A highly placed County employee has asked whether exercising his vote as an elected official of a local government in a manner involving annexation of County land would violate the New Castle County Code of Ethics.
Conclusion:
In order to avoid creation of an appearance of impropriety, the employee must either remove himself from any County employment which provides access to confidential information regarding land use or redevelopment policy affecting the local government's annexation authority or recuse himself from involvement as an elected local government official in any aspect of planning, execution or decision making regarding the annexation of County land, including voting upon such requests.1
Facts:
A highly placed County employee with significant policy making authority in New Castle County holds an elected position in a local government in New Castle County. That local government has the right under state law to annex adjacent unincorporated County property under certain conditions without the consent of the County. When such unincorporated property is annexed, property tax revenues and services fees to New Castle County government are reduced. As a member of the local government, the employee may vote on annexation requests.
Code or Prior Opinion:
The New Castle County Ethics Code prohibits a person who serves as a County employee or County official from engaging in official conduct for the benefit of his or her personal interests.
Section 2.03.103. Prohibitions relating to conflicts of interest, states in pertinent part:
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).
Even if an actual conflict of interest does not exist, the Code prohibits conduct which a reasonable member of the public would view as not impartial or as violative of the conflict provisions.
Section 2.03.104 (A), Code of Conduct states:
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.
Finally, the Code prohibits outside employment which would appear to foster the disclosure of confidential information acquired as a result of the individual's County job.
Section 2.01.104 (E), Code of conduct, states in pertinent part:
No County employee or County official shall engage in any activity beyond the scope of such public position which might reasonably be expected to require or induce such County employee or County official to disclose confidential information acquired by such employee or official by reason of such public position.
Commission Precedent
There is no precedent directly on point in prior Commission opinions regarding exercise of authority for another governmental body which may adversely impact the County employer. Most of the relevant opinions are concerned with the exercise of County authority by an employee or official who has an outside interest or employment with a non profit enterprise that has some matter to be resolved by the exercise of County authority. However, the prior Commission opinions help shed light on the ethical question involved: can an appearance of impropriety be avoided when an employee serves two masters who are in conflict?
In Advisory Opinion 92-02, the Commission held that while there was no violation of the Code by officials and employees who served as members of the board of a non-profit corporation, the officials and employees would have to recuse themselves from matters involving organizations which had joint ventures with the non-profit. Similarly, in Advisory Opinion 97-04, the Commission found no conflict of interest or appearance of impropriety when a member of a County Board also was a paid member of a State Board. The State occasionally submitted matters to the official's County Board. The Commission determined that because of the non-profit nature of the State and the limited scope and nature of the Board member's State position, there was no appearance that the member's actions would be influenced by factors other than the merits.
In Advisory Opinion 97-09, the Commission found that a County employee who exercised discretion in the administration of HUD funds could serve on the board of a non-profit which, through a joint venture, operated a program with a second organization which had been a recipient of County HUD funds, as long as the employee recused himself in his County position from consideration of any application for HUD funds from any enterprise associated with the non-profit. The Commission noted that "the employee must be knowledgeable, with regard to the organizations the non-profit organization funds or is in a joint venture with, to ensure that she has no involvement at the County if they are also applicants for the County administered HUD money." A similar theme was recited in Advisory Opinion 97-11, in which the Commission held that an employee who exercised discretion over HUD funds could serve on the Board of a non-profit which may become an applicant for the funds. The employee was advised to exercise caution to ensure that he became aware of any potential areas which may result in appearances of impropriety and recuse himself when appropriate.
Again, in Advisory Opinion 99-04, the Commission held that a County Official could serve as an officer of a non-profit association as long as the County official recused himself when matters involving the association came before his County board. In Advisory Opinion 05-05, a County employee was permitted to serve on a city planning commission as long as she recused herself from any discussion or action on any non-ministerial matters performed in or by her department concerning the city.
Analysis:
This request for an Opinion does not present any facts to indicate that the employee will exercise official County authority or decision in regard to his local government employer. Even if such a situation should come to exist, the Commission decisions recited above outline a clear course of conduct: the employee must totally recuse himself from every aspect of planning, execution or decision making if the city is to be affected by his conduct as a County employee.
The request, however, does pose the question of violation of the Code if the employee exercises his authority as a local government elected official at the expense of the County employer. By virtue of his dual employment, this employee owes duties of loyalty and confidentiality equally to each of his government masters. He becomes essentially conflicted when a vote on annexation arises. On the one hand, as a County official and policy maker, he owes allegiance to the County to defend a secure revenue stream; on the other hand, as a local government official he must advance the interest of the local government in the growth in its revenue stream, which comes at county expense.
As a highly placed employee in the County, he assists in developing County policy in regard to use of land in various areas of the County. Some of that information will be confidential prior to finalization and public disclosure. It is conceivable that such confidential information could be of interest to the local government employer.
The New Castle County Ethics Code Section 2.03.103 conflict of interest provision prohibits using official authority or confidential information received through County employment for the personal or private benefit of the employee. This means that an employee cannot use a County position or confidential information developed from that position to enhance his or her status on personal outside endeavors such as representing a local government. Section 2.03.104 (E) also warns that County employees may not place themselves in outside positions which might reasonably be expected to require or induce them to disclose confidential information acquired by reason of their public position. This recitation of the rules is not meant to presuppose that the employee would violate either of these confidentiality provisions simply because he is also an elected official in a local government. The Commission presumes, in the absence of other evidence, that County employees and officials conduct County business with personal integrity and for the benefit of the public. However, even if there is no actual violation of the confidentiality provisions, Section 2.03.104(A) prohibits the creation of an appearance that such confidentiality has been violated.
When a vote on an annexation request arises before the local government, a reasonable member of the public would be aware of the employee's requirement of equal loyalty to both of his government employers. As a result of the requester's significant status with the County, the public would also be aware of his County policy making authority regarding land reuse and redevelopment and, in light of his dual loyalties, it could reasonably question his ability to maintain County confidentiality if that would be detrimental to the local government employer. Thus, if the employee were to vote on annexations of County land by the local government, the reasonable person could believe that confidential information acquired in the employee's County position may have entered into or influenced his vote made for the benefit of the city. Such a reasonable perception would create an appearance that the employee could not serve both masters and that the vote violated the confidentiality provisions of the Code.
Finding:
Therefore, in order to avoid creation of an appearance of impropriety, the employee must either remove himself from any County employment which provides access to confidential information regarding land use or redevelopment policy affecting the local government's annexation authority or adopt a modification of the procedure recited in the prior Commission Opinions discussed above and recuse himself from involvement as a local government elected official in any aspect of planning, execution or decision making regarding the annexation of County land, including voting upon such requests.
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 12th OF OCTOBER, 2005.
_____________________________
Dennis S. Clower, Chairperson
Decision: Unanimous
Footnotes:
1 The Ethics Commission's jurisdiction does not extend to sanctions for the employee's conduct as a local government official. Its authority is limited to the parameters of his conduct as a New Castle County employee.
