Filing Number: 04-11
Subject: Appearance of Impropriety
Keywords: appearance of impropriety, conflict, elected official, financial interests, immediate family, legislation, non delegable, ordinance, outside employer, private business, public notice, recusal, sponsor
Decision By: Commissioners: Dennis S. Clower, Loren Grober, Wendy Jamison, John McMahon, Ernest Price
Contact Email: admin@nccethics.org
 
Status: Active

Question:

          Whether an elected official's sponsorship and/or vote on rezonings favoring a client of his wife's business creates a conflict of interest or appearance of impropriety.

Conclusion:

          If the County official's wife or a business with which the wife is associated has not or does not represent the client in the matter and is not otherwise financially benefited by the ordinance, a conflict of interest does not arise from the official's sponsorship and/or vote on the rezonings.1 However, an appearance of impropriety may arise from the sponsorship and/or vote in the absence of a conflict of interest, since the wife's business' client has a pecuniary interest in the passage of the ordinance. The official must withdraw his sponsorship of the ordinance and recuse himself from deliberation and vote in the manner described in New Castle County Code section 2.03.103 A (2) because a reasonable member of the public may believe that the sponsorship and/or vote is made to advance his wife's business interests.

Facts:

          The Commission received a request for an Advisory Opinion from an official regarding sponsorship of rezoning applications which, if approved, will benefit a client of the official's spouse's business. The official inquired whether continued sponsorship violates the conflict of interest or appearance of impropriety provisions of the New Castle County Ethics Code. The Commission has expanded the inquiry to include the propriety of voting on the ordinances.

Analysis:

Prior Advisory Opinions
 
          In Advisory Opinion 92-03 the Commission held that a County official would have to abstain from participation in a grant award decision if his spouse's employer submitted a bid to provide materials to an organization that subsequently applied for the grant. In Advisory Opinion 99-01 the Commission determined there would be a conflict of interest on the part of an official if he voted when he or his firm represented a client on the matter at issue. The Commission also found that voting would create an appearance of impropriety even if the firm's representation of the client had been limited to an unrelated matter. The Commission required the official to recuse himself in accord with the Code provisions, citing the perception that the official would be voting to increase his or his firm's success in accommodating his or his firm's clients.
 
          In Advisory Opinion 99-08, the Commission found that an appearance of impropriety required the County official to recuse himself as described in the Code when the official's parent did business on an unrelated project with the owner of land for which development was subject to County approval. The Commission decided that the public may believe that the official's decisions and actions regarding the matter were influenced not by the merits but by the relationship between the parent and the owner.
 
          In Advisory Opinion 00-01 the Commission determined that an official should recuse himself in accord with Code provisions when a matter benefiting the official's private employer was at issue because the public may believe the official was voting on the matter for a reason other than its merits.
 
          In Advisory Opinion 00-02 the Commission found a conflict of interest and held that an official may not sponsor, participate in, and/or vote upon a matter, if a client of his or her prospective employer has a financial interest in an issue.2
 
Code Provisions
 
          The forgoing Opinions addressed the propriety of sponsorship and vote on ordinances creating a pecuniary advantage to the clients or employers of County officials. The ethical analysis in those Opinions is equally applicable to the current question because the Code imputes a conflict or appearance of impropriety to an official if a member of his immediate family has a pecuniary interest in a matter.
 
Immediate Family
 
          Section 2.03.102 defines "immediate family" as "a spouse or dependent child of a County official or employee whether by blood or operation of law."
 
Conflict of Interest
 
          Code section 2.03.103A states in pertinent part:
 
1.     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.
 
          If the wife or her business was in the past or is currently involved with any matter related to the rezonings or is otherwise benefited by the matter, a conflict of interest arises. If the rezonings do not benefit the wife or a business with which she is associated, a conflict of interest does not arise. In the case of a conflict of interest, the official may not sponsor or vote on the rezonings and must follow the procedure recited at Code section 2.03.103 A (2).3
 
Appearance of Impropriety
 
          A finding that the official's wife or a business with which she is associated has no pecuniary interest in the rezonings does not end the inquiry. Section 2.03.104(A) of the Ethics Code states:
 
No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.03.l03 (A)(l) [Conflict of Interest], 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.
 
          The standard for judging appearance of impropriety for judicial public officials has been described in Delaware courts as "conduct [which] would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the official's ability to carry out [official duties] with integrity, impartiality and competence is impaired." In re Williams, 701 A.2d 825, 832 (Del. Super. 1997). The Commission believes that standard is equally applicable to the conduct of County employees.
 
          In determining the relevant circumstances, the courts advise the Commission to look at the totality of facts. In this case, if the official voted favorably on the application for rezoning made by his wife's business' client, the reasonable person with knowledge of the facts may perceive that the official was sponsoring and voting for the measure for reasons other than its merits. The reasonable person could conclude that the official was attempting to increase his wife's business by pleasing the firm's clients and that the client-applicants were being treated in a manner different from the general public.

Finding:

          In light of the guidance of these advisory opinions and Code provisions, the Commission holds that continuing to sponsor and to vote on the rezonings would be a violation of Ethics Code section 2.03.104A, appearance of impropriety. The official should immediately withdraw from sponsorship of the ordinances and recuse himself from vote by following the procedure described in section 2.03.103 A (2). (See footnote 3)
 
          In issuing this Advisory Opinion, the Ethics Commission is applying the New Castle County Code of Ethics, which establishes the minimum level of ethical conduct required of County officials and employees. 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 THIS 11 th DAY OF AUGUST, 2004.
 
_____________________________
Dennis S. Clower, Chairperson
 
Decision: Unanimous

Footnotes:

1 Sec. 2.03.102 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.
That section defines Business with which he or she is associated as
Any business in which the person is a director, officer, owner or employee; or a business in which a member of the person's immediate family is a director, officer, owner or has a financial interest.

2 The Commission reconsidered this conclusion in light of additional facts that the ordinance was prepared prior to the client's hiring of the prospective employer and the official's vote was contrary to the desires of the client and the prospective employer. In reconsidering, the Commission noted that it adhered to the basic principles expressed in the initial opinion and held that the official was required to make immediate full public disclosure of her relationship with the prospective employer if she was to continue sponsorship and to disclose again prior to voting.

3 Sec. 2.03.103. Prohibitions relating to conflicts of interest. A. Restrictions on exercise of official authority.
(1)     . . .
(2)     In any case where a person has a legal and/or statutory responsibility with respect to action or nonaction on any matter where the person has a personal or private interest and there is no provision for the delegation of such responsibility to another person, the person may exercise responsibility with respect to such matter, provided that promptly after becoming aware of such conflict of interest, the person files a written statement with the Commission fully disclosing the personal or private interest and explaining why it is not possible to delegate responsibility for the matter to another person. If the matter is one in which the legal and/or statutory responsibility requires the person to vote upon the issue, the written statement filed with the Commission shall be read into the public record prior to the time the person's vote is cast. Any person choosing to abstain from voting on an issue where [he] or she has a conflict shall state the reasons for his or her conflict on the record; an abstaining voter need not file the written statement with the Commission required when acting on, rather than abstaining from, an issue involving a conflict.