A senior County manager in the Special Services department requests guidance about whether he may perform private consulting services similar to those he performs for the County for private entities located outside New Castle County which do not conduct business in the County and whether the employee may perform such consulting for a firm which is owned and operated by his spouse which is located in and conducts business in New Castle County.
The employee will avoid an Ethics Code violation by restricting his consulting services to entities that neither operate in New Castle County nor involve his County department in any way. Since his spouse's business is located in and conducts business in New Castle County, if it performs services which are regulated by his department, directly or indirectly in any way, he may not extend consulting services to or employment by that business.
A New Castle County employee, whose position as a senior manager requires specialized professional training, has been offered two opportunities to become a private consultant in a professional role similar to that which he performs for the County.1 The first opportunity is with companies that are not located in, do not do business in, nor are regulated by New Castle County. The second opportunity is with his spouse's business which provides services for private entities. The spouse has a professional affiliation similar to that of the employee. The spouse's business is located in and does business in New Castle County and the is frequently regulated by the County Land Use department. His spouse, by agreement made with the Commission in 2004, does not contract or subcontract on projects with New Castle County which fall under the supervision or regulation of the Special Services department but does otherwise contract with private businesses in the County.2
Code or Prior Opinion:
New Castle County Ethics Code Section 2.03.103, the 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 or employee cannot use a County position or non-public information developed from that position to enhance his or her status in personal or a family-associated outside endeavors.3 As a corollary, the Code also restricts an employee from representing the interests of any private enterprise before his or her County department.4 Every official and employee is governed by these provisions, and must recuse if any matter related to his or her family's outside business interests come before his or her department.
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.5 That means that conduct is prohibited even if there is no actual conflict of interest if it would cause a reasonable member of the public, with knowledge of the relevant facts, to question the objectivity or fairness of an official, an employee, or of the department associated with the official or employee. Finally, Ethics Code sec. 2.03.104 B prohibits County officials or employees from acquiring a financial interest in a private enterprise which such persons have reason to believe may become directly involved in their official decisions.6
This Commission has long ruled that secondary employment is not prohibited "where there is no nexus between an employee's or official's County job and secondary employment". See Advisory Opinions 94-05 and 04-10. However, when that nexus exists, the Code may restrict and, in some cases prohibit, County employees from secondary employment. As early as June of 1991, this Commission held that employment as a private consultant in a role substantially similar to the employee's County responsibilities was prohibited unless the service was provided to businesses located outside New Castle County and did not involve the County. See Advisory Opinion 91-05. In 1998, the Commission permitted an employee to operate a private business substantially similar to his County position, as long as the employee entered into a signed agreement with his department manager agreeing that he would not perform any work in his private business that would be processed through any County department, that he would provide written notice to his private employers that the work may not be processed before the County, and that he would periodically submit a list of his active clients and corresponding property locations to his manager. See Advisory Opinion 98-01.
In Advisory Opinion 92-07, the Commission found that an employee who performs inspections for the County may not be associated with a business which does any construction subject to County inspection. The Commission ruled that a County inspector had to limit work he did as an individual to construction which would not be subject to County inspection, either by virtue of the nature of the construction or its location outside the County's geographic jurisdiction. It further advised that a County inspector may not be associated with a business which does any construction subject to County inspection. "[A]llowing a County inspector to inspect construction done by his fellow inspectors or by a business with which the fellow inspector is associated creates an appearance of impropriety." Id at 3.
In Advisory Opinion 97-07 an employee was prohibited from taking secondary employment in a business regulated by New Castle County even though the employee was to work in a different County for the employer and had agreed to abstain from reviewing any work performed by the private employer in New Castle County. The Commission expressed concern that reviews of the private employer's work by the employee's co-workers would create an appearance that approvals were granted because of the fellow employee's relationship with the secondary employer, not because of the merits of the work. See also, Advisory Opinions 01-01 and 04-09.
The employee requesting this opinion is a high level County decision maker in his department. Given that status, it is reasonable to believe that decisions and interpretations made by him and his department would directly affect his private consulting business if that business operated in New Castle County. Therefore, if the employee were to operate a consulting business in which he offered his services for work in the County which is regulated by his department, he would transgress not only the rule against acquiring a financial interest in an entity that may be directly impacted by his official decisions but also create an appearance of impropriety in the manner discussed in the prior Commission decisions because his work would ultimately be subject to review by his coworkers. The only way in which the employee can avoid violating the Ethics Code is if he consults only with entities that do not operate in or involve his New Castle County department in any way.
The employee may perform private consulting services for entities located outside New Castle County which do not do any business within New Castle County that is subject to regulation by his department. Any joint enterprise with his spouse's County business is prohibited by the Code's conduct rules if that business is regulated directly or indirectly in any way by his department.
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 THE 13th DAY OF DECEMBER 2006.
John McMahon, Chairperson
1 Absent obvious error or facial conflict, the Ethics Commission assumes "that the requesting party requested the opinion in good faith and disclosed truthfully all material facts to the Commission. ..." Advisory Opinion 01-10.
2Section 2.03.103(C) of the New Castle County Code prohibits the County from entering into a contract valued in excess of $500.00 without public notice and competitive bidding when an official or employee is associated with the business seeking the contract.
3Section 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).
4Section 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.
5Section 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.
6Section 2.03.104. Code of conduct, in pertinent part:
B. No County employee or County official shall acquire a financial interest in any private enterprise which such employee or official has reason to believe may be directly involved in a decision to be made by such official or employee in an official capacity on behalf of the County.
Section 2.03.102 Definitions, in pertinent part:
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.