Filing Number: 09-03
Subject: Nominee
Keywords: appearance of impropriety, appointed official, business associate, confidentiality provisions, conflict, County board, County official, impropriety, nominee, presumption of good faith, private business, undue influence
Decision By: Commissioners: Thomas P. Collins, Gerald Turkel, Edward Danberg, V. Eugene McCoy, John McMahon
Contact Email: admin@nccethics.org
 
Status: Active

Question:

            Whether the name of a business associate of a Council member may be placed in nomination for the Ethics Commission.

Conclusion:

            The Commission accords nominees, like County officials, a presumption of good faith. Persons confirmed for a position on the Ethics Commission are circumscribed by the numerous confidentiality rules stated in the New Castle County Code. In the absence of concrete facts causing a reasonable person to conclude that a nominee would violate those rules, a Council member may forward the name of a business associate for, and, if confirmed, the nominee may accept a position on the Ethics Commission.

Facts:

            A business associate of a Council member has been nominated for a vacant position on the Ethics Commission but has not yet been voted upon. The requester is concerned that the confirmation of a person with such a close relationship to a Council member would implicate confidentiality considerations in relation to members of Council and their staff.

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 Code recognizes "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." New Castle County Code Section 2.03.101B.
 
            The conflict of interest rules at New Castle County Code Section 2.03.103(A)(1) prohibit the use of official authority or any confidential information 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. . . . ."1 This conflict rule means that an official or employee may not exercise any authority or use confidential information2 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.
 
            Subsection 2.03.103(E) specifically prohibits the disclosure of confidential information: "No person shall disclose any information required to be maintained confidential by the Commission under the provisions of this Division."
 
            Additionally, the Code's conduct rules at Section 2.03.104(A), (E) and (F) also recite prohibitions affecting the exercise of County authority by an official even when direct financial conflict is not at issue. Subsection A 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 Subsection E prohibits any employee or official from engaging in outside activity which might reasonably be expected to require or induce him or her to disclose confidential information acquired by reason of the public position.4 Subsection F prohibits the official from disclosing confidential information gained by reason of public position or using confidential information for personal gain or benefit.5 There are criminal sanctions associated with a finding of violation of these provisions. See Sec. 2.03.103(F).6
 
            In reference to complaints, the Code broadly states: "No person shall disclose or acknowledge to any other person any information relating to a complaint, preliminary inquiry, investigation, hearing or petition for reconsideration which is before the Commission."7 A violation of this rule is a violation of the Ethics Code and punishable by the sanctions listed in Section 2.04.104.8
 
Prior Commission Opinions
 
            The Commission presumes that County officials and employees perform their duties in good faith and in accord with the rules. This presumption includes persons the County Executive and/or the Council confirm for positions on the Ethics Commission. "Absent some concrete evidence that an office holder uses [his status] to obtain some unwarranted privilege . . . or to avoid some personal consequence for his conduct, the presumption of good faith is accorded to the official. . . ." Advisory Opinion 07-01. (Whether using a personal vehicle to advertise the owner's candidacy for a County position violates the Ethics Code.) "There is a presumption that government officials fulfill their duties with honesty, impartiality, and integrity; the burden to prove otherwise is on the person who asserts [otherwise]. . . . The burden to demonstrate [a conflicting interest] is substantial and evidence of mere possibility . . . is insufficient. If [a conflicting interest] is shown to exist, due process requires the official to abstain or recuse him or herself from all aspects of the proceeding or matter in issue. . . . Thus, the burden to show [a conflicting interest] is substantial because if remote, speculative, or nebulous interests were permitted to disqualify public officers, the community would be deprived of the services of some of its most capable citizens. If this burden were not so substantial, unscrupulous applicants would be tempted to cry "wolf" in order to remove perceived present or future impediments to a desired conclusion in the administrative process. The burden of demonstrating [a conflicting interest] requires a convincing showing that the official or employee's interest in the outcome of the proceeding is concrete, direct and personal." Advisory Opinion 06-11. (Allegation that an official should recuse himself because of alleged bias against an applicant.)
 
            The only case in which confidentiality considerations stemming from an outside economic interest was deemed to so adversely impact a County position that the outside employment was prohibited was described in Advisory Opinion 05-26. In that case, a department wanted to hire a candidate who held outside employment as a private investigator. The County position required the use of a confidential criminal justice information data base. The owner of that data base barred any access by private investigators. Access to the information in the data base would be of significant economic advantage to such investigators. If the candidate continued the outside employment after hiring by the County, the owner of the criminal justice information would have denied access to him. Therefore, if the County employed this person, it would have had to expect that the owner's ban would be circumvented since use of the criminal justice information was essential to the County job. The Commission held that a "reasonable member of the public may question the candidate's loyalty and integrity, believing that the nature of the outside economic interest creates a situation in which the candidate would be expected or induced to disclose some of the confidential information to which he could obtain access."
 
            The more usual precedent in the case of outside economic interest has been to require the official or employee to recuse from all County matters involving confidential information which would be of interest in the outside employment. See, e.g., Advisory Opinion 05-06 (Elected official must recuse himself from all County issues affecting his outside employer, including indirect policy making and discretionary implementation matters); Advisory Opinion 05-21 (Recusal required from confidential information affecting a local government or, alternatively, from involvement in County land use matters as an elected official in a local government); see also, Advisory Opinion 06-12 (recusal from County activities related to a municipality if employee serves on a regulatory board of the municipality); Advisory Opinion 06-08 (Recusal required from all County action affecting the financial interest of an immediate family member's employer) but see, Advisory Opinion 07-06 (Recusal insufficient in the case of a lease with a non profit headed by an elected official and public notice and bid required.) and Advisory Opinion 04-09 (Recusal is required if highly placed official's son's business is regulated by the official's department; recusal is insufficient to remove appearance of impropriety if the official becomes associated with his son's regulated business.)

Analysis:

             The complaint in this case speculates that in the future the nominee will give his business associate some unspecified confidential information about other Council members or staff. Presumably, the unstated conjecture is that the Council member who receives this information would use in some way to the detriment of the others even though such conduct would also violate the Code. (If a Council member knowingly disclosed information deemed confidential by the Commission, he or she would violate the Code. See, New Castle County Code Sections 2.03.103E, supra at p. 2, and 2.04.103J, supra at n. 8.) The request raises no inference of financial gain or political benefit to the nominee, it just alleges an unsupported conclusion based on association or familiarity that confidential information would be divulged.
 
            Current and past Ethics Commission members have had a broad array of outside employment and have held differing political persuasions with varying levels of political involvement. Some members have had substantial familiarity with Council members while others have no such familiarity. Each of them has been and will be accorded the presumption of good faith unless concrete facts demonstrate that that faith is misplaced. Every one of these Commission members has been vetted by Council and is aware of and bound by confidentiality regardless of their outside relationships. In addition to this awareness, the Code affords them legal counsel to advise them when to recuse themselves from confidential matters in which their neutrality could be questioned.
 
            The request in this case appears to lack the necessary concreteness to bar the nomination. Mere association, without more, does not create a situation that would make the reasonable person conclude that the nominee would incur criminal sanctions and jeopardize his professional standing by breaching confidentiality rules.9 If a Commissioner should do so, there is a readily available remedy in the investigative and discipline process of the New Castle County Code.

Finding:

            The Commission accords nominees, like County officials, a presumption of good faith. Persons confirmed for a position on the Ethics Commission are circumscribed by the numerous confidentiality rules stated in the New Castle County Code. In the absence of concrete facts causing a reasonable person to conclude that a nominee would violate those rules, a Council member may forward the name of a business associate for, and, if confirmed, the nominee may accept a position on the Ethics Commission.
 
            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 13th DAY OF MAY 2009.
 
______________________________
Thomas P. Collins, Chairperson
 
Decision: Unanimous

Footnotes:

1 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 New Castle County Code Sec. 2.03.102. Definitions.
Confidential Information means information not obtainable from reviewing a public document or from making inquiry to a publicly available source of information.

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.

4 New Castle County Code Sec. 2.03.104. Code of conduct.
. . .
E.     No County Employee or County official shall engage in any activity beyond the scope of such public position which might reasonably be expected to require or induce such County employee or County official to disclose confidential information acquired by such employee or official by reason of such public position.

5 New Castle County Code Sec. 2.03.104. Code of conduct.
. . .
F.      No County Employee or County official shall , beyond the scope of such public position, disclose confidential information gained by reason of such public position nor shall such employee or official otherwise use such information for personal gain or benefit.

6 New Castle County Code Sec. 2.03.103. Prohibitions relating to conflict of interest.
. . .
F.     Criminal sanctions. Any person who knowingly or willfully violates any provision of this Division shall be subject to the sanctions contained in Section 1.01.009 of the New Castle County Code.

7 New Castle County Code Section 2.04.103 Investigations.
. . .
J.     No person shall disclose or acknowledge to any other person any information relating to a complaint, preliminary inquiry, investigation, hearing or petition for reconsideration which is before the Commission. However, a person may disclose or acknowledge to another person matters held confidential in accordance with this subsection when the matters pertain to any of the following:
1.     Final orders of the Commission as provided in subsection H of this Section when the order states the identity of the persons involved;
2.     Hearings conducted in public pursuant to subsection F of this Section;
3.     For the purpose of seeking advice of legal counsel;
4.     Communicating with the Commission or its staff in the course of a preliminary inquiry, investigation, hearing or petition for reconsideration by the Commission;
5.     Consulting with a law enforcement official or agency for the purpose of initiating, participating in or responding to an investigation or prosecution by the law enforcement official or agency;
6.     Testifying under oath before a governmental body or a similar body of the United States;
7.     Any information, records or proceedings relating to a complaint, preliminary inquiry, investigation, hearing or petition for reconsideration of which the person is the subject;
8.     Any information, records or proceedings necessary for processing a grievance in accordance with any applicable collective bargaining agreement; or
9.     Such other exceptions as the Commission, by rule, may direct.

8 New Castle County Code Sec. 2.04.104. Sanctions.
If the Ethics Commission determines that a violation of this Division or Division 2.03.100 of this Chapter has occurred, it may impose or recommend the following sanctions:
A.     A letter of notification shall be the appropriate sanction when the violation is clearly unintentional or when the conduct of the County official or County employee complained of was made in reliance upon a written opinion of the Commission. A letter of notification shall be the appropriate sanction when the conduct of the County official or employee complained of created an appearance of impropriety. A letter of notification shall recommend to the County official or County employee to whom it is directed of any steps to be taken to avoid future violations. The Commission may direct a letter of notification to any County official or County employee covered by this Division or Division 2.03.100 of this Chapter.
B.     A letter of admonition shall be the appropriate sanction when the Commission finds that the violation is minor or may have been unintentional, but calls for a more substantial response than a letter of notification. A letter of admonition shall be the appropriate sanction when the conduct of the County official or employee complained of was a repeated instance of an appearance of impropriety or in knowing disregard of the Commission's rules regarding an appearance of impropriety. A letter of admonition shall recommend to the County official or County employee to whom it is directed of any steps to be taken to avoid future violations. The Commission may admonish any County official or County employee covered by this Division or Division 2.03.100 of this Chapter.
C.     A reprimand shall be the appropriate sanction when the Commission finds that a violation has been committed intentionally or through knowing disregard of this Division or Division 2.03.100 of this Chapter. The Commission may reprimand any County official or County employee covered by this Division or Division 2.03.100 of this Chapter. A reprimand directed to a County official shall also be sent to the governmental body on which he or she serves. A reprimand directed to a County employee shall be sent to the head of the agency or department where he or she is employed and included in his or her personnel file.
D.     A recommendation of removal from office or employment, a recommendation of suspension from office or employment, and/or a recommendation for prohibition on future appointment or employment, as well as a recommendation for length of suspension, shall be the appropriate sanction when the Commission finds a serious or repeated violation of this Division or Division 2.03.100 of this Chapter has been committed intentionally or through knowing disregard of this Division or Division 2.03.100 of this Chapter by a nonelected official or County employee. The final authority to carry out such recommendations with respect to nonelected County officials shall be with the appointing authority of the governmental body on which he or she serves. The final authority to carry out such recommendations with respect to County employees shall be with the head of the department in which he or she is employed. Appeals from the decision of the appointing authority of the governmental body or, for County employees, of the department head following the sanction referred to in this subsection shall be as described in this Division, including any grievance procedure contained in any applicable collective bargaining agreement.
E.     Any nonelected person determined by the Commission to (1) have committed an intentional or knowing serious or repeated violation of this Division or Division 2.03.100 of this Chapter and for whom a recommendation of prohibition on future appointment or employment has been made; or (2) been convicted of official misconduct, profiteering, bribery, receiving unlawful gratuities, improper influence or other abuse of office or position shall not be appointed or employed in New Castle County government for a period of ten (10) years subsequent to that recommendation or conviction. After the expiration of such ten (10) year period, the County shall take such recommendation or conviction into account in determining whether or not to hire the person.
F.      An order imposing the costs of investigation against a person found in violation of this Chapter if a recommendation of removal from office or employment or a recommendation of prohibition on future appointment or employment is made, or an order against the complainant if, after investigation, a complaint is found to be frivolous. The Commission or the County shall have standing to apply to a court of competent jurisdiction to seek enforcement of an order requiring such restitution. This restitution requirement shall be in addition to other penalties provided for in this Chapter.

9 The Commission recognizes that the nominee is a member of the Delaware bar and subject to sanctions from the Delaware Supreme Court for the improper conduct of his legal business or transgression of criminal laws.