Filing Number: 99-04
Subject: Board of Adjustment
Keywords: appearance of impropriety, appointed official, board member, conflict, County board, County official, Department of Land Use, family, financial interests, immediate family, impropriety, land use, non-profit, recusal, representation, spouse, undue influence
Decision By: Commissioners: David Facciolo, Jaime Figueras, Vincent Oliver, P.Clark Collins, Frances West
Contact Email: admin@nccethics.org
 
Status: Active

Question:

          Does it violate the Ethics Code for a member of the Board of Adjustment to serve as president of his neighborhood civic association?

Conclusion:

          There is no violation of the New Castle County Ethics Code for a member of the Board of Adjustment to serve as president of his neighborhood civic association. The Board of Adjustment member, however, should follow the recusal procedure set forth in Section 2-83(f) of the Ethics Code, if a matter affecting his neighborhood civic association comes before the Board of Adjustment.

Facts:

          The requesting party is a member of the New Castle County Board of Adjustment1 who wishes to serve as president of his neighborhood civic association. The civic association is a neighborhood association and 95% of its business is non-County related.

Analysis:

          The New Castle County Ethics Code, section 2-83, prohibits County officials and employees from engaging in behavior constituting a conflict of interest 2 or an appearance of impropriety. Since the civic association which the Board of Adjustment member wishes to serve as president is not a for-profit entity3, and since there is no private pecuniary gain to the official or a member of his immediate family or a business with which he is associated4, the facts presented do not constitute a conflict of interest. See, Advisory Opinion 98-04 (March 14, 1997); Advisory Opinion 97-05 (April 12, 1997).
 
          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 decisions or actions of the county official, county employee or the governmental body are influenced by factors other than the merits.
 
          Given the ability of a Board of Adjustment member to recuse himself from a matter in which he may have an interest and the non-policy nature of the position, the Commission advises that there is no appearance of impropriety created, if a Board of Adjustment member were to serve as president of his neighborhood civic association. See, Advisory Opinion 97-05 (April 12, 1 997)(noting generally that members of the Board of Adjustment may serve in leadership positions, even in umbrella civic associations, provided that they follow the Ethics Code's recusal procedure for matters involving their organization); Cobble Close Farm v. Board of Adjustment of Middletown, N.J. Super., 92 A.2d 4 (1952)(holding 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.)

Finding:

          If a matter affecting his civic association should come before the Board of Adjustment, however, the member should recuse himself and follow the procedures set forth in Section 2-83(f) of the Ethics Code. See, Advisory Opinion 98-05 (April 12, 1997); and Cobble Close Farm v. Board of Adjustment of Middletown, N.J. Supr., 92 A.2d 4 (1952).
 
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON NOVEMBER 9, 1999.
 
_________________________
David J.J. Facciolo, Chair

Footnotes:

1 As a member of a County board, the member is deemed a "County official" under Section 2-82, as amended, which defines "County official" as: "any person elected or appointed to any county office, including appointment to any county board or commission".
 
2 Section 2-82, Definitions, of the Ethics 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. . . ."
 
3 Section 2-82, Definitions, of the Ethics Code defines "business" as:
 
"Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit."
 
4 Section 2-82, Definitions, of the Ethics code defines "business with which he or she is associated" as:
 
"Any business in which the person is a director, officer, owner, employee or has a financial interest or a member of the person's immediate family is a director, officer, owner or has a financial interest."