An employee requests guidance on whether his outside employment violates any provisions of the Ethics Code.

            Since the outside employer does not do any business with and is not regulated by New Castle County, the employment does not violate the Ethics Code. The employee may purse this employment as long as the lack of nexus with the County continues. The employee is advised to make his supervisor aware that he has secured outside employment.

            A County employee has secured part time employment with a business which uses his professional services in projects primarily for the federal government. The outside employer does not seek or bid on work for the County and is not otherwise regulated by the County.

Code provisions

 

            The conflict of interest rules at New Castle County Code Section 2.03.103(A)(1) and (B)(1) prohibit the use of official authority by a County official or employee "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."¹ These conflict rules mean that an official or employee may not exercise any authority derived from his or her County position in matters involving his or her immediate family members or businesses associated with him or those family members, other than in those situations in which the employee or immediate family are affected in a manner like the general public, or an industry or occupation or group which includes them.

 

            The Ethics Code's conduct rules at Section 2.03.104(A) also recite prohibitions affecting the exercise of County authority by an official when direct financial conflict is not at issue. That subsection prohibits exercise of official authority which creates an appearance that the decisions or actions of a County official or his or her department are influenced by factors other than the merits of the matter for decision. This prohibition exists because such conduct undermines public confidence in the impartiality of the governmental body with which the employee or official is associated.²

 

Prior Commission Opinions

 

            This Commission has long ruled that secondary employment is not prohibited "where there is no nexus between an employee or official's County job and secondary employment". See Advisory Opinions 94-05 and 04-10. However, when that nexus exists, the Code may restrict and, in some cases prohibit, County employees from secondary employment. In Advisory Opinion 91-05, the Commission held that employment as a private consultant in a role substantially similar to the employee's County responsibilities was prohibited unless the service was provided to businesses located outside New Castle County and did not involve the County. In Advisory Opinion 97-07 an employee was prohibited from taking secondary employment in a business regulated by New Castle County even though the employee was to work in a different County for the employer and had agreed to abstain from reviewing any work performed by the private employer in New Castle County. The Commission expressed concern that reviews of the private employer's work by the employee's co-workers would create an appearance that approvals were granted because of the fellow employee's relationship with the secondary employer, not because of the merits of the work. See also, Advisory Opinions 01-01 and 04-09.

 

           In Advisory Opinion 98-01, the Commission permitted an employee to operate a private business providing a service substantially similar to his County service, as long as the employee entered into a signed agreement with his department manager agreeing that he would not perform any work in his private business that would be processed through any County department, that he would provide written notice to his private employers that the work may not be processed before the County, and that he would periodically submit a list of his active clients and corresponding property locations to his manager. In Advisory Opinion 06-15, a County employee was prohibited from becoming employed by or providing professional consulting services to his spouse's business which operated in New Castle County.

            The employee requesting this opinion is a senior professional in his department. Since his job duties for the County and those for his outside employer are similar, it is reasonable to believe that decisions and interpretations made by him and his department would directly affect an outside employer if it operated in New Castle County. In such a case, the employee could be making or implementing official decisions which impacted his private financial interests, a violation of the Ethics Code. Furthermore, if his outside work was ultimately subject to regulation by his department, that situation would create an appearance of impropriety in the manner discussed in the Commission decisions noted above.

 

            However, in this case the employee assures the Commission that the outside employer does not provide services to or within the County so these violations cannot arise.

            Since the outside employer does not do any business with and is not regulated by New Castle County, the employment does not violate the Ethics Code. The employee may purse this employment as long as the lack of nexus with the County continues. The employee is advised to make his supervisor aware that he has secured outside employment.

 

            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 APRIL, 2007.

 

John McMahon, Chairperson

 

Decision:  Unanimous