Filing Number: 91-03
Subject: Statement of Financial Interests
Keywords: appointed official, board member, confidentiality provisions, County board, County official, disclosure, employee, financial interests, Statement of Financial Interests
Decision By: Daniel J. Anker, Ethics Commission Counsel
Contact Email: admin@nccethics.org
 
Status: Active

Question:

           Is the annual Statement of Financial Interests (hereinafter Financial Disclosure Statement) of a person covered by the Code who meets the definitional tests of both a County employee and a County official entitled to the confidentiality provisions of Section 2-30.3(e)?

Conclusion:

           Based upon the foregoing facts, it is the decision of the Commission that this person is an official. Therefore, his Disclosure Statement is a public record subject to public inspection and copying. With respect to Disclosure Statements, the Commission believes that the definitional distinction between an employee and an official is intended merely to establish a line of demarcation where the public's right to know outweighs the individual's right to privacy and confidentiality. Because the members of the Pension Board are specifically listed as officials, the Code requires that their Disclosure Statements be considered public records despite the fact that they may also be employees. Any other conclusion would frustrate the purpose of the Code and lead to an anomaly where the public would be denied access to public records.

Facts:

            A County employee voluntarily serves as a trustee on the New Castle County Pension Board of Trustees (hereinafter the Pension Board) pursuant to a County Code requirement that a certain number of trustees be County employees. The individual was appointed to the Pension Board by the County Executive. The individual's involvement as a trustee is ancillary to his primary full time role as an employee. The individual is not compensated for his services rendered as a trustee.

Analysis:

           Section 2-30.1 of the Code defines a "County employee" as an individual employed by the County who is responsible for taking or recommending official action of a non-ministerial nature with regard to:
 
(1) contracting a procurement;
 
(2) administering or monitoring grants for 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 interest of any person.
 
 A review of the Financial Disclosure Statement submitted by this person clearly indicates that he is an employee for purposes of this provision.
 
          The same section of the Code defines a "County official" as "Any person elected to any county office, the chief administrative officer, . . . or the Pension Board of Trustees". By virtue of this person's appointment to the Board of Trustees, he also clearly meets the definitional test of an official. Section 2-30.3(e) deems all Financial Disclosure Statements filed by County officials to be public information and thus subject to public inspection and copying during regular office hours. This same section deems the financial information contained in Disclosure Statements of County employees to be confidential and not subject to public inspection for purposes of Title 29, Chapter 100 of the Delaware Code. This confidentiality privilege does not, however, prohibit access to the Disclosure Statement by the employee's director or department head, nor by the Commission. In this posture, the person requesting the advisory opinion is in a classic catch-22, that is, he is clearly an employee and therefore entitled to confidentiality but, on the other hand, is certainly an official, and thus subject to public disclosure regulations.
 
          The Commission notes that the County Code requires that Trustees of the Pension Board consist of both County and non-county employees in order to provide diversification on the Board and adequate representation of all constituents participating in, or eligible for, pension benefits. The Board also notes that the person to whom this Advisory Opinion is issued serves voluntarily and is not compensated for his services rendered to the Pension Board. His continued eligibility as a trustee is contingent upon remaining a County employee.

Finding:

          Based upon the foregoing facts, it is the decision of the Commission that this person is an official. Therefore, his Disclosure Statement is a public record subject to public inspection and copying. With respect to Disclosure Statements, the Commission believes that the definitional distinction between an employee and an official is intended merely to establish a line of demarcation where the public's right to know outweighs the individual's right to privacy and confidentiality. Because the members of the Pension Board are specifically listed as officials, the Code requires that their Disclosure Statements be considered public records despite the fact that they may also be employees. Any other conclusion would frustrate the purpose of the Code and lead to an anomaly where the public would be denied access to public records.
 
          This Opinion is based upon and limited to the facts and circumstances presented to the Commission by the person requesting this Advisory Opinion.
 
                                                                      
Daniel J. Anker
Ethics Counsel
New Castle County Ethics Commission
 
April 26, 1991