Filing Number: 05-12
Subject: Recusal
Keywords: appearance of impropriety, appointed official, bias, board member, County board, hearing, land use, personal animosity, presumption of good faith, recusal
Decision By: Commissioners: Dennis Clower, Eugene McCoy, John McMahon, Ernest Price
Contact Email: admin@nccethics.org
 
Status: Active

Question:

            Whether a County official must recuse himself from an appeal to a board on which he serves because, in his private capacity, he made a negative comment about the conduct of the appellant at a time when there was no indication that the matter would come before the board.

Conclusion:

            The Official is not required to recuse himself from an appeal to a board on which he serves as a result of a limited prior negative comment he made in his capacity as a private citizen about the conduct of the appellant at a time when there was no indication that the matter would come before the Official's board. The official has disclosed the substance of the comment to the appellant, the appellant is aware of the official's prior association with persons opposing it, neither the official nor any relative has a pecuniary interest in the subject of the appeal, the official states that he can act with impartiality, and the appellant, with knowledge of the foregoing, affirmatively expresses confidence in the official's objectivity and states that it does not object to presenting the appeal before the board under these circumstances.

Facts:

Facts1
 
            A County official requests guidance on the question of whether he may participate and vote on a matter on which he commented as a private citizen prior to the appellant's application to the County agency which rendered a decision which is now being appealed to the board on which he serves.
 
            The official previously had been an officer and member of an umbrella civic association. As such he received emails informing him about events affecting the association's geographic area of membership. At some point in the past, before there was any indication that the matter would come before the Department from which his Board hears appeals, he received emails from members of the association expressing disapproval of the conduct of a developer for removing an architectural feature of a development property without prior approval. The conduct of the developer was also widely reported in the NewsJournal and other community newspapers.
 
            The Official made comments indicating that he was disappointed and surprised at the conduct and believed that the developer should have consulted interested parties before taking such action. The official states that his opinion was reached without having any understanding of the background of the matter and without having benefit of the explanation from the developer. He indicates that he is no longer a member of the association, he does not reside in the development area at issue, he has no pecuniary interest in the matter, and has no family members involved with the issue but retains a friendly acquaintance with some of the residents who are opposing the appeal. He has informed the appellant of the facts recited in this request. The appellant has stated in writing that the official's candid disclosure of his remarks removed any doubt that it had regarding the official's objectivity and that it was comfortable appearing before him in this matter.

Code or Prior Opinion:

Code Provisions
 
             The Commission notes that its governing policy as recited in Section 2.03.101(B) recognizes 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 the community through their occupations and professions. Thus, in order to foster maximum compliance with its terms, this Division shall be administered in a manner that emphasizes guidance to public officials and public employees regarding the ethical standards established by this Division." The conflict of interest rules at Code section 2.03.103(A)(1),(2) restrict the use of official authority by a County official or employee:
 
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.
 
            The conflict of interest rules at section 2.03.103B(2) and (3) also prohibit a County official from representing another's interest before the County:
 
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 the 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.
 
            Even in the absence of a conflict of interest, the Ethics Code at section 2.03.104(A) recites a prohibition on creating an appearance of impropriety:
 
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), 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.
 
Prior Commission Opinions
 
            The general rule of recusal is that when a violation of the Code cannot be conclusively ruled out, a County employee or official should follow the recusal procedure set forth in Sec. 2.03.103(A)(2), disclosing the nature of his or her interest and abstaining from participation. See, e.g., Advisory Opinion 99-08. If the official or employee consults the Commission, this default position can be avoided and that person may rely on the Advisory Opinion issued to him or her.2
 
            When a private financial interest is at issue, the Commission usually advises the requester to recuse himself or herself entirely. In Advisory Opinion 92-05, a board member was required to recuse himself from participation in decisions concerning consultants hired by the Board when he had a business relationship with some of them. In Advisory Opinion 94-04, an official was required to disclose and abstain from voting on a matter which would affect his personal pecuniary interests. In Advisory Opinion 99-01, a County official was required to recuse himself from voting when a client of his employer had a financial interest in the matter. In Advisory Opinion 04-11, an official was advised to recuse himself entirely from sponsorship and vote on a matter concerning a client of his wife's business.
 
            Complete cessation of an outside endeavor has been required when recusal is not sufficient to avoid a violation of the Code. For example, in Advisory Opinion 97-05 an employee was advised to discontinue her participation as an officer with a civic organization because her County position required that she deal with same issues which the organization monitored and publicly advocated. In Advisory Opinion 04-09, a senior County employee was required to avoid participation in an outside business because recusal was not an adequate tool to eliminate an appearance of impropriety. In Advisory Opinion 04-14, an official was not permitted to participate in an outside business venture because his recusal from official conduct related to the endeavor would have been detrimental to the public. In Advisory Opinion 05-03, an employee was required to terminate participation in his outside business because of the reasonable perception that he would use the participation to advance his County position.
 
            Absent a financial interest or a matter for which recusal is not satisfactory, the Commission generally requires employees and officials to make a public disclosure of the private involvement and recuse themselves if they had direct involvement in the issue. In Advisory Opinion 97-01, a County employee was permitted to advise his church on procedural issues but was required to abstain from participating in processing or decision making regarding the matter. In Advisory Opinion 97-09, a County employee who exercised discretion over federal funds was permitted to serve on the board of directors of a non-profit which operated a joint venture with another organization which was a recipient of such funds as long as the employee disclosed and recused himself from involvement in any matters concerning the non-profit or its joint venturer. In Advisory Opinion 99-04, a member of the Board of Adjustment was permitted to retain office in his neighborhood civic association but advised to disclose and recuse himself from Board matters affecting that association. However, in Advisory Opinion 99-07, a planner was permitted to review plans affecting the general area where he resided and to review plans from a club to which the employee belonged provided he made full disclosure to his superiors and other staff working on the plans and to the applicants. The Commission found that such a disclosure, combined with the fact that a number of additional employees were also working on the same project, provided protection from an appearances of impropriety and recusal was not warranted.

Analysis:

Conflict of Interest
 
            The County official who has requested guidance cannot violate the conflict of interest provisions of the Code by participating in the deliberation and vote on the appeal because he has not used and would not be using the authority of office for the financial benefit of himself, his family or an associated business. The decision to be rendered by his board has no financial impact on him as neither he or his family resides in the development in question.
 
Appearance of Impropriety
 
            The standard used by the Commission for judging whether an appearance of impropriety would be created is one that has been developed for judicial public officials and has been described in Delaware courts as "conduct [which] would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the official's ability to carry out [official duties] with integrity, impartiality and competence is impaired." In determining the relevant circumstances, the courts advise the Commission to look at the totality of facts. In re Williams, 701 A.2d 825, 832 (Del. Super. 1997).  That standard is equally applicable to the conduct of County officials and employees.  Advisory Opinion 05-06.
 
            The facts in this case demonstrate that the official's private involvement with the subject matter of the appeal has been indirect and limited to a brief personal opinion offered in his private capacity as a resident of the geographic area of the development in question before the matter came to the attention of the underlying County department.3 The Commission believes that the reasoning of Advisory Opinion 99-07 is more applicable to this case than that in the other Opinions discussed above. The Official is only one of several members of the Board making the decision on the appeal and he has already made a full disclosure of the ethical issue to his fellow board members and the appellant. Additionally, the appellant has made a public record of its confidence in the official's objectivity and its lack of objection to going forward with the appeal before him. Recusal does not appear warranted under these circumstances because a reasonable member of the public would not find that the official's ability to carry out his official duties with integrity, impartiality and competence has been impaired. An appearance of impropriety would not be created by the official's participation in the appeal.

Finding:

            The Official may participate in the appeal before the Board.
 
            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 8th DAY OF JUNE, 2005.
 
____________________________
Dennis S. Clower, Chairperson
 
Decision: Unanimous

Footnotes:

1 Absent obvious error or facial conflict, the Ethics Commission assumes that the party requesting the opinion has done so in good faith and disclosed truthfully all material facts to the Commission. See Section 2.04.102(I).

2 Section 2.04.102(I) states in pertinent part:
. . . It shall be a complete defense in any enforcement proceeding initiated by the Commission and evidence of good faith conduct in any other civil or criminal proceeding if the requester, at least twenty-one (21) working days prior to the alleged violation, requested the opinion from the Commission in good faith, disclosed truthfully all the material facts and committed the acts complained of either in reliance on the opinion or because of the failure of the Commission to provide an opinion within twenty-one (21) working days of the Commission's receipt of request or such later extended time.

3 The Commission cautions officials of County Boards to avoid public comment on matters which have the reasonable potential to develop into issues which can come before their underlying departments. Under different circumstances from those described in this request, such comments could create an appearance of impropriety and result in a finding of violation of the Ethics Code.