Filing Number: 11-01
Subject: Conflict of Interest
Keywords: appearance of impropriety, County official, nominee, non-profit, recusal, State of Delaware
Decision By: Commissioners: Thomas Collins, Gerald Turkel, Miguel Gonzalez, James Keeley, V. Eugene McCoy, Vincent White
Contact Email: admin@nccethics.org
 
Status: Active

Question:

            Whether an appearance of impropriety would be created if an employee of a State agency were appointed to a County advisory Board when, in his State position, the nominee has authority to affect certain New Castle County Land Use procedures.

Conclusion:

            Since the product of the advisory Board in question does not impact the function of the Land Use Department except in a speculative and tangential manner, the nominee's holding of a State regulatory position would not create an appearance of impropriety. The nominee may serve on the Board as long as he completely recuses from any involvement in planning, policy or issues which potentially could affect his State authority or his State department. If he recuses, he must notice his fellow board members and the public the reasons therefore. This opinion does not reach the question of whether service on the County advisory board violates some interpretation of the State of Delaware Code of Conduct for its employees.

Facts:

            The requester is a County official who has responsibility regarding appointments to an advisory County Board which is not associated with the Land Use Department. The official is asking the Commission to determine whether there would be an improper appearance if a State employee were to be appointed to the County Board when that person has authority to examine certain Land Use Department documents for compliance with State law. The work product of the County advisory board is not subject to regulation by either the Land Use Department or the State agency in question.
 
            Nominees for the advisory Board are proffered for appointment by a professional group composed of citizens who volunteer specific services to the public in New Castle County. The advisory Board is charged with representing the needs of that volunteer group before County government and acting as liaison between that group and the County. The Board is required to establish and approve standards and procedures for the use of equipment and the delivery of services by the volunteers. It also comments and makes recommendations for equipment and funding for a division of the County Department of Public Safety. The advisory Board has no authority over or into the Land Use Department. However, it is remotely conceivable that some of the standards developed by the advisory Board could be incorporated by the Land Use Department in limited circumstances and thereby be reviewed by the nominee or his department.

Code or Prior Opinion:

Ethics Code Provisions
 
            Every County official and employee must consider the ethical rules stated in the Code of Conduct when using their County authority. The requesting official is properly examining his authority to appoint in this situation and should be commended for doing so.
 
            New Castle County Code Section 2.03.104(A)(1) prohibits the creation of an impression in the reasonable member of the public that an official or employee’s official action is affected by personal interests which impairs his or her competence, integrity and honesty, or that the Board on which he is a member will look as though it is showing partiality in a given 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."
 
             The Ethics Code also separately prohibits an official from representing a private interest before County government. This prohibition in Section 2.03.103B1 and 2 includes representation of non profits such as the State of Delaware. 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. However, there is little precedent for a situation in which the County Official is also a State employee. In Advisory Opinion 97-04, a County Board member was permitted to vote on a matter submitted by the State even though the Board member was in the employ of the State. The Commission held that since the State was a non profit there was no conflict of interest and because of the nature of the Board member’s State position, there was no appearance of impropriety. The Opinion did not expand on why the nature of the State position was not a problem but apparently the subject matter of the State job was distinct from that of the County position.
 
            The majority of prior Advisory Opinions involve the reverse of the instant situation: a County employee or official asking to work or serve in a non profit entity. In Advisory Opinion 99-06, the Commission held that a County employee could perform contract work with the State since the contract work did not involve her current duties and would not require her to use or disclose any confidential information stemming from her current or prior County positions. In Advisory Opinion 10-11, the Commission cited a number of prior opinions in which County employees or officials were permitted to serve with non-profits as long as the employee or official recused from any policy-making, planning, or decision-making performed in County positions regarding the non profits and refrained from disclosing or using any non-public information for the benefit of the non profit. See Advisory Opinions 06-12, 05-24, 97-01, and 97-01.
 
            A potential violation of the Ethics Code in a matter involving diverse representation was described in Advisory Opinion 10-06. In that case, 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 by recusal. 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.
 
            In Advisory Opinions 06-08 and AO 10-12, 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.

Analysis:

            Under the facts stated in this request, there is no relationship between the nominee's State job and the position on the advisory Board although both involve the general subject matter of the volunteer activity. Unlike the situation in Advisory Opinion 10-06, the advisory work of the Board is not regulated by the State or a County department. Its impact on the nominee's State position can only be tangential. If some potential involvement with the nominee's State agency were to arise, an improper appearance could easily be remedied by recusal as described in Advisory Opinion 06-08.

Finding:

          Since the advisory Board in question does not impact the function of the Land Use Department except in a speculative and tangential manner, the nominee's holding of a State regulatory position would not create an appearance of impropriety. The nominee may serve on the Board as long as he completely recuses from any involvement in planning, policy or issues which potentially could affect his State authority or his State department. If he recuses, he must notice his fellow board members and the public the reasons therefore. This opinion does not reach the question of whether service on the County advisory board violates some interpretation of the State of Delaware Code of Conduct for its employees.
 
             In issuing this Advisory Opinion, the Ethics Commission is applying the New Castle County Code of Ethics, which establishes the minimun level of ethical conduct required of County officials and employees.
 
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS 9th DAY OF MARCH 2011.
 
______________________
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.

2.     No county official may represent or otherwise assist any private enterprise with respect to any matter before the County.