Filing Number: 17-03
Subject: Appearance of Impropriety
Keywords: appearance of impropriety, appointed official, bias, board member, civic association, communication, compensation, conflict, constituent, contractor, County official, County policy, County resources, Department of Community Services, developer, disclosure, employee, impropriety, members, official business, private advantage or gain, public policy, recusal, undue influence, unwarranted privilege, vote, zoning
Decision By: Eric Monzo, Paula Jenkins-Massie, Johanna Bishop, Sally Jensen, Robert Ralston, Charles Toliver, IV
Contact Email: admin@nccethics.org
 
Status: Active

Question:

Whether a Community Services Department employee may assist in the creation of, and serve on, a local civic umbrella group?

Conclusion:

Conditionally, yes, the requestor may assist in the creation of, and serve on the local civic umbrella group, as long as she recuses herself from participation in all County matters that involve the civic umbrella group, member groups of that umbrella group, or individual members of the groups, as long as the requestor informs the public and County officials and employees of her involvement with the local umbrella civic group before any interaction between her local civic umbrella group and any County officials or employees.  The Ethics Commission, however, reserves the right to re-evaluate this advisory opinion request once the local civic umbrella group is established with bylaws or other such governing documents. The Ethics Commission, in rendering this opinion, directs the requestor to provide the Commission copies of all governing documents of the local civic umbrella group once they have been drafted and adopted.  The Commission may re-evaluate its decision in this matter upon receipt of such documents and as relevant matters proceed.  Additionally, the Ethics Commission requests to be notified if the requestor’s County job classification and/or duties change, so that it may evaluate this question under any modifications in relevant circumstances.  The requestor is cautioned strongly by the Commission against the use of any knowledge or contacts gained through her employment with New Castle County for the benefit of the local civic umbrella group.  Any use by the requestor of information or contacts gained through her employment with New Castle County, which may or may not be available to all citizens of the County, may be a violation of the Ethics Code if the requestor uses, or appears to use, her County position for personal purposes.  If a complaint is filed with respect to a potential violation of the Ethics Code on that basis, this advisory opinion shall not serve as a “complete defense in any enforcement proceeding,” as otherwise referenced in Ethics Code Section 2.04.102.I.[1] 


Facts:

The requester, who is currently an employee in the Department of Community Services, recognized the need in her larger community for a local civic umbrella group, and has been assisting in the creation of the local civic umbrella group (“LCUG”).  This LCUG would cover about 40 neighborhoods which are not currently served by any umbrella group. Typically, the County Executive, or his representatives, meets regularly with area civic umbrella groups to exchange information and to keep current on issues.  The requester contacted the Ethics Commission for its opinion on the matter upon the suggestion of her General Manager when he learned of her activity with the LCUG and questioned whether such activity was permitted by the Ethics Code. 

            The LCUG is not yet formally organized.  It has not yet finalized its bylaws, elected officers, or formed committees.  There are about a dozen umbrella civic groups in New Castle County, but LCUG has not yet registered with the County as an official community association.  To the knowledge of the Commission, the LCUG does not have a website, but it has a Facebook page which shows that the LCUG has had a couple of quarterly meetings. The postings on its Facebook page pertain to community events and public meetings on matters of concern for persons and/or businesses in that area. Recent postings include items such as a community clean-up day, the 2017 New Castle County Summer Youth Program, a meeting held by another entity to discuss proposed DelDOT plans in the area, information about the State of Delaware’s collection of unused medications, the New Castle County Police Department reminder about parked vehicle safety, a notice about the New Castle County National Night Out, and a recognition to honor fallen veterans on Memorial Day. 

            The requestor has informed the Commission that one of the neighborhoods which would be part of the LCUG receives funding from the County through the Community Services Department for the purpose of providing low-income housing.  The LCUG has not issued an opinion on that matter nor has it voted on support for that development.  The LCUG has, however, facilitated the organization of public meetings where area residents are encouraged to attend and may discuss that development.  In her position with the Community Services Department, the requestor has no involvement in the decision-making over the allocation of such funding for low-income housing.  The requestor has stated that, nevertheless, to avoid even the appearance of impropriety, she would recuse herself from any involvement of the LCUG and that development which receives County funding, as well as any matter which comes before the LCUG that may involve the Department of Community Services. 

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.

Private enterprise means any activity conducted by any person, whether conducted for profit or not for profit and includes the ownership of real or personal property. Private enterprise does not include any activity of the federal, State or local government or of any department, authority or instrumentality of the federal, State or local government.

Recusal means, including but not limited to, withdrawing from sponsorship, deliberation, vote, research, preparation, discussion, negotiation, contract formation, policy making, planning, decision making, and/or implementation of a matter. It also includes a prohibition on conducting, in an official capacity, any private or public discussion of a measure raising a conflict or improper appearance. As soon as a potential conflict or improper appearance arises or is recognized, an official or employee must end direct or indirect participation, advice, input, direction, recommendation, or discussion, as well as refraining from vote, if the person is a not an elected official. Elected officials may choose to avoid recusal and may vote if they follow the alternate process described in Subsection 2.03.103.A.2.

Regulated by New Castle County means that an entity operating in New Castle County as a business or nonprofit organization requires approval from or regulation by New Castle County in order to lawfully conduct one or more business activities.

Code of Conduct Provisions

            Certain portions of the New Castle County Ethics Code are relevant to this opinion, including Sections 2.03.101.B; 2.03.103.A.1 and A.2; 2.03.104.A:

Sec. 2.03.101. - Purpose of Division.

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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.

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).

2.  In any case where a person has a legal and/or statutory responsibility with respect to action or nonaction on any matter where the person has a personal or private interest and there is no provision for the delegation of such responsibility to another person, the person may exercise responsibility with respect to such matter, provided that promptly after becoming aware of such conflict of interest, the person files a written statement with the Commission fully disclosing the personal or private interest and explaining why it is not possible to delegate responsibility for the matter to another person. If the matter is one in which the legal and/or statutory responsibility requires the person to vote upon the issue, the written statement filed with the Commission shall be read into the public record prior to the time the person's vote is cast. Any person choosing to abstain from voting on an issue where or she has a conflict shall state the reasons for his or her conflict on the record; an abstaining voter need not file the written statement with the Commission required when acting on, rather than abstaining from, an issue involving a conflict.

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 10-11, a County employee sought advice from the Commission as to whether he may accept a position on the board of a nonprofit given that his department made recommendations on grants to members of a larger community which the nonprofit represented.  In its opinion allowing the employee to serve on the board, the Commission noted that the “[b]oard’s purpose is limited to making advisory operational recommendations regarding a division in the requester’s department but those recommendations are not made to the department but to a separate County entity…which has discretion to support, change or ignore [the recommendations].“  This service on the board, however, was conditioned upon the employee’s recognition and knowledge that he must recuse himself from any matters which involved either the County or the nonprofit or any recommendations made to his department by the board.               

In Advisory Opinion 15-09, the Commission was asked whether a County employee of the Department of Community Services could serve as an uncompensated member of a nonprofit that advocated on housing issues.  While the Commission advised that the County employee may serve on the board of the nonprofit advocacy organization, it cautioned the employee against engaging in any conduct that was or could be perceived as a conflict of interest by recusing herself from any County process that involved the nonprofit and ensuring that both the County and the nonprofit were made aware of her requirement to recuse from any matter with potential conflict. 

In Advisory Opinion 15-03, the Commission was asked whether an appointed official could serve as a member of a nonprofit board which has occasionally received federal funds that are administered by the official’s department.  In concluding that the official may join the board of the nonprofit, the Commission required the official to disclose potential areas of improper appearance to both the nonprofit and the appropriate County authority and to recuse him or herself from any activities which may cause the appearance of conflict, including policy making, promotion, or other activities concerning the nonprofit’s relationship with the County.  

In Advisory Opinion 13-02, a County employee wanted to serve as an unpaid volunteer to advise a nonprofit on its budgetary and fiscal matters.  Because the requester would serve in a volunteer capacity, with no financial benefit to himself or his family, the Commission approved the request on the condition, however, that the requester recuse himself from involvement in any matters associated with issues of change in valuation policy by the County that may affect the nonprofit.   

In Advisory Opinion 15-12, the requestor, an elected County official, asked the Commission whether he may serve on the advisory board of a local nonprofit heritage association.  The Commission decided that, conditionally, the requestor may serve in that capacity, as long as he recused himself from participation in all County matters that involved the nonprofit organization and that he took the steps necessary to inform the public and County employees and officials of his involvement with the nonprofit association.

Analysis:

The Commission commends the requester’s desire and willingness to serve her community in this manner.  The Commission further commends the requestor and her General Manager for recognizing the need to bring this matter before the Commission in the form of a request for an advisory opinion because this matter includes a real potential for a member of the public to perceive that the LCUG in which the requestor participates has, or will have, a political or other advantage because of the requestor’s employment with New Castle County.  Such an impression may “undermine 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,” as prohibited in Ethics Code Section 2.03.104.A.  The Commission encourages the requester to seek advice in advance should her activity on the LCUG involve any activity which may be interpreted by members of the public, or other County employees or officials, as a real or potential conflict of interest. The issues that come before the County and the requester’s department are dynamic and complex, and the members of the public are oftentimes not fully knowledgeable of the details involved in such issues.  This presents the potential for misinterpretation even when there is no inappropriate action on the part of the County employee. Any such potential for confusion on the part of the public must be prevented or minimized through the regular and comprehensive dissemination of information by the requestor, as outlined above, and diligent exercise of the recusal mechanism by the requestor provided in the Code in any and every situation where the LCUG is a topic for the requestor’s County employment purposes and the County is a topic for the LCUG’s purposes.   

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. Prior Commission decisions are instructive on the issues raised by this request for an advisory opinion.  The requestor is an employee in the Community Services Department. She is interested in the well-being of her community and would like to serve on a newly-formed LCUG in an effort to promote the quality of life for her neighbors and herself.  The requester has no financial interest in the LCUG. The department for which the requester works has authority over issues which may impact the LCUG, but the requestor has no direct involvement in such matters.  Nevertheless, the New Castle County government impacts regional issues which may regularly be topics of discussion at LCUG meetings. As such, the while the potential for actual conflict is minimal, the requester must remain vigilant in her awareness of actual or potential conflict, and must follow the processes set forth in the Ethics Code, and outlined in this Commission’s prior advisory opinions, with respect to recusal from any issues regarding the LCUG and/or the interests of any organization or person represented by the LCUG which come before the County for consideration or action. Toward that end, to diminish the potential for actual or potential conflict, the requester must inform County departments, boards, and commissions of her involvement with the LCUG. In addition, the requester must inform the LCUG that, in the event that the requester’s involvement with the LCUG requires her to engage in any activity or issue that involves the New Castle County government, she must recuse from any participation in such activity or issue. 

To be clear, this decision, and its application to the actions of the requestor, is not limited to real or potential involvement of only the Department of Community Services with the LCUG.  This decision is based on the reality that the LCUG likely will interact with other facets of County government as well. The Commission cautions the requestor that, while her involvement with the LCUG may be permitted under the Ethics Code if the Code and all recusal procedures are followed, the potential for misinterpretation by observers is real.  In addition to a strict adherence to the Ethics Code and the recusal procedures, the requestor’s role with the LCUG may not include any advantage taken with respect to her familiarity with County officials and employees for the benefit of the LCUG, herself, or the County.  Also, this advisory opinion is limited to the facts as they currently stand and have been reported to the Commission.  As stated above, the Commission wants to be informed if the requestor’s job duties change, and/or when the LCUG has completed its formation and has become a formal association, and any change in circumstances may result in a revised Commission decision.

Finding:

Under the facts presented, the requester may proceed with her involvement in the creation of and service on the local civic umbrella group under certain conditions and only if she does not appear before New Castle County officials or employees on behalf of the local civic umbrella group, or appear in front of or on the local civic umbrella group on behalf of New Castle County. The requester must disclose the potential areas of conflict or improper appearance to both the local civic umbrella group and any appropriate County entity, and the requester must recuse herself from any activities which may cause the appearance of conflict, including policy making, promotion, giving of advice, or other activity concerning the local civic umbrella group’s interaction with the County.  The requester must clearly disclose to all parties, with respect to her participation and activities with the local civic umbrella group, that, at no time, she is acting or speaking on behalf of New Castle County.  Similarly, the requester must clearly disclose to all parties, with respect to her participation and activities with the County, that, at no time, she is acting on behalf of the local civic umbrella group.  As stated above, if a complaint is filed with respect to a potential violation of the Ethics Code because of the perception that the requestor has used her position with New Castle County to benefit the LCUG, this advisory opinion may not serve as a “complete defense in any enforcement proceeding,” as otherwise referenced in Ethics Code Section 2.04.102.I.

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 18TH DAY OF APRIL, 2017.

Eric J. Monzo, Esquire, Chairperson

New Castle County Ethics Commission

 

 

Decision:  Unanimous

Footnotes:

[1] Section 2.04.102.I states, pertinent part: “In addition to other powers and duties prescribed by law, the Commission shall: …Issue to any person, upon such person's written request, or to the appointing authority or employer of that person, upon the written request of such appointing authority or employer, an opinion with respect to such person's duties under Division 2.03.100. … It shall be a complete defense in any enforcement proceeding initiated by the Commission and evidence of good faith conduct in any other civil or criminal proceeding if the requester, at least twenty-one (21) working days prior to the alleged violation, requested the opinion from the Commission in good faith, disclosed truthfully all the material facts and committed the acts complained of either in reliance on the opinion or because of the failure of the Commission to provide an opinion within twenty-one (21) days of the Commission's receipt of request or such later extended time…. .”