Filing Number: 13-09
Subject: Appearance of Impropriety
Keywords: appearance of impropriety, civic association, employee, non-profit, representation
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 employee may accept a leadership position with a civic group that advocates before her department.

Conclusion:

            In order to prevent the creation of an improper appearance in violation of the Ethics Code, the requester may not accept the leadership role and she must discontinue her active membership in her civic association. 

Facts:

            The requester is a County employee who has job duties in a County department which include responsibilities to serve as a conduit and problem solver for New Castle County civic and other similar associations.  She is a member of one of those civic associations and has been asked to assume the presidency.

Code or Prior Opinion:

Code  Provisions
 
            The New Castle County Ethics Code at Section 2.03.103 B(1) and (3) prohibit County employees from representing or assisting any private enterprise before their department unless such assistance is in the exercise of his or her official duties.1
 
            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 or she serves is not impartial.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
 
             In 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 which was of a type which advocated for specific actions which came before the official’s superior, an elected official who voted on issues pertinent to those organizations’ interests.  The requester was permitted to retain membership in the organization but was not permitted to assume a leadership role since her association with and access to the elected official was so great.

Analysis:

            In this case, Section 2.03.103 prohibits the requester, a County employee, from importuning her County department on behalf of her civic group. Unlike the officers of other such groups, she would violate the Ethics Code if she appeared before her department in the capacity of president of her civic association.
 
            However, even if she avoids representation of that private entity, even active membership in a civic association, as well as a leadership role, necessarily raises an issue of improper appearance in violation of Section 2.03.104A.  The requester’s County job is to be directly involved with individual civic and similar groups regarding their interests in and/or problems with County services. Her position authorizes her to exercise County authority in favor of the civic groups with which she interacts in a more direct way than the County official in Advisory Opinion 97-05.  
 
            Membership in one of the groups over which she personally exercises County authority necessarily creates an improper appearance that recusal cannot cure. Recusal from interaction with her own group does not reduce the improper appearance. If the requester is permitted to maintain her active membership in one group, the members of the other groups would reasonably suspect that she would cause her group’s concerns to receive priority over others in receiving County services and that she would have undue influence on the conduct of her department toward her group.  However, the requester may continue passive financial support of the association.

Finding:

            In order to prevent the creation of an improper appearance in violation of the Ethics Code, the requester may not accept the leadership role and she must discontinue her active membership in her civic association. 
 
            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.

Footnotes:

1New Castle County Code Section 2.03.103Restrictions 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. This prohibition is to be considered personal to the County official and is not, for 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.
 
            3.     This subsection shall not preclude any County employee or County official from appearing before the County or otherwise assisting any private enterprise with respect to any matter in the exercise of his or her official duties.
 
2New 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.