Filing Number: 13-10
Subject: Outside Employment
Keywords: appearance of impropriety, conflict, employee, non-profit
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 seek outside employment performing duties similar to those she performs for the County.

Conclusion:

           The requester may not provide grant writing services to any entity if her department is potentially eligible for the same grant. The requester is further prohibited from providing services to any entity which is affiliated with the County, seeks or does business with the County, or is regulated by or reasonably foreseen to be regulated by the County in the next three years. The requester’s department’s administrative prohibition regarding outside employment with the specific County affiliated nonprofit is in accord with the restrictions imposed by the Code and this opinion.

Facts:

             The requester states that she wishes to seek outside employment preparing grant applications for a broad range of nonprofits and governmental agencies, using skills she has developed and currently uses in her County employment. The requester states she would ensure that she would not accept employment regarding grants for which her County department was eligible. The County department employing the requester has administrative rules regarding outside employment which provide authority to the department to limit or prohibit outside employment of employees based on articulated standards. The Department has determined that the requester’s proposed outside employment with a specific County affiliated nonprofit is inherently conflicting with the employee’s primary responsibilities and has prohibited that outside employment.

Code or Prior Opinion:

Code provisions

            The New Castle County Ethics Code at Section 2.03.101D permits an elected official to establish ethical rules of conduct for a division under his or her supervision which are stricter than those imposed on employees by the Ethics Code.The Commission retains the authority to judge whether department rules meet the minimum standard expressed in the Code.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 where 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 Opinions

           In Advisory Opinion 07-07, the Commission stated, “This Commission has long ruled that secondary employment is not prohibited ‘where there is no nexus between and employee’s or official’s County job and the secondary employment.’ [citations omitted] However, when that nexus exists, the Code may restrict and, in some cases, prohibit County employees from secondary employment.” That Opinion also noted that secondary employment which undermines public confidence in the proper functioning of a governmental department may be prohibited.

           In Advisory Opinion 07-04, an employee was cautioned that he could not become an employee of an outside business if the business was a subcontractor on a project outside the County for a contractor which performed regulated business within the County.

           In Advisory Opinion 06-15 an employee was prohibited from providing services to his spouse’s business if it had a direct or indirect nexus with his department. 

Analysis:

            As the requester noted, it would be improper for her to provide services to any organization which is eligible for any grant for which her department is potentially eligible, whether or not her department intends to submit an application. However, in this case, the appearance of impropriety provision of Section 2.03.104A Ethics Code requires more extensive prohibitions on the proposed secondary employment beyond that nexus with her department.  

            Since the duties of the proposed secondary employment are virtually identical to the duties currently performed by the requester for the County, services to an outside entity in any way affiliated with the County could create questions of loyalty and confidentiality in the mind of the reasonable member of the public.  Further, the requester’s current status with the County has the disagreeable potential to make her attractive on a basis other than the merits of her work to organizations that hope to become affiliated with, do business with, or are regulated by the County, a situation which would be unfair to equally skilled competitors which provide those same services.

Finding:

           The requester may not provide grant writing services to any entity if her department is potentially eligible for the same grant. The requester is further prohibited from providing services to any entity which is affiliated with the County, seeks or does business with the County, or is regulated by or reasonably foreseen to be regulated by the County in the next three years.  The requester’s department’s administrative prohibition regarding outside employment with the specific County affiliated nonprofit is in accord with the restrictions imposed by the Code and this opinion.               

            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 NOVEMBER 2013.
           
                                                           
                                                           
                                                            ______________________
                                                           Johanna P. Bishop, Chairperson

                                                           New Castle County Ethics Commission

 
Decision: Unanimous
 

Footnotes:

1Sec.2.03.101. – Purpose of Division., in pertinent part:
           D. This Division is intended to establish a minimum standard for ethical conduct and financial disclosure. Elected officials may superimpose conduct rules for officials and employees which are more strict, but not less strict, than these minimum standards. The Ethics Commission has jurisdiction to decide whether superimposed rules fall below the minimum standards expressed in this Division. 

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.
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