Filing Number: 06-04
Subject: Waiver of Post Employment Rules
Keywords: waiver
Decision By: Commissioners: John McMahon, Kathryn Denhardt, Thomas Collins, Eugene McCoy, Mark Murowany, Ernest Price
Contact Email: admin@nccethics.org
 
Status: Active

Question:

            A retired official requested a waiver of the Section 2.03.106 requirement to file a Statement of Financial Interests for 2005.

Conclusion:

            The purpose of financial disclosure by County officials and employees is to assure the public that the personal financial interests of employees and the holders of, nominees to, or candidates for public office do not conflict with their exercise of the public trust. The literal application of the requirement in this case is not necessary to achieve that public assurance because the official did not appear as a County official in 2005 or exercise County authority in 2005, and resigned from County duties early that year.

Facts:

            The official was appointed in 2003 and resigned in early 2005. The official was not involved in any official business, did not attend any meetings or cast any votes in late 2004 or 2005. The official filed a Statement of Financial Interests for 2004. Since the official did not retire until after the start of 2005, Section 2.03.106 (A) (3) of the New Castle County Code requires the official to file a 2005 Statement of Financial Interest. The official submitted a written request to waive this requirement.

Code or Prior Opinion:

            Section 2.03.1061 of the New Castle County Code requires officials appointed to specific boards or commissions to file an annual statement of financial interests if they served in official capacity during a filing year. The purpose of such a filing is to sustain public confidence in the conduct of public business: "It is further declared that the people have a right to be assured that the financial interests of holders of or nominees to or candidates for public office do not conflict with the public trust. Because public confidence in government can best be sustained by assuring the people of the impartiality and honesty of public officials, this Division shall be liberally construed to promote complete financial disclosure as specified in this Division." New Castle County Code Sec. 2.03.101(A).
 
            Section 2.03.205 (B) of the Code provides authority to the Ethics Commission to grant a waiver of the financial disclosure requirement if the Commission determines that the literal application of the requirement in a particular case is not necessary to achieve the public purpose of the section or would result in an undue hardship on any official or employee.

Analysis:

             In this case, the official did not appear in public in the capacity of a public official in 2005, did not exercise any County authority in 2005, and resigned the public position shortly after the beginning of that year. Therefore, a waiver of the requirement to file a Statement of Financial Interests would not undermine the public confidence in the honesty and impartiality of this former County official.

Finding:

            The waiver request is GRANTED.
 
            BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS 9th DAY OF AUGUST, 2006.
 
___________________________
John McMahon, Chairperson
 
Decision: Unanimous

Footnotes:

1New Castle County Code Sec. 2.03.106. Financial disclosure: statements required.
A.   Each designated County official and County employee shall file a statement of financial interests for the preceding calendar year with the Commission no later than May 1 of each year that he or she holds such a position and of the year after he or she leaves such a position. The General Manager or individual of equivalent rank of the Department of Human Resources shall provide the Commission with the names of the individuals required to file statements of financial interest by January 31 each year such statements are required to be filed. For purposes of this Section, the phrase "designated County official and County employee" shall mean:
1.   All elected County officials;
2.   All County officials who perform work that is nonministerial in nature;
3.   Members of the Board of Adjustment, Planning Board, Historic Review Board, Pension Board, License, Inspection and Review Board, Board of Assessment Review, and the Ethics Commission. Members of any County Board or Commission not listed in this paragraph are not required to file statements of financial interest.
4.   The Chief of Police;
5.   All Department General Managers and personnel of equivalent rank;
6.   All Department Division Heads and persons of equivalent rank;
7.   All Code Enforcement Officers, all Public Works inspectors and personnel of equivalent rank;All purchasing agents and personnel of equivalent rank;
9.   All housing rehabilitation specialists and personnel of equivalent rank;
10.   All land use planners and personnel of equivalent rank within the Department of Land Use:
11.   With the exception of the Chief of Police, no police officer shall be required to file a statement of financial interests within the meaning of this Division.

B.   Each candidate for County office shall file a statement of financial interests for the preceding calendar year with the Commission not later than seven (7) days after the last day for giving notice of candidacy pursuant to 15Del.C.  § 101 et seq. 

C.   Each nominee for County office who is subject to confirmation shall file a statement of financial interests for the preceding calendar year with the Commission and with the official or body that is vested with the power of confirmation at least ten (10) days before the official or body shall approve or reject the nomination.

D.   No County official or employee shall be allowed to take the oath of office or enter or continue upon his or her duties, nor shall he or she receive compensation from County funds, unless he or she has filed a statement of financial interests as required by this division.

1.   If the Commission determines that a filing has not been made or that a filing is deficient, the Commission shall provide a written notice to the individual required to file, identifying the deficiency or delinquency and reciting the penalties for failure to file.

2.   The individual notified in accord with Subsection D(1) has ten (10) calendar days from the mailing date of the notice to correct the delinquency or deficiencies.

3.   If the individual fails to file or correct the noted deficiencies by the conclusion of the ten-day period, the Commission may issue a notice by certified mail to the individual that a civil penalty of ten dollars ($10.00) per day is being imposed for each calendar day the statement of financial interests remains delinquent or deficient beyond the ten-day period. The individual shall pay any such penalty before the Commission may accept a filing from the individual.

4.   The penalty described in Subsection D 3) is in addition to other penalties provided by law and the filing of a statement of financial interests in compliance with this section does not otherwise obviate the failure to comply with Sections 2.03.106(A), (B), or (C).

5.   An individual who receives the notice described in Section 2.03.106(D)(3) and who knowingly or willfully fails to pay the penalty imposed by the Commission shall be subject to the sanctions contained in Section 1.01.009 of the New Castle County Code.

E.   All statements of financial interests by a County official, candidate for County office or nominee for County office pursuant to this Division shall be made available for public inspection and copying during regular office hours. All statements of financial interests by a county employee containing financial information of a privileged or confidential nature shall not be deemed a public record for purposes of 29Del.    C.  Ch. 100. Nothing in this subsection shall be construed as prohibiting access by the Commission to all statements of financial interests filed in accordance with this Division. Nothing in this subsection shall be construed as prohibiting access by any general manager or individual of equivalent rank to all statements of financial interests filed by a County employee in accordance with this Division. 

2New Castle County Code Sec. 2.03.105.  Waivers of restrictions, in pertinent part:

B.   Upon the written request of any individual who is or was a County official or County employee, the Commission may grant a waiver to the specific disclosure requirements contained in Section 2.03.107 if the Commission determines that the literal application of the requirements in a particular case is not necessary to achieve the public purposes of this section or would result in an undue hardship on any official or employee. Any such waiver may be granted only for one (1) year by written decision of the Commission. Any person who acts in good faith reliance upon any such waiver decision received by that person 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.

C.   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.