Filing Number: 01-07
Subject: Representation of Private Interest
Keywords: appearance of impropriety, conflict, construction, Department of Land Use, disclosure, employee, land use, real estate, representation, supervisor, undue influence
Decision By: Commissioners: P. Clarkson Collins, Ken Murphy, Ludwig Mosberg, Frances West
Contact Email: admin@nccethics.org
 
Status: Active

Question:

          May a County Land Use inspector personally construct an addition on his own home, if such construction will require permits from the Land Use Department and the plans for the addition and the construction will need to be reviewed and/or inspected by his co-workers in the Inspection Division and Land Use Department.

Conclusion:

          It does not violate the Ethics Code for a Land Use inspector to personally build an addition on his own home, even if he would need to obtain permits from the Land Use Department and the plans for the addition and the construction would need to be reviewed and/or inspected by his co-workers in the Inspection Division and Land Use Department, if: (1) the inspection is performed by an inspector other than the inspector performing the construction work; (2) the inspector inspecting the construction is not a subordinate to the inspector performing the construction work; (3) the inspector is performing work on his home for his own residential purposes, as opposed to a third party, or as a for profit business of the inspector; and (4) the inspector performing the construction makes appropriate disclosures to the supervisor of the Inspection Division.

Facts:

          The requesting party is a Land Use inspection supervisor. The employees he supervises conduct inspections on residential properties, including inspections on additions and decks to already existing homes. One of the inspectors he supervises wishes to personally build an addition--a sun room and deck--onto his own home. To do so, he will need to obtain a permit from the Land Use Department. The plans and construction for the addition will also need to be inspected by inspectors in the Inspection Division in which he works. The inspector, who wishes to perform the construction, owns and resides in the home which he wishes to build the addition on. He has no current intention of placing the home up for sale.
 
          There are approximately 10 inspectors in the Inspection Division of the Land Use Department. They are assigned to perform inspections in one or more of 20 territories in New Castle County.

Code or Prior Opinion:

          The New Castle County Ethics Code prohibits County employees and officials from engaging in activities constituting a conflict of interest or appearance of impropriety. Section 2.02.103 (A)( 1) of the Ethics Code sets forth the activities prohibited as a conflict of interest, as follows:
 
No County employee or County official shall use 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 personal or private benefit of himself or herself, a member of his or her immediate family or a business with which he or she is associated. This prohibition 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.
 
          Section 2.03.104(A) of the Ethics Code sets forth the activities prohibited as an appearance of impropriety. It states:
 
No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.03.103(A)(1), undermines the public confidence in the impartiality of a governmental body with which the County employee or county official is or has been associated by creating an appearance that the decisions or actions of the County employee, County official or governmental body are influenced by factors other than the merits.
 
          In Advisory Opinion 92-07 (January 28, 1993), the New Castle County Ethics Commission addressed the circumstances by which a County inspector could undertake secondary employment in the construction industry. In this decision, the Commission found that a conflict of interest would be created, if an inspector were to inspect construction he has done or construction done by a business with which he is associated. Advisory Opinion 92-07 also held that an appearance of impropriety would be created, if a co-worker were to inspect work done by a County inspector or a business with which the County inspector was associated. It noted that co-workers inspecting each other's construction work would create "the public perception that official inspections are influenced by the County inspector's relationship with or allegiance to fellow County inspectors and to businesses with which fellow inspectors are associated". Id. at 4. Accordingly, Advisory Opinion 92-07 applied the following restrictions to inspectors:
 
(A)  A County inspector must limit work done as an individual to construction which would not be subject to County inspection, either by virtue of the nature of the construction or its location outside the County's geographic jurisdiction; and
 
(B)  A County inspector must not be associated with a business which does any construction subject to County inspection.

Advisory Opinion 92-07 at 4, 5.

Analysis:

          Under the current scenario, the inspector wishing to perform the construction work is not undertaking secondary employment. Rather, he wants to make an improvement to his current residence for his own personal use. Under either scenario, however, a conflict of interest would exist, if an inspector were to inspect his own construction work, as the inspector would be using the authority of his or her employment for the personal benefit of himself or herself or a business with which he or she is associated.1 Accordingly, an inspector cannot perform any construction work which would be subject to his own inspection.
 
          In determining if an appearance of impropriety would be created, if a co-worker inspector were to inspect construction work done by a fellow inspector on the fellow inspector's own home, the Commission finds limited construction on one's home distinguishable from secondary employment. Under such limited circumstances, where the inspector is not undertaking the construction primarily for a for-profit purpose, but is doing so for his own use, the following safeguards would drastically decrease, if not eliminate, the creation of an appearance of impropriety: (1) the inspector discloses the fact that he will be making the improvements to his home to the Inspection Division Supervisor; and (2) the Inspection Division Supervisor assigns an inspector, who is not a subordinate of the inspector performing the construction, to inspect the construction and also can notify other Land Use personnel who oversee the individuals issuing any relevant permits. In such limited circumstances, such safeguards decrease the risk that the public will perceive the issuance of any permit and the approval of plans and inspection to be a result of the co-worker relationship, as opposed to approval on the merits of the plans and construction.

Finding:

          In rendering this advisory opinion, the Ethics Commission is construing the New Castle County Code of Ethics, which establishes the minimum level of ethical conduct required of County officials and employees by the Ethics Code. The Commission cautions, however, that each County department, board or other unit of County government is free to, and may impose, as part of its own policy, additional or greater restrictions on its officials and employees, than those set forth in this opinion.
 
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON NOVEMBER 13th, 2001.
 
_____________________________________
P. Clarkson Collins, Jr., Chairperson
 
Decision: Unanimous

Footnotes:

1It is noted that the definition of "conflict of interest", contained in Section 2-30.1, as used in Advisory Opinion 92-07, has since been amended. For purposes of this opinion, such amendment does not alter the analysis.