Filing Number: 07-12
Subject: Sponsoring Ordinance
Keywords: appearance of impropriety, conflict, council member, elected official, immediate family, land use, recusal
Decision By: Commissioners: John McMahon, Thomas Collins, Miguel Goanzalez, V. Eugene McCoy, Mark Murowany
Contact Email: admin@nccethics.org
 
Status: Active

Question:

            Whether a violation of the Code of Ethics would occur if the President of County Council is required by Council Rules to sponsor land use legislation because the resident Council person is unable or chooses not to sponsor the legislation and the Council President discloses that he will recuse himself from the vote on the measure because of a conflict.

Conclusion:

            Under circumstances in which a conflict of interest or other improper appearance may be present, Council President may sponsor land use legislation pursuant to the mandatory language of Council Rule 3.1.2 but must recuse himself or herself from any private or public discussion of the measure and may not vote unless he or she invokes the provisions of New Castle County Code Section 2.03.103 (A)(2).

Facts:

             Council Rule 3.1.2 reads as follows: "Land use legislation relating to a specific parcel shall be sponsored by the district Council member or, in situations where he or she is unable or chooses not to sponsor the same, the Council President."

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."1 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 Ethics Code's conduct rules at Section 2.03.104(A) also recite prohibitions affecting the exercise of County authority by an official when direct financial conflict is not at issue. That subsection prohibits exercise of official authority which creates an appearance that the decisions or actions of a County official 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 associated2.
 
            The Ethics Commission has long applied Ethics Code section 2.03.103(A)(2) to situations involving not only a conflict of interest but to all circumstances in which an improper appearance would be created by the exercise of County authority. That section permits an official with legal or statutory responsibility which cannot be delegated to exercise responsibility in the case of a conflict or an improper appearance on the conditions that he or she file a written statement with the Ethics Commission completely disclosing the personal or private interest, and requiring a reading of that statement into the public record immediately before a vote is cast. If the individual abstains from voting because of a conflict or improper appearance, the abstaining official does not have to file the written statement with the Commission. However, an explanatory statement still must be placed in the public record prior to the abstention.3
 
Prior Commission Opinions
 
            In Advisory Opinion 04-11, the Ethics Commission advised an official to recuse himself from sponsorship and vote on legislation because a member of the official's immediate family had a client who had a pecuniary interest in the matter. The Commission held that in that circumstance exercise of authority by the official would create an appearance of impropriety. At the date of Opinion 04-11, former Council rule 17.B mandated the same process as that quoted above in Council rule 3.1.2 and the legislation defaulted to the Council President's sponsorship. In the current situation, the law mandates that the Council President assume sponsorship and does not provide a default.
 
            In Advisory Opinion 05-19, an official was permitted to exercise official authority despite a conflict because the law created not only non-delegatable authority but sole responsibility in his position. He was instructed to recuse himself from involvement as far as legally permissible and, pursuant to Section 2.03.103(A)(2), to file a written statement with the Commission fully disclosing the personal interest and the law which required him to act.
 
            In Advisory Opinion 06-17 an official was advised that any time he had a concern about creating an improper appearance by voting, he could invoke the provisions of the disclosure and abstention procedures recited in Section 2.03.103(A)(2) and thereby make his concern public. In Advisory Opinion 07-05 an official was advised that the better course was to abstain from voting on an ordinance in which a client of his outside employer was potentially interested. However, since his vote was non-delegatable, he could choose to follow the provisions of Section 2.03.103(A)(2).

Analysis:

             The situation described in this request is most similar to the circumstances of Advisory Opinion 05-19 because Council Rule 3.1.2 creates sole authority in the Council President to assume sponsorship if the district Council person cannot do so. The rule does not create a default in the case of the President's inability to sponsor. A reasonable person, with knowledge of the Council rule, would not believe that the Council President's integrity was impaired if he assumed sponsorship under the conditions described in the rule.

Finding:

             Under circumstances in which a conflict of interest or other improper appearance may be present, Council President may sponsor land use legislation pursuant to the mandatory language of Council Rule 3.1.2 but must recuse himself or herself from any private or public discussion of the measure and may not vote unless he or she invokes the provisions of New Castle County Code Section 2.03.103 (A)(2).
 
            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 10th DAY OF OCTOBER, 2007.
 
___________________________
John McMahon, Chairperson
 
Decision: Unanimous

Footnotes:

1 New 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."
            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. 

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 New Castle County Code Section 2.03.103. Prohibitions relating to conflicts of interest, in pertinent part:
A.     Restrictions on exercise of official authority.
. . .
2.     In any case where a person has a legal and/or statutory responsibility with respect to action or nonaction on any matter where the person has a personal or private interest and there is no provision for the delegation of such responsibility to another person, the person may exercise responsibility with respect to such matter, provided that promptly after becoming aware of such conflict of interest, the person files a written statement with the Commission fully disclosing the personal or private interest and explaining why it is not possible to delegate responsibility for the matter to another person. If the matter is one in which the legal and/or statutory responsibility requires the person to vote upon the issue, the written statement filed with the Commission shall be read into the public record prior to the time the person's vote is cast. Any person choosing to abstain from voting on an issue where [he] or she has a conflict shall state the reasons for his or her conflict on the record; an abstaining voter need not file the written statement with the Commission required when acting on, rather than abstaining from, an issue involving a conflict.