Filing Number: 91-05
Subject: Outside Employment
Keywords: appearance of impropriety, attorney, business, conflict, consultant, County board, employee, impropriety, litigation-support, outside employment, private consulting, undue influence
Decision By: Daniel J. Anker, Ethics Commission Counsel
Contact Email: admin@nccethics.org
 
Status: Active

Question:

          May a New Castle County employee engage in a private litigation-support consulting service substantially similar to his employment responsibilities with New Castle County?

Conclusion:

          The Commission has unanimously decided that the employee should forego this business venture with respect to New Castle County. Since the Code lacks jurisdiction over areas of business outside of New Castle County, the employee is free to engage in such a consulting business in matters not involving New Castle County.

Facts:

          The employee requesting this opinion has been certified as an expert by a nationally recognized organization in his field. His area of expertise is in the same area in which he is employed by the County.
 
          The employee has inquired as to whether he may engage in a private business to be formed and owned by him for the purpose of rendering litigation support services to attorneys in New Castle County who are involved in personal injury actions. In particular, the employee anticipates that the business would, upon the request of an attorney, undertake a review and analysis of certain conditions which are believed to have caused an injury to another person. The purpose of the inquiry is to determine whether there has been a violation of any County rule or regulation and thus any basis for a lawsuit by the injured person.

Analysis:

          The Commission is quite concerned that the proposed course of action would create an appearance of impropriety that could easily lead to an actual conflict of interest.
 
          An "appearance of impropriety" is defined by the New Castle County Ethics Code at Section 2-30.1 as:
 
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 governmental body are influenced by factors other than the merits.
 
The situation presented by the employee directly involves private marketing of skill and expertise in a venture that is virtually identical to his job responsibilities with New Castle County. This potential conflict (as set forth in the language of Section 2-30.1) alone causes great concern to the Commission. In addition, the Commission seriously questions whether the services for which this person will be performing on a fee basis is already available to attorneys from the department with which he is employed at no expense to the inquiring attorney or his or her client. Assuming arguendo that the services are available, the employee's proposed business venture is dangerously close to, if not directly within, the definition of an appearance of impropriety by creating the appearance that decisions or actions of the employee are influenced by factors (fee income) other than the merits of the case presented.
 
          Furthermore, the Commission is concerned that a conflict of interest could easily arise with this proposed business. For :instance, the employee may be called upon in his private capacity to determine whether a rule or regulation has been violated where the violation initially occurred through mistake, inadvertence or oversight of the department with which he is associated. If indeed a violation existed, the employee is placed in the untenable position of testifying against, and perhaps implicating, his department in the lawsuit. This scenario clearly constitutes a conflict of interest as well as an appearance of impropriety.

Finding:

           The Commission has unanimously decided that the employee should forego this business venture with respect to New Castle County. Since the Code lacks jurisdiction over areas of business outside of New Castle County, the employee is free to engage in such a consulting business in matters not involving New Castle County.
 
          This opinion is based upon and limited to the facts and circumstances presented by the person requesting the opinion.
 
 
                                                                  
Daniel J. Anker
Ethics Counsel
New Castle County Ethics Commission
 
June 5, 1991