Filing Number: 09-02
Subject: Commission Jurisdiction
Keywords: appearance of impropriety, board member, compensation, consultant, contract, federal government, financial interests, State Board Appointment, State of Delaware, undue influence, waiver
Decision By: Commissioners: Thomas P. Collins, Edward Danberg, V. Eugene McCoy, John McMahon, Gerald Turkel
Contact Email: admin@nccethics.org
 
Status: Active

Question:

            A County employee who is member of a joint Federal-State-County planning committee for which the County serves as fiduciary agent for the State, expresses concern at whether the New Castle County Code of Ethics would be violated if the Chair of the committee who is also one of three consultants to the committee and paid with that channeled funding, were to review the consultant contracts.

Conclusion:

            The committee described in the request is not a County office, board, commission or similar entity and, therefore, the Chairperson of the committee is not a County official as defined in the New Castle County Ethics Code. The Ethics Commission is without authority to offer guidance on this request.

Facts:

            The Committee membership consists of citizens, governmental organizations, media representatives, industry representatives and emergency services agencies. Its purpose is to implement federal and state requirements for a certain type of federal legislation. The committee is administered by designated state agencies and is represented on the State Commission to which it reports by its chairperson and/or consultants it pays to perform planning duties.
 
            The Committee elects its own chairperson in accord with its bylaws. The current chairperson is not a County employee. The chairperson is also one of three consultants remunerated with federal funds paid to the State and channeled through the County. The County executes contracts with the consultants.
 
            The Chairperson has requested to review the contracts of the consultants for negotiating/review purposes.

Code or Prior Opinion:

            The New Castle County Ethics Code provides guidelines for the ethical conduct of public officials and employees. See Section2.03.101. The authority of the New Castle County Ethics Commission is limited to guidance and enforcement related only to such individuals. Id. A County official is a person elected or appointed to a County office, board, or commission which operates in more than an advisory capacity.1
 
            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. . . . ."2 This conflict rule means that an official or employee may not exercise any authority derived from his or her County position in matters involving himself, 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.
 
            Additionally, in Section 2.03.103(C), the conflict rules prohibit County officials from contracting or subcontracting with the County in an amount over $500.00 absent public notice and competitive bidding.
 
            Alternatively, the Code's conduct rules at Section 2.03.104(B) also recite prohibitions affecting the exercise of County authority by an official even 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
 
            Prior Commission Opinions discussing the concept of County official are quite limited. In Advisory Opinion 05-10, May 11, 2005, the Commission held that an individual who contracts with the County to perform professional services does not become a County official or employee because of that relationship and is not under the jurisdiction of the Ethics Commission. It also delineated the definition's application under the financial disclosure rules when a County employee is appointed to a County regulatory board. See Advisory Opinion 91-03, December 5, 1991.

Analysis:

             While the language of the Code makes clear that it would be a conflict of interest if a County official exercised authority on a contract involving his personal financial interests and the Code also prohibits a County official's exercise of authority in relation to contracts granted to his competitors, those rules are not applicable to this situation.
 
            The committee described in this request cannot be considered a County entity even though funding is channeled through the County finance apparatus. Federal and state regulations, not County rules, delineate the membership of the entity. The committee exists to administer a federal law for several governmental jurisdictions. It is administered by State agencies, and votes on and reports to a State entity.
 
            Since the committee is not a County office, board, commission or other similar entity, its Chairperson is not a County official and his conduct does not come within the jurisdiction of the New Castle County Ethics Code.

Finding:

             The conduct of the Chairperson of the committee is not within the jurisdiction of the New Castle County Ethics Code and the Ethics Commission is without authority to offer guidance to the requester.
 
            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 8th DAY OF APRIL 2009.
 
______________________________
Thomas P. Collins, Chairperson
 
Decision: Unanimous

Footnotes:

1 Section 2.03.102, Definitions, of the New Castle County Ethics Code states, in pertinent part,
County Official means any person elected or appointed to any County office, board, commission or the New Castle County Council Audit Committee provided, however, that for purposes of Sections 2.03.103(B)(2)[representing another's interest before the County], 2.03.103(C)[restrictions on contracting with the County], and 2.03.104(C)[disclosure of financial interest in private enterprise regulated by or contracting with the County] "County Official" does not include any member of a board or commission which operates solely in an advisory capacity, and whose members are not compensated, other than reimbursement for expenses.

2 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).
. . .

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.