Filing Number: 92-07
Subject: Outside Employment
Keywords: appearance of impropriety, business, conflict, construction, contractor, Department of Land Use, developer, employee, family, impropriety, outside employer, outside employment, private business, undue influence
Decision By: L. Susan Faw, Ethics Commission Counsel
Contact Email: admin@nccethics.org
 
Status: Active

Question:

          Under what circumstances may a County employee with County building and construction code inspection responsibilities (hereinafter "County inspector") undertake secondary employment in the construction industry?1

Conclusion:

           A County inspector may never inspect construction he has done or construction done by a business with which he is associated, as this would create a conflict of interest.
 
          This ethical problem cannot be cured by having another County inspector inspect construction done by his fellow inspector or by a business with which his fellow inspector is associated, as this would create an appearance of impropriety.
 
          Therefore, the following restrictions must apply to all County inspectors: A.) A County inspector must limit work done as an individual to construction which would not be subject to County inspection, either by virtue of the nature of the construction or its location outside the County's geographic jurisdiction. B.) A County inspector must not be associated with a business which does any construction subject to County inspection.

Analysis:

           Due to the nature of a County inspector's official powers and duties concerning construction within New Castle County's jurisdiction, ethical concerns severely circumscribe his ability to moonlight in the construction industry, whether on his own behalf or on behalf of a business with which he is associated.2
 
Section 2-30.2. (a) provides: "No county official or county employee shall engage in conduct that constitutes a conflict of interest." "Conflict" or "conflict of interest" is defined as:
 
Use by a county official or county employee of the authority of his office or employment or any confidential information received through his holding county office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he is associated.
 
          Certainly, a County inspector may never inspect construction he has done or construction done by a business with which he is associated, - which would include, for instance, a business in which he or a member of his immediate family has a financial interest or by which he is employed.3 Such conduct would constitute an obvious conflict of interest. In such cases, the County inspector's private financial interests come squarely into conflict with his official duties on behalf of the County. The question then arises whether this obvious conflict can be avoided by requiring the County inspector to abstain from inspecting his own construction or construction done by a business with which he is associated and allowing that construction to be inspected by his fellow County inspecto
 
          The Commission concludes that allowing a County inspector to inspect construction done by his fellow inspector or by a business with which the fellow inspector is associated creates an appearance of impropriety. Section 2-30.2.(g) requires County officials and employees to avoid an "appearance of impropriety", defined as:
 
The conduct of a county official or employee which does not constitute a conflict of interest but which undermines the public confidence in the impartiality of a governmental body with which a county official or employee is or has been associated, by creating an appearance that the decisions or actions of the county official, county employee or governmental body are influenced by factors other than the merits.
 
          Allowing a County inspector to inspect construction done by his fellow inspector or by a business with which his fellow inspector is associated would taint the integrity of the entire inspection process by infecting it with a host of considerations irrelevant to the merits of that process. For instance, it would create the public perception that official inspections are influenced by the County inspector's relationship with or allegiance to fellow County inspectors and to businesses with which fellow inspectors are associated. It would create the public perception that official inspections are influenced by the County inspector's self-interest in ingratiating himself with prospective part-time employers.

Finding:

          To avoid any conflict of interest or appearance of impropriety, County inspectors must abide by these restrictions:
 
          A.) A County inspector must limit work done as an individual to construction which would not be subject to County inspection, either by virtue of the nature of the construction or its location outside the County's geographic jurisdiction.4
 
          B.) A County inspector must not be associated with a business which does any construction subject to County inspection. For example, he must not be employed by such a business and he (or a member of his immediate family) must not have a financial interest in such a business.
 
 
                                                             
L. Susan Faw
Ethics Counsel
 
January 28, 1993

Footnotes:

1 A County employee with County building and construction code inspection responsibilities is a "county employee" subject to the provisions of the New Castle County Code of Ethics. The Code defines "county employee" as "[a]n individual employed by the county who is responsible for taking or recommending official action of a nonministerial nature with regard to . . . inspection, licensing, regulating or auditing any person . . . ." A "nonministerial action" is one "in which the [county emplcyee] exercises his own judgment as to the desirability of the action taken." See Sec. 2-30.1. Definitions.
 
2 A "business with which he is associated" includes "[a]ny business in which the [County inspector] is a director, officer, owner, employee or has a financial interest or a member of the [County inspector's] immediate family is a director, officer, owner or has a financial interest." "Immediate family" is defined as the County inspector's spouse or dependent child. "Financial interest" means "[a)ny financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness." See Sec. 2-30.1. Definitions.
 
3 See footnote 2, supra, for the definition of a "business with which he is associated".
 
4 This would limit the county inspector to projects within the municipalities of Wilmington and Newark or entirely beyond the boundaries of New Castle County.