Filing Number: 16-01
Subject: Conflict of Interest
Keywords: appearance of impropriety, conflict, consultant, contract, County board, Department of Community Services, employee, impropriety, nominee, recusal
Decision By: Johanna Bishop, Beatrice Patton Dixon, Sally Jensen, Robert Ralston
Contact Email: admin@nccethics.org
 
Status: Active

Question:

          Whether a person who is actively seeking employment with New Castle County may be appointed to a County advisory board?

Conclusion:

          The requestor may serve on the County advisory board while not employed by New Castle County but may not serve in such capacity if and when the requestor secures employment with the County, through direct hire or by contract or any other form of employment with, or contractual remuneration as an independent contractor for, the County.1 In the event that the requestor is appointed to the advisory board in question and thereafter becomes employed by the County, or provides contractual services to the County, recusal is not a cure and the requestor must resign from service to the County advisory board before accepting employment or executing the contract with New Castle County.

Facts:

          The requester is actively seeking employment with New Castle County.  She is attempting to be hired by the County or become a contract employee of the County.  At the same time, the County would like to appoint the requestor to serve on a County advisory board.  The County advisory board in question, per County Code, is comprised of “general citizens” and can be distinguished on that basis from other County advisory boards which, statutorily, must or may include County employees.2
 

Code or Prior Opinion:

          Relevant provisions in the definition section of the Ethics Code, Section 2.03.102, include the following:
 

Appearance of impropriety means conduct which is prohibited by Section 2.03.104A.

Compensation means any money, thing of value or any other economic benefit of any kind or nature whatsoever conferred on or received by any person in return for services rendered or to be rendered by oneself or another.

Conflict or conflict of interest means conduct which is prohibited by Section 2.03.103.

Financial interest means any interest representing more than five (5) percent of a corporation, partnership, sole proprietorship, firm, enterprise, franchise, organization, holding company, joint stock company, receivership, trust, or any legal entity organized for profit.

Code of Conduct Provisions

            Certain portions of the New Castle County Ethics Code are relevant to this opinion, including Sections 2.03.103.A.1 and 2.03.104.A:

Sec. 2.03.103. - Prohibitions relating to conflicts of interest.

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).

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 Subsection 2.03.103.A.1., 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 decisions or actions of the County employee, County official or governmental body are influenced by factors other than the merits.

Case Law and Commission Precedent

The New Castle County Ethics Code prohibits conduct on the part of County officials or employees which either creates the appearance of impropriety even where no direct conflict of interest is present.  Specifically, conduct which creates an appearance of impropriety is prohibited by Section 2.03.104(A) of the New Castle County Code.  To determine if an appearance of impropriety exists, the Delaware courts have stated that “[t]he test is… if the conduct would create in reasonable minds, with knowledge of all relevant facts, a perception that an official’s ability to carry out [his or] her duties with integrity, impartiality and competence is impaired.”  Hanson v. Delaware State Public Integrity Com’n, 2012WL3860732, at *16 (Del.Super. 2012), aff’d, 69 A.3d 370 (Del.Supr. 2013); and “[t]he test for appearance of impropriety is whether the conduct 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 [the official’s] responsibilities with integrity, impartiality and competence is impaired.”  In re Williams, 701 A.2d 825, 832 (Del.Super. 1997).  The courts have advised the Commission to look at the totality of the facts presented, and this Commission has historically applied this standard when reviewing the conduct of County officials and employees.

            In Advisory Opinion 13-09, the Commission was asked whether a County employee could accept a leadership position with a civic group that advocates before her department.  The Commission concluded that “[i]n order to prevent the creation of an improper appearance in violation of the Ethics Code, the [County employee] may not accept the leadership role and she must discontinue her active membership in her civic association.”   Reasoning that recusal was not an available option, the Commission wrote: “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.”

In Advisory Opinion 13-05, the Commission was asked whether a County employee, who is a board member of a nonprofit organization which functions in a County representative district, may occasionally serve in a secondary position as an assistant to an elected official who represents that district.  The Commission concluded that unless the requester was relieved of the secondary service to the official who represents the district where the nonprofit functions, the requester must resign from the leadership position on the nonprofit. Rejecting recusal as an option, the Commission reasoned that “[a]lthough recusal is a frequent tool advocated by the Commission, it does not solve the appearance problem raised by the secondary position. Recusal would not remove the suspicion in the reasonable member of the public that the organization in which the requester holds a prominent position would receive special treatment as a result of the requester's County job assignment. Additionally, in the case of recusal, the County would be deprived of a substantial number of services for which it compensates the requester.”

           In Advisory Opinion 14-02, the Commission was asked whether an appearance of impropriety was created by a County employee’s service on a State Board which regulated members of the employee’s profession. Concluding that the employee’s service on the state commission did not create a conflict of interest or improper appearance, the Commission explained that the employee’s state duties did not affect the exercise of County authority. In that case, because the requester would serve in a volunteer capacity for a State Board, with no financial benefit to himself or his family, the Commission approved the request on the condition that the requester recuse himself from involvement in any matters associated with issues that involved County policy.

Analysis:

          This is a question of first impression before the Ethics Commission, but Ethics Code provisions and prior Commission opinions (cited above) are instructive. At the time of this request for an advisory opinion, the requestor has neither been hired by the County nor appointed to the County advisory board at issue.  As such, there are few solid facts for the Commission to consider in reaching its conclusion.  The Commission favorably recognizes, however, the requestor’s desire to avoid potential conflict and even the appearance of impropriety. 

Section 2.03.104.A.1 prohibits the creation of an impression in the reasonable mind of a 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.  The enabling legislation of the advisory board in question does not provide for the service of a County employee in its membership.  By contrast, the Code provisions regarding membership of other County boards allow or require the membership of one or more County employees.  It may be deduced, therefore, that had County Council intended to allow a County employee, by direct hire or by contract, to serve on this advisory board, it would have included such wording in its legislation.  Therefore, if the requestor becomes employed by the County, she may not serve on the County advisory board at issue regardless of the capacity or requirements of the County employment.  Recusal would not be an appropriate cure for potential conflict as recusal would not correct the issue of the codified requirement of the advisory board membership and the lack of codification allowing for membership by a County employee.    The same holds true for the provision of paid contractual services by the requestor to the County.      

            As mentioned above, the Commission recognizes the fact that the requester sought this opinion before accepting either County employment or appointment to the advisory board.  In the event that the requestor believes that the eventual facts would result in a patently different conclusion by this Commission, the requestor is encouraged to ask the Commission to reconsider the matter at that juncture.

Finding:

           Under the facts presented, the requestor may not serve as a County employee, or be actively considered for County employment, or be actively considered for contractual services to the County, while also serving as a member of the advisory board in question.   

In rendering this advisory opinion, this Commission has applied the New Castle County Ethics Code, 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 10TH DAY OF FEBRUARY, 2016.

 

_______________________________

Johanna Bishop, Chairperson

New Castle County Ethics Commission

                                  

                   

Decision: Unanimous

 

Footnotes:

[1] In issuing this opinion, the Commission has not been asked to come to any conclusions as to the appropriateness of County employment of the requestor nor appointment of the requestor to any County board or commission, and the Commission expressly has not made any such judgments herein.  

[2] The New Castle County Code requires or allows the appointment of one or more New Castle County employees to the membership of the Financial Advisory Council, Housing Advisory Board, Other Post Employee Benefits Board, Pension Board, and the Resource Protection Area Technical Advisory Committee.