May a member of one of the County's boards, who is a practicing attorney and who, at the time of his appointment to the board, was representing a client in an appeal of a decision of the board on which he now serves, continue representing the client in the matter?
There is no violation of the Ethics Code if a County board member, who is also an attorney, were to continue to represent a client, after his appointment to the board, in an appeal of a case to the Delaware Supreme Court, contesting a decision of the board on which he sits since he was not a member of the board when the issue was first decided by the board nor when he began his representation of the client.
The requesting party, hereinafter "County official" is a member of one of the County's many boards and commissions and is considered a County official under the Ethics Code.1
At the time of his appointment to the board or commission, hereinafter "board", he, as a practicing attorney by profession, was representing a client in a case on appeal to the Delaware Supreme Court. The case arose from a hearing before the board upon which the County official now sits, where the client opposed an application before the board. The board, over the client's opposition, granted the application. The client then retained the County official to appeal the matter to the Delaware Superior Court where they were successful. The board and its members were named as parties to this appeal and adopted the position of the applicant. The losing party at the Superior Court level (who was the applicant before the board) appealed the decision of the Superior Court to the Delaware Supreme Court. The board and its members did not join in the appeal to the Supreme Court and are no longer parties to the action. At the time of the County official's appointment to the board, a briefing schedule had been entered by the Supreme Court.
The Ethics Code prohibits behavior which constitutes a "conflict of interest" or an "appearance of impropriety". The Code defines "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 . . .2
In the present instance, there is no conflict of interest for the County official to represent the client on the appellate level since he was not a member of the board nor was he representing the client at the time of the board's proceedings.
The Code, however, also prohibits behavior which constitutes an appearance of impropriety, defined as:
Again, due to the fact that the County official was not a member of the board at the time of the application before the board and he did not represent the client at the board Level, there is no appearance of impropriety for the County Official to represent the client on appeal, especially since the board and its members are no longer parties to the matter. Accordingly, the County official may continue to represent the client through the Supreme Court appeal. The Commission cautions, however, that if the matter is ever remanded to the board, there would be a conflict of interest and the County official would not be able to represent the client before the board and would have to refrain from participating and recuse himself in conformance with Section 2-172(f). Furthermore, an appearance of impropriety would exist if he then were to represent the client in any further appeal of this matter.
To avoid any conflicts of interest or the appearance of impropriety in any future matter, the County Official should not represent anyone regarding a matter before the board or an appeal from the board's decision. Finally, the Commission cautions that this decision is applicable only to the enforcement of the County Ethics Code and the Commission is making no decision as to any other set of ethics rules or other rules, such as the Code of Professional Responsibility applicable to Delaware attorneys.
Mary Ann Matuszewski, Ethics Counsel
April 12, 1997
1 Section 2-172, as amended, defines "county official" as: "any person elected or appointed to any county office, including appointment to any county board or commission".