Filing Number: 09-07
Subject: Post Employment Restriction
Keywords: business, conflict, construction, Department of Land Use, developer, employee, impropriety, outside employment, post employment, private business
Decision By: Commissioners: Thomas P. Collins, Sr., Gerald Turkel, Edward Danberg, V. Eugene McCoy, John McMahon
Contact Email: admin@nccethics.org
 
Status: Active

Question:

             Whether a former employee may accept a position performing building inspections for a private employer or whether he may accept unspecified employment with builders and/or contractors who are regulated by New Castle County.

Conclusion:

             The Commission is unable to provide a response to this request because it lacks specificity as to the nature of the job duties at issue.

Facts:

             The former employee recently left a supervisory position as a building inspector in the Land Use Department. He has asked whether Code section 2.03.103D, the post-employment prohibition, limits his area of employment.

Code or Prior Opinion:

Code provisions
 
            Section 2.03.103 D of the New Castle County Code prohibits a person who has served as a County employee or County official from
 
represent[ing]or otherwise assisting any private enterprise on any matter involving the County for a period of two (2) years after termination of employment or official status with the County, if the person gave an opinion, conducted an investigation or otherwise was directly and materially responsible for such matter in the course of official duties as a County employee or official. Nor shall any former County employee or County official disclose confidential information gained by reason of public position nor shall the person otherwise use such information for personal gain or benefit.
 
           County Code Section 2.03.103 D is substantially identical to the post-employment prohibition recited in the Delaware Code at Title 29, chapter 58.1 The County Ethics Code is required to be at least as strict as the State Code so interpretations by the State Public Integrity Commission (hereinafter PIC) are informative. See, 29 Del.C. §5802(4).
 
            The PIC has discussed the post employment provisions several times. In PIC Ethics Bulletin 007, issued May 22, 1998, that Commission described the State law and made reference to similar federal government provisions:
 
[L]ike other conflict of interest statutes, post employment provisions are meant to insure public confidence in the integrity of the government. It is said public confidence in government has been weakened by a widespread conviction that government official use their office for personal gain, particularly after leaving the government. There is a sense that a "revolving door" exists between industry and the government [which] leads to a suspicion that personal profit was the motivation. There also is public concern that former employees may use information, influence, and access acquired during government service for improper and unfair advantage in later dealings with that department or agency. Reflecting that concern, post employment laws set a "cooling off period" in certain areas which the ex-employee dealt with while working at the agency. [Citations omitted]. Similarly, the Delaware legislature sought to insure public confidence in the integrity of government. 29 Del.C. §5802. It set a two-year "cooling off period" in areas where the former employee was "directly and materially responsible," etc. 29 Del.C. §5805(d). This limits the actual or perceived unfair advantage in subsequent dealings with a department or agency. Commission Op. No. 97-18. Thus, this Commission has held that Delaware's post-employment provision is an attempt to eliminate concerns that when a State employee moves from State employment to private employment that they do not use their former State position to get a "leg-up" on others in the private sector who also seek to deal with the government. Commission Op. No 97-11. Additionally, it is to avoid the risk that after a State employee moves to the private sector that they will not exercise undo influence on their former colleagues. Commission Op. 96-75.
 
Prior Commission Opinions
 
            In Advisory Opinion 02-03, a County employee, whose job involved reviewing and processing of forms and applications prepared by the public, asked whether after retirement she could accept employment in the private sector working with the same type of forms and applications. The Commission held that there was no violation of the post-employment section of the Code since in her ministerial capacity as a County employee, she would not have given an opinion, conducted an investigation; or otherwise been directly and materially responsible for such matter in the course of her official duties.
 
            In Advisory Opinion 01-04, a former County official who served as chair of a County Board inquired whether it would violate the Ethics Code if he represented an applicant before that Board within the two-year window following his service as chairman. He provided the Commission with specific information regarding the representation, including the parties, the location of the property, and specifics regarding the particular application. The Commission concluded "under the specific facts presented to the Commission" that such representation would not violate the post-employment section of the Ethics Code. In issuing that decision, the Commission referenced the Delaware case law and State Public Integrity Commission rulings, finding that it was not a violation of the post-employment law for a former board member to represent an applicant before his former board, if the former board member had no involvement in the particular matter while serving on the board.
 
            In Advisory Opinion 01-10, the initial query posed by the request was whether, in her proposed private post-County employment, the requesting party would be representing or assisting a private enterprise on any matter that she may have, as a County employee, given an opinion, conducted an investigation, or otherwise was directly and materially responsible for. The second query posed by the request was whether the County employee would disclose any confidential information she may have obtained by reason of her County position or use any such confidential information for her personal gain or benefit.
 
            The Commission noted that the requesting party's current job responsibilities required her to review and process the type of forms and applications she would work with in her proposed post-County employment. The Commission found, however, that due to the ministerial and routine nature of her job, and the lack of any other factors, she was not deemed, under the facts presented, to be "directly and materially responsible" for such a "matter". The Commission determined that while it was unlikely that private sector employment might require the County employee to work on a particular filing she administered in her County job, if such a situation arose, the employee would not be precluded from working on the matter, as the responsibility she had in her County job regarding such matters was not "direct and material".
 
            With regard to the second issue presented, i.e., whether the County employee would disclose confidential information or use it for personal gain or benefit, the requesting party stated that she did not possess any confidential information by reason of her County employment. The Commission held that if the employee had come into possession of confidential information, she would be prohibited from using such information for her own or her new employer's benefit.

Analysis:

             It would not violate the Ethics Code for a County employee whose job duties were solely ministerial to accept a new position concerning similar matters since an employee performing ministerial duties, by definition, could not have "given an opinion; "conducted an investigation"; or "otherwise been directly and materially responsible" in relation to a matter. Therefore, while a former employee is not generally barred from employment with a regulated entity, if, during County employment, he had non-ministerial or discretionary duties in which he had given an opinion on a particular matter, conducted an investigation about it, or otherwise was directly and materially responsible for that matter, the former employee may not perform related duties for a new employer.
 
            The requester held a supervisory position with the County. The duties of such a job could not have been ministerial but rather subject to the use of discretion based on his individual training and experience. Therefore, the Commission must be informed of the specific duties of the proposed position in order to examine them in light of the duties of his former position. However, in this case, the former employee is not specific about his proposed duties. He speculates that he may perform "building inspections" but does not explain where he would perform those inspections or how such duties would relate to his former position, other than by education. Similarly, he generalizes that he may secure "employment with a builder or contractor" regulated by the County but doesn't describe what type of employment.
 
            At minimum, the Commission prior opinions show that he could not accept employment in regard to any project in which he supervised the inspections or gave an opinion on as a County employee, and he is prohibited from divulging or using any confidential information he received as a County employee. However, the lack of specificity in his request prevents the Commission from providing a direct answer. The Commission suggests that when the former employee has selected employment in a particular position that he resubmit his request, providing detailed information about his old and new duties.

Finding:

             The Commission is unable to provide a response to this request because it lacks specificity as to the nature of the job duties at issue.
 
            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 JULY 2009.
 
__________________________________
Thomas P. Collins Sr., Chairperson
 
Decision: Unanimous

Footnotes:

1 29 Del. C. §5805 (d) Post-employment restrictions.