A County Official has asked for guidance from the Commission regarding his nondelegatable responsibility for subordinates who are processing a regulatory matter for a private entity in which he and members of his immediate family have a pecuniary interest.
Conclusion:
When an official has a legal and or statutory responsibility with respect to action or nonaction on any matter where the person, a member of his immediate family or a business with which he or his family is associated has a personal or private interest and there is no provision for delegation of such responsibility to another person, the official may exercise responsibility with respect to such matter, provided that he recuses himself from any involvement as far as legally permissible and 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.
Facts:
The requester is a senior County official who has a pecuniary interest in a private enterprise, along with other members of his immediate family.1 The private enterprise is processing a regulatory matter through a County department under the official's supervision. The official has no direct or advisory role in the regulatory process. He has informed his subordinates that he is to be completely excluded from any discussion about the regulatory matter and he is aware that he cannot provide assistance to the private enterprise in the matter.2 He is unable to delegate his legal and/or statutory responsibility for the conduct of the subordinates or for the County Department.
Code or Prior Opinion:
Code provisions The conflict of interest rule at Code section 2.03.103(A)(1) restricts the use of official authority by a County official or employee:
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).
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.
Given this Section's evident intent to apprise the public of the nature of the conflict, the Commission files the written statement as a public document.
Even in the absence of a conflict of interest, the Ethics Code at section 2.03.104(A) recites a prohibition on creating an appearance of impropriety:
Code of conduct.
A. No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.03.103(A)(1), 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 decision or action of the County employee, County official or governmental body are influenced by factors other than the merits.
. . .
D. No County employee or County official shall use such public office to secure unwarranted privileges, private advancement or gain.
Analysis:
In Advisory Opinion 05-12, the Commission recently reviewed its prior Opinions regarding recusal. The general rule demonstrated in that and the other Opinions is that if an official or employee, his or her immediate family or a business with which he or she is associated has a pecuniary interest in a matter, the employee or official should completely recuse himself or herself. See Advisory Opinions 92-05, 94-04, 99-01, 04-11.
The requester in this Opinion advises that he has already recused himself as far as permitted by law. When an employee or official is prevented from complete recusal because he or she has sole legal or statutory responsibility, the Code requires that person to limit his or her participation in the matter as much as is reasonably possible and to follow the procedure set forth in Sec. 2.03.103(A)(2), disclosing in a written statement to the Commission the nature of the private or personal interest and explaining why the matter is not delegatable.
The Section 2.03.103(A)(2) procedure does two important things: it reinforces the Code prohibition against using County office for private pecuniary benefit by spotlighting for the public a situation fraught with such possibility and it publicizes the actual facts of the non delgatable duty in order to avoid an appearance of impropriety. Disclosure of the written statement enables the public to scrutinize the particular conduct of the official. If the public is displeased with the existence of the conflict and the official's reasons for taking official action, it can register a complaint with the appropriate authorities and can impose a corrective remedy at the next election.
Finding:
Since the official has a nondelegatable legal and/or statutory responsibility with respect to responsibility for the conduct of his subordinates even though he has a personal or private interest in the regulatory matter before them, the official may exercise responsibility with respect to such matter, provided that he recuses himself from any involvement in the matter as far as legally permissible and 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.
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 10th OF AUGUST, 2005.
_____________________________
Dennis S. Clower, Chairperson
Decision: Unanimous
Footnotes:
1 New Castle County Code Section 2.03.102 defines Immediate family as " a spouse, child whether by blood or operation of law, parent, step-parent, spouse's parent or child, or sibling of the whole or half blood of a County official or employee".
2 The conflict of interest rules at Section 2.03.103B(2) and (3) specifically prohibit a County official from representing another's interest before the County:
2. No County official may represent or otherwise assist any private enterprise with respect to any matter before the County. This prohibition is to be considered personal to the County official and is not, for purposes of the New Castle County Ethics Code only, deemed to impact the other members of a firm, business, or other employer by which the County official is employed.
3. This subsection shall not preclude any County employee or County official from appearing before the County or otherwise assisting any private enterprise with respect to any matter in the exercise of his or her official duties.
