impartiality of a governmental body with which a county official or employee is or has been associated, by creating the appearance that the decisions or actions of the county official - . . or the governmental body are influenced by factors other than the merits.4
Vendor's comment that it would be interested in future employment if the County were to accept its proposal (whether made seriously, casually, or in jest) has compromised the employee. Vendor had tainted the decisionmaking process by creating the appearance that the employee's decision is influenced by the hope of possible future employment with Vendor.
To cure the taint caused by Vendor's conduct, the employee should recuse himself from the evaluation of the competing vendors and abstain from voting.5
L. Susan Faw, Ethics Counsel
February 20, 1996
1 This advisory opinion is requested by a County employee, as defined by the New Castle County Ethics Code, (see Section 2-172. Definitions. County employee), but applies equally to County officials.
2 The employee also states that he was previously employed by Vendor. Due to the fact that this employment relationship terminated over twenty years ago, the Commission does not find this fact relevant to its analysis. In other words, a previous employment relationship between a County employee and a vendor with whom the employee has official dealings on the County's behalf does not automatically give rise to an appearance of impropriety. This will depend on a number of factors, including the length of time that the relationship has been terminated. Here, the relationship is so distant as to be irrelevant.
3 Section 2-173(c) provides in its entirety: "No county official, county employee or nominee or candidate for county office shall solicit or accept a gift, loan, reward, or promise of future employment based on an intention of the county official, county employee or nominee or candidate for county office that the vote, official action or judgment of the county official or county employee or nominee or candidate for county office would be influenced thereby."
4See Section 2-172. Definitions. Appearance of impropriety.
5 Section 2-173(f) provides that if a County official or employee would be required to vote on a matter that would result in a conflict of interest, he should abstain from voting. The Commission has ruled previously that where the official or employee is required to make a decision which would result in an appearance of impropriety, following the guideline of Section 2-173(f) regarding voting conflicts, he should abstain from decisionmaking. See Advisory Opinion 92-05; Advisory Opinion 91-02.