Filing Number: 14-02
Subject: Appearance of Impropriety
Keywords: assessor, compensation, employee, State Board Appointment, State of Delaware
Decision By: Johanna Bishop, James Keeley, Beatrice Patton Dixon, Paula Jenkins-Massie, Christopher Simon
Contact Email: admin@nccethics.org
 
Status: Active

Question:

             Whether an appearance of impropriety is created by a County employee’s service on a State Board which regulates members of the employee’s profession and whether performance of that service on County paid time is appropriate.

Conclusion:

             The employee’s service on the state commission does not create a conflict of interest or improper appearance. The employee’s state duties do not affect the exercise of County authority and are not similar to and do not duplicate the employee’s County function. The administrative decision to pay the employee her County salary while she attends the state meetings is not within the authority of the Ethics Commission as, in this circumstance, it does not create an improper appearance.

Facts:

             A County employee performs certain financial duties for the County. The employee is also a member of a state board which regulates all coworkers and other such persons in Delaware who perform similar duties. The County permits the employee to attend meetings of the State Board on County paid time of about three hours per month.
 
            The employee was appointed to the state board by the Governor in part because she possesses the statutory qualifications for membership on the board: she is a certified or licensed professional in the matters which the state board regulates. The board is given the authority to create rules and forms, administer written examinations, evaluate applicant credentials, grant and renew certificates and licenses, establish continuing education standards, refer complaints for investigation, conduct hearings, issue orders, impose penalties and sanctions, and promulgate regulations identifying crimes substantially related to the profession it regulates. The State pays the employee a nominal fee plus limited travel expenses for each state board meeting attended, up to a maximum of 10 meetings per year.

Code or Prior Opinion:

Code provisions
 
            The conflict of interest rules at New Castle County Code Section 2.03.103(A)(1) prohibit the use of official authority by a County official or employee “for the personal or private benefit of himself or herself, a member of his or her immediate family or a business with which he or she is associated.” This conflict rule means that an official or employee may not exercise any authority derived from his or her County position to benefit his or her immediate family members or businesses associated with him or those family members, other than in those situations in which the employee or immediate family are affected in a manner like the general public, or an industry or occupation or group which includes them.
 
           The Ethics Code’s conduct rules at Section 2.03.104(A) also recite prohibitions affecting the exercise of County authority by an official when direct financial conflict is not at issue. That subsection prohibits exercise of official authority which creates an appearance that the decisions or actions of a County official or his or her department are influenced by factors other than the merits of the matter for decision. This prohibition exists because such conduct undermines public confidence in the impartiality of the governmental body with which the employee or official is associated.
 
Prior Opinions
 
            In Advisory Opinion 93-03, January 7, 1994, the Commission counsel addressed the question of whether a County employee could take outside employment which was very closely related to and at times was identical in nature to the County work. The conclusion in the opinion was that if the employee took the outside employment an appearance of impropriety would be created since the public would believe that the employee would perform the County duties in a manner to favor private clients or that the employee would improperly influence fellow County employees to favor the private clients.
 
            In Advisory Opinion 97-04, March 14, 1997, the Commission counsel determined that a member of a County board could vote on a matter submitted by the State even though the member served on a State Board. The Opinion stated that since the State was a not-for-profit entity, a potential conflict of interest did not exist. Further, the Opinion stated that because of the limited scope and nature of the official’s County position, an appearance of impropriety did not arise.
 
            In Advisory Opinion 00-03, June 20, 2000, the Commission permitted a County appraiser to have outside employment if the outside work was limited to work other than tax appraisals and the work was performed for institutions, not individual taxpayers.
 
            In Advisory Opinion 06-12, September 13, 2006, the Commission held that a County employee could serve on a municipal regulatory board as long as the employee recused himself from any policymaking, planning, or decisions on matters performed by the County for the municipality and refrained from disclosing or using nonpublic information obtained in the course of the County position to benefit the municipality. In addition, the employee was prohibited from attempting to influence coworkers when they dealt with the municipality.
 
            In Advisory Opinion 07-03, February 14, 2007, the Commission advised that an official would not violate the Code if he accepted an appointment to a State Commission because there was no nexus between his exercise of County authority and the jurisdiction of the State Commission. The Opinion noted that the official qualified for the appointment as a result of his outside activities, not because of his County position.

Analysis:

             The first issue is whether there is a conflict of interest created by the employee’s service on the state board. The employee did not obtain the position on the state board by virtue of her County employment but because she had the necessary statutory professional qualifications required for service. Her County job and exercise of County authority is distinctly different from her duties on the state commission. Therefore, there is no conflict of interest arising from her association with the state commission because her status with the County cannot confer improper benefit to the state.
 
            Additionally, the state authority the employee exercises is not individual authority. She functions as part of a commission and the duties of the commission delineated in the state authorizing statute are not similar to and do not duplicate her County function. Her state authority affects her coworkers in the same manner in which it affects all other members of her profession who are not associated with the County. Therefore, her status on a credentialing commission does not create an appearance of unfairness in her performance of her County function. However, she would be advised to avoid credentialing or participating in investigations of professionals who work for New Castle County in order to avoid the appearance that she is exercising her state authority in a manner to improperly impact her County coworkers.
 
            The payment made to the employee while she attends the state commission meetings does not create, in itself, an appearance of improper use of County resources. The state commission service of the employee benefits all members of her profession, including those who work for the County. A decision about whether she should receive County payment while she attends those meetings is an administrative decision and not within the authority of the Commission unless the decision creates an improper appearance to the reasonable member of the public.

Finding:

            The employee’s service on the state commission does not create a conflict of interest or improper appearance. The employee’s state duties do not affect the exercise of County authority and are not similar to and do not duplicate the employee’s County function. The administrative decision to pay the employee her County salary while she attends state meetings is not within the authority of the Ethics Commission as, in this circumstance, it does not create an improper appearance.
 
            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 9th DAY OF APRIL 2014.
 
 
_______________________________
Johanna P. Bishop, Chairperson
New Castle County Ethics Commission
 
Decision: Unanimous
 
 

Footnotes:

1 New Castle County Code Section 2.03.103. Prohibitions relating to conflicts of interest, states in pertinent part:
A.      Restrictions on exercise of official authority.
1. No County employee or official knowingly or willfully shall use the authority of his or her office or employment or any confidential information received through his or her holding County office or employment for the personal or private benefit of himself or herself, a member of his or her immediate family or a business with which he or she is associated. This prohibition does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the County official or employee, a member of his or her immediate family or a business with which he or she or a member of his or her immediate family is associated. There will be a rebuttable presumption of a knowing or willful violation of this section if the action benefits the County official or employee, his or her spouse, or his or her dependent children (whether by blood or by law).
. . .
B.     Restrictions 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 Sec. 2.03.104. Code of conduct.
A.     No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.03.103(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.