Whether complete recusal by a County employee is required when the employer of a member of the County employee's immediate family has a financial interest in a matter before the employee and her department.
Conclusion:
Since the action to be taken by the County department affects the financial interest of the employer of the member of the County employee's immediate family, the employee must recuse herself from all participation in the issue, including research for and discussion of the County's proposed action, and must ask her superiors to direct subordinates not to report to her about the matter.
Facts:
The employee making this request supervises workers in a County department which assesses the value of real estate. The adult child of the employee works for a company that is challenging the value that the County has assigned to its property. The employee has shared responsibility to assist in the County's defense of the assigned value.
Code or Prior Opinion:
Code provisions
New Castle County Code Sec. 2.03.102. defines Immediate Family as "a spouse, child whether by blood or operation of law, parent, step-parent, spouse's parent or child, or sibling of the whole or half blood of a County official or employee". The conflict of interest rules at Code Section 2.03.103(A)(1) prohibit the use of official authority by a County official "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."1 The Code's conduct rules at Section 2.03.104(A) recite a prohibition on conduct creating an appearance that the decisions or actions of a County official are influenced by factors other than the merits of the matter for decision, thereby undermining public confidence in the impartiality of the governmental body with which the official is associated.2
Commission Precedent
Aside from situations in which recusal is not a satisfactory remedy, such as in particular types of outside employment, the Commission generally requires employees to make disclosure to their superiors of their private association with a matter in question and immediately recuse themselves from direct and indirect involvement in the issue.>sup>4 In Advisory Opinion 92-05, a board member was required to recuse himself from participation in decisions concerning consultants hired by the Board when he had a business relationship with some of them. In Advisory Opinions 94-04 and 06-06, officials were required to disclose and abstain from voting on matters which would affect their personal pecuniary interests. In Advisory Opinion 99-01, a County official was required to recuse himself from voting when a client of his employer had a financial interest in the matter. In Advisory Opinion 04-11, an official was advised to recuse himself entirely from sponsorship and vote on a matter concerning a client of his wife's business and in C05-04 an official was found to have inadvertently violated the Code when he failed to recuse himself in a matter brought by a client of his wife.
Analysis:
Conflict of Interest
In any situation where a member of the immediate family or an associated business is financially affected, the Code presumes a conflict on the part of the employee. The County employee who is requesting guidance would violate the conflict of interest provisions of the Code if she participated in the preparation, discussion or implementation of the County's defense of the assessment since that matter affects the financial interest of a member of her immediate family.
Appearance of Impropriety
Participation in the issue would also violate the appearance of impropriety standard of the Code. The Commission judges whether an appearance of impropriety would be created by using the standard developed by the courts for judicial public officials, which has been described as "conduct [which] would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the official's ability to carry out [official duties] with integrity, impartiality and competence is impaired." In determining the relevant circumstances, the courts advise looking at the totality of facts. In re Williams, 701 A.2d 825, 832 (Del. Super. 1997); Advisory Opinion 05-06. If the requester participated in creating and implementing the County's defense of its assessment, a reasonable member of the public would question the employee's competence and ability to be impartial in this particular matter because of the association with the immediate family member's employer.
Finding:
The employee must completely recuse herself from research, discussion and implementation of the County action in the matter concerning the business associated with the member of her immediate family. The employee must disclose the conflict to her superiors and ask that all persons she supervises who have any responsibility in the matter be directed not to report to her about it.
In issuing this Advisory Opinion, the Ethics Commission is applying the New Castle County Code of Ethics, which establishes the minimum level of ethical conduct required of County officials and employees. The Commission cautions, however, that each County department, board, or other unit of County government is free to, and may impose as part of its own policy, additional or greater restrictions on its officials and employees than those set forth in this Opinion.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS 14th DAY OF JUNE 2006.
__________________________
John McMahon, Chairperson
Decision: Unanimous
Footnotes:
1 New Castle County Code Section 2.03.103. Prohibitions relating to conflicts of interest, states in pertinent part:
A. Restrictions on exercise of official authority.
1. No County employee or official knowingly or willfully 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 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. There will be a rebuttable presumption of a knowing or willful violation of this section if the action benefits the County official or employee, his or her spouse, or his or her dependent children (whether by blood or by law).
2 New Castle County Code Sec. 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) [conflict of interest], 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 decision or action of the County employee, County official or governmental body are influenced by factors other than the merits.
3 Complete cessation of an outside endeavor has been required when recusal is not sufficient to avoid a violation of the Code. For example, in Advisory Opinion 97-05 an employee was advised to discontinue her participation as an officer with a civic organization because her County position required that she deal with same issues which the organization monitored and publicly advocated. In Advisory Opinion 04-09, a senior County employee was required to avoid participation in an outside business because recusal was not an adequate tool to eliminate an appearance of impropriety. In Advisory Opinion 04-14, an official was not permitted to participate in an outside business venture because his recusal from official conduct related to the endeavor would have been detrimental to the public. In Advisory Opinion 05-03, an employee was required to terminate participation in his outside business because of the reasonable perception that he would use the participation to advance his County position.
4 Section 2.04.102(I) states in pertinent part:
. . . It shall be a complete defense in any enforcement proceeding initiated by the Commission and evidence of good faith conduct in any other civil or criminal proceeding if the requester, at least twenty-one (21) working days prior to the alleged violation, requested the opinion from the Commission in good faith, disclosed truthfully all the material facts and committed the acts complained of either in reliance on the opinion or because of the failure of the Commission to provide an opinion within twenty-one (21) working days of the Commission's receipt of request or such later extended time.
