Filing Number: 99-08
Subject: Voting Conflict
Keywords: abstention, appearance of impropriety, conflict, County official, developer, disclosure, elected official, family, financial interests, immediate family, impropriety, joint venture, land use, ordinance, real estate, recusal, sponsor, vote
Decision By: Commissioners: David Facciolo, P. Clark Collins, Jaime Figueras, Vincent Oliver, Frances West
Contact Email: admin@nccethics.org
 
Status: Active

Question:

          Does it violate the Ethics Code for a County official to sponsor and/or vote upon a matter, if the County official's parent is doing business on an unrelated project with the owner, although not the applicant, of the land subject to County approval.

Conclusion:

          Absent additional facts being provided from which an appearance of impropriety can be conclusively ruled out, the County official should follow the recusal procedure set forth in Sec. 2-83(f) of the Ethics Code and disclose the nature of his or her interest and abstain from voting.

Facts:

          The requesting party is a County official whose parent is doing business on an unrelated project with the owner of land subject to County approval. Other than the names of the parties involved, no other information regarding the matter, has been provided to the Commission.1 Absent the official's parent's involvement with the owner of the property, the type of matter in question is the type which the County official would otherwise normally sponsor and/or vote upon.

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 . . ."
 
          The definition of "immediate family" does not include a County official's or employee's parents.2 Accordingly, in the present instance, there would be no conflict of interest for the County official to sponsor or vote upon the matter, since there is no private pecuniary gain to the official, a member of his immediate family, or a l)business to which he or she is associated.3
 
Appearance of Impropriety
 
          The Ethics Code, section 2-83, also prohibits conduct which constitutes an appearance of impropriety, as 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 whch a county officer or employee is or has been associated by creating an appeaance that the decisions or actions of the county official, county employee or the governmental body are influenced by factors other than the merits.4
 
          Based upon the limited facts presented, an appearance to the public could exist that the County official's decisions and actions regarding the project were being influenced by the County official's parent's relationship with the owner of the land. While the relationship between the County official and the matter in question is concededly remote, "abstention would avoid any allegation of an appearance of impropriety, however slight, and would reflect the highest ethical standards." Advisory Opinion 92-03, August 17, 1992 (holding if a county official's spouse's employer were to submit a bid to provide materials to an organization and that organization may later be an applicant for a county grant, the County official should abstain from participation in the award decision); See also, Advisory Opinion 91-02, July 30, 1991 (holding County official should avoid participating in any decision concerning a developer when the County official was related to one of the developer's principals through marriage; the official had previously represented the developer to obtain financing not related to the County; and the official is partners with one of the principals on an unrelated business venture). Based upon the limited facts presented, and the inability of the requesting party to appear at the hearing and answer questions of the Commission, the Commission cannot find that there would be no appearance of impropriety, if the requesting party were to sponsor and/or vote upon the matter.5

Finding:

          Accordingly, the requesting party should follow Section 2-83 recusal process by disclosing the nature of his or her interest in the matter and abstain from voting upon it.6
 
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON JANUARY 11, 2000.
 
__________________________
David J.J. Facciolo, Chair

Footnotes:

1 The requesting party was unable to attend the hearing before the Ethics Commission, but had requested a decision to be made at that time.
 
2 Section 2-82, Definitions, defines "immediate family" as: "a spouse or dependent child of a county official or employee whether by blood or operation of law".
 
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".
 
          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.
 
4 Section 2-82, Definitions.
 
5 It should be noted that further review of the matter can be had, if the requesting party wishes to file a reconsideration and provide additional facts regarding the matter and relationships of the parties.
 
6 Pursuant to Advisory Opinion 91-02, July 30, 1991, the same recusal procedure for conflicts of interests is appropriate to avoid appearances of impropriety. See also, Advisory Opinion 92-05, September 10, 1992.