Whether a pump mechanic, employed by the County, may accept a part-time job with a contractor whose pumping station the county pump mechanics regularly visit as a proactive measure, if the county, through the pump mechanics' supervisor, superintendent or head of facility maintenance, will ultimately inspect and eventually accept the pumping station into its system.
Yes. Since the pump mechanic is not considered a "county employee" under the Ethics Code he may accept part-time employment with a contractor whose pumping stations the pump mechanics check to ensure they are operating properly.
Pumping station mechanics' duties include performing skilled mechanical work in the maintenance and repair of specialized machinery in sewage pumping stations. In carrying out their duties and as a proactive measure to reduce spills, the pump mechanics regularly visit pumping stations which are owned and operated by various contractors. The County eventually inspects and accepts the pumping stations into its system through inspections done by a team consisting of personnel from the engineering division of the contract construction section and the pump mechanics' supervisor, superintendent, or head of the facility maintenance division. The pump mechanics are not part of the inspection team.
In the present instance, a pump mechanic has been offered a part-time job for a contractor whose pumping station is not presently in the pump mechanic's zone and which he does not currently visit with his county job. The pump mechanic would be performing the part-time work on his own time and with his own tools and vehicle.
The New Castle County Ethics Code prescribes Ethics Rules for New Castle County officials and employees. Under the Ethics Code, a "county employee" is defined as:
an individual employed by the county who is responsible for taking or recommending official action of a nonministerial nature including, but not limited to, action with regard to:
(a) Contracting or procurement; (b) Administering or monitoring grants or subsidies; (c) Planning or zoning; (c) Inspecting, licensing, regulating or auditing any person; or (e) Any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person.1
In the present instance, the pump mechanic is not considered a "county employee" for Ethics Code purposes. Although the pump mechanic, in performing repairs and maintenance work, may have to utilize his own independent judgment at times as to how to perform a certain repair or maintain machinery, such work is not tantamount to being "responsible for taking or recommending official action of a nonministerial2 nature" since the pump mechanic does not participate in the determination as to whether the County should ultimately accept the station into its system. Furthermore, the pump mechanic does not exercise any nonministerial duties in any of the above listed categories or in any other area, such that the Ethics Code should apply to him. The pump mechanic's visits to a pumping station, as a proactive measure to reduce spills, do not constitute his "inspection, licensing, regulating or auditing any person" since the contractor is free to accept or reject the pump mechanic's troubleshooting and the pump mechanic does not participate in the final inspection. Additionally, the physical performance of maintenance and repair work, absent other factors, is not a category of work which should require application of the Ethics Code. Thus, the pump mechanic is not considered a "county employee" for Ethics Code purposes.
Since a pump mechanic is not considered a "county employee" for Ethics Code purposes, and since he also is not a county official,3 as defined by the Ethics Code, the Ethics Code is not applicable to the pump mechanic.4 Accordingly, the prohibitions concerning conflicts of interest and the appearance of impropriety do not bar the pump mechanic from accepting the part-time job.
The Ethics Commission cautions, however, that although the accepting of the part-time position does not violate the Ethics Code, it is making no ruling as to any other County, departmental, or other rule. Each department, board or other unit of County government is free to impose greater restrictions on its officials and employees, such as an absolute ban. This opinion establishes the minimum that is expected and required under the Ethics Code. It does not usurp a director, department head, or board's authority to establish a more restrictive rule as part of its own policy.
The Ethics Commission also suggests that to avoid any potential problem that the pump mechanic advise his superiors of this employment so that they can ensure all such work is being performed on the pump mechanic's own time and with his own tools and vehicle. Finally, the Commission cautions that should the nature of the pump mechanic's job change, such that the pump mechanic is providing input as to the acceptability of the pumping station to the county, then this matter should be brought to the attention of the Commission again for further ruling.
Mary Ann Matuszewski, Ethics Counsel
November 15, 1996
1See, Section 2-172. Definitions.
2 Section 2-172 defines "nonministerial action" as "an action in which the person exercises his or her own judgment as to the desirability of the action taken.
3 Section 2-172 defines "county official" as "any person elected or appointed to any county office, including appointment to any county board or commission".
4See, Advisory Opinion 96-04 (May 10, 1996), holding that, since the purpose of the Ethics Code is "to preserve impartial decisionmaking (sic) in government", persons employed by the County who do not exercise discretion in their official duties are not barred from contracting with the County even if the value of the contract exceeds $500.00. Id. at 2, n. 3.