May a County employee,1 who is responsible for taking and/or recommending official action of a non-ministerial nature with regard to the overall administration of all activities of the Department of Planning, including supervisory responsibilities, serve on his Church Building Committee, advising the Committee on how to process a plan and which departments/agencies to contact regarding Planning and Development and Licensing issues, if he abstains from participating in the processing or decision making made by the Planning Department or other County Departments.
Yes. A County employee with significant non-ministerial planning responsibilities may advise his Church Building Committee on how to process a plan and which departments/agencies to contact regarding Planning and Development and Licensing issues, if he abstains from participating in the processing or decision making made by the Planning Department or other County Departments.
The County employee has significant non-ministerial responsibilities, including supervisory responsibility, over numerous employees in the Planning Department. In order for a plan to be approved by the County it must be approved by a Planning Team. The County employee is a member of the Planning Team. Some of the other members of the Planning Team are under the supervision of the County employee. The County employee has no supervisory responsibilities in the Development and Licensing Department nor does he exercise any non-ministerial authority in this Department.
The County employee, a member of his Church Building Committee, wishes to advise the Committee as to how to properly marshall a plan through the Planning Department and the Development and Licensing Department with the proviso that he would refrain from participating in the processing or decision making made by the Departments.
The New Castle County Ethics Code prohibits County employees from engaging in activities which would create a conflict of interest or an appearance of impropriety. Section 2-172 of the Code defines "conflict or conflict of interest" as:
use by a county official or county employee of 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 private pecuniary benefit of himself or herself, a member of his or her immediate family or a business with which he or she is associated . . .
Since the suggested action would not result in "private pecuniary benefit" of the employee, a member of his or her family or a "business with which he or she is associated",2, there would not be a conflict of interest for the County employee to advise the Church Building Committee on either Planning or Development and Licensing issues.
The analysis, however, does not stop here since the Code also prohibits a county employee from engaging in activity which would create an appearance of impropriety, defined as:
the conduct of a county official or county employee which does not constitute a conflict of interest but which undermines the public confidence in the impartiality of a governmental body with which a county officer or employee is or has been associated by creating an appearance that the decisions or actions of the county official, county employee or the governmental body are influenced by factors other than the merits.3
In the present instance, since the County employee exercises significant non-ministerial responsibilities, including supervising some of the employees who will be voting on whether the County should approve the plan, there would be an appearance of impropriety if he advised his Church Building Committee on issues upon which he would have to exercise discretion in his official capacity as a County employee. The perception would exist that the County employee would give preferential treatment to the Church plan because of his membership on the Church Building Committee.
In the present situation, however, if the County employee were to refrain from participating in the processing or the decision making by the County, the appearance of impropriety would be removed since he would not have any authority over the plan. Although it may be argued that the appearance of impropriety would still exist because of his supervisory responsibilities over individuals who would be working on the plan, prohibiting the employee from advising his Church Building Committee on these issues would not eliminate this taint since he would be required to "publicly announce and disclose the nature of his or her interest"4 at the meeting when the plan was being voted on.5
Given this dilemma, the best solution, therefore, is to allow the County employee to advise the Church Building Committee on how to process a plan and which departments and agencies to contact, if he abstains from participating in the processing or decision making made by the Planning Department or other County Departments. In addition, rather than "publicly announce and disclose the nature of his or her interest at the meeting at which the vote (to approve the plan) is taken", the County employee should abstain from attending any meeting where this plan would be discussed and/or voted on and should not discuss, much less disclose, his interest in the plan to any one other than his supervisors.
Mary Ann Matuszewski, Ethics Counsel
January 10, 1997
1 A County employee with County planning non-ministerial duties is a "county employee" subject to the provisions of the New Castle County Code of Ethics. The Code, as amended defines "county employee" as (a)n individual employed by the county who is responsible for taking or recommending official action of a non-ministerial nature including, but not limited to, action with regard to: . . .(3) Planning or zoning See, Section 2-172. Definitions.2 The New Castle County Code, as amended, defines "Business with which he or she is associated" as "any business in which the person is a director, officer, owner, employee or has a financial interest or a member of the persons immediate family is a director, officer, owner or has a financial interest". Section 2-172. Definitions.3 Section 2-172. Definitions. 4 Section 2-173 (f). Restricted activities. 5 Section 2-173 (f), which sets forth the procedure to follow when there is a voting conflict, is equally applicable when there is an appearance of impropriety. See, Advisory Opinion 92-05 (September 10, 1992) and Advisory Opinion 91-02 (July 30, 1991).