|Keywords:||appearance of impropriety, business, County official, outside employment, private business, real estate|
|Decision By:||Thomas P. Collins, Johanna Bishop, James Keeley, Christopher Simon|
Whether an official may become an administrative employee of an outside business that contracts with private associations to maintain real estate which may include structures inspected by the County department where he is employed.
In order to avoid a violation of the Ethics Code, the requester may not become an employee of the outside business since a portion of its work is inspected by his Department.
The requester is an official in a County Department which has a division that is responsible for inspecting structures maintained by private associations on private property. The particular Department division where the requester works does not perform those inspections. The requester wishes to become employed as an administrator in an outside business that contracts with private parties to maintain real estate, including incidental maintenance of such structures if they exist on the contracted property. Maintenance of the structures represents a very small portion of the activities of the business and the requester would not have any direct responsibility for those activities.
Code or Prior Opinion:
Ethics Code Provisions
The Ethics Code prohibits conduct which creates an appearance that a County official, employee or a County department is not impartial. Section 2.03.104 states in pertinent part:
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 an 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.
Section 2.03.103 B(1) of the Code restricts representation by an employee in the interest of another before the County. It states, in pertinent part, "No County employee . . . may represent or otherwise assist any private enterprise with respect to any matter before the County Department with which the employee . . . is associated by employment or appointment." Performing work for a private entity which is presented to the County for review is such representation
Prior Advisory Opinions
The seminal opinion on the issue of inspection of an employee’s outside business activities is Advisory Opinion 92-07, January 28, 1993, which involved an employee who wished to undertake outside employment in construction which would be inspected by his department. The Opinion prohibited such employment and reasoned as follows:
Allowing a County inspector to inspect construction done by his fellow inspector or by a business with which his fellow inspector is associated would taint the integrity of the entire inspection process by infecting it with a host of considerations irrelevant to the merits of that process. For instance, it would create the public perception that official inspections are influenced by the County inspector's relationship with or allegiance to fellow County inspectors and to businesses with which fellow inspectors are associated. It would create the public perception that official inspections are influenced by the County inspector's self- interest in ingratiating himself with prospective part-time employers.
On the same rationale, in Advisory Opinion 04-10, July 14, 2004, the Commission permitted an employee to accept outside employment which had no nexus with the County, holding:A County employee may secure secondary employment as a self-employed tradesman as long as his secondary employment does not require regulation by his department and he does not perform services for any entity which submits any plans to his department for review or is regulated by that department.
In Advisory Opinion 07-04, March 14, 2007, the Commission prohibited an employee from being involved as subcontractor for an entity regulated by the County. It stated:
The Commission is persuaded that the questions asked by the requester have been answered in its prior opinions. If the requesting employee's business is operated outside New Castle County and its work is never subject to County review, including in the status as a subcontractor, operation of the business would not violate the Ethics Code conflict of interest rules because the business would have no nexus with the exercise of County authority and the employee would never be in the prohibited position of acting on behalf of a private enterprise before his own department.
However, if the employee's company becomes a subcontractor for a business which does business with or is regulated by New Castle County, even if that association does not amount to a "financial interest" as defined in the Code, the reasonable member of the public could believe that the requester's fellow employees may provide County benefits or services to the contractor which are not available to the general public because of the requester's relationship with it. Therefore, any review or regulation by the employee's department of the associated contractor under such circumstances would violate the appearance of impropriety provision of the Ethics Code.
The primary function of the requester's proposed employer appears to be unrelated to the structures inspected by his Department. However, the plain language of Section 2.03.103 B(1) and Advisory Opinion 07-04 make clear that the requester cannot be employed by a business which performs work which is regulated by or inspected by his Department because the reasonable member of the public would believe that the official conduct of his coworkers would be improperly influenced by his association with the employer. The fact that such inspections are only incidental to the primary function of the proposed employer does not affect this reasonable perception.
In order to avoid a violation of the Ethics Code, the requester may not be associated with the outside business since a portion of its work is inspected by his Department.
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 13th DAY OF JUNE 2012.
Thomas P. Collins, Sr., Acting Chairman
New Castle County Ethics Commission
1The restriction on employees relate to matters brought before the departments which employ them while in subsection B(2) County officials are prohibited from bringing such matters before any part of County government. In discussing the identical language in Sec.2-03.103 B(2) regarding County officials, in Advisory Opinion 01-06, January 29, 2001, the Commission stated: ... "In addition, this Section not only prohibits the County official from personally appearing before a particular County board, department, agency or County Council, but also prohibits the County official from assisting the for-profit employer/firm in preparation of the matter, if it is a matter to go before the County, even if another individual actually presents it to the County." The Commission found an exception to this rule only when an official or employee is presenting work on his own residence. See Advisory Opinion 05-02, February 9, 2005.