Filing Number: 98-01
Subject: Outside Employment
Keywords: appearance of impropriety, conflict, consultant, department manager, Department of Land Use, disclosure, employee, outside employment, private business
Decision By: Commissioners: David J. Facciolo, I.Jaime Figeras, Vincent Oliver, Lawrence Sullivan, Jane Tripp, Frances West
Contact Email: admin@nccethics.org
 
Status: Active

Question:

          May a County employee operate a private business substantially similar to his County position, if the employee has entered into a signed agreement with his department manager agreeing, among other limitations, that he will not knowingly perform any work in his private business that would need to be processed through New Castle County and that he would submit a list of his active clients and corresponding property locations periodically to his Department Manger?

Conclusion:

          An agreement between a County Employee and his Department Manager stating that a County Employee can operate a private business, which is substantially similar to his County position, provided, among other limitations, that none of the employee's work in his private business, to his knowledge, would be processed by New Castle County and the employee agrees to periodically submit a list of clients and corresponding property locations to his Department Manager, is in compliance with the Ethics Code. The employee must be sensitive to recognize, however, that he must also abstain from conducting any private business, should the occasion arise in his private business, which might present a conflict of interest or appearance of impropriety with his County work.

Facts:

          The requesting party is employed by the County in a position which, in the past, has not been subject to coverage under the New Castle County Ethics Code. The requesting party wishes to obtain a position with the County which would render him under the coverage of the New Castle County Ethics Code.1
 
          The requesting party operates a private business which is substantially similar to his County position. To date, some of the work of the requesting party's private business is processed and/or submitted for approval to various County agencies and/or departments. At the Commission's request, the employee's general manager has requested the employee sign a written statement2 whereby the employee would agree to certain limitations in his private work. Such limitations include the employee abstaining from knowingly accepting any work which would require processing from New Castle County, such as work involving land development, route work, planning/design, and subdivisions. He has also agreed to mark his private work with a statement which would indicate that his work should not be processed by the County, the exact wording of the statement is included in the written agreement which will be kept on file, pursuant to footnote 2, above. The employee has also agreed to periodically submit a list of clients and corresponding properties to his department manager. The requesting party is not presently, nor would he be in the new position, part of a County department or agency which reviews and gives approval of the type of work the requesting party does in his private capacity.

Analysis:

          The New Castle County Ethics Code restricts County employees and officials, as defined under the New Castle County Ethics Code, from engaging in certain activities, including behavior constituting a conflict of interest3 and/or appearance of impropriety4.
 
          The Code defines "conflict of interest" 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 . . .
 
          The Code further defines "appearances of impropriety" 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 decisions or actions of the county official, county employee or the governmental body are influenced by factors other than the merits.6
 
          While there is no prohibition under the Ethics Code for a County employee or official to hold secondary employment which is unrelated to his or her position with, and duties on behalf of, the County, see, Advisory Opinion 94-05 (July 26, 1994), potential problems do exist when there is a relationship between the two positions. Thus, the Commission has restricted secondary employment when it believed a conflict of interest and/or an appearance of impropriety could arise.7
 
          In the present request, the requesting party has agreed to forego any private work that, to his knowledge, would require processing by New Castle County. Thus, the concern articulated by the Commission in Advisory Opinion 92-07 (January 28, 1993), Advisory Opinion 93-01 (March 5, 1993), and Advisory Opinion 97-07 (April 12, 1997), that a County employee in his public capacity would be reviewing his own private work or that a County co-worker would be reviewing a County employee's private work, is not present here. The present situation is more akin to the Commission's finding in Advisory Qpinion 93-01 (March 5, 1993), finding that while a County inspector could not "pre review" building plans for members of the private sector as a prerequisite to County building permit issuance, an inspector could, none-the-less, review construction for non-county purposes in certain situations. Thus, an inspector could, without violating the Ethics Code, review construction for members of the private sector to determine compliance with the American with Disabilities Act, or inspect construction on behalf of banks to determine whether construction had progressed to the stage where additional funds should be released, provided the construction involved was not within the geographic district to which he was assigned. Id. Likewise, the concern expressed in Advisory Opinion 91-05 (June 5, 1991), that the County employee would be performing a service for a fee which was already available to the public free of charge from the County, is also not present here.

Finding:

          Given the fact that the requesting party would not be performing the type of work which would need County approval, and the fact that the requesting party is not even part of a department or agency which would review or approve any such work, the Commission advises that there would be no violation of the Ethics Code for the requesting party to accept the new position and continue in his private business with the limitations set forth in the statement he entered into with his department manager. The Commission strongly cautions, however, that the employee must be sensitive to recognize other occasions which may arise in his private business which may present a conflict of interest or appearance of impropriety. In such situations, the employee must abstain from accepting any such private work. Finally, the Commission notes that this decision merely addresses possible violations under the New Castle County Ethics Code. It does not address any other law, Code, rule or regulation which also may be applicable.
 
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON JUNE 16, 1998.
 
________________________________
David J.J. Facciolo, Chairperson

Footnotes:

1 Section 2-172 of the Code defines "county employee" as: "an individual employed by the county who is responsible for taking or recommending official action of a nonministerial nature including, but not limited to, action with regard to: (1) Contracting or procurement; (2) Administering or monitoring grants or subsidies; (3) Planning or zoning; (4) Inspecting, licensing, regulating or auditing any person; or (5) Any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person."
2 The statement, which is to remain confidential, will be kept on file by the department manager and in the employee's personnel file.
3 Section 2-173(a).
4 Section 2-173(g).
5 Section 2-172. Definitions.
6 Section 2-172. Definitions.
7 See, e.g., Advisory Opinion 91-05 (June 5, 1991 )(finding appearance of impropriety and potential for conflict of interest exists if County employee were to operate private business substantially similar to his County position); Advisory Opinion 92-07 (January 28, 1993)(holding a conflict of interest andlor appearance of impropriety would exist if County inspector were associated with a business which does construction subject to County inspection); Advisory Opinion 93-01 (March 5, l993)(limiting secondary employment of County inspector due to conflict of interest and/or appearance of impropriety); Advisory Qpinion 93-03 (January 7, 1994)(holding an appearance of impropriety would exist is a County assessor held secondary employment in the private sector as a realtor or appraiser); Advisory Opinion 94-06 (November 4, 1 994)(holding an appearance of impropriety would exist if County employee/official were to accept employment with a Contractor the County has a contractual relationship with due to ability to indirectly influence contractual decision); Advisory Opinion 97-07(April 12, 1997)(holding appearance of impropriety would exist if County employee accepted employment with business which submitted plans to County for approval); But see, Advisory Opinion 96-08 (November 15, 1996)(holding person not covered under the Ethics Code could accept employment with a contractor who has relationship with the County).