Whether it would violate the New Castle County Ethics Code for a County Planner whose County duties include a compilation of HUD's consolidated planning process and who reviews its implementation to have secondary employment with the City of Wilmington entering data of the City's disbursement of HUD funds?
There is no violation of the New Castle County Code of Ethics for a County Planner to have secondary employment with the City of Wilmington in the capacity of entering the City's data into the City's database.
The requesting party is a County planner who compiles the County's HUD Consolidating Planning Process and reviews its proper implementation. She has no discretionary role, merely acting in a ministerial capacity. The County Executive determines the allocation of the HUD funds. Since the New Castle County HUD Consolidating Planning Process is a public document, there are no issues of confidentiality. As to her role in the City's administration, the County Planner will merely enter the City's data into the City's computer. She will be hired for her knowledge of the computer software.
Code or Prior Opinion:
1. Section 2.03.103 Prohibitions relating to conflicts of interest.
A. Restrictions on exercise of official authority.
1. No County employee or County official shall use 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 personal or private benefit of himself or herself, a member of his or her immediate family or a business with which he or she is associated. This prohibition 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.
2. Section 2.03.104 Code of Conduct.
A. No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.03.103(A)(1), undermines the public confidence in the impartiality of a governmental body with which the County employee or County official is or has been associated by creating an appearance that the decisions or actions of the County employee, County official or governmental body are influenced by factors other than the merits.
3. Section 2.03.102. Definitions.
Business means 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. Section 2.03.102. Definitions.
Business with which he or she is associated means any business in which the person is a director, officer, owner or employee; or a business in which a member of the person's immediate family is a director, officer, owner or has a financial interest.
The requesting party proposes to seek part-time employment. While the same knowledge will be beneficial to the performance of the duties of each job, there is no opportunity for an improper use of information for the benefit of the employee or a business with which the employee is associated. As stated before, the employee does not serve in any discretionary capacity with respect to HUD funds at either her County employment or at the proposed part-time employment with the City. In both cases, she is putting data into the system in a format which HUD requires for reporting purposes. While she has acquired this particular skill or ability in her capacity with the County, it is not improper for her to use the same abilities and skills for the benefit of another governmental entity when there is no opportunity for a conflict of interest.
While it is true that the secondary employment with the City will benefit the employee, it is not "confidential information," which gives the benefit and it is consistent with the intent of the ethics law that such employment be permitted. The Commission also notes that while the employee's work for the City of Wilmington would be beneficial to the City, the City cannot be classified as a "business with which he or she is associated" by virtue of the definition of "Business" (a corporation... organization... company... or legal entity organized for profit."). By definition, a governmental body is not organized for profit.
Finally, the Commission can find no basis for concluding that the conduct would potentially undermine the public confidence and the impartiality of the County government as contemplated under the Code of Conduct section quoted hereinbefore. Once again, the employee has no decision making power in either capacity and therefore no critical decisions can be influenced by the relationship with the other employer.
Since the requesting party merely enters data into the City's HUD system and lacks a discretionary role, in both her capacity at the County and the City her code of conduct is acceptable and there is no violation of the Ethics Laws. In light of the facts presented, the County employee is permitted to accept part-time employment with the City of Wilmington to enter data in the City's computer.
Dennis S. Clower, Chairperson
Decision: 6 - yes, 0 - no and 1 recused (S. McClellan - relationship to requesting party.)