Filing Number: 14-03
Subject: Family Relationship
Keywords: appearance of impropriety, employee, family, recusal, supervisor, undue influence, unwarranted privilege
Decision By: Johanna Bishop, James Keeley, Beatrice Patton Dixon, Paula Jenkins-Massie, Christopher Simon
Contact Email: admin@nccethics.org
 
Status: Active

Question:

         Whether the ethics code would be violated if a supervisor hired the adult child of a supervisee for part-time summer employment.

Conclusion:

           In order to avoid violating the Ethics Code, it will be necessary for the requester to advise her superiors of her employment of the County employee’s adult child and to have the superiors delegate her supervisory authority related to the County employee in the areas of discipline and compensation to another supervisor for the duration of the temporary employment.

Facts:

           A supervisor is in need of important and critical services in her home on a parttime basis for several months in the summer. One of her supervisees has an adult child who is able to perform those services at the market rate of pay. The supervisor has been unable to find another person to perform the services and has inquired as to whether temporary employment of the adult child would be a conflict of interest or create an improper appearance.

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.1  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.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. The Commission has long applied this standard to the conduct of County officials and employees.

Prior Opinions

                 This is a question of first impression before the Commission. The only similar questions have been one in which an employee wished to go into business with a vendor of professional services and another in which an official wished to go into business with an employee from a different department. In the case of the vendor, the Commission prohibited the association reasoning that a business relationship with the vendor not only affected the employee’s duties related to the vendor’s contract but also impacted the vendor who would be limited to contracts that were publicly bid. See Advisory Opinion 06-02, March 8, 2006. The situation in which an official wished to enter into a partnership with an employee of another department was resolved in favor of the partnership since there was no link with County employment in the subject matter of the partnership nor any supervisor-subordinate relationship. See Advisory Opinion 98-08, January 5, 1999.

 

Analysis:

                        The issue in the case at hand appears to be a hybrid. The summer employee would be performing critical duties unrelated to the work the requester performs for the County but the requester has supervisory authority over a County employee who is a member of the immediate family of the summer employee. The Code would be violated if the requester used threat of discipline or showed favoritism to the County employee to insure desired conduct by the summer employee. It also would be violated if the requester succumbed to pressure from the County employee for favorable treatment in the County workplace because of the influence that exists between immediate family members. Even if such situations do not arise, a reasonable person or fellow supervisee looking at the situation may conclude that any favorable behavior on the part of the requester toward the County employee is influenced by the employment of the adult child.

             The potential for use of County authority for private benefit or the creation of an improper appearance will be ameliorated if the requester does not exercise disciplinary authority or provide input into issues involving the compensation of the County employee during the period of employment of the summer employee.

Finding:

                        In order to avoid violating the Ethics Code, it will be necessary for the requester to advise her superiors of her employment of the County employee’s adult child and to have the superiors delegate her supervisory authority related to the County employee in the areas of discipline and compensation to another supervisor for the duration of the temporary employment.

             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 23rd DAY OF JUNE 2014.
 
 
_______________________________
Johanna P. Bishop, Chairperson
New Castle County Ethics Commission
 
Decision: Unanimous
 
 

Footnotes:

1New 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. 2.03.104Code 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.