Filing Number: 06-05
Subject: Ethics Code Complaint
Keywords: appearance of impropriety, appointed official, board member, conflict, consultant, contract, County board, County official, financial interests, industry, outside employer, pension, recommend, recusal, undue influence, vendor
Decision By: Commissioners: John McMahon, Miguel Gonzalez, Mark Murowany, V. Eugene McCoy
Contact Email: admin@nccethics.org
 
Status: Active

Order:

COMPLAINT
 
            The Ethics Commission received a complaint alleging that a member of a regulatory board tried to improperly influence the choice of a vendor, colluded with another board member to affect the interests of a third party, and failed to recuse himself from participation in the questioning of a candidate when he had not been present for the presentations by other candidates.
 
CONCLUSION
 
            The complaint is dismissed. An investigation uncovered no evidence supporting the claimed exercise of improper influence or evidence of collusion between members of a regulatory board to affect the interests of third parties. Absent any issue of violation of the Ethics Code, the board member's participation in the questioning of a candidate after he had not been present at the interviews of other similar candidates was an administrative decision made by members of the committee and outside the jurisdiction of the Commission.
 
SUBSTANTIATED FACTS
 
            The subject of the complaint served on committee of a regulatory board which was assigned the task of interviewing and recommending potential vendors for services for the board. The subject, along with another subcommittee member, was an expert in the provision of such services. The subject had been unable to attend a number of prior committee meetings during which a number of vendor candidates were interviewed but was in attendance at a meeting at which two candidates were interviewed. One of those candidates had a personal relationship with the other expert on the committee.
 
            Prior to the two interviews at that meeting, the committee discussed the fairness of the board member's participation since he had not been present at the interviews of other candidates. The committee decided that the board member would participate in the questioning but would abstain from vote on the candidates. The other expert member of the committee also abstained from the vote because of his personal relationship with one of the candidates. According to committee members, the subject was far more aggressive in his questioning of one of the candidates than the other but there was general agreement that the questions he asked were appropriate to the subject. The subject did not vote on the candidates and neither of the two candidates was the ultimately successful applicant.
 
INVESTIGATION
 
            The investigation revealed that the issue of the subject's absence from prior interviews was discussed at some length by the committee. The chair of the committee told the subject that fairness required him to abstain from the vote but that he could participate in the questioning of the candidates since he had no personal interest or relationship with either candidate. The chair found no reason to believe that the subject had an intent to favor or disfavor a particular candidacy.
 
            The committee members varied in their opinions about the presentations made by the two candidates. One of the committee members stated that although he had had an initially favorable attitude toward one of the candidates he had not been impressed by the presentation made by that candidate.
 
            That committee member denied being influenced by any other person in his evaluation of the two candidates. The subject stated he unavoidably missed the prior candidate presentations because of scheduling conflicts. He stated he abstained from the vote on a fairness basis but participated in the questioning so as to provide his expertise to the other committee members who did not have similar experience. He said he did not know the candidates personally prior to the presentation and described his questions as objective. He felt one of the candidates was ill prepared, presented outdated materials, and recommended an unsuitable person as liaison from his firm. The subject felt the other candidate made a less objectionable presentation.
 
            The other expert on the committee denied there was any collusion with the subject or coupling of the aggressive questioning of one candidate with an intent to advance the candidacy of his friend or any other applicant. Although that expert was reported to have participated in the discussion of the candidates' performances, he did not vote on the two candidates.1 That expert stated that he ultimately recommended another candidate to the board since his friend was not the best candidate for the job.
 
RELEVANT ETHICS CODE PROVISIONS
 
            The conflict of interest rule recited in New Castle County Code Section 2.03.103(A) restricts 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
 
            This rule prevents an official from enriching or advancing himself, his family, or associated businesses through the use of his official status.
 
            The Code also restricts an official from assisting another's private interest before any agency of the County. Section 2.03.103(B)(2) states:
 
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 other members of a firm, business, or other employer by which the County official is employed.3
 
            This rule means that an official can only appear before County government as an official of that government and shall not use his or her official position to assist himself or herself as an individual or advance the interests of any third party. Limited exceptions to this rule exist when an official is representing himself or herself as a landowner.4
 
            An appearance of impropriety can exist even where there is no conflict of interest or other wrongdoing on the part of an employee or official. Section 2.03.104A states:
 
No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.02.103(A)(1) [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 a appearance that the decision or action of the County employee, County official or governmental body are influenced by factors other than the merits.
 
            The standard for judging appearance of impropriety for judicial public officials 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 re Williams, 701 A.2d 825, 832 (Del. Super. 1997). In determining the relevant circumstances, the courts advise the Commission to look at the totality of facts. The Commission believes that standard is equally applicable to the conduct of County officials and employees.
 
RULING
 
            The investigation produced no evidence of a conflict of interest, improper representation or appearance of impropriety. The subject was not shown to have any private financial interest in the results of the committee process. The subject's questioning, determined to be of benefit to the committee after open discussion, did not suggest that the subject was representing any private interest. The questioning itself, although conducted in an unevenly aggressive manner, was not found to be unfair in its substance. Neither the record nor the disinterested persons interviewed suggested any facts supporting the claim of collusion between the two experts on the committee. Therefore, absent any issue of violation of the Ethics Code, the board member's participation in the questioning of a candidate after he had not been present at the interviews of other similar candidates was an administrative decision made by members of the committee and outside the jurisdiction of the Commission.
 
             THE COMPLAINT IS DISMISSED.
 
             BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON OCTOBER 10, 2007.
 
_________________________
John McMahon, Chairperson
 
Vote: Unanimous

Footnotes:

1 Since this expert recused himself from the vote because of his personal relationship with one of the candidates, he should also have recused from any discussion or other participation in that candidate's interview. His admission of a personal relationship supported a conclusion that he could not be impartial about this candidate and, therefore, he should have completely recused by removing himself from the room when the candidate made his presentation. Unlike the subject of this complaint who recused because of procedural fairness, this expert recused for reasons governed by the Ethics Code. His participation may have engendered the inference raised by the complainant that there was collusion between him and the subject to advance the candidacy of the expert's friend. See Advisory Opinion 92-05, as cited in Advisory Opinion 07-11, regarding complete recusal where outside relationships of regulatory board members are in question.

2Section 2.03.102 Definitions, in pertinent part:

Business means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit.
. . .
Business with which he or she is associated means any business in which the person is a director, officer, owner or employee; or a business in which a member of the person's immediate family is a director, officer, owner or has a financial interest.

3 Section 2.03.102 Definitions, in pertinent part:

Private enterprise means any activity conducted by any person, whether conducted for profit or not for profit and includes the ownership of real or personal property. Private enterprise does not include any activity of the Federal, State or local government or of any department, authority or instrumentality of the Federal, State or local government.

4 See, e.g., Advisory Opinion 05-02.