Filing Number: 10-11
Subject: Appearance of Impropriety
Keywords: employee, non-profit, recusal, representation
Decision By: Commissioners: Thomas Collins , Gerald Turkel , Miguel Gonzalez, James Keeley, V. Eugene McCoy,
Contact Email: admin@nccethics.org
 
Status: Active

Question:

             Whether a New Castle County employee may accept a position on the board of a non profit if his department makes recommendations on grants to members of a larger community which the non profit represents.

Conclusion:

             The employee may serve on the non profit Board as long as he completely recuses from any involvement in issues regarding County grants, recommendations directly to his County department, or his department's recommendations to or from the Board or members of the organization the Board represents. The Board' purpose is limited to making advisory operational recommendations regarding a division in the requester's department but those recommendations are not made to the department itself. The employee's individual County authority does not extend to either involvement with grants for the institutions or responsibility for the administrative function of the division in question.

Facts:

             The requester is a County employee who has responsibility for planning, training and consulting on matters which affect a broad array of his department's activities as well as that of a number of differing non profit entities not controlled by the County. The employee is being nominated by one such institution (a member of Group A) in which he participates in his private, as opposed to his professional, life, to a position on a non profit board (Board #1). The institutions represented in Group A receive grants from the County but are not regulated by it. However, they are affected by the requester's department's operations and the grant recommendations it makes to the County Executive.
 
            Board #1 makes operational recommendations to a larger non profit group (Group B) composed of members which generally belong to the institutions in Group A. Board #1 also makes non binding operational recommendations to a New Castle County Advisory Board (Board #2) which, in its discretion, it may adopt in rendering advice to the requester's Department on the operation of one of its divisions. The requester does not work in that division but it is affected in the same manner as other departmental divisions and the non profits by his County authority to plan, consult and train.
 
            New Castle County provides grants directly to the institutions of Group A but the County does not funnel that money through the requester, Board #1, Group B, Board #2, or the particular division associated with Board #2. The requester's County position does not require him to make suggestions or recommendations to his department regarding the grants. The requester does not hold a position with his Group A institution which involves him in applications for or acceptance of the grants.
 
            The requester asserts that Board #1 would be very unlikely to entertain discussion of the grants to Group A institutions or about other interactions with the County apart from operational issues in the division affected by Board #2. He also states that the substance of Board #1's responsibilities do not include discussion or implementation of issues which would affect his County responsibilities and he is not aware of any communications affecting his responsibilities between his department and Board #1 or relayed by Board #2. However, in the event that such issues ever would arise, he states he would completely recuse himself from participation in such issues.

Code or Prior Opinion:

Ethics Code Provisions
 
            Every County official and employee must consider the ethical rules stated in the Code of Conduct before taking any action which could affect their County position. New Castle County Code Section 2.03.104(A)(1) prohibits the creation of an impression in the reasonable member of the public that the official or employee's official action is affected by personal interests which impair his or her competence, integrity and honesty, or that his agency or department will look as though it is showing partiality in a matter. An improper appearance is created when a reasonable member of the public "with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, [would hold] a perception that the official's ability to carry out [official duties] with integrity, impartiality and competence is impaired."1
 
            The Ethics Code also separately prohibits an employee from representing a private interest before his own department.2 This prohibition in Section 2.03.103B1 includes representation of non profits as well as friends, acquaintances, family members and businesses. Its purpose is not only to prevent favoritism and improper influence in the conduct of County government but also to avoid even the appearance of such partiality.
 
Prior Advisory Opinions
 
            Various opinions issued by the Commission apply those rules. In Advisory Opinion 06-12, the Commission did not find improper appearance when an employee asked to served on a municipal regulatory board so long as the employee recused himself from any policy-making, planning or decisions about matters performed in his County job regarding the municipality and refrained from disclosing or using any non-public information he may have obtained in the County position for the benefit of the municipality. In addition, he was required to abstain from any attempts to influence the official conduct of fellow County employees or officials when they dealt with the municipality.
 
            In Advisory Opinion 05-24, an elected official was permitted to join the board of a non-profit as long as he disclosed the potential areas of conflict to both the private entity and the appropriate County authority and requested that both the entity and the County permit him to recuse himself from activities which could cause the appearance of conflict, including policy making, promotion, or other activities concerning the non-profit's relationship with the County. The recusal was required to be complete: the County official was prohibited from participation in advising or planning on behalf of either the government or private entity in the matter.
 
            In Advisory Opinion 97-01, a County employee involved in community housing and development who exercised some discretion in the administration of HUD funds with regard to a particular project, was permitted to serve on the Board of Directors of a non-profit organization which might be an applicant for such funds as long as the employee exercised caution to ensure that he was aware of any potential areas which may result in appearances of impropriety and recused himself when appropriate.
 
            In Advisory Opinion 97-01, a County employee who was responsible for taking and/or recommending official action of a non-ministerial nature with regard to the overall administration of all activities of his Department, was permitted to serve on a non profit's committee and to advise that group about his department's public regulatory information as long as he abstained from participating in the processing or decision making made by the affected County departments regarding the non profit.
 
            In Advisory Opinion 06-08, recusal was described as avoiding research, discussion and implementation of County action in a matter and instruction that supervisees must be directed not to report to the recused superior about the matter. Recusal has also been described in various Commission documents and publications as prohibiting the following: participation, giving advice, providing input, direction, recommendation, crafting policy, making decisions, negotiating, contracting, discussing, as well as refraining from vote.
 
            In Advisory Opinion 10-06, the Commission found that the Ethics Code would be violated if an employee took a seat on the Board of a non profit since the board's function was to oversee activity which was conducted under extensive and continuous regulation by the employee's County department. The interaction between the board and the department was so great that improper representation could not be avoided. The Commission also found that assumption of a leadership role in an organization extensively regulated by the employee's department would create an appearance of partiality in decisions made by that department concerning the non-profit.

Analysis:

             Under the facts stated in this request, it is clear that there is only a slight relationship between Board #1 and the requester's department. That Board represents diverse interests of persons who are not controlled by the County. It's membership does not receive direction or financial support from the County, although the members associated institutions may receive some support. The Board's purpose is limited to making advisory operational recommendations regarding a division in the requester's department but those recommendations are not made to the department but to a separate County entity, Board #2, which has discretion to support, change or ignore them. Since the requester is an employee and not a County official, he may represent Board #1 before Board #2 without violating the Code.3
 
            The requester's County position is not affected by Board #1's recommendations and he has no authority to provide input to the County about the grants to the institutions in Group A. He has no responsibility for the administrative function of the division subject to Board #2's advice. Furthermore, he is clearly aware of his responsibility to recuse from any matters which may involve either the County grants provided to Group A or any recommendations made to his department by Board #1 or from his department to Board #1 or Group B.
 
            Although the employee's department does recommend some financial aid directly to the institutional members of the related non profit community, the County does not regulate that community nor direct the funds through the Board or its larger organization.

Finding:

            The employee may serve on the non profit Board as long as he completely recuses from any involvement in issues regarding County grants, recommendations directly to his County department, or his department's recommendations to or from the Board or members of the organization the Board represents.
 
            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 10th DAY OF NOVEMBER 2010.
 
______________________
Thomas P. Collins, Chairperson
 
Decision: Unanimous

Footnotes:

1New Castle County Code Section 2.03.104. Code of conduct, in pertinent part:
A.     No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.02.103(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 a appearance that the decision or action of the County employee, County official or governmental body are influenced by factors other than the merits.
. . .
            The standard for judging the creation of such an appearance for judicial public officials has been described in Delaware courts as "conduct [which] would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the official's ability to carry out [official duties] with integrity, impartiality and competence is impaired." In re Williams, 701 A.2d 825, 832 (Del. Super. 1997). In determining the relevant circumstances, the courts advise the Commission to look at the totality of facts. The Commission has long applied this standard to the conduct of County officials and employees.

2New Castle County Code Section 2.03.103 B1:
B.     Restrictions on representing another's interest before the County.
1.     No County employee or County official may represent or otherwise assist any private enterprise with respect to any matter before the County Department with which the employee or official is associated by employment or appointment.

3New Castle County Code Section 2.03.103 B, in pertinent part:
. . .
2.     No County official may represent or otherwise assist any private enterprise with respect to any matter before the County. This prohibition is considered personal to the County official and is not, for the purposes of the New Castle County Ethics Code only, deemed to impact other members of a firm, business, or other employer by which the County official is employed.
. . .