Filing Number: 08-03
Subject: Official Communication
Keywords: appearance of impropriety, attorney, communication, constituent, council member, County official, Department of Land Use, developer, family, financial interests, impropriety, land use, legislation, official business, ordinance, planning, real estate, spouse, zoning
Decision By: Commissioners: J. McMahon, M. Murowany, E. Danberg, T. Collins, M. Gonzalez, V.E. McCoy, G. Turkel
Contact Email: admin@nccethics.org
 
Status: Active

Question:

Whether an elected official may communicate privately for review and comment on proposed legislation with an industry group impacted by that legislation without violating the New Castle County Code of Ethics.

Conclusion:

Assuming no pecuniary interest, an elected official may communicate for review and comment with an industry group impacted by proposed legislation without violating the New Castle County Code of Ethics.

Facts:

An elected official asks whether he may communicate by email with a small group of interested parties in relation to certain land use legislation he is proposing. The official has been criticized in the past for limiting review and comment opportunity to parties who are believed to be financially interested in a particular outcome that is opposed by other groups in the County. He has stated that he and his family and his wife's associated business have no private pecuniary interest in the outcome of the legislation greater than that of a subgroup to which the official and his family belong.1

Code or Prior Opinion:

Code provisions

Section 2.03.101(B) of the New Castle County Ethics Code states, in pertinent part,

It is recognized that many public officials are citizen-officials who bring to their public offices the knowledge and concerns of ordinary citizens and taxpayers. They should not be discouraged from maintaining their contacts with their community through their occupations and professions. . . .

Section 2.03.103(C) continues that reasoning by directing Ethics Commission members to be "cognizant of the responsibilities and burdens of public officials and employees".

The conflict of interest rules at New Castle County Code Section 2.03.103(A)(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."2 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 no different from the general public, or an industry or occupation or group which includes them. Section 2.03.103 (A)(2) provides that if the matter concerns a non delegable legal or statutory responsibility, the person may act provided a certain form of public notice is made. The Ethics Code's conflict of interest rules also prohibit County officials from representing private interests with respect to County business or regulation. The prohibition is personal to the County official and does not impact his or her family members or business associates. However, it does not prevent the official from appearing for or assisting a private interest if the representation is in the course of his or her official duties.3

The Code's conduct rules at Section 2.03.104(B) 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 associated.4

Prior Commission Opinions

In Advisory Opinion 94-04, the Commission found that a conflict of interest would arise if an official voted on a measure which would affect real property in his father's estate.

In Advisory Opinion 99-01, the Commission held that an official had to recuse himself from vote where a client of his law firm had a financial interest in the matter, even if his law firm's representation was on an unrelated matter. This Opinion predated the enactment of Section 2.03.102 in 2000 and does not mention the exception created for non delegable duties. See, e.g. Advisory Opinion 05-19 and Order 05-04.

In Advisory Opinion 99-03, the Commission found that in the absence of a pecuniary interest, it could be within the duties of a Council member "to express the views [on a rezoning] he or she believes to be in the best interest of his or her councilmanic district."

In Order 03-02, June 25, 2004, the Commission found no violation of the Ethics Code when a Council person voted for an ordinance which was favored by his former employer and former associates. The substance of the legislation was the subject of significant local partisan debate in the County's general constituency and there was no evidence of private benefit to the Council person from enactment.

In Advisory Opinion 06-06, the Commission stated that it presumes that "County officials and employees act with integrity and good faith unless circumstances show otherwise". In that Opinion the Commission stated that "unless undisclosed facts demonstrate that there are other circumstances ...creating the reasonable perception that the official's conduct would be influenced by factors other than the merits of the measure at issue, a vote will not create and appearance of impropriety". See also Advisory Opinion 06-11 in which the Commission held that a conflict of interest must be shown to be "concrete, personal and not remote". These Opinions, like many others, referenced the Section 2.03.102(A)(2) public notice procedure in the case of non delegatable duties.

Historical Protections for Legislative Deliberations

Protections from intrusion into legislative deliberation were developed in English common law long before the United States became a country. See Tenney v. Brandhove,341 U.S. 367 376 (1951). Both Federal government and Delaware State government legislators are constitutionally protected from questioning about activity performed in their representative bodies. More broadly, most courts in this country take special care to protect against inquiry "into the legislator's motivations, mental processes, or the substance of discussions or deliberations relating to the enactment of any particular legislation. Such avenues of inquiry command the greatest protection under the legislative privilege and will routinely be precluded in all but the most exceptional circumstances." See, e.g., Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 268 (1977). However, if the privilege is "challenged on bad faith, corruption, or personal interests grounds, a court should consider whether there is a chain of events or objective evidence from the outset supporting the invidious intent behind the legislative action." Village of Arlington Heights, 429 U.S. at 267-268.5

While Delaware law does not provide constitutional immunity from questioning about legislative acts for local legislators, the Commission adopts the view articulated by Vice Chancellor Noble that public policy disfavors intrusion into legislative independence. Re: In re Kent County Adequate Public Facilities Ordinances Litigation, not reported in A.2d, 2008 WL 859342 (Del.Ch.). The Commission does not believe inquiry into how an elected official formulates his opinions on pending legislation or with whom he discusses such matters are within its jurisdiction without some objective evidence of misuse of official authority. Such an interpretation protects "the integrity of the legislative process by insuring the independence of the individual legislator." U.S. v. Brewster, 408 U.S. 501, 507 (1972).

Analysis:

If an official or his or her family do not have any interest in the substance of proposed legislation to a greater degree than the general public or a subclass consisting of an industry, occupation or other group which includes them, no evidence of bad faith, corruption, or improper personal interest arises just because the official consulted with selected constituents about legislation or took a position on that matter. If an official could be considered to have such a private interest different from the general public or a subclass of an occupation or industry, but the matter is part of his non-delegable duties and he believes his participation in the matter is in the public interest, he may act provided he follows the public notice provisions of Section 2.03.103(A)(2).

Without concrete evidence of invidious intent underlying the elected official's conduct, the Commission will afford the official the presumption of fair dealing and honesty as well the time honored privilege due an elected representative of the people to conduct interactions with his constituents and others as he chooses without intrusion from the Commission.

Finding:

Assuming no pecuniary interest attributable to the official or a member of his immediate family or associated business, an elected official may communicate for review and comment with an industry group impacted by proposed legislation without violating the New Castle County Code of Ethics.

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 JULY 2008.

_________________________

John McMahon, Chairperson

Decision: Unanimous

Footnotes:

1There are certain other facts associated with this request which the Commission declines to include in the question or the factual recitation because those facts describe conduct that has already occurred. Commission guidance in the form of an Advisory Opinion cannot affect events already past and a request filed after an act has been performed does not serve as a defense in other enforcement procedures for completed acts described in Section 2.04.102 of the Code.

2New 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).

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.

3 New Castle County Code Section 2.03.103. Prohibitions relating to conflicts of interest, states in pertinent part: . . .

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.

4 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.

5 In the federal courts, legislative privilege for local legislators turns on whether the function in question is legislative or administrative in character. It extends to meetings, processes, conversations and documents that are "an integral part of the deliberative and communicative processes". Hutchinson v. Proxmire, 443 U.S. 111, 126 (1979). Also see, e.g., Acierno v. Cloutier, 40 F.3d 597, 610 (3rd Cir.1994); Cutting v Muzzey,724 F.2d 259, 261 (1st Cir. 1984); Marylanders for Fair Representation, Inc. v. Schaefer, 144 F.R.D. 292, 299 (D. Md.1992).