|Keywords:||appearance of impropriety, compensation, County official, recusal, unwarranted privilege|
|Decision By:||Commissioners: Thomas Collins, Johanna Bishop, Miguel Gonzalez, Christopher Simon, Vincent White|
Whether an appearance of impropriety would be created if a member of a County Board accepted paid employment to instruct the employer's customers about the procedures used in appeals before the official's board.
The official may not accept the employment and, if the official decides to volunteer as an instructor without pay, the official must recuse from any matter coming before the Board which involves a current or former student. Acceptance of the proposed employment would create the appearance that the official's Board's impartiality is compromised and that the official is using the status of the County position for private gain.
The requester is a County official who serves on a Land Use Board. The official has been offered the opportunity to instruct about the Board's procedures by a for-profit business involved in presenting continuing education courses to real estate professionals. The official would be financially compensated by the business for performing these duties. The for-profit business does not appear before the Board although its customers may do so.
Code or Prior Opinion:
Ethics Code Provisions
Every County official and employee must consider the ethical rules stated in the New Castle County Code of Conduct. Code Section 2.03.104(A) prohibits conduct which creates an appearance that a County department or board is not impartial. Code Section 2.03.104(D) also forbids an official or employee from using his or her County office to secure unwarranted privileges, private advancement or gain.1
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 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.
Prior Advisory Opinions
Two prior advisory opinions issued by the Commission touch upon situations somewhat similar to that presented here. In Advisory Opinion 91-01, the Commission prohibited a County employee from accepting an honorarium for his participation in a trade symposium sponsored by a County vendor because the employee had authority to purchase services for the County from that vendor. In Advisory Opinion 94-02, a County employee was invited to participate in a seminar about a particular legal process which private citizens may initiate before a County agency. The County employee had knowledge and expertise regarding the process and was permitted to accept an honorarium from the company organizing and sponsoring the one time event because the company had no relationship with New Castle County as a vendor or provider of services. The Commission found that the lack of any relationship between the County and the company eliminated the possibility that acceptance of the honorarium would create an appearance of impropriety.
The two Advisory Opinions cited above turn on the presence or absence of a commercial relationship between the business paying for the official's services and the County. In this case, there is no commercial or regulatory relationship between the outside employer and, as in Advisory Opinion 94-02, its customers use the County's services, including those offered by the official's board.
Advisory Opinion 91-01 is not relevant here since the potential employer has no vendor relationship with the County that the official could affect. Advisory Opinion 94-02 is more relevant but still significantly different because the employee in that case apparently only had ministerial expertise about a County process. In this case, the official not only has expertise about the process but is also a decision maker when the process is used. Given that ultimate authority, a member of the public could reasonably conclude that the official's decisions as a Board member would necessarily be affected by the instructor-student relationship when a current or former student is involved in a matter before that Board. Additionally, since the student paid for the official's instruction, the public may also believe that the student would have expectations of special consideration from the official in return. Both of these situations diminish the confidence of the public in the integrity of the Board.
The official may not accept the employment and, if the official decides to volunteer as an instructor without pay, the official must recuse from any matter coming before the Board which involves a current or former student. Acceptance of the proposed employment would create the appearance that the official's Board's impartiality is compromised and that the official is using the status of the County position to attract students for private gain.
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 JUNE 2011.
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.
D. No County employee or County official shall use such public office to secure unwarranted privileges, private advancement or gain.