May a County Board member vote on a matter submitted by the State of Delaware if she also serves on the State's Unemployment Insurance Appeals Board?
Yes. There is no violation of the Ethics Code for a County Board member to vote on a matter submitted by the State of Delaware, even if she also serves on the State's Unemployment Insurance Appeals Board, since the State of Delaware is a not-for-profit entity thereby eliminating any potential conflict of interest. Additionally, there is no appearance of impropriety given the non-profit nature of the State and the limited scope and nature of her state position.
Code or Prior Opinion:
The inquiring party is an appointee to one of New Castle County's several boards and commissions. As such, she is a County official subject to the New Castle County Ethics Code ("Ethics Code").1
The County Board member also is a member of the State's Unemployment Insurance Appeals Board. In her position as an appointed official on the Unemployment Insurance Appeals Board, she will be compensated approximately $6000.00 per year. Given this anticipated income, she will be considered a state "employee" for purposes of this opinion.2
The State of Delaware, at times, presents matters before the County Board upon which the inquiring party sits and upon which the County Board members' must vote. The issue, thus, is whether the Board member may vote on the matters presented by the State, given her position on the State Unemployment Appeals Board.
Section 2-173(a) of the Ethics Code provides: "No county official or county employee shall engage in conduct that constitutes a conflict of interest." "Conflict of interest" is defined 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. Conflict or conflict of interest 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 county 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.3
The Code further defines "business" as:
Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit".4
The term "business with which he or she is associated" is defined as:
]Any business in which the person is a director, officer, owner, employee or has a financial interest or a member of the person's immediate family is a director, officer, owner or has a financial interest.5
Although the above provision of the Code prohibiting conflicts of interest, Section 2-173(a), would normally bar a County official or employee from voting on any matter affecting his or her employer,6 where the employer is an entity which is not organized for profit, such as the State, there is no conflict of interest by virtue of the fact that the term "business" excludes not-for-profit entities. Additionally, the facts presented do not support a finding that the County Board member would be using the authority of her office for her own private pecuniary benefit or that of an immediate family member. Thus, a conflict of interest would not be created by the County Board member voting upon a State matter.
The Ethics Code, however, also prohibits behavior which constitutes an "appearance of impropriety"7 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.8
Under the present set of circumstances, there is no appearance of impropriety. There would be no appearance to the public that the County Board member's actions are being influenced by factors other than the merits, given the non-profit nature of the State and the limited scope and nature of her state position9. Accordingly, the County Board member may vote on matters presented by the State.
Mary Ann Matuszewski, Ethics Counsel
March 14, 1997
1See, Section 2-172 Definitions, as amended, which defines "County official" as: "Any person elected or appointed to any county office, including appointment to any county board or commission".
2 Indeed, under the State's Ethic's Code, 29 Del. C. sections 5804(10) and 5804(11)(a), the County Board member qualifies as a state employee, since under those provisions a board member is classified as an "employee" if he or she reasonably expects to receive more than $5000 in compensation for their services.
3 Section 2-172. Definitions.
4 Section 2-172. Definitions.
6See, e.g., In Re Case No. 1-91, final order, wherein the Commission held that a County Official violated the Ethics Code's conflict of interest provision when he voted on a matter pertaining to his employer without publicly disclosing the relationship and abstaining from participation in the disposition of his employer's request. The Commission further held that a conflict of interest exists even if there is no nexus between the Official's private employment responsibilities and his public duties as a County official.
7 Section 2-173(g). Restricted Activities.
8 Section 2-172. Definitions.
9 This latter factor, the limited nature and scope of her state position, while relevant to an appearance of impropriety analysis, has no bearing when the query is whether a conflict of interest exists. See, In re Case No. 1-91.