Filing Number: 94-06
Subject: Outside Employer
Keywords: business, contract, employee, financial interests, impropriety, outside employer, outside employment, penalty, public bid, public notice, undue influence
Decision By: L. Susan Faw, Ethics Commission Counsel
Contact Email: admin@nccethics.org
 
Status: Active

Question:

           Whether a County official or employee covered by the New Castle County Ethics Code1 ("inquiring party") may work part-time for a private business with which the County has a contractual relationship for the provision of professional services ("Contractor").

Conclusion:

           A.          The Ethics Code bars County officials and employees' secondary or outside employers from contracting with the County, - unless the contract is subject to an open and public process. Generally, contracts for the provision of professional services are not subject to an open and public process. Therefore, if the inquiring party were to accept outside employment with the Contractor, that Contractor would be barred thereafter from contracting with the County.
 
          B.           While the inquiring party does not have authority to decide whether the County contracts with the Contractor, he does have the authority and opportunity to influence indirectly such decisions. Therefore, the inquiring party should not accept part-time employment with the Contractor, since such outside employment would create an appearance of impropriety.

Facts:

           The inquiring party asks whether he may work part-time for a Contractor with which the County has contracted (and may contract in the future) for the provision of professional services.. Generally, such contracts are not subject to an open and public process, as the choice of contractor rests primarily with the head of the particular department in need of professional services.
 
          While the inquiring party does not have authority to select the Contractor as the recipient of a County contract, the inquiring party does have authority to influence indirectly selection of County contractors. His duties include review of contracts after consummation to measure compliance with certain goals set by County policy. The inquiring party advises department heads whether these goals are being met; if they are not, the means of attaining these goals are discussed. Such discussions provide an opportunity for the inquiring party to suggest or encourage future use of the Contractor as a means of attaining these goals.

Analysis:

A.  Bar on Secondary Employers Contracting with County
 
          If the inquiring party were to accept part-time employment with the Contractor, Section 2-30.2(e) would prohibit the Contractor from contracting thereafter with the County, unless the contract were awarded through an open and public process, - which is not the usual course for professional services contracts.
 
           Section 2-30.2(e) provides in pertinent part:
 
No county official or employee or his spouse or child or any business in which the [county official or employee] or his spouse or child is associated shall enter into any contract valued at $500 or more with the county . . . unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. (Emphasis added.)2
 
          A County official's or employee's outside employer is included within the definition of any "business [in] which [the county official or employee] is associated".3
 
B.  Appearance of Impropriety
 
          The Ethics Code is also concerned with the appearance of these circumstances to the public. Section 2-30.2.(g) requires persons covered by the Ethics Code to "avoid an appearance of impropriety", defined as conduct "which undermines the public confidence in the impartiality of a governmental body with which a county official or employee is or has been associated, by creating an appearance that the decisions or actions of the county official, county employee or the governmental body are influenced by factors other than the merits."4
 
          While the Commission recognizes that the inquiring party may scrupulously avoid any improper suggestion to department heads to retain the Contractor, the Ethics Code must be applied without regard to the character and personal ethics of particular officials or employees, - with which the public is usually unfamiliar.

Finding:

          In light of the potential for the inquiring party to influence (albeit indirectly) the County's contractual relationship with the Contractor, acceptance of outside employment with the Contractor would constitute a failure by the inquiring party to avoid an appearance of impropriety. Therefore, such outside employment should be declined.5
____________________________
L. Susan Faw, Ethics Counsel
November 4, 1994

Footnotes:

1 Section 2-30.1 identifies those "County officials" and "County employees" who are covered by the Ethics Code.
 
2 The Commission will assume that the County's contracts with this Contractor exceed $500. Since the Commission's opinion is also based on its conclusion that acceptance of this outside employment would create an appearance of impropriety (see Part B, infra), it is not necessary to resolve this.
 
3 Section 2-30.1. Definitions.
 
4 Section 2-30.1. Definitions.
 
5 The inquiring party asks whether the appearance of impropriety could be cured by providing pro bono services to the Contractor on an ad hoc basis; no employment relationship would be created and no compensation would be received. The Commission concludes that this does not cure the appearance of impropriety. The inquiring party's special relationship with the Contractor - even though not one of employer/employee - would be sufficient to create the appearance that selection of the Contractor by department heads was improperly influenced.