Filing Number: 92-03
Subject: Business Relationships
Keywords: abstention, appearance of impropriety, appointed official, board member, county grant, County official, disclosure, donor, family, grant, immediate family, impropriety, private business, public bid, public notice, recusal, supplier, undue influence, vendor, vote
Decision By: L. Susan Faw, Ethics Commission Counsel
Contact Email: admin@nccethics.org
 
Status: Active

Question:

          Whether it would violate the New Castle County Code of Ethics ("Ethics Code") if a County official's spouse's employer were to submit a bid to provide materials to an organization, when that organization may later be an applicant for a County grant.

Conclusion:

          Presently, these facts do not suggest any conflict of interest, violation of the bidding restrictions, or appearance of impropriety under the Ethics Code. In the event the organization later applies for a County grant, the County official should abstain from participation in the award decision. Although the relationship between the County official and organization is very remote, abstention would avoid any appearance of impropriety, however slight, and would reflect the highest ethical standards.

Analysis:

Introduction
 
          A County official's spouse's employer intends to submit a bid to provide materials to an organization.  That organizationmay leter be an applicant for a County grant.  The County official asks whether any issue is raised under the Ethics Code.  Three provisions of the Code must be examined in responding.
 
Conflict of Interest
 
          A "conflict of interest" is defined under the Ethics Code as:1
 
Use by a [County] official . . . of the authority of his office . . . for the private pecuniary benefit of himself, a member of his immediate family or a business with which he is associated.
 
"A business with which he is associated" includes "[a]ny business in which . . . a member of [his] immediate family is a director, officer, owner or has a financial interest."2
 
          While the Ethics Code prohibits a County official from engaging in conduct which constitutes a "conflict of interest"3, the facts do not suggest any "use by [the C]ounty official . . . of authority of his office" in connection with this matter.4
 
          Furthermore, even if there were "use by [the C]ounty official of the authority of his office", it would not be exercised "for the private pecuniary benefit of . . . a business with which [the County official] is associated" - as a County official's spouse's employer does not constutite "a business with which [the County official] is associated."  Under the Ethics Code, such a relationship is too tenuous to give rise to a "conflict of interest."
 
Bidding Restrictions
 
         Section 2-30.2(e) provides:
 
No [C]ounty official . . . or any business in [sic] which the person or his spouse . . . is associated shall enter into any contract valued at five hundred dollars ($500) or more with with anythe [C]ounty or any subcontrat valued at five hundren dollars ($500) or more with any person who has been awarded a contract with the [C]ountyofficial . . . is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded.  In such a case, The [C]ounty official . . . shall not have any supervisory or overall responsibility for the implementation or administration of the contract.
 
          This section applies to the award of a "contract" with the County, a "contract" being "[a]n agreement or arrangement for the acquisition, ujse of disposal by the County of consulting or other services or of supplies, materials, equipment, and or other personal or real property."  Section 2-30.2(e) does not encompass the County's award of a grant.
 
Appearance of Impropriety
 
          An "appearance of impropriety" is defined as:
 
The conduct of a [C]ounty official . . . which does not constitute a conflict of interest but which undermines the public confidence in the impartiality of a governmental body with which a [C]ounty officer is or has been associated by creating an appearance that the decisions or actions of the [C]ounty official . . . or the governmental body are influenced by factors other than the merits.
 

Finding:

           There is no "appearance of impropriety" suggested by the present facts: there is no decision or action required of the County official which could be improperly influenced.
 
          The Commission recommends however that if the County official's spouse's employer is awarded the bid to provide materials for the organization and the organization subsequently applies for a grant from the County, the County official should abstain from any participation in the award decision. While the relationship between the County official and the organization is concededly very remote, abstention would avoid any allegation of an appearance of impropriety, however slight, and would reflect the highest ethical standards.
 
 
                                                            
L. Susan Faw
Ethics Counsel
 
August 17, 1992
 
 
 
 

Footnotes:

1 Defined terms are found in Sec. 2-30.1. Definitions.
 
2 A spouse is included in the definition of a County official's "immediate family."
 
3 See Sec. 2-30.2(a). Restricted activities.
 
4 "Authority of office" is defined as: "The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular [C]ounty office . . ."