Filing Number: 13-08
Subject: Appearance of Impropriety
Keywords: appearance of impropriety, appointed official, board member, non-profit, recusal, representation, undue influence
Decision By: Johanna Bishop, James Keeley, Miguel Gonzalez, Paula Jenkins-Massie, Christopher Simon, Gerald Turkel
Contact Email: admin@nccethics.org
 
Status: Active

Question:

            Whether a County official who serves on an advisory board may seek a leadership position with a private organization that advocates before and is represented by that advisory board.

Conclusion:

            The requester may seek nomination to a leadership position in an organization that advocates before and is represented by his County advisory board so long as he recuses himself to avoid creating an appearance of partiality when he personally represents that organization before his board.

Facts:

            The requester serves on a County advisory board which represents the needs of particular groups of volunteer citizens who perform services for the public, according to its official description.  The advisory board acts as a liaison between the County and the volunteer groups, recommends standards and procedures for the groups, and makes recommendations to a County department on its budget in relation to those groups. The requester is a member of one of those groups the County board is designed to represent and wishes to seek a leadership position in that group.   He asks whether holding such position would constitute a violation of the Ethics Code.

Code or Prior Opinion:

Code Provisions
 
The New Castle County Code classifies members of advisory boards as County officials but the personal conduct of such persons is not as restricted as officials who are members of regulatory boards, such as those associated with the Land Use Department, the Pension Board, etc. For example, members of advisory boards are not prohibited from representing private interests before the County [Section 2.03.103B(2)], do not have restrictions on contracting with the County [Section 2.03.103C], and are not required to file a special form with the Commission disclosing financial interests in businesses regulated by or contracting with the County [Section 2.03.104C]. See, Definitions, County Official, Section 2.03.102.1
 
However, regardless of the status of a particular board or 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 an official or employee’s official action is affected by personal interests which impairs his or her competence, integrity and honesty, or that the department in which he serves will look as though it is showing partiality in a given matter.2
 
               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.

Prior Opinion

Advisory Opinion 97-05, the Commission determined that an appearance of improper partiality would be created if a County official assumed a leadership position in an organization that advocated for specific actions before the official’s superior, an elected official who voted on such matters.

Analysis:

In this case, the Ethics Code does not prohibit the requester, a member of an advisory board, from becoming a leader in a group that advocates before County government. His board, unlike the elected official in Advisory Opinion 97-05, does not exercise the authority of County government.  Therefore, the requester may represent his group before his advisory board either as a member or a leader as long as that representation does not create an appearance of partiality forbidden by Section 2.03.104.
 
 An improper appearance would be created if the requester took action as a board member on an issue which he personally brought to the board on behalf of his group. The reasonable member of the public would believe that in acting in his board capacity he would be trying to make his fellow board members espouse his views, regardless of the merits of the issue before them. The requester must avoid creating such an improper appearance by publicly recusing as a member of the board from discussion or action on any such matter.

Finding:

            The requester may seek nomination to a leadership position in an organization which advocates before and is represented by his County advisory board so long as he avoids creating an appearance of partiality when he personally represents that organization before his board.
 
            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 11th DAY OF SEPTEMBER 2013.
 
           
 
                                                            ______________________
                                                            Johanna P. Bishop, Chairperson
                                                            New Castle County Ethics Commission
 
Decision: Unanimous
 

Footnotes:

1 New Castle County Code Section 2.03.102 Definitions, in pertinent part: 
.               .               .
                County official means any person elected or appointed to any County office, board, commission or the New Castle County Audit Committee provided, however, that for purposes of Sections 2.01.103(B)(2), 2.03.103(C), and 2.03.104(C), “County official” does not include any member of a board or commission which operates solely in an advisory capacity, and whose members are not compensated, other than reimbursement for expenses.
.               .               .
2 New 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 an appearance that the decision or action of the County employee, County official or governmental body are influenced by factors other than the merits.
.               .               .