Filing Number: 01-08
Subject: Non-Profit
Keywords: appearance of impropriety, board member, Department of Land Use, employee, fundraising, non-profit, recusal, representation, solicitation, supervisor, undue influence
Decision By: Commissioners: P. Clarkson Collins, John DiEleuterio, Ken Murphy, Ludwig Mosberg, Frances West
Contact Email: admin@nccethics.org
 
Status: Active

Question:

          May a County employee with the Department of Land Use, who has land use and code inspection responsibilities, and who also is a volunteer director of a non-profit organization, participate in fund-raising, public relations, and facility development on behalf of the non-profit organization?

Conclusion:

          It does not violate the Ethics Code for a Land Use employee with land use and code inspection responsibilities, who also is a volunteer director of a non-profit organization, to participate in fund-raising, public relations, and facility development on behalf of the non-profit organization, provided he does not seek to use his County position to influence any applications or matters that the non-profit organization has with the County; he recuses himself and abstains from participating in any matter that the non-profit organization has with the County Land Use Department that employs him; and he uses sufficient safeguards to eliminate any appearance of impropriety which might exist regarding fund-raising by the requesting party on behalf of the non-profit organization.

Facts:

          The requesting party is a Land Use employee whose job duties are two-fold. One aspect of his County employment is essentially ministerial and involves the pre-screening of applications for permits in the Land Use department. In performing this duty, the requesting party checks to determine whether the applicant has submitted the necessary documentation for the permit. This function was represented as being ministerial in nature and involving little, if any, discretion. Other individuals in the department also perform this same duty.
 
          The requesting party does not make the determination whether a permit should issue, as this function is performed by an outside third party. The other employment duty he performs is the inspection of residences for code compliance on such things as decks and other additions to homes--what he characterized as small building projects. The requesting party is the director of a non-profit organization which, through another non-profit entity, is subleasing New Castle County land. His organization will be raising money to build a facility on the land leased by the County. The non-profit organization will likely have involvement with the Special Services Department of New Castle County. It will also need to obtain licenses and permits from the Land Use department when the time comes to construct the facility. The requesting party's supervisor is aware of his involvement in the project. To the extent that the non-profit organization's application would have to be pre-screened, the requesting party could easily recuse himself from any duties involving the matter. In order to raise money for this project, the non-profit organization will be participating in fund-raising events, one of them being a televised project with the goal of raising funds from large businesses and organizations.

Code or Prior Opinion:

Relevant Law
 
           The New Castle County Ethics Code prohibits County employees and officials from engaging in activities constitution a conflict of interest r appearance of impropriety. Section 2.02.103(A)(1) of the Ethics Code sets forth the activites 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 holdig 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 deminimis 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 oficial or County employee, a member of his or her immediate family or a business with whch 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 addition to the above restrictions regarding conflicts of interests and appearances of impropriety, the Ethics code also restricts county employees from assisting private enterprises1 before the Department in which they work. Section 2.03.103(B)(1) states:
 
No County employee or county official may represent or otherwise assist any private enterprise with respect to any matter before the County Department with which the employee or official is associated by employment or appointment.

Analysis:

Facility Development
 
          In applying the applicable law to the facts presented to the Commission, the Commission finds that the requesting party may participate in facility development activities for the non-profit organization, provided appropriate recusals are made from Land Use matters and he abstains from influencing any applications or matters that the non-profit has with the County. To the extent that the non-profit organization would need to have its applications for permits or licenses pre-screened by the Land Use department, the requesting party indicated that he could easily, and would, recuse himself from any work which might come before him in his County job regarding the project and abstain from participating or influencing any such applications or matters. Additionally, Section 2.03,103(B)(1) of the Ethics Code requires that he refrain from assisting the non-profit organization in such Land Use matters. Given the primarily non-discretionary function of the pre-screening aspect of the requesting party's job, such recusals would reflect the highest ethical standards and would eliminate any possible conflict of interest or appearance of impropriety which might arguably exist.
 
          With regard to the requesting party's anticipated involvement with Special Services on behalf of the organization, there is no conflict of interest or appearance of impropriety resulting from such involvement, as the requesting party does not work with, or for, the Special Services Department, nor does Special Services have any control over the requesting party. Accordingly, he is not prohibited from assisting or representing the organization with any matter before Special Services.
 
Public Relations/Fund-raising
 
          With regard to public relations and fund-raising, the Ethics Code does not prohibit the requesting party from participating in such activities for the organization, provided he does not use his position at the County to attempt to raise funds for the organization. Thus, while the requesting 'party can participate in public relations and fund-raising on behalf of the organization, it would constitute a conflict of interest for him to use or attempt to use the authority of his County office on behalf of the non-profit organization. From an appearance of impropriety standpoint, he must take care to ensure such fund-raising is not enmeshed with the requesting party's role at the County.
 
          In Advisory Opinion 96-07, the Ethics Commission opined that inspectors should not sell fund-raising tickets to the contractors that they regulate. Under the current facts, unlike the facts in Advisory Opinion 96-07, however, the requesting party does not conduct inspections nor exercise discretion in his pre-screening duties in Land Use. Accordingly, while no solicitation should be made by the requesting party during work, he, in his role as director of the non-profit organization, is not prohibited from soliciting contributions from such individuals or the organizations that pre-screening applicants may work for, to the extent that they are members of groups which likely would otherwise be targeted for such fund-raising. Commonsense safeguards, however, should be used. For example, the timing of any such request should not coincide with any recent work he is performing for the particular business, and, to the extent possible, any solicitation for funds from such a business or organization should be made to someone other than the person he deals with in his county job.
 
          As for fund-raising activities regarding individuals the requesting party deals with in the inspection portion of his job, this aspect is more problematic. As noted in Advisory Opinion 96-07, an appearance may be created that a contractor or homeowner, whose work or home a County employee is inspecting, may receive favorable treatment, if they purchase fund-raising tickets from an inspector. Also, they may feel compelled to purchase such fund-raising tickets in exchange for favorable treatment in the future. Therefore, in accordance with Advisory Opinion 96-07, the requesting party should not personally solicit funds from the individuals whose homes he inspects and/or the contractors whose work he is inspecting. This limitation, however, does not prohibit the requesting party from being the spokesperson for the organization, provided he does not promote the fact that he is an inspector for New Castle County. It further does not prohibit the organization from seeking funds from such individuals or contractors. In doing so, however, the Commission notes that precautions should be followed to minimize any possible appearance that the party being solicited will receive favorable treatment from the County or feels compelled to donate to the organization due to the requesting party's inspection responsibilities. Such safeguards include: (1) having an individual, other than the requesting party, sign any direct written solicitations being made to contractors; and (2) not mentioning the requesting party's Land Use employment in any such solicitation.

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 OCTOBER 16, 2001.
 
_____________________________________
P. Clarkson Collins, Jr., Chairperson
 
Decision: Unanimous

Footnotes:

1 The term "private enterprise" is defined in Section 2.03.102 as follows: "Private enterprise means any activity conducted by any person, whether conducted for profit or not for profit and includes the ownership of real or personal property. Private enterprise does not include any activity of the Federal, State or local government or of any department, authority or instrumentality of the Federal, State or local government." Id.