May an individual employed by the County on a part-time basis, who has previously contracted with the County to teach a course to the public, contract with the County to teach another course to the public, if the value of the second contract is less than $500, but the value of both contracts together exceeds $500?
An individual employed by the County on a part-time basis, who has previously contracted with the County to teach a course, may contract with the County to teach another course to the public, if the value of the second contract is less than $500 and the value of both contracts together exceeds $500, provided that the decision as to who the County should hire is made, and the performance evaluation conducted, by the employee's supervisor. Additionally, the individual should report said involvement with the County on the yearly statement of financial interests if the threshold amount is met for reporting.
The requesting party is employed by time County on a part-time basis and wishes to enter into a contract, whose value is less than $500, with the County to teach a course to the public. The requesting party has previously entered into a contract with the County earlier in the year and the total amount of the two contracts together exceeds $500.1 The requesting party usually is the person who decides who to hire to teach the course, although her supervisor has the ultimate authority in this regard. She also would normally evaluate the person teaching the class. Although general language inviting interested persons to apply to teach courses offered by the County appears on County brochures, the position has not been advertised in any other manner.
Section 2-173(e) of the New Castle County Ethics Code provides, in significant part:
No county . . . employee or his or her spouse or child or any business with which the county . . . employee or his or her spouse or child is associated shall enter into any contract valued at $500 or more with the county... unless the contract has been awarded through an open and public process, including prior public notice an subsequent public disclosure of all proposals considered and contracts awarded.
In Advisory Opinion 96-04 (May 10, 1996), the Ethics Commission ruled that, under Section 2-173(e), individuals employed by the County may contract to teach courses to the public, provided that the contract's value is less than $500. It did not,however, address the scenario presented here, where, although the contract that the individual wishes to enter into is valued less than $500, the year's total value for contracts with the County for the individual will exceed $500 if the contract is entered into. It also did not address whether a conflict of interest or appearance of impropriety would be created if the person entering the contract was normally involved in the awarding and performance review of such contract.
Section 2-173(e) of the Ethics Code sets forth no limitations on the number of contracts an individual may enter into with the County. It only prohibits County employees and officials from entering contracts with the County if the value is over $500, absent an open and public process.2 Accordingly, the Commission finds that Section 2-173(e) of the Ethics Code would not be violated if the County employee3 was allowed to enter into the contract since its value is less than $500. The fact that the individual has previously contracted with the County is of no consequence, provided that the contract is legitimate and has not been altered in any way as to specifically accommodate the individual wishing to teach the class. Additionally, the fact that an open and public process was not used for the hiring of someone for this position is also of no consequence since the value of the individual contract was less than $500.
Conflict of Interest
The Ethics Code, however, also prohibits behavior which constitutes a conflict of interest4, defined as:
use by a county . . . employee of the authority of his or her office or employment or any confidential infornation received through his or her holding county . . . 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 . . .5
Since the Ethics Code defines "de minimis economic impact" as "an economic consequence which has a value less than $500,6 a conflict of interest is not created by the employee entering into the contract.7
Appearance of Impropriety
Finally, the Ethics Code also prohibits behavior constituting an "appearance of impropriety",8 defined as:
the conduct of a 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 . . . employee is or has been associated by creating an appearance that the decisions or actions of the county . . . employee . . . are influenced by factors other than the merits.9
Although arguably an appearance of impropriety could be created by the employee contracting with the County, due to her ability to influence hiring decisions,10 if the employee were to remove herself from the decision as to who to hire to teach the class and the evaluation of the class, said duties being delegated to her supervisor, then the appearance of impropriety, if any, would be removed. Thus, under the above conditions, the Commission finds that the requesting party should be allowed to teach the course. The Commission does caution, however, that the employee should remember to report said income on the yearly statement of financial interests, if the threshold limitations are met.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON OCTOBER 15, 1997.
David J. J. Facciolo, Esq.
1 Both of these contracts are, in addition to, and separate from, her regular part-time County employment.
2 Teaching contracts are not awarded through an open and public process. Advisory Opinion 96-04 (May 10, 1996), p. 2, n.4.
3 The Ethics Commission is assuming, although it is not ruling, that the requesting party is a "county employee" as defined in Section 2-172, as amended, of the Ethics Code.
4 Section 2-173(a). Restricted Activities.
5 Section 2-172. Definitions.
6 Section 2-172. Definitions.
7But see Advisory Opinion 92-04 at 3, n.4 (September 21, 1992), wherein it states a conflict of interest would be created, regardless of the value of the contract or whether responsibility for the contract's administration were delegated, if a county employee were to award a contract to his spouse's business.
8 Section 2-173(g). Restricted Activities.
9 Section 2-172. Definitions.
10See e.g., Advisory Opinion 94-06 (November 4, 1994), holding county employee could not accept part-time employment with contractor the County contracts with since employee has the authority to influence indirectly the selection of County contractors.