Filing Number: 07-09
Subject: Outside Employment
Keywords: confidentiality provisions, conflict, County Attorney, outside employment, private business
Decision By: Commissioners: John McMahon, Kathryn Denhardt, Thomas Collins, Miguel Gonzalez,V. Eugene McCoy, Mark Murowany
Contact Email: admin@nccethics.org
 
Status: Active

Question:

            An official who is an attorney requests guidance on whether she is permitted to engage in outside employment in matters in which the County is not a party and which will not come before the County as a plan, permit or application.

Conclusion:

           The attorney may pursue outside employment if the outside legal activity has no nexus with the County but the attorney must make the County Attorney aware of each specific representation so that matters pending before the law department, about which she may be unaware, may be reviewed for conflicting representation, disclosure of confidentiality, or appearance of impropriety purposes. Since the law department represents the whole of County government, the attorney may not represent clients who have other business presented to or which is pending before the County in any unrelated matter. The employee must be careful not use confidential information obtained in County employment for the benefit of her private clients. In addition, the attorney may be required to conform to more stringent rules imposed by the Delaware Supreme Court on practicing attorneys.

Facts:

            A County attorney wishes to perform private legal work either for compensation or pro bono in matters in which the County is not a party and which will not come before the County as a plan, permit or application.

Code or Prior Opinion:

Code provisions
 
            The conflict of interest rules at New Castle County Code Section 2.03.103(A)(1) and (B)(1) prohibit the use of official authority by a County official or employee "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." These conflict rules mean that an official or employee may not exercise any authority derived from his or her County position in matters involving his or her immediate family members or businesses associated with him or those family members, other than in those situations in which the employee or immediate family are affected in a manner like the general public, or an industry or occupation or group which includes them. The code also restricts a County official from representing or otherwise assisting any private enterprise with respect to any matter before the County and prohibits a County employee from representing or assisting any private enterprise before his or her department.1
 
            The Ethics Code's conduct rules in Code Section 2.03.104 recite prohibitions affecting the activities of officials and employees when direct financial conflict is not at issue. Subsection (A) prohibits exercise of official authority which creates an appearance that the decisions or actions of a County official or employee or his or her department are influenced by factors other than the merits of the matter for decision. This prohibition exists because such conduct undermines public confidence in the impartiality of the governmental body with which the employee or official is associated.2 Subsection (E) prohibits the official or employee from engaging in any activity which might reasonably be expected to induce that person to disclose confidential information. Subsection (F) bars the official or employee from actually disclosing such information or using it for personal gain or benefit.3
 
Prior Commission Opinions
 
            This Commission has long ruled that secondary employment is not prohibited "where there is no nexus between an employee 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. See, Advisory Opinion 91-05. The Commission also has restricted activities when the judgment of co-workers regarding the outside employer would be affected. See, Advisory Opinions 97-07, 01-01, 04-09, 06-15.
 
            An official or employee also has to avoid accepting outside employment which is too similar to their official function for the County since that situation could create an appearance that official actions are improperly influenced by the fees or other factors related to the outside employment. See Advisory Opinion 91-05, in which an employee was prohibited from starting an outside business capitalizing on the expertise he exercised in his County position.
 
            The particular problem of the outside employment of County attorneys was discussed in Advisory Opinion 00-06. Although the relevant code sections were numbered in a different fashion in 2001 when that Opinion issued, their content is identical to those sections referred to previously in this Opinion. In the 2001 Opinion, the Commission found no specific prohibition on the private practice of law but determined that County Attorneys were limited by the code restrictions, particularly those on representation and the prohibitions against creating an appearance of impropriety. The Commission noted that certain rules "such as professional codes, may dictate more stringent restrictions than those imposed here. Additionally, each department, board or other unit of County government is free to impose greater restrictions on its officials and employees."

Analysis:

            Financial conflict does not appear to enter into consideration in this request as it raises no facts to indicate that the attorney would exercise official authority in regard to her outside enterprises. However, the conduct rules clearly impact her issues.
 
            The Ethics Code does not bar the attorney from participating in private enterprises that do not have a nexus with County government. Nevertheless, since the attorney is a member of a department which represents all of County government, whether or not her particular official duties are more limited, she has to be exceedingly careful to search out potential conflicts before engaging in outside representation. For example, whether for pay or pro bono, she could find that a client engaged in an outside private enterprise that is not associated with the County in any way is being pursued for County Code violations because of an unrelated activity. Since the County law department is the ultimate prosecuting source for such transgressions, if she continued her representation she would violate the Ethics Code by creating an appearance to the reasonable County resident that the conduct of her co-workers in the law department or in the enforcing County department could be improperly influenced because of her outside representation.
 
            The only method the Commission can determine to avoid the creation of such improper appearances is if the attorney informs her department manager, the County Attorney, in advance of engaging in each specific outside activity. Presumably, the County Attorney would be aware of the breath of outside activity impacting the County and the law department, the similarity of the proposed representation to an attorney's official function, and the potential for disclosure of confidential information. Violation of the Ethics Code could be avoided through such recourse to the County Attorney's expertise and judgment because potential conflicts could be ascertained and representation declined if appropriate.

Finding:

            The attorney may pursue outside employment if the outside legal activity has no nexus with the County but the attorney must make the County Attorney aware of each specific representation so that matters pending before the law department, about which she may be unaware, may be reviewed for conflicting representation, disclosure of confidentiality, or appearance of impropriety purposes. Since the law department represents the whole of County government, the attorney may not represent clients who have other business presented to or which is pending before the County in any unrelated matter. The employee must be careful not use confidential information obtained in County employment for the benefit of her private clients. In addition, the attorney may be required to conform to more stringent rules imposed by the Delaware Supreme Court on practicing attorneys.
 
            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 13thDAY OF JUNE 2007.
 
__________________________
John McMahon, Chairperson
 
Decision: Unanimous

Footnotes:

1New Castle County Code Section 2.03.102 defines Business as "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. That section defines the phrase business with which he or she is associated as "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." That section 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. Private enterprise does not include any activity of the Federal, State or local government or of any department, authority or instrumentality of the Federal, State or local government."
            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).
. . .
B.     Restrictions on representing another's interest before the County.
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.
3.     This subsection shall not preclude any County employee or County official from appearing before the County or otherwise assisting any private enterprise with respect to any matter in the exercise of his or her official duties. 

2New Castle County Code Sec. 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) [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.
. . . 

3New Castle County Code Sec. 2.03.104. Code of conduct, in pertinent part:
. . .
E.     No County employee or County official shall engage in any activity beyond the scope of such public position which might reasonably be expected to require or induce such County employee or County official to disclose confidential information acquired by such employee or official by reason of such public position.
F.      No County employee or County official shall, beyond the scope of such public position, disclose confidential information gained by reason of such public position nor shall such employee or official otherwise use such information for personal gain or benefit.
. . .