Whether an official would violate the Ethics Code by accepting a nomination for or an appointment from the Governor to an unpaid position as a member of a State regulatory commission.

            The official would not violate the Code of Ethics if he accepts the nomination for or appointment to the State commission. There is no nexus between his exercise of County authority and the State commission's subject jurisdiction. He is qualified for the nomination and appointment as a result of his longstanding outside activities, not because of his County position.

            Facts A highly placed County official has been a member of a volunteer fire company for over 34 years during which he has held numerous administrative positions with the fire company as well as with a variety of associated organizations. The official's County position is one which involves the operation of a public safety department which has a dispatch association with volunteer fire companies and their paramedic units. The official's fire company wishes to nominate him to be one of three volunteer fire company members appointed to a State commission which governs State volunteer fire companies and regulates and enforces safeguards for life and property from hazards of fire and explosions.¹ Members of the commission must be "qualified by experience and training to deal with the matters which are the responsibilities of the [commission]". Three of the members of the commission must have qualifications as volunteer firefighters. The commission's regulations affect the general public, fire companies, and certain other emergency personnel but do not directly affect the function of the official's County department.²

 

            Persons in County office or employment are governed by the Ethics Code conflict of interest and conduct rules. The conflict of interest rule recited in Section 2.03.103(A) restricts the use of official authority by a County official or employee to actions for the public good:

 

A.     Restrictions on exercise of official authority.

1.     No County employee or official knowingly or willfully 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 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. There will be a rebuttable presumption of a knowing or willful violation of this section if the action benefits the County official or employee, his or her spouse, or his or her dependent children (whether by blood or by law.³

 

            Even when there may be no financial gain at issue, every County official and employee must consider the additional ethical prohibitions in the Code of Conduct rules in Section 2.03.104. Foremost of those conduct rules is subsection (A), the restriction against creating an impression in the reasonable member of the public that an official's or employee's conduct is affected by personal interests which impair his or her competence, integrity and honesty or that his agency or department will look as though it is showing partiality in a matter. That section states:

 

No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.02.103(A)(1) [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 a appearance that the decision or action of the County employee, County official or governmental body are influenced by factors other than the merits.

 

            The standard for judging the creation of such an appearance 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). In determining the relevant circumstances, the courts advise the Commission to look at the totality of facts. The Commission has long applied this standard to the conduct of County officials and employees. See, generally, Commission Advisory Opinions at www.nccde.org/ethics.

 

            An additional conduct rule, subsection 2.03.104(D), specifically prohibits the use of public office to advance a private interest, regardless of financial consequence:

 

(D) No County employee or County official shall use such public office to secure unwarranted privileges, private advancement or gain.

 

Commission Precedent

 

            Prior precedent dealing with outside employment or appointment does not appear relevant to the particular question in this request. In those opinions, questions of conflict of interest and appearance of impropriety arose only in the context of outside positions which could be affected by the exercise of County authority. See, e.g., Advisory Opinions 97-04 (County official voting on matter presented by state board on which she was also a member); 05-05 (County employee's department directing funds to the employee's city employer); and 05-21 (County official's access to confidential information affecting the official's city employer). That pattern is not applicable here.

            A conflict of interest occurs when some financial benefit could accrue to an official or employee or a member of his or her immediate family in the course of the exercise of official authority. In this case, the official's County position and function is distinct from the activity conducted by the State commission. Since his position on the State commission cannot be impacted by his exercise of County authority, a conflict of interest cannot occur if he is nominated to the State commission.⁴

 

            An improper appearance is created when the reasonable member of the public who is made aware of all the relevant facts would question whether official conduct was improperly affected by an official's outside activity. In this case there is no nexus between the County's ambit of authority and the State commission's subject jurisdiction. Thus, there are no relevant facts supporting a conclusion that the official's ability to direct the operation of his County department would be ethically impaired if he accepted the appointment.

 

            Finally, although his 34 years of service as a volunteer fire fighter has probably enhanced his knowledge and ability in his County position, the reverse does not appear to be true regarding this nomination and/or appointment. It is his qualifications as a firefighter and nomination by his fire company, not his County position, which provide him with the means for outside advancement or gain in this matter.

The official would not violate the Code of Ethics if he accepts the nomination for or appointment to the State commission.

 

            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 14^th DAY OF FEBRUARY 2007.

 

________________________

John McMahon, Chairperson

 

Decision: Unanimous