Filing Number: 92-06
Subject: Family Relationship
Keywords: agency head, appearance of impropriety, conflict, contract, County official, department manager, disclosure, employee, family, immediate family, impropriety, recusal, supervisor
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 or employee were related as a cousin to a person whom a department section under the County official or employee's supervision hired on a temporary basis. 1

Conclusion:

          This would not violate the Ethics Code. Nevertheless, to avoid any possible negative perception, albeit slight, the relationship between the County official or employee and the temporary hire should be disclosed to those whose approval is required for authorization of the temporary hire.

Facts:

          This request for an advisory opinion comes from the head of a division of a County department. This County department is divided into divisions which in turn is divided into sections.
 
          One section within the requesting person's division needs to hire two persons on a temporary basis to complete a project for which the materials have been procured but for which there are no available County employees to perform the work. These temporary hires would be paid on an hourly basis for the limited number of hours necessary to complete the project.     The division head would not directly supervise their work, as this would be the responsibility of the section head. The procedure for authorization of such a temporary hire includes obtaining the approval of the section head, division head, department head and Director of the Department of Personnel.
 
          An issue has arisen under the Ethics Code because one of the persons proposed to be hired on a temporary basis is a cousin of the division head under whose supervision this section falls. The division head's cousin is one of only two persons known to be currently qualified and available for the temporary work.

Code or Prior Opinion:

           The provisions of the Ethics Code implicated by these facts are Section 2-30.2(e) which imposes certain restrictions on relatives of County officials and employees contracting with the County, Section 2-30.2(a) which prohibits County officials and employees from engaging in conduct that constitutes a conflict of interest, and Section 2-30.2(g) which requires County officials and employees to avoid the appearance of impropriety.

Analysis:

           Having considered these three provisions, it is concluded that the relationship between the division head and the temporary hire is insufficient to give rise to a violation of the Ethics Code. Each provision and its application will be discussed below.
 
Contract Restrictions
 
          Section 2-30.2(e) prohibits a "county official or county employee or his spouse or child" from entering into any contract with the County "with which the county official or county employee is associated" except under specific circumstances not here applicable.2  This provision does not extend to contracts with more distant relatives of a county officifal or county employee's family, such as a cousin.  Therefore, the proposed temporary hire would not violate this section of the Ethics Code.
 
Conflict of Interest
 
          Section 2.-30.2(a) prohibits a county official or county employee from engaging in conduct which constitutes a "conflict of interest." Such a conflict arises where "a county official or county employee [uses] the authority of his office . . . for the private pecuniary benefit of . . . a member of his immediate family."  "Immediate family" includes "[a] spouse or dependent child", but not more distant relatives, such as a cousin.3  Therefore, the proposed temporary hire would not violate this section of the Ethics Code.
 
Appearance of Impropriety
 
          Section 2-30.2(g) states that "[c]ounty officials and county employees shall avoid an appearance of impropriety," defined as:
 
The conduct of a county official or county employee which does not constitute a conflict of interest but which undermines the public confidence in the impartiality of a governmental body are invluenced by factors other than the merits.4

Finding:

          Were the relationship between the division head and the temporary hire closer, - for instance, were the temporary hire his sibling or parent, this might raise an appearance of impropriety.5 However, the relationship here is not sufficiently close to create such an appearance.
 
          Nevertheless, to avoid any possible negative perception, however slight, the Commission recommends that the relationship between the division head and temporary hire be fully disclosed to all those whose approval is required for authorization of the temporary hire.
 
 
                                                        
L. Susan Faw
Ethics Counsel
 
November 12, 1992

Footnotes:

1 Hereinafter, this person will be referred to as a "temporary hire."
 
2 "Contract" includes "[a]n agreement or arrangement for the acquisition [or] use [] by the county of consulting or other services... ."
 
3 See Sec.2-30.1. Definitions. "Conflict" or "Conflict of interest" and "Immediate family".
 
4 See Sec. 2-30.1. Definitions. "Appearance of impropriety."
 
5 This is not the situation presented however, and other facts would be necessary to resolve such a question.