Filing Number: 10-02
Subject: Use of County Resources
Keywords: appearance of impropriety, communication, County official, elected official, impropriety, official business, political contribution, public purpose, solicitation, unwarranted privilege
Decision By: Commissioners: Thomas Collins, Gerald Turkel, Edward Danberg, James Keeley, V. Eugene McCoy, Vincent White
Contact Email: admin@nccethics.org
 
Status: Active

Question:

            A County official requests guidance on whether an elected official may maintain a link on his County owned website to a personal website which incidentally serves as an avenue for making political contributions to the elected official.

Conclusion:

            An official may not authorize or permit the placement of a link on a County resource which even indirectly enables or solicits political contributions or partisan activity.

Facts:

            Certain New Castle County officials control official websites for dissemination of information about their County function. The websites are provided by the County to the officials for this purpose. The websites are County property although the content is determined by the controlling official. The question is whether an official may place a link on that County website which directs an interested viewer to the official's personally owned and maintained website which either directly or indirectly solicits political contributions.

Code or Prior Opinion:

Code Provisions
 
            Both County law and the Ethics Code forbid the use of County resources to advance partisan positions. New Castle County Code Section 26.01.019(B) states, in pertinent part:
  1. No employee in the classified or unclassified service shall, during regular working hours, take part in the management or affairs of any political party or in any political campaign or perform any service for any political party other than of an incidental nature to the official job description of the employee, except to exercise his or her right as a citizen privately to express his or her opinion and to cast his or her vote.
  2. No employee in the classified or unclassified service shall at any time use or attempt to use his or her position with the County as a means of implementing or promoting the solicitation of any assessment, subscription, contribution or service for any political party.
 
            The conflict of interest rule at New Castle County Code Section 2.03.103(A)(1) prohibits 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."1 The Ethics Code conduct rule at Section 2.03.104 D prohibits all County employees and County officials from using their "public office to secure unwarranted privileges, private advancement or gain." 2
 
Prior Commission Opinions
 
            In Complaint Final Order 04-01, the Commission found that an official violated the Ethics Code when she used County personnel for partisan political purposes. The Commission held "Using County taxpayer's resources to advance partisan political goals undermines public confidence in the impartiality of government actions. Therefore, even in the absence of a specific County rule prohibiting the use of unclassified employees for partisan political purposes, Ms. Freebery's conduct created an appearance of impropriety."
 
            In Complaint Final Order 08-02, the Commission found that the subject of the complaint violated the Ethics Code when he knowingly permitted an employee to prepare fundraiser invitations for him in his County office.
 
            In Advisory Opinion 07-01, an elected official asked whether he could advertise that he held a County position on his private vehicle. He was not using any County resources to do so. The Commission held that "Advertising to secure or maintain public office is a constitutionally protected right and in itself does not reflect any improper motive to obtain special treatment."
 
            In Advisory Opinion 10-01a&b,, issued this date, the Commission held that "officials may use County resources to send the introductory letters and attachments which are non-partisan in nature and contain information deemed helpful to persons in their districts."

Analysis:

             While mere identification of an elected official's affiliation with a political party on a County resource is not, in itself, partisan political activity, the rule of Advisory Opinion 10-01 is applicable here: "The Code and the Opinions are clear and consistent. An official cannot use County communication equipment or computers, letterhead, county paid postage, printing facilities, or County staff for purposes other than official business.3 Official business does not include direct or indirect reference to partisan advocacy, electioneering, fundraising, or any type of political solicitation, including links to websites for such purposes."

Finding:

            An Official may not authorize or permit the placement of a link on a County resource which even indirectly enables or solicits political contributions or partisan political activity.
 
            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.
 
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS 17th DAY OF JANUARY 2010.
 
_______________________________
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 Section 2.03.104. Code of conduct.
D. No county employee or County official shall use such public office to secure unwarranted privileges, private advancement or gain.

3 Of course, certain de minimis incidental personal use of electronic equipment is permitted under general County rules. See New Castle County Personnel Policy 4.06.