Filing Number: 97-05
Subject: Prohibited Representation
Keywords: appearance of impropriety, bias, civic association, conflict, constituent, council member, County official, elected official, employee, impropriety, land use, legislation, recusal, sponsor, supervisor, undue influence, unwarranted privilege, vote, zoning
Decision By: Mary Ann Matuszewski, Ethics Counsel
Contact Email: admin@nccethics.org
 
Status: Active

Question:

           May a County Official who serves as an aid to a Council member and, thus, has responsibilities involving land-use, zoning, and other legislative issues be a member and/or hold office in an organization or association which actively monitors such issues and advocates its position before County Council and County boards?

Conclusion:

           It would not be a violation of the Ethics Code for a County Official1 who serves as a council member's aide and, thus, has responsibilities with land-use and zoning issues to be a member of an organization or association which monitors County government issues and which advocates its positions before County Council and County boards. An appearance of impropriety is created, however, if the County Official were to hold office, serve as a member of the board of directors in the organization/association or be a member or chair a committee which deals with the issues the Official deals with in her County position. Given the fact that the Official's immediate supervisor would have to vote on issues affecting the organization/association and the difficulty of the Official to abstain from any work which would impact upon the organization/association, the County Official should not hold office, serve as a member of the board of directors or be a member or chair any committee dealing with the issues she deals with in her County position.

Facts:

           The requesting party is an appointed official who serves as an aide to a Council member. Her job includes, among other things, attending organization/association meetings on behalf of the council member, including meetings of the organization of which she wishes to hold office. One of the primary functions of the particular organization with which the County Official is involved, hereinafter the "organization", is to actively monitor County government on numerous issues, including zoning and landuse and to advocate its position on these issues before County Council and County Boards. As such, its function is political in nature and far exceeds that of less politically involved civic associations whose functions focus on such issues as minor maintenance of common areas, snow plowing and neighborhood social functions.
 
          The requesting party wishes to maintain her membership in the organization and to assume a position of leadership, serving as an officer, a member of the board of directors, or chair of a committee. In any of these positions, the requesting party may or may not need to organize the committee members and/or speak for the committee at public meetings and/or hearings.

Analysis:

           The New Castle County Ethics Code prohibits a County Official from engaging in behavior which constitutes a conflict of interest or an appearance of impropriety. "Conflict of interest" is defined by the Code as:
 
use by a county official or county employee of 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 private pecuniary benefit of himself or herself, a member of his or her immediate family or a business with which he or she is associated . . .2
 
          The Code further defines "business with which he or she is associated" as a for-profit entity.3 Since the organization is not a for-profit entity, and since there is no private pecuniary gain to the official or a member of her immediate family or a business with which she is associated, the facts presented do not create a conflict of interest.
 
          The Ethics Code, however, further prohibits conduct which constitutes an appearance of impropriety, defined as:
 
the conduct of a county official or county employee which does not constitute a conflict of interest but which undermines the public confidence in the impartiality of a governmental body with which a county officer or employee is or has been associated by creating an appearance that the decision or actions of the county official, county employee or the governmental body are influenced by factors other than the merits.4
 
          In determining whether an appearance of impropriety is created by the County Official's membership and/or leadership position in the organization, a number of factors must be considered, such as the role the organization plays as an organization with an agenda to monitor and advocate its positions before County government, the County Official's position which requires her direct superior to address and vote upon land use and other issues on the organization's agenda and the purpose of the Ethics Code. Indeed, the Code recognizes that impartiality and honesty of its officials are key to sustaining public confidence in government.5 Finally, the requesting party's First Amendment right of freedom of expression and association must be balanced against the County's interest in ensuring the integrity of County government.
 
          If the requesting party were to serve in a leadership capacity in the organization, she would be dealing with the same matters that she and her direct superior address in their County positions. She also would be advocating positions upon which her direct superior would need to vote upon. Such a situation would create an appearance that the organization would be receiving preferential treatment and/or confidential information and that the organization was an extension of the County. When a County Official has a high profile, leadership position in an organization whose purpose and/or actual activities center upon influencing County government, an appearance exists that the County official is mingling the two positions and raises impartiality concerns. The appearance would exist that the County Official would be using the authority of her office to further the benefit of the organization.
 
          Given the appearance which is created under the circumstances at hand, the County's need to preserve the integrity and impartiality of County government must be balanced against the requesting party's First Amendment rights. In the present case, should the requesting party be allowed to retain her membership in the organization, but not assume a leadership role, the appearance cf impropriety would be considerably diminished. Although the appearance of impropriety may still exist if the requesting party remains a member of the organization, the Commission finds her First Amendment rights outweigh the County's interest when membership alone is the issue and she, therefore, may be a member in the organization. When the issue, however, is whether the County official may act in a leadership role in the organization, the Commission finds that the County's interest in preserving the integrity and impartiality of the government outweigh the requesting party's right to undertake a leadership role.6
 
          The Commission notes that this matter differs from the factual scenario presented in Advisory Opinion 97-01, January 10, 1997. In that case a county employee with planning responsibilities was allowed to advise his Church building Committee on planning issues if he abstained from participating and recused himself from voting upon any matter regarding the Church. Given the function and political overtones of the organization in the present case and its ongoing advocation of numerous County issues, mere abstention from participation and recusal from voting on any issue relating to the organization would be unworkable and unrealistic. Accordingly, the solution of abstention and recusal is not a valid option in the present situation.

Finding:

          Under the given situation, the Commission holds that the Official should refrain from assuming a leadership position in the organization and should limit her activities in it to that of a regular member. She also should not participate as a committee member in any areas which the organization advocates before the County.7 The Commission further holds generally, that in regard to other County officials who are members of County Council, and the Executive office, and their aides, they, too, should refrain from leadership positions in such organizations8 given impartiality and prejudgment considerations and the difficulty in severing their participation in their County position from the issues intimate to the organizations. In regard to members of the Planning Board and Board of Adjustment, the Commission notes that due to the non-representative and non-policy nature of their position, these members may serve in leadership positions in such organizations but must refrain from participating in any matter before them involving their organization and they must recuse themselves from voting in such matters, in accordance with Section 2-172(f) of the Ethics Code.9 Finally, the Commission notes that if an individual believes that the particular circumstances of his or her position are unique for some reason and do not create an appearance of impropriety, he or she may petition the Ethics Commission, by way of advisory opinion, prior to the acceptance of any leadership position, to seek an exception.10
___________________________________
Mary Ann Matuzewski, Ethics Counsel
 
April 12, 1997

Footnotes:

1 Section 2-172., as amended, defines "County Official" as "any person elected or appointed to any county office, including appointment to any county board or commission".
2 Section 2-172. Definitions.
3 Section 2-172. Definitions.
4 Section 2-172. Definitions.
5 Section 2-171. Purpose of division
6 Indeed, the Court in In the Matter of Randolph, NJ Supr., 502 A.2d 533 (1986,) upheld the constitutionality of a statute which prohibited a court administrator from holding leadership positions in various non-profit entities to preserve the integrity of the court.
7 The requesting party can, however, serve on any committee which does not address County issues, such as a social committee.
8 This opinion is limited to organizations, associations, groups, or other entities whose stated purpose and/or whose primary activities involve the monitoring, petitioning and/or influencing County government on County issues, such as land-use and zoning issues. It includes "umbrella" organizations of civic associations which participate in the monitoring and acivocation of County issues.
9 Indeed, in Cobble Close Farm v. Board of Adjustment of Middletown, N.J. Supr., 92 A.2d 4 (1952), the court held that the board's decision was not tainted with self interest when a board member, who was also president of the Civic Association where the property in question was located, took no part in the deliberations or voted upon the decision.
10 The Commission also hopes that, in the interest of proper civic involvement and the promotion of good government, such organizations will take it upon themselves and impose their own restrictions upon members serving in such a dual capacity. The Commission further notes that each County office, board, or department is free to adopt a more restrictive policy than that adopted by the Commission.