Whether a violation of the Code of Ethics would occur if the President of County Council is required by Council Rules to sponsor land use legislation because the resident Council person is unable or chooses not to sponsor the legislation and the Council President discloses that he will recuse himself from the vote on the measure because of a conflict.

            Under circumstances in which a conflict of interest or other improper appearance may be present, Council President may sponsor land use legislation pursuant to the mandatory language of Council Rule 3.1.2 but must recuse himself or herself from any private or public discussion of the measure and may not vote unless he or she invokes the provisions of New Castle County Code Section 2.03.103 (A)(2).

             Council Rule 3.1.2 reads as follows: "Land use legislation relating to a specific parcel shall be sponsored by the district Council member or, in situations where he or she is unable or chooses not to sponsor the same, the Council President."

 

            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 associated².

 

            The Ethics Commission has long applied Ethics Code section 2.03.103(A)(2) to situations involving not only a conflict of interest but to all circumstances in which an improper appearance would be created by the exercise of County authority. That section permits an official with legal or statutory responsibility which cannot be delegated to exercise responsibility in the case of a conflict or an improper appearance on the conditions that he or she file a written statement with the Ethics Commission completely disclosing the personal or private interest, and requiring a reading of that statement into the public record immediately before a vote is cast. If the individual abstains from voting because of a conflict or improper appearance, the abstaining official does not have to file the written statement with the Commission. However, an explanatory statement still must be placed in the public record prior to the abstention.³

 

 

            In Advisory Opinion 04-11, the Ethics Commission advised an official to recuse himself from sponsorship and vote on legislation because a member of the official's immediate family had a client who had a pecuniary interest in the matter. The Commission held that in that circumstance exercise of authority by the official would create an appearance of impropriety. At the date of Opinion 04-11, former Council rule 17.B mandated the same process as that quoted above in Council rule 3.1.2 and the legislation defaulted to the Council President's sponsorship. In the current situation, the law mandates that the Council President assume sponsorship and does not provide a default.

 

            In Advisory Opinion 05-19, an official was permitted to exercise official authority despite a conflict because the law created not only non-delegatable authority but sole responsibility in his position. He was instructed to recuse himself from involvement as far as legally permissible and, pursuant to Section 2.03.103(A)(2), to file a written statement with the Commission fully disclosing the personal interest and the law which required him to act.

 

            In Advisory Opinion 06-17 an official was advised that any time he had a concern about creating an improper appearance by voting, he could invoke the provisions of the disclosure and abstention procedures recited in Section 2.03.103(A)(2) and thereby make his concern public. In Advisory Opinion 07-05 an official was advised that the better course was to abstain from voting on an ordinance in which a client of his outside employer was potentially interested. However, since his vote was non-delegatable, he could choose to follow the provisions of Section 2.03.103(A)(2).

             The situation described in this request is most similar to the circumstances of Advisory Opinion 05-19 because Council Rule 3.1.2 creates sole authority in the Council President to assume sponsorship if the district Council person cannot do so. The rule does not create a default in the case of the President's inability to sponsor. A reasonable person, with knowledge of the Council rule, would not believe that the Council President's integrity was impaired if he assumed sponsorship under the conditions described in the rule.

             Under circumstances in which a conflict of interest or other improper appearance may be present, Council President may sponsor land use legislation pursuant to the mandatory language of Council Rule 3.1.2 but must recuse himself or herself from any private or public discussion of the measure and may not vote unless he or she invokes the provisions of New Castle County Code Section 2.03.103 (A)(2).

 

            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.

 

 

___________________________

John McMahon, Chairperson

 

Decision: Unanimous