Filing Number: 93-01
Subject: Outside Employment
Keywords: appearance of impropriety, compensation, conflict, construction, contractor, developer, disclosure, employee, federal government, financial interests, honorariums, impropriety, land use, loan, outside employer, outside employment, private business, real estate, representation, training, undue influence
Decision By: L. Susan Faw, Ethics Commission Counsel
Contact Email: admin@nccethics.org
 
Status: Active

Question:

           Under what circumstances may a County employee with County building and construction code inspection responsibilities (hereinafter "County inspector") undertake secondary employment conducting various types of construction and property inspections, and building plan reviews, for members of the private sector.1

Conclusion:

           Each type of inspection and plan review activity proposed must be considered separately: A.) This County inspector may not "pre-review" building plans to facilitate the building plan review process by the County, as this would create an appearance of impropriety. B.) He may review construction and building plans to determine compliance with the Americans with Disabilities Act, so long as none of the requirements of this Act are incorporated into the County building and construction codes. C.) He may inspect construction on behalf of banks, other lending institutions or lenders, provided that the construction is not within the geographic district to which he is assigned. D.) He may inspect the condition of residential properties excluding new construction (separate and apart from County code compliance). E.) He may teach and lecture about the County building and construction codes, but may not accept in exchange any payment or honorarium from persons whose work he may inspect in his official capacity, as this would create an appearance of impropriety.

Facts:

           In his capacity as a County inspector, the requesting party is responsible for the inspection of building and construction to ascertain compliance with County building and construction codes within the specific geographic district to which he is assigned. As a means of earning additional income, he proposes to conduct various types of construction and property inspections, and building plan reviews, for members of the private sector, in exchange for a fee.

Analysis:

           The County inspector's proposals implicate two sections of the Code of Ethics, - that section pertaining to conflicts of interest and the other pertaining to appearances of impropriety.
 
          Section 2-30.2.(a) provides: "County officials and county employees shall not engage in conduct that constitutes a conflict of interest." A "conflict of interest" is defined as:
 
Use by a county official or county employee of the authority of his office or employment or any confidential information received through his holding county office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he is associated.2
 
          Section 2-30.2.(g) provides: "County officials and county employees shall avoid an appearance of impropriety. "Appearance of impropriety" is defined as:
 
The conduct of a county official or county employee which does not constitute a conflict of interest but which undermines the public confidence in the impartiality of a governmental body with which a county officer or employee is or has been associated, by creating an appearance that the decisions or actions of the county official, county employee or the governmental body are influenced by factors other than the merits.3
 
*   *   *
 
          Each type of inspection and plan review activity which this County inspector proposes must be considered separately to determine whether it would create a conflict of interest or appearance of impropriety:
 
          A.) This County inspector proposes to "pre-review" building plans for members of the private sector who must obtain the County's building plan review as a prerequisite to County building permit issuance. The County inspector proposes to offer such a service to members of the private sector to facilitate and speed the building plan review process by the County. This would create a serious appearance of impropriety: it would undermine public confidence in the impartiality of the County's building plan review process by creating the appearance that its decisions were influenced by factors other than the merits, i.e., by the County's employment relationship with the County inspector, doubling as private plan reviewer.
 
           B.) The County inspector proposes to review construction and building plans for members of the private sector to determine compliance with a new federal law, the Americans with Disabilities Act. So long as none of the requirements of this Act are incorporated into County construction and building codes, this County inspector may review building plans for members of the private sector to assess compliance with the Americans with Disabilities Act, without violating the Code of Ethics.
 
          C.) The County inspector proposes to inspect construction on behalf of banks, other lending institutions or lenders, for instance, to determine whether construction being financed by these lenders has progressed to the stage where additional funds should be released in accordance with the lender's contractual obligations. So long as the construction involved is not located within the geographic district to which he is currently assigned as a County inspector, he may conduct such inspections without violating the Code of Ethics.
 
          However, if he is reassigned to another district or is substituting for an inspector assigned to another district, and if he is assigned to inspect construction which he has inspected or has been retained to inspect on behalf of a lender, he must immediately disclose this to his supervisor and arrange to have the inspection reassigned. This is necessary to avoid any conflict of interest which would occur were the County inspector faced with inspecting in his official capacity construction which he was privately retained by a lender to inspect as well.
 
          D.) The County inspector proposes to inspect residential properties (excluding new construction) for members of the private sector, for instance, for buyers or sellers, to determine the condition of such property, (separate and apart from County code compl:Lance). He may inspect residential properties excluding new construction, for members of the private sector, without violating the Code of Ethics.
 
          E.) The County inspector proposes to teach and lecture about the County building and construction code. He may do this so long as he does not accept in exchange any payment or honorarium from a builder, contractor or any other person whose construction he has inspected or may be required to inspect in his official capacity as a County inspector, as this would create an appearance of impropriety.4

Finding:

          In rendering this advisory opinion, the Ethics Commission is construing the New Castle County Code of Ethics, which establishes the minimum level of ethical conduct required of County officials and employees by the Ethics Code. The Commission cautions however that each County body, department, agency, office or board is free to and may impose additional or greater restrictions on its officials and employees' secondary employment activities
____________________________
L. Susan Faw, Ethics Counsel
 
March 5, 1993

Footnotes:

1 A County employee with County building and construction code inspection responsibilities is a "county employee" subject to the provisions of the New Castle County Code of Ethics. The Code defines "county employee" as "[a]n individual employed by the county who is responsible for taking or recommending official action of a nonministerial nature with regard to . . .inspection, licensing, regulating or auditing any person . . . ." A "nonministerial action" is one "in which the [county employee) exercises his own judgment as to the desirability of the action taken." See Sec. 2-30.1. Definitions.
 
2 See Sec. 2-30.1. Definitions.
 
3 See Sec. 2-30.1. Definitions.
 
4 See Advisory Opinion 91-01, (April 22, 1991), in which the Commission ruled that it would constitute an appearance of impropriety if a County employee accepted an honorarium for participating in a trade symposium held by a vendor from which the County employee, on the County's behalf, purchased services.