Filing Number: 06-03
Subject: Waiver of Post Employment Rules
Keywords: appointed official, attorney, consultant, contract, County Attorney, County official, post employment, public purpose, retirement, waiver
Decision By: Commissioners: John McMahon, Kathryn Denhardt, Thomas Collins, V. Eugene McCoy, Mark Murowany, Ernest Price
Contact Email: admin@nccethics.org
 
Status: Active

Question:

            Waiver Request The County Attorney has requested a waiver of Section 2.03.103D's two year post employment restriction to enable the Department to enter into a contract with a recent retiree for short term legal services.

Conclusion:

             The department may contract with the retiree. A waiver is not necessary because the retiree did not give an opinion, conduct an investigation, nor was otherwise directly and materially responsible for the subject matter of the contract in the course of his former duties as a County employee.

Facts:

             The Law Department filed a written application for a waiver of the two year post-employment restriction on contracting with former employees. The County Attorney stated that a property owner has appealed a County valuation and the decision by the Board of Assessment could result in a multimillion dollar impact on the County treasury. A recent retiree has had decades of experience with the legal issues involved in the matter and, in the County Attorney's opinion, there is no other attorney with more experience in this area of law. The retiree was not previously involved in the property valuation or appeal which was filed almost 6 weeks after he terminated employment. The County Attorney states that the person who assumed the retiree's duties for the County was admitted to the Bar last year and will be making only her second appearance before the Board of Assessment. The County Attorney asks for a waiver to contract with the retiree to assist the new employee for a short period.

Code or Prior Opinion:

             Section 2.03.103 D of the New Castle County Code prohibits a person who has served as a County employee or County official from
 
represent[ing] or otherwise assisting any private enterprise on any matter involving the County for a period of two (2) years after termination of employment or official status with the County, if the person gave an opinion, conducted an investigation or otherwise was directly and materially responsible for such matter in the course of official duties as a County employee or official. Nor shall any former County employee or County official disclose confidential information gained by reason of public position nor shall the person otherwise use such information for personal gain or benefit."

Analysis:

            A contract with a former employee is considered to be a contract with a private enterprise. In Public Integrity Commission Opinion 94-10, the State Commission held that the broad definition of "private enterprise" as used in the statute similar to NCC Code Section 2.03.103 D encompassed private contracts with former employees. Thus, if a department proposes to enter a contract for matters on which the former employee gave an opinion, conducted an investigation, or was directly and materially responsible as a County employee, such a contract would be prohibited for a period of 2 years.
 
            Section 2.03.105 A and B provide authority to the Commission to grant a waiver from that section. It states:
 
A. Notwithstanding the provisions of this Division, upon the written request of any County Department or of any individual who is or was a County employee or County official, the Commission may grant a waiver of the specific prohibitions governing post-employment restrictions if the Commission determines that the literal application of such prohibition in a particular case is not necessary to achieve the public purposes of this Division or would result in an undue hardship on any current or former employee, official or County Department. Any such waiver may be granted only by written decision of the Commission. All requests of waivers will be handled in an expeditious manner by the Ethics Commission.(sic) Any person who acts in good faith reliance upon any such waiver decision shall not be subject to discipline or other sanction hereunder with respect to the matters covered by the waiver decision provided there was a full disclosure to the Commission of all material facts necessary for the waiver decision.
 
B. Any application for a waiver, any proceedings and any decision with respect thereto shall be maintained confidential by the Commission provided that:
1. Public disclosure shall be made by the Commission upon the written request of the applicant;
2. The Commission may make such public disclosure as it determines is required in connection with the prosecution of any violation of this Division;
3. The Commission shall report to appropriate Federal and State authorities substantial evidence of any criminal violation which may come to its attention; and
4. In the event that a waiver is granted, the waiver decision and the record of all proceedings thereto shall be open to public inspection.
 
            Section 2.03.103 D and Section 2.03.105 A and B are substantially identical to the post employment prohibition and waiver authority found in the Delaware Code at Title 29, chapter 58.1 In the context of the State Code, the purposes of such provisions have been discussed extensively. In Public Integrity Commission Ethics Bulletin 007, issued May 22, 1998, the Delaware Commission described the purposes of the State law and made reference to similar federal government provisions as follows:
 
[L]ike other conflict of interest statutes, post employment provisions are meant to insure public confidence in the integrity of the government. It is said public confidence in government has been weakened by a widespread conviction that government official use their office for personal gain, particularly after leaving the government. There is a sense that a "revolving door" exists between industry and the government [which] leads to a suspicion that personal profit was the motivation. There also is public concern that former employees may use information, influence, and access acquired during government service for improper and unfair advantage in later dealings with that department or agency. Reflecting that concern, post employment laws set a "cooling off period" in certain areas which the ex-employee dealt with while working at the agency. [Citations omitted]. Similarly, the Delaware legislature sought to insure public confidence in the integrity of government. 29 Del.C. sec. 5802. It set a two-year "cooling off period" in areas where the former employee was "directly and materially responsible," etc. 29 Del.C. sec. 5805(d). This limits the actual or perceived unfair advantage in subsequent dealings with a department or agency. Commission Op. No 97-18. Thus, this Commission has held that Delaware's post-employment provision is an attempt to eliminate concerns that when a State employee moves from State employment to private employment that they do not use their former State position to get a "leg-up" on others in the private sector who also seek to deal with the government. Commission Op. No 97-11. Additionally, it is to avoid the risk that after a State employee moves to the private sector that they will not exercise undo influence on their former colleagues. Commission Opinion 96-75.

Finding:

            According to the request, the retiree had no prior connection with the matter being appealed. He did not give an opinion, conduct an investigation nor was directly and materially responsible for the matter which is the subject of the proposed contract. Therefore, a waiver of the post employment provision is not necessary and the Department may contract with the retiree.
 
DECISION
 
            The waiver request is DENIED.
 
            BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS 12th DAY OF JULY, 2006.
 
________________________
John McMahon, Chairperson
 
Decision: Unanimous

Footnotes:

1 29 Del. C. §5805 (d) Post-employment restrictions.
No person who has served as a state employee, state officer or honorary state official shall represent or otherwise assist any private enterprise on any matter involving the State, for a period of 2 years after termination of employment or appointed status with the State, if the person gave an opinion, conducted an investigation or otherwise was directly and materially responsible for such matter in the course of official duties as a state employee, officer or official. Nor shall any former state employee, state officer or honorary state official disclose confidential information gained by reason of public position nor shall the person otherwise use such information for personal gain or benefit.

29 Del. C. §5708(a) Waivers of restrictions and advisory opinions. (in pertinent part)
(a)     Not withstanding the provisions of §§ 5805 and 5806 of this title, upon the written request of any state agency or of any individual who is or was a state employee, state officer or honorary state official, the Commission may grant a waiver to the specific prohibitions contained therein if the Commission determines that the literal application of such prohibition in a particular case is not necessary to achieve the public purposes of this chapter or would result in an undue hardship on any employee, officer, official or state agency. Any such waiver may be granted only by written decision of the Commission. Any person who acts in good faith reliance upon any such waiver decision shall not be subject to discipline or other sanction hereunder with respect to the matters covered by the waiver decision provided there was a full disclosure to the Commission of all material facts necessary for the waiver decision.
(b)     Any application for a waiver, any proceedings and any decision with respect thereto shall be maintained confidential by the Commission provided that:
(1) Public disclosure shall be made by the Commission upon the written request of the applicant;
(2) The Commission may make such public disclosure as it determines is required in connection with the prosecution of any violation of this subchapter:
(3) The Commission shall report to appropriate federal and state authorities substantial evidence of any criminal violation which may come to its attention; and
(4) In the event that a waiver is granted, the waiver decision and the record of all proceedings relating thereto shall be open to public inspection.