Filing Number: 09-01
Subject: Representation of Private Interest
Keywords: appearance of impropriety, communication, constituent, constitution, council member, County official, elected official, land use, legislation, non delegable, official business, presumption of good faith, public purpose, representation, vote, zoning
Decision By: Commissioners: John McMahon, Thomas P. Collins, Edward Danberg, V. Eugene McCoy, Mark Murowany, Gerald Turkel
Contact Email: admin@nccethics.org
 
Status: Active

Question:

             Whether an elected official, in an attempt to explore compromise, may meet with parties opposed to potential land use ordinances without violating the New Castle County Code of Ethics.

Conclusion:

             If an elected official or his or her family do not have any interest in the substance of proposed legislation to a greater degree than the general public or a subclass consisting of an industry, occupation or other group which includes them, no evidence of bad faith, corruption, or improper personal interest arises just because the official consulted with selected constituents about legislation or took a position on that matter. If an official could be considered to have such a private interest different from the general public or a subclass of an occupation or industry, but the matter is part of his non-delegable duties and he believes his participation in the matter is in the public interest, he may act provided he follows the public notice provisions of Section 2.03.103(A)(2).

Facts:

             An elected official asks whether he may communicate with parties opposed to certain potential land use ordinances. The official reports that he has been criticized by an attorney for the proponent of the ordinances for creating a conflict of interest since he will be voting on the ordinance. The official believes that it is within his role as a County legislator to work with all sides to seek compromise on a divisive matter when possible. The particular land use matters involve changes which will significantly affect the elected official's district and residence as well as the County as a whole.

Code or Prior Opinion:

                 Section 2.03.101(B) of the New Castle County Ethics Code states, in pertinent part,
 
It is recognized that many public officials are citizen-officials who bring to their public offices the knowledge and concerns of ordinary citizens and taxpayers. They should not be discouraged from maintaining their contacts with their community through their occupations and professions.    .  .  .
 
            Section 2.03.103(C) continues that reasoning by directing Ethics Commission members to be "cognizant of the responsibilities and burdens of public officials and employees".
 
            The conflict of interest rules at New Castle County Code Section 2.03.103(A)(1) prohibit the use of official authority by a County official or employee "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."1 This conflict rule means that an official or employee may not exercise any authority derived from his or her County position in matters involving his or her immediate family members or businesses associated with him or those family members, other than in those situations in which the employee or immediate family are affected in a manner no different from the general public, or a subgroup which includes them. Section 2.03.103 (A)(2) provides that if the prohibited matter concerns a non-delegable legal or statutory responsibility, the person may act or vote only when a specified form of public notice is made.
 
            The Ethics Code's conflict of interest rules also prohibit County officials from representing private interests with respect to County business or regulation. The prohibition is personal to the County official and does not impact his or her family members or business associates. However, it does not prevent the official from appearing for or assisting a private interest if the representation is in the course of his or her official duties.2
 
            The Code's conduct rules at Section 2.03.104(B) also recite prohibitions affecting the exercise of County authority by an official when direct financial conflict is not at issue. That subsection prohibits exercise of official authority which creates an appearance that the decisions or actions of a County official or his or her department are influenced by factors other than the merits of the matter for decision. This prohibition exists because such conduct undermines public confidence in the impartiality of the governmental body with which the employee or official is associated.3
 
Prior Commission Opinions
 
            In Advisory Opinion 08-03, the Commission held that an elected official may communicate for review and comment with an industry group impacted by proposed legislation without creating an improper appearance if the official had no personal pecuniary interest affected by the proposed legislation greater than the general public or a subclass consisting of an industry, occupation or other group which includes him or her. That Opinion reviewed prior opinions addressing analogous questions in Advisory Opinions 94-04, 99-01, 99-03, and Order 03-02. In Advisory Opinion 06-06, the Commission stated that it presumes that "County officials and employees act with integrity and good faith unless circumstances show otherwise". In Advisory Opinion 06-11, the Commission noted that a conflict of interest must be shown to be "concrete, personal and not remote".
 
            Advisory Opinion 08-03 reviewed some historical protections for legislative deliberations in federal and state law. The Commission determined that "inquiry into how an elected official formulates his opinions on pending legislation or with whom he discusses such matters are [not] within its jurisdiction without some objective evidence of misuse of official authority. Such an interpretation protects 'the integrity of the legislative process by insuring the independence of the individual legislator.' U.S. v. Brewster, 408 U.S. 501, 507 (1972)."

Analysis:

             In this case, neither the elected official nor his family have a personal interest in the ordinance different from a subgroup of other residents of his district and he is not prohibited from performing his legislative duties. The Commission agrees that it is well within the sphere of those duties to confer with members of the public in order to assist, where possible, with forming a consensus for the public good. Since there is no evidence of improper motive in the elected official's conduct, the Commission will provide the official with "the presumption of fair dealing and honesty as well the time honored privilege due an elected representative of the people to conduct interactions with his constituents and others as he chooses without intrusion from the Commission." Advisory Opinion 08-03. This presumption is afforded whether the elected official meets with opponents or proponents of legislation -- individually, separately or together as the official sees fit.

Finding:

             If an elected official or his or her family do not have any interest in the substance of proposed legislation to a greater degree than the general public or a subclass consisting of an industry, occupation or other group which includes them, no evidence of bad faith, corruption, or improper personal interest arises just because the official consulted with selected constituents about legislation or took a position on that matter. If an official could be considered to have such a private interest different from the general public or a subclass of an occupation or industry, but the matter is part of his non-delegable duties and he believes his participation in the matter is in the public interest, he may act provided he follows the public notice provisions of Section 2.03.103(A)(2).
 
            In issuing this Advisory Opinion, the Ethics Commission is applying the New Castle County Code of Ethics, which establishes the minimum level of ethical conduct required of County officials and employees. The Commission cautions, however, that each County department, board, or other unit of County government is free to, and may impose as part of its own policy, additional or greater restrictions on its officials and employees than those set forth in this Opinion.
 
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS 14th DAY OF JANUARY 2009.
 
_________________________
John McMahon, Chairperson
 
Decision: Unanimous

Footnotes:

1 New Castle County Code Section 2.03.102 defines Business as "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." That section defines the phrase as "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."

New Castle County Code Section 2.03.103. Prohibitions relating to conflicts of interest, states in pertinent part:
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.     In any case where a person has a legal and/or statutory responsibility with respect to action or nonaction on any matter where the person has a personal or private interest and there is no provision for the delegation of such responsibility to another person, the person may exercise responsibility with respect to such matter, provided that promptly after becoming aware of such conflict of interest, the person files a written statement with the Commission fully disclosing the personal or private interest and explaining why it is not possible to delegate responsibility for the matter to another person. If the matter is one in which the legal and/or statutory responsibility requires the person to vote upon the issue, the written statement filed with the Commission shall be read into the public record prior to the time the person's vote is cast. Any person choosing to abstain from voting on an issue where [he] or she has a conflict shall state the reasons for his or her conflict on the record; an abstaining voter need not file the written statement with the Commission required when acting on, rather than abstaining from, an issue involving a conflict.

2 New Castle County Code Section 2.03.103. Prohibitions relating to conflicts of interest, states in pertinent part:
. . .
B.     Restrictions on representing another's interest before the County.

1.     No County employee or County official may represent or otherwise assist any private enterprise with respect to any matter before the County Department with which the employee or official is associated by employment or appointment.
2.     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 subsection shall not preclude any County employee or County official from appearing before the County or otherwise assisting any private enterprise with respect to any matter in the exercise of his or her official duties.

3 New Castle County Code Sec. 2.03.104. Code of conduct.
A.     No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.03.103(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 an appearance that the decision or action of the County employee, County official or governmental body are influenced by factors other than the merits.