May a County board member represent or assist clients of his private employer/firm, a for-profit business, with respect to a matter before County Council, a County Department, or other County Board or Commission.
It would violate Section 2.03.103(B) of the Ethics Code, if a County board member were to represent or assist clients of his private employer/firm, a for-profit business, with respect to a matter before County Council, a County Department, or other County Board or Commission.
The requesting party is a member of a New Castle County Board. The Board on which he serves is one which exercises discretion and does not operate solely in an advisory capacity. Accordingly, he is a "County official", as defined by the New Castle County Ethics Code, Section 2.03.102.1 The requesting party also has non-County, private employment with an employer/firm which is a for-profit business. This employment, at times, may require him to personally represent clients in the presentation of plans before County Council or County boards, other than one he serves upon.
Code or Prior Opinion:
In the July 9, 2000, amendments to the Ethics Code, specific restrictions on representing another's interest before the County were added to the Ethics Code. Included in these amendments was the addition of Section 2.03.103(B) which states, in significant part:
1. No County employee or County official may represent or otherwise assist any private enterprise with respect to any matter before the County Department with which the employee or official is associated by employment or appointment.
2. No county official may represent or otherwise assist any private enterprise with respect to any matter before the County. This prohibition is to be considered personal to the County official and is not, for purposes of the New Castle County Ethics Code only, deemed to impact other members of a firm, business, or other employer by which the County official is employed.
Section 2.03.102 of the New Castle County Ethics Code defines "private enterprise" as "any activity conducted by any person, whether conducted for profit or not for profit and includes the ownership of real or personal property . . ."
Therefore, under Section 2.03.103(B)(2) of the Ethics Code, the requesting party is prohibited from personally representing or assisting any client from his private employment/firm, a for-profit business, before the County, whether it be County Council, a County Department, or County Board or Commission. In addition, this Section not only prohibits the County official from personally appearing before a particular County board, department, agency or County Council, but also prohibits the County official from assisting the for-profit employer/firm in preparation of the matter, if it is a matter to go before the County, even if another individual actually presents it to the County. To the extent that this finding is contrary to Advisory Opinion 97-01, January 10, 1997 (allowing a County employee with significant non-ministerial planning responsibilities to advise arid assist his Church building committee on how to process a plan, if he abstained from participating in the processing or decision making made by the Planning Department or other County Department), the Commission notes that Advisory Opinion 97-01 was decided prior to the passage by County Council of Section 2.03.103(B), which mandates a result contrary to that in Advisory Opinion 97-01.
The Commission notes that Section 2.03.103(B)(1) of the Ethics Code, above, also contains restrictions on County officials representing another's interest before the County. Insomuch that Section 2.03.103(B)(l) is less restrictive than Section 2.03.103(B)(2), it is not necessary for the Commission to discuss the limitations posed by this section. Additionally, other provisions of the Ethics Code, such as the Ethics Code's prohibition on appearances of impropriety, as set forth in Section 2.03.104(A) may also present limitations on a County officials' representation of others before the County. However, in light of the clear language of Section 2.03.103(B)(2), it is not necessary to discuss any other limitations which might also exist.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS 29th DAY OF JANUARY, 2002.
P. Clarkson Collins, Jr., Chairperson
1Section 2.03.102, as amended, defines "County official" as: [a]ny person elected or appointed to any County office, board or commission provided, however, that for purposes of Sections 2.03.103 (B)(2), 2.03.103(C), and 2.03.104(C), "county official" does not include any member of a board or commission which operates solely in an advisory capacity, and whose members are not compensated, other than reimbursement for expenses. Id.