Filing Number: 05-03
Subject: Representation of Private Interest
Keywords: appearance of impropriety, communication, conflict, employee, Executive Office, financial interests, outside employment, private business, representation, undue influence
Decision By: Commissioners: Dennis Clower , Loren Grober, Eugene McCoy, Ernest Price
Contact Email: admin@nccethics.org
 
Status: Active

Question:

          Whether an employee who is publicly identified with, speaks for and represents the Executive may continue as owner and editor of an advertiser-supported specialty newspaper which does not receive revenue from the County and whether the employee may continue to be an officer in and spokesperson for a non-profit Association which receives County funds, as well as a member and spokesperson for another County supported non-profit Organization.

Conclusion:

           Mere ownership of the newspaper and membership in the non-profits do not violate the Ethics Code. However, appearances of impropriety would be created unless the employee relinquishes all control over the content of the newspaper and resigns his position as officer and spokesperson for the Association. In addition, he must limit his role as spokesperson for the Organization to comments on factual operational matters which are not connected with the public positions, policies, or procedures of relevant County Executive departments.

Facts:

          The employee has duties in relation to public information about the activities of the County Executive, the County Administration and County policies. His job requires frequent contact with the media and members of the public as a representative of or spokesperson for the Executive. He is a part owner and the editor of a specialized newspaper directed at persons interested in the specialized activity which is the central focus of both a non-profit Organization in which he has long maintained membership and a non-profit Association of similar organizations. The newspaper addresses relevant County policies and issues as part of its editorial and news content but does not receive financial support from the County. The employee is the spokesperson for the Organization and is both an officer and spokesperson for the Association. Those entities receive significant financial support from certain New Castle County Executive departments.
 
          This request deals with three discrete questions: whether ownership of the for-profit newspaper creates a conflict of interest or appearance of impropriety; whether an appearance of impropriety is created by his editorial function at the newspaper; whether the employee would violate the representation or appearance of impropriety provisions of the Code by his membership in and performing his leadership and spokesperson duties with the County supported non-profits.

Code or Prior Opinion:

1. Code Provisions
 
          The Ethics Code has several provisions affecting the employee's request for guidance which fall under the headings of conflict of interest and appearance of impropriety. The conflict of interest and appearance of impropriety provisions provide notice to employees and officials that the public interest requires them to refrain from activities in which they, their families, or their associates profit from their exercise of official authority and that they must refrain even from conduct which creates the appearance that they are using their official position to advance their private interests. The Code provision on representation is very specific: it prohibits personal interaction with one's own department on behalf of a private interest.
 
A. Conflict of Interest
 
          Exercise of official authority
 
          Section 2.03.l03(A)(1) of the Ethics Code sets forth the activities prohibited as a conflict of interest, as follows:
 
No County employee or County official 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 County 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.1 . . .
 
          Restrictions on representing another's interest before the County
 
         Section 2.03.103(B)(1) of the Code prohibits employees from assuming representation of a private entity before the department in which he or she is employed2. It states as follows:
 
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.
. . .
 
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.
 
B. Appearance of Impropriety
 
          Section 2.03.104(A) of the Code prohibits conduct which would create an appearance of impropriety, as follows:
 
No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.03.l03 (A)(l) [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 decisions or actions of the County employee, County official or governmental body are influenced by factors other than the merits.
 
2. Commission Precedent
 
          Several prior Commission opinions shed light on the instant request for guidance. In Advisory Opinion 97-07, a legislative aide who had responsibilities involving land use, zoning and other legislative issues, was permitted to maintain membership in an organization which monitored County government on those issues and which advocated its positions before the County. However, the Commission determined that since the aide's immediate supervisor had voting responsibility for issues affecting that association, an appearance of impropriety would be created if the aide held office, served as a member of the board, or was a member or chair of any committee dealing with those issues. It reasoned that it would look as though the organization
 
would be receiving preferential treatment and/or confidential information and that the organization was an extension of the County. When a County official has a high profile, leadership position in an organization whose purpose and/or actual activities center upon influencing County government, an appearance exists that the County official is mingling the two positions and raises impartiality concerns. The appearance would exist that the County official would be using the authority of her office to further the benefit of the organization.
          Given the appearance which is created under the circumstances at hand, the County's need to preserve the integrity and impartiality of County government must be balanced against the requesting party's First Amendment rights. In the present case, should the requesting party be allowed to retain her membership in the organization, but not assume a leadership role, the appearance of impropriety would be considerably diminished. Although the appearance of impropriety may still exist if the requesting party remains a member of the organization, the Commission finds her First Amendment rights outweigh the County's interest when membership alone is the issue and she, therefore, may be a member in the organization.
 
          In Advisory Opinion 01-08, a Land Use department employee was permitted to maintain his position as a volunteer director of a non-profit organization and to participate in fundraising and public relations on its behalf as long as he did not use his County position to influence any application or matters that the non profit had with the County, did not participate in any matter involving the Land Use department with the non profit, and made certain that his County function was not "enmeshed" with his non profit activities. The Commission determined that because of the clearly delineated nature of his County duties, he would have no problem in recusing himself from any official duties concerning the non-profit.

Analysis:

The Newspaper
 
           Conflict of Interest:  On the reported facts, there appears to be no conflict of interest or appearance of impropriety related to the employee's part ownership of the specialty newspaper because the paper does not do business with New Castle County. Furthermore, even if those persons or businesses which purchase advertising space from the newspaper are regulated by or contract with the County, the employee does not have the type of position which provides authority over County employees who regulate or authorize contracts. However, he must be careful not to represent the private interests of the paper or its advertisers before the Executive Departments in any way. If the newspaper takes any steps to contract with the County or if the County approaches it for the purchase of advertising, the employee and/or his superiors should initiate an immediate review of his ownership position by the Ethics Commission for Code compliance.3
 
          Appearance of Impropriety: The employee's function as the editor of the newspaper is a different matter. He works in a very public capacity for the elected political head of New Castle County government. His control in the newspaper over the opinions and news about County government has, at the very least, the potential to create the appearance in the eye of the reasonable member of the public that he is using his newspaper to advance himself or his advertisers with his government employer or, alternatively, that his newspaper is an extension of the voice of County government. Given his ownership status, recusal from editorial responsibilities in relation only to County government would not be an effective measure to negate the appearance of impropriety. It is the opinion of the Commission that he must disassociate himself entirely from input to or authority over the content of the newspaper in order to avoid a violation of the Code. If he cannot do so effectively, he must consider divesting himself of the ownership of the paper.
 
The Non-Profits
 
          Conflict of Interest: The Organization and the Association involved in the request are both non-profits and the employee has no financial interest in them and, therefore, there is no conflict of interest in that regard. However, the Code is very clear that a conflict would be created if the employee became involved in the representation of the private interests of the non-profits before the Executive branch of County government in any way. Therefore, he cannot act as a spokesperson for them before the Executive departments nor can he participate in advancing their interests before those departments.
 
          Appearance of Impropriety: The remaining question in relation to the non-profits is whether the employee's County position would be improperly enmeshed with the non-profits in the eye of the public if he continues in his offices and duties with them. The Commission agrees with the reasoning of Advisory Opinion 97-07 that mere membership in the non-profits is not a problem or violation of the Code. As a member he simply has to use reasonable measures to avoid advising his organizations on any matters related to the Executive branch of County government and recuse himself from matters relating to the non-profits which occur as part of his official duties.
 
          However, his leadership and public spokesman positions with the entities are another story. His situation appears to be closer to that described in Advisory Opinion 97-07 rather than that in Advisory Opinion 01-08. His official responsibilities in representing the Executive may be directly related to the central concerns of those entities in which he functions as a leader or spokesman. If he remains in his prominent positions as an officer of the non-profit Association and spokesperson for both the Association and the Organization, there is a strong possibility that the public would presume that County decisions made by the Executive departments relating to those entities could be improperly influenced by the employee. In addition, his County position, which entails broad duties and representations for the Executive, appears to negate the possibility that recusal would be a solution for the appearance problem. As in Advisory Opinion 97-07, resignation from office and duties in the Association appears to be the only viable alternative to creating a violation of the Code.
 
          The spokesperson position for the Organization is another matter. He holds no office or policy-making position in that entity. While he must avoid confusing the public by commenting on organizational concerns related to the relevant Executive departments' public positions, policies, or procedures, he may publicly address those Organization matters which have no such affect such as, for example, daily operational reports.

Finding:

          The Commission finds that the Appearance of Impropriety provision of the Ethics Code will not be violated if the employee retains his ownership share of the newspaper provided that his conduct on representation of its interests conforms to the restrictions recited in the Code and he relinquishes all authority over its content. The Commission also finds that the employee may maintain his membership in the volunteer Association and Organization but that he must resign from leadership and spokesperson roles in the Association. Further, he must limit his public comment on behalf of the Organization to operational matters not connected with the relevant Executive departments' public positions, policies, or procedures. 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 OF MAY, 2005.
 
____________________________
Dennis S. Clower, Chairperson
 
Decision: Unanimous .

Footnotes:

1 Immediate family is defined in Section 2.03.102 and means a spouse, child whether by blood or operation of law, parent, step-parent, spouse's parent or child, or sibling of the whole or half-blood.

2 For the purposes of this Opinion, because of the nature of this employee's employment as an executive assistant to the County Executive, the Commission considers the employee's department for Ethics Code purposes to be the entire executive branch rather than a specific department.

3 The Code provision governing County contracts with employees or officials erects the barrier of public bidding to constrain the advancement of private interest over the public good. It prohibits such contracts in an amount exceeding $500.00 on an annual basis in the absence of public bidding. Section 2.03.103(C) states as follows:
          C. Restrictions on contracting with the County. No County official or County employee or his or her spouse, child, parent, step-parent or sibling of the whole or half-blood or any business with which the County official or County employee or his or her spouse, child, parent, step-parent, or sibling of the whole or half blood is associated or who has a legal or equitable ownership of more than five (5) percent (more than one (1) percent in the case of a corporation whose stock is regularly traded on an established securities market) shall enter into any contract with the County (other than an employment contract) or any subcontract with a County contractor unless such contract or subcontract was made or let after public notice and competitive bidding. Such notice and bidding requirements shall not apply to contracts not involving more than five hundred dollars ($500.00) per year if the terms of such contract reflect arms' length negotiations.