Filing Number: 99-07
Subject: Review of Plans
Keywords: appearance of impropriety, conflict, construction, department manager, Department of Land Use, disclosure, employee, financial interests, impropriety, land use, members, planner, planning, recusal, representation, supervisor, undue influence
Decision By: Commissioners: P. Clarkson Collins, David Facciolo, Jaime Figueras, Vincent Oliver, Lawrence Sullivan, Frances West
Contact Email: admin@nccethics.org
 
Status: Active

Question:

          Does it violate the Ethics Code for a planner to review a plan (1) effecting the general area where the planner resides; or (2) from an applicant club to which he belongs?

Conclusion:

          There is no violation of the New Castle County Ethics Code for a planner to review a plan: (1) affecting the general area where the planner resides; or (2) from an applicant club to which the planner belongs; provided sufficient safeguards are taken for review by other land use personnel and full disclosure is made to the planners' superiors, other land use staff working on the project, and to the applicants.

Facts:

          The requesting party is a professional planner, employed by the County in the Department of Land Use. He was requested by his superior to review two separate plans. One plan is a project located near the development in which he resides. The planner's wife is an officer and a member of the development civic association. The other plan is for a club to which he and his family belong.
 
          Although the role of the planner in these matters is to review the plans and determine whether the plans are in compliance with the Unified Development Code, there is very little discretion afforded to the planners1. When plans are initially received by the Land Use Department, the entire planning staff collectively reviews the plans. All planners participate in the initial review of each plan, with a collective determination of the scope of the review comments to be made. Issues are discussed with colleagues and management throughout the review process. All of the requesting parties' correspondence regarding plans are reviewed by his superior. In addition, the entire planning staff independently reviewed the requesting party's comments concerning these two plans. The final decision as to the approval of the plans rests with management, not the planner and an aggrieved party may appeal a decision. The requesting party's superior, colleagues and the applicants involved have all been apprised by the planner of his connection to the projects. It is the planner's own professional opinion that he will not be influenced by his connections to the projects.

Analysis:

          The New Castle County Ethics Code, section 2-83, prohibits County officials and employees from engaging in behavior constituting a conflict of interest or an appearance of impropriety. The New Castle County Ethics Code, section 2-82, 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 . . ."
 
          In the present instance, there is no conflict of interest, since there is no private pecuniary gain to the planner or a member of his immediate family, and the club to which the requesting party and his family belong, and the civic association to which his wife belongs, are not organized for profit.2 See e.g.. Advisory Opinion 97-01 (January 10, 1997); Advisory Opinion 99-04 (November 9, 1999).
 
Appearance of Impropriety
 
          The Ethics Code, section 2-83, also 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.3
 
          Although there might be an appearance to the public that the plan reviews were being influenced by personal factors, if the planner solely conducted and issued the plan reviews, in the present scenario this is not the case. There are numerous safeguards present to dispel any such an appearance. These include:
  • (1)     The review plans are initially reviewed collectively by the entire planning staff with a collective determination regarding the scope of the review comments to be made;
  • (2)     Issues are discussed with colleagues and superiors throughout the process;
  • (3)     The planner's superior reviews all correspondence of the planner prior to it being issued;
  • (4)     Independent review of the planner's comments were reviewed by the entire staff;
  • (5)     Management retains the authority to ultimately decide the issue of approval;

    (6) Disclosure of the planner's connections to the projects were made to the applicant, colleagues, and his superior;

  • (7)     The planner's own assessment that his connections to the project would not effect his review;4 and
  • (8)     An aggrieved party may appeal the decision

    Thus, the totality of the circumstances presented, in this particular instance, weigh against an appearance that the final decision of the employee or the Land Use department are being influenced by factors other than the merits.
          Thus, the totality of the cirsumstances presented, in this particular instance, weigh against an appearance that the final decision of the employee or the Land Use department are being influenced by factors other than the merits.

Finding:

          Since there is neither a conflict of interest or appearance of impropriety present, there is no violation of the Ethics Code for the requesting party to work on the projects before him. The Commission notes that in finding that there is no violation of the Ethics Code for the County employee to work on these particular projects, it is not making any ruling as to any other rule, law, or regulation, County, professional, or otherwise, which may be applicable.
 
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON DECEMBER 14, 1999.
 
__________________
David J.J. Facciolo

Footnotes:

1 Letter of November 15, 1999 from James C. Smith, Jr. Assistant Land Use Manager to David J. J. Facciolo, Esq., Chair, New Castle County Ethics Commission.

2 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.
 
          It further 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. Id.
 
3 Section 2-82, Definitions.
 
4 While a planner's own assessment that he or she would not be influenced in a particular situation weighs lightly in the determination before the Ethics Commission, a planner's assessment that he or she would be influenced would weigh more heavily in such a determination.