Filing Number: 99-03
Subject: Prohibited Representation
Keywords: appearance of impropriety, conflict, council member, County board, elected official, hearing, impropriety, land use, official business, planning, public notice, public policy, public purpose, representation, undue influence
Decision By: Commissioners: David Facciolo, P.Clark Collins, Jaime Figueras, Vincent Oliver, Lawrence Sullivan, Frances West
Contact Email: admin@nccethics.org
 
Status: Active

Question:

          Does it violate the Ethics Code for a member of County Council to advocate a position on a zoning text amendment before the Planning Board?

Conclusion:

         There is no violation of the New Castle County Ethics Code for a member of County Council to advocate a position on a zoning text amendment before the Planning Board.

Facts:

The New Castle County Planning Board is composed of nine (9) members, eight (8) of whom are appointed for staggered three (3) year terms by the County Executive, with the advice and consent of County Council.1 The chairperson of the Planning Board is similarly appointed, but serves at the pleasure of the County Executive.2 Although County Council has the power to terminate an appointment, with the consent of the County Executive, it may do so only for cause.3 The compensation of the Planning Board members, which is currently $100 per regular meeting and $50 per special meeting, is determined by County Council.4
 
          One of the Planning Board's functions is to review and make recommendations to New Castle County Council on zoning code text amendments.5 County Council is not bound by the recommendation from the Planning Board.6 The procedure for zoning text amendments includes a hearing before the Planning Board "to solicit public comments on the appropriateness of the amendment" and a subsequent public hearing held by County Council who ultimately votes on the issue.7 There are various factors which must be considered in determining whether a text amendment shall be recommended or approved.8

Analysis:

          The New Castle County Ethics Code prohibits County officials and County employees from engaging in conduct constituting a conflict of interest9. Assuming no personal interest in the proposed amendment other than as a County Council member, and that a County Council member's appearance before the Planning Board does not result in private pecuniary gain to the County Council member, a member of his or her immediate family or a business with which he or she is associated,10 no conflict of interest is created, if a County Council member were to advocate his or her position on a zoning text amendment at a hearing before the Planning Board.
 
          Section 2-174 of the New Castle County Ethics Code, however, also prohibits county officials and employees from engaging in conduct constituting an "appearance of impropriety", defined as:
 
[T]he 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.
 
          The New Castle County Ethics Commission has previously utilized this language to preserve the integrity of the hearing process before County boards and commissions. In Advisory Opinion 92-01, June 12, 1992, the Commission held that an appearance of impropriety would be created, if a Board of Adjustment member accepted an invitation from an applicant for a variance for an on site meeting and inspection, prior to the hearing. The Commission, in Advisory Opinion 92-01, recognized that the acceptance of an applicant's invitation to a nonpublic on site meeting and inspection would "subvert the public hearing process", giving the applicant an opportunity for ex parte communications with the Board. Such behavior, it was found, would create an appearance that the applicant was seeking support for reasons for which it did not want public scrutiny and also create the appearance that the applicant was attempting to "ingratiate itself with the Board so as to gain approval of its application." Id.
 
          In the present scenario, however, there are factors present which mandate a result different from that reached in Advisory Opinion 92-01. First, in the factual situation presented before the Commission herein, the appearance of private ingratiation by a County Council member with the Planning Board is not present, since the hearing before the Planning Board is a public hearing. Indeed, by allowing County Council members the opportunity to speak at a public hearing on such a matter, the openness of the process may actually be heightened. Second[, since the purpose of the public hearing before the Planning Board is to "solicit public comments on the appropriateness of the amendment", a compelling argument exists that it is within the realm of the duties of a County Council member to express the views he or she believes to be in the best interest of his or her councilmanic district. Finally, it should be noted that the recommendation of the Planning Board to County Council is non-binding on County Council, who sits in a legislative, and not a quasi-judicial, capacity when it votes on the matter. New Castle County Uniform Development Code sec. 30.110. Accordingly, the Commission advises that it would not violate the Ethics Code for a County Council member to advocate a position before the Planning Board on a zoning text amendment.
 
          In making such an advisement, the Commission recognizes that a County Council member's authority regarding compensation of Planning Board members and termination of appointments to the Planning Board might arguably create an appearance that a member of the Planning Board may be unduly influenced by a County Council member's advocation. These factors, however, do not mandate a contrary result. County Council's power to terminate an appointment must be for cause and based upon specifically listed criteria, thereby eliminating much of the discretion in such terminations.11 Additionally, the de minimis value of the Planning Board members' compensation, at least when viewed on a per meeting basis, makes it unlikely that the compensation rate of Planning Board is arm influencing factor in its decisions.

Finding:

          Finally, although the Commission recognizes that the purity of the process may arguably appear to be tainted by a County Council member appearing before a board whose role is to make a recommendation to County Council, given the purpose of the public hearing, the County Council member may be in the best position to present comments affecting his or her constituents. Accordingly, given the totality of the circumstances, including the purpose of the hearing, County Council members' elected role, County Council's legislative function, and the absence of the concerns articulated in Advisory Opinion 92-01, the Commission finds there is no violation of the Ethics Code when an elected council member advocates before the Planning Board.
 
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON AUGUST 3, 1999.
 
__________________________
David J.J. Facciolo, Chair

Footnotes:

1 9 Del.C. Sec. 1303.
 
2 9 Del.C. Sec. 1303.
 
3 The New Castle County Uniform Development Code, sec. 30.341(B) states that a Planning Board member may only be removed, if a member "is no longer a resident of the County, or is convicted of a felony or an offense invoving moral turpitude while in office, or have (sic) three (3) unexcused absences in one (1) year . . ."
 
4 9 Del.C. sec. 1303(e); See also, Ne Castle County Code (Merit System), sec. 26-9 and pay plans referred to therein.
 
5 New Castle County Uniform Development Code Sec. 30.310(A)states that the Planning Board's powers and duties include: "(t)o review, hear, consider and make recommendations to approve or diapprove applications for Zoning Map and Code Text amendments . . ."  Additionally, 9 Del.C. sec. 1304(2) provides that the Planning Board shall, among other functions:
 
Review the proposed comprehensive development plan, proposed zoning plan changes, proposed subdivision regulations, and all amendments thereto, and upon completion of its consideration of any of these, the Board shall recommend to the County Council such action as the Board shall deem appropriate. Id.
 
6 New Castle County Unified Development Code, sec.30.110.
 
7 New Castle County Unified Development Code, sec.30.120 TEXT AMENDMENTS states:
 
Text amendment proposals shall be heard and reviewed by County Council after Department and Planning Board review and recommendation. Text amendments may be proposed by the Department, the County Executive, County Council and County Boards.
 
A.     Preapplication Review. The proponent of a proposed text amendment shall confer with the Department to review and discuss the need for such amendment. The Department, after consultation with the Department of Law, shll prepare the text amendment. The Department shall review the proposed text amendment with the proponent as necessary.
 
B.     Department and TAC Review and Report. At the Department's option, the proposed text amendment may be submitted to appropriate TAC agencies for their review and comment. A preliminary report will be prepared by the Department summarizing the relevant issues and agency comments.
 
C.     Department/Planning Board Public Hearing. Following introduction of an ordinance by County Council, a proposed text amendment will be scheduled for public hearing. The purpose of the public hearing is to solicit public comments on the appropriateness of the amendment.
 
D.      Department Report. A written recommendation report by the Department and the Planning Board shall contain specific findings of fact resulting from the TAC report, the public hearing and Department analysis. The recommendation may also include substitute language. The report and proposed text amendment shall then be forwarded to County Council.
 
E. County Council Hearing and Action. Upon receipt of a recommendation report from the Department, County Council shall hold a public hearing and render a decision.
 
8 New Castle County Unified Development Code, sec.30.420 STANDARDS FOR TEXT AMENDMENTS states:
 
In determining whether a text amendment shall be recommended or approved, all of the following factors shall be considered:
 
A.      Implementation of a new portion of the Comprehensive Development Plan.
 
B.     Implementation and achievement of the Comprehensive Development Plan's goals and objectives.
 
C.     Consistency with the provisions of this Chapter and standards for similar uses.
 
D.     Necessity to respond to State and/or Federal legislation.
 
E.     Flexibility in meeting the objectives of this Chapter.
 
F.     Changes to conditions, interpretations, and/or clarifications to existing language for new uses.
 
G.     Consideration of specific problems found in this Chapter.
 
9 Sec. 2-173. Restricted Activities.
 
10 Sec. 2-172 of the Ethics Code defines "conflict of interest", in significant part 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. Conflict or conflict of interest 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 county 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.
 
11 New Castle County Unified Development Code, sec.30.341(B).