A retiring County employee has asked for guidance from the Commission concerning the impact of the Section 2.03.103(D) two-year post employment prohibition regarding his subsequent employment with a private enterprise that has frequent contact with the County on its own behalf and also for its clients.

            The two-year post employment provision of Section 2.03.103(D) will not impact the retiring employee because there is no overlap between the subject of his County duties and his function for the new employer. However, that section permanently prohibits the retiring employee's use of confidential information acquired while in County employment for the benefit of the new employer or himself.

            A retiring County employee plans to enter the employment of a private enterprise which frequently prepares or presents plans to his former County department for its clients and which contracts with the County itself on County projects. While employed by the County, the former employee held a title indicating that he supervised site inspections but states that for the last eight years he did not perform that function.¹ During that time he indicates that he was assigned to customer service, dealing with permit problems and his department's website. On infrequent occasion, he approved certifications for certain site plans. He indicates that it may have been possible that he certified such a plan presented by the new employer during that eight years but that that the project would have been completed and would not have continued into the present. He states that there will be no overlap between his former County duties and those he will perform for his new employer, which will concern erosion matters and sanitary sewers.

            The New Castle County Ethics Code Section 2.03.103(D) conflict of interest provision prohibits a person who has served as a County employee or County official from representing

 

. . . or otherwise assisting any private enterprise on any matter involving the County for a period of two (2) years after termination of employment or official status with the County, if the person gave an opinion, conducted an investigation or otherwise was directly and materially responsible for such matter in the course of official duties as a County employee or official. Nor shall any former County employee or County official disclose confidential information gained by reason of public position nor shall the person otherwise use such information for personal gain or benefit.

 

            Section 2.03.103(G) provides that contracts in violation of the Division are voidable by court action:

 

In addition to any other penalty provided by law, any contract entered into with any County Department in violation of this Division shall be voidable by the County Department; provided, that in determining whether any court action should be taken to void such a contract pursuant to this subsection, the County Department shall consider the interests of innocent third parties who may be damaged thereby. Any court action to void any transaction must be initiated within thirty (30) days after the County Department involved has, or should have, knowledge of such violation.

 

            Section 2.03.103(F) provides criminal sanctions for violation of this rule:

 

Any person who knowingly or willfully violates any provisions of this Division shall be subject to the sanctions contained in Section 1.01.009 of the New Castle County Code.²

            One of the important purposes of Section 2.03.103 (D) is to prevent a former County employee or official from giving a private enterprise a "leg up" over its competitors by using his or her prior connection with the County to exert undue influence on former colleagues. It also prevents a former official or employee from using confidential information acquired during the course of the performance of public duties for his or her own benefit or for that of an associated enterprise. Section 2.03.103(F) and G) provide the County with civil and criminal remedies when it discovers that a contract was formed in violation of that policy.

 

            When Section 2.03.103(D) applies, a former County official or employee is prohibited, for a period of two years following the official or employee's termination from County employment, from entering into or acting upon a project before the County involving any matter over which the former employee gave an opinion, had investigatory authority, or provided direct and material input while holding a County position.

 

            A non-exclusive definition of the terms "opinion", "investigation", or "direct and material responsibility" is involvement, while in County service, in making policy, providing advice, deciding, developing, constructing, monitoring, selecting, authorizing, evaluating, regulating, supervising, inspecting, representing, or managing the same or a factually overlapping issue, contract, program, proposal or agreement. The mere fact that an individual was not a final decision-maker does not mean that the individual was not directly and materially responsible.

 

            Although the permanent bar on the use of confidential information applies in all circumstances, the two year assistance rule does not apply if the employee did not give an opinion, conduct an investigation, or was not directly and materially responsible for the matters in issue. Whether a former employee or official is restricted by the Section 2.03.103(D) two year rule must be decided on a case by case analysis by the Commission based upon the official or employee's particular past duties and proposed future activity. In this request, the retiree advises that there will be no overlap between the duties he performed for the County and the projects he will be involved with for the new employer. In that case, he could not have had the type of direct and material responsibility which would raise a Section 2.03.103(D) bar to his new employment.

             The two year post employment provision in Section 2.03.103(D) does not impact the retiring employee in his new employment as long as he does not become involved in any matters for which he had direct and material involvement during his last two years of County service. However, the Code permanently prohibits his use of confidential information gained during County service for personal or business benefit.

 

            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 SEPTEMBER, 2005.

 

_____________________________

Dennis S. Clower, Chairperson

 

Decision: Unanimous

¹ A job title does not control the impact of the two year post employment provision in Sec. 2.03.103(D). The scope of its prohibitions depends on an individual's actual function as a County employee and the proposed duties for the new employer.

 

² New Castle County Code Section 1.01.009. General Penalty; continuing violations, states:

Whenever in this Code or in any ordinance of the County any act is prohibited or is made or declared to be unlawful or criminal or an offense or a misdemeanor or the doing of any act is required or the failure to do any act is declared to be unlawful or criminal and an offense or a misdemeanor, where no specific penalty is provided therefor, the violation of any such provision of this Code or any such ordinance shall be punished by a fine of not less than one hundred dollars ($100.00) for the first conviction. For the second conviction occurring within twelve (12) months of the date of the first conviction, the penalty shall be a fine of not less than one hundred twenty-five dollars ($125.00) and not more than five hundred dollars ($500.00). For a third or subsequent conviction occurring within twelve (12) months of the date of the first conviction, the penalty shall be a fine of not less than one hundred fifty dollars ($150.00) and not more than one thousand dollars ($1,000.00) or imprisonment of not more than thirty (30) days or both. Each day any violation of this Code or of any such ordinance shall continue shall constitute a separate offense for which a separate conviction may be obtained and a separate penalty for each day shall be imposed. Notwithstanding any other provision of law, the court shall not suspend the sentence of any person, corporation, partnership, firm or any other entity convicted of a violation of this Code.