Whether a County official's efforts to recuse himself from involvement in an existing project with a County vendor which is currently interviewing his wife for employment are sufficient to avoid a violation of the Ethics Code.
Since the official's wife's potential employment by the vendor would have a direct and predictable effect on the official's financial interests and his County authority regarding the vendor would cause a reasonable person with knowledge of the relevant facts to question his impartiality toward the vendor, the official properly took immediate steps to disclose all the facts to his superiors and to recuse himself from any role in managing the vendor contract. There do not appear to be any additional procedures to use to complete the necessary disclosure and recusal process.
The wife of a New Castle County official has been sought out for employment by a vendor for the official's department. The vendor was chosen through a standardized process by persons under the official's supervision as well as by employees of another department who were not under his supervision. Those persons selected and rated three bidders and unanimously chose the vendor. The official had had significant positive experience with the vendor in the late 1990s in a prior position before entering County service, knew the vendor was highly recommended by other governments who recently used its services, was aware of the ongoing bidding and selection process, but provided no direction or input. In September, shortly after the vendor was selected, the official attended a meeting at its offices to discuss the County project.
The official's wife has been a self-employed, part-time consultant for ten years, professionally active in the same area of expertise as that of the vendor. She had sought employment with the vendor two years ago but was unsuccessful in securing a position. During the September meeting about the County project, the vendor told the official that it recently lost an employee and was in urgent need of a replacement. The vendor asked the official if his wife was ready to return to full time employment. The official declined to discuss the matter with the vendor because of his status with the County. The vendor called the official's wife later that same day to schedule an interview with her. The official's wife is very interested in employment with the vendor.
The day following the meeting with the vendor, the official emailed his superiors and Ethics counsel about this situation and subsequently notified all subordinates and associated persons that he had recused himself from any role in managing the vendor contract because of the scheduled interview with his wife. He also informed the vendor in writing that he was recusing himself from the project because of its negotiations with his wife. He submitted this request for guidance on whether further action should be taken to avoid violation of the Ethics Code.
Code or Prior Opinion:
The New Castle County Ethics Code Section 2.03.103 conflict of interest provision prohibits the use of official authority or confidential information received through County employment for the personal or private benefit of an official or employee, a member of his or her immediate family, or a business with which he or she is associated. This means that an official cannot use a County position or non-public information developed from that position to enhance his or her status in personal outside endeavors.1 As a corollary, the Code also restricts an official from representing the interests of a private enterprise before any County department.2 The factual time line related by the official in this case appears to show that there was no quid pro quo or improper conduct on the part of the official to encourage the vendor to interview his wife.
In addition to prohibiting conflicts of interest, Code Section 2.03.104 (A) prohibits any conduct which undermines public confidence in the impartiality of a governmental body with which a County employee is associated by creating the appearance that the official actions and decision of the employee or department are influenced by factors other than the merits.3 This section of the Code is relevant to the actions of the official in disclosing to and notifying superiors, subordinates and associates the limitations on his interaction with the vendor.
Section 2.03.103(C) restricts the County from entering into a contract or subcontract in excess of $500.00 with an entity which is owned by or has a business association with a County employee or official or member of such person's immediate family unless the contract or subcontract was made after public notice and competitive bidding.4 This section of the Code does not affect the existing contract with the vendor but may have to be considered in the future if the official's wife enters into its employment.
On numerous prior occasions the Commission has identified situations in which a County official or County employee must disclose a personal interest or relationship and abstain from participation in County responsibilities in regard to that interest. Most of those situations involved the personal activities of the particular County employee or official: outside employment, business relationships, and membership on boards or organizations. Two of those opinions involved situations in which a County employee had a potential future employment relationship with a vendor. In Advisory Opinion 96-02, a vendor, perhaps in a joking fashion, suggested to a County employee that if its proposal were to be accepted by the County, it would be interested in discussing future employment of the employee. The Commission advised the employee to decline making a recommendation regarding competing vendors' proposals. In Advisory Opinion 01-09, the Commission advised an employee not to accept outside employment with a vendor after the employee had been instrumental in choosing the vendor and had ongoing responsibility for the contract.
The employment activity of spouses became the frequent subject of such requests as early as 1991, the first year the Commission published opinions. In Advisory Opinion 91-08, the Commission advised an employee to recuse from County responsibilities when the employer of a spouse was making a public and competitive bid for County work. In Advisory Opinion 92-03, the holding was similar when an organization serviced by an official's spouse's employer was presumed to be a future applicant for a County grant overseen by the official. In Advisory Opinion 94-02 the employee was advised to scrupulously avoid taking any official action involving his wife's outside business or making any referrals to it to County clients. In Advisory Opinion 94-04, the Commission determined that an employee would not only violate the conflict of interest provision involving personal benefit but also the contract and bid rules if he awarded a contract to a business owned by his wife. In Advisory Opinion 04-11, an official was not permitted to sponsor or vote on a matter benefiting a client of his spouse and in Complaint 05-04, an official was found to have violated the Code when he voted on a matter benefiting his spouse's client.
A significant number of Commission opinions also involved situations concerning other members of the family, including parents (Advisory Opinions 94-04, 99-08 and 05-19), cousins (Advisory Opinion 92-06), aunts Advisory Opinion 02-02), adult children (Advisory Opinion 06-08), and siblings (Complaint 04-05). Regardless of the intimacy of the family relationship, the advice in all these opinions was uniform: the official or employee must disclose the situation to his or her superior and ask that all persons he or she supervises be directed not to report to him or her about it. The employee or official was counseled to completely recuse himself or herself from research, discussion and implementation of the County action in the matter concerning the family member.
Prior to the official's meeting with the vendor, the vendor had been selected in a standardized process by his subordinates, without input or direction from him. Despite his prior familiarity with the vendor and his wife's previous contact with it, there was no reason for the official to abstain from interaction in the project at that time. His wife's prior employment contact with the vendor did not present any ethical problems because he had no reason to believe that it had a professional interest in her, especially since it declined to hire her when the opportunity arose in the recent past. However, once the vendor inquired about the availability of his spouse, alarms rang and the official behaved in an appropriate manner: he declined discussion with the vendor about his wife and promptly disclosed the situation to his superiors and the Ethics Commission. His subsequent communications to subordinates and other persons, including the vendor, were in conformity with prior Commission directives to completely recuse from research, discussion and implementation of the County action in the matter.
His Opinion request does not describe whether the vendor contract at issue was the subject of an open and competitive public bid or whether it is a professional services contract which is not subject to that procedure. The official is advised if his wife secures a position with the vendor, and the contract is the latter type, exceeding $500.00 in value, Section 2.03.103(C) may present an impediment to a renewal or new contract. See Advisory Opinion 05-04 (A business which is associated with a County official is prohibited from contracting with the County for professional services unless a public notice and competitive bidding procedure is used.) The official is advised to consult the Commission if such circumstances arise.
Since the official's wife's potential employment by the vendor is likely to have a direct and predictable effect on his financial interests and his County authority regarding the vendor would cause a reasonable person with knowledge of the relevant facts to question his impartiality toward the vendor, the official properly took immediate steps to inform his superiors of the facts and recused himself from any role in managing the vendor contract. There do not appear to be any additional procedures to use to complete the necessary disclosure and recusal process.
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 11th DAY OF OCTOBER 2006.
John McMahon, Chairperson
1Section 2.03.203. 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 Section 2.03.103 (B). Restrictions on representing anther's interest before the County, in pertinent 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.
3Section 2.03.104. Code of conduct, in pertinent part:
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 decision or action of the County employee, County official or governmental body are influenced by factors other than the merits.
4 Section 2.03.103, in pertinent part:
(C). Restrictions on contracting with the County. No County official or County employee his or her spouse, child, parent, step-parent or sibling of the whole or half-blood or any business with which the County official or County employee or his or her spouse, child parent, step-parent or sibling of the whole or half-blood is associated or who has a legal or equitable ownership of more than five (5) percent (more than one (1) percent in the case of a corporation in whose stock is regularly traded on an established securities market) shall enter into any contract with the County (other than an employment contract) or any subcontract with a County contractor unless such contract or subcontract was made or let after public notice and competitive bidding. Such notice and bidding requirements shall not apply to contract not involving more than five hundred dollars ($500.00) per year if the terms of such contract reflect arms' length negotiations, if the subcontractor is a sole source provider, or if there are exigent circumstances. There will be a rebuttable presumption of a knowing and willing violation of the section only if the contract or subcontract is awarded to a spouse or child of the County employee or official.
Section 2.03.102 defines the following:
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.
Financial interest means any interest representing more than five (5) percent of a corporation, partnership, sole proprietorship, firm, enterprise, franchise, organization, holding company, joint stock company, receivership, trust, or any legal entity organized for profit.
Immediate family means 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 employee.