Whether the Chair of a County board would create an appearance of impropriety if that person created a subcommittee to perform investigatory research on the substance of an application and shared the resultant information with the applicant and/or used it to guide the applicant in the regulatory process prior to adjudication.

            The jurisdiction of the New Castle County Ethics Commission is limited to interpretation and application of the Code of Ethics. The Commission is without authority to determine whether investigatory research and/or substantive guidance provided by a regulatory board to an applicant prior to adjudication would be an improper commingling of investigative and adjudicative functions in violation of administrative or constitutional law and thereby create an appearance of impropriety. The requester is referred to the County Law Department for determination of the question. If the Law Department finds that the proposed conduct comports with administrative or constitutional law, a question of appearance of impropriety does not arise as long as the information is transmitted to the applicant in a manner which does not exclude the public.

            The New Castle Code provides that under certain circumstances a property owner must apply to a County regulatory board for a permit before affecting changes to the applicant's property. The permitting and hearing is a public process. The decisions of the board either enable or prohibit an associated administrative department to issue a permit. The board may also impose additional requirements on the applicant as a condition of issuing the permit.

 

            The Code permits the Chair of the regulatory board to establish subcommittees to assist the board in performing its duties. A subcommittee must include one or more members of the board. The Chair proposes the formation of a subcommittee which will engage in research on the historical and archeological aspects of applications that come before the board and the use of that information to either guide the applicant in order to facilitate the application process or, alternatively, simply to transmit the results of the subcommittee's investigation to the respective applicant prior to adjudication. The Commission assumes that the board intends to use the results of the research in its deliberations.

 

            The facts submitted do not include information about whether the board member or members on the subcommittee will exercise a vote on the pending application or the manner in which the information will be provided to the applicant.

 

            The authority of the Ethics Commission is limited to the application of the Code of Ethics, New Castle County Code Sections 2.03.100 et seq and 2.04.100 et seq. The Ethics Code's conduct rules at Section 2.03.104(A) recite a prohibition on conduct creating an appearance that the decisions or actions of a County official are influenced by factors other than the merits of the matter for decision, thereby undermining public confidence in the impartiality of the governmental body with which the official is associated.

 

 

            In Advisory Opinion 92-01, the Commission held that an appearance of impropriety would be created if, prior to a hearing on a requested variance, a Board entered into communication with an applicant in a non-public manner. The Commission reasoned that "[a]ny ex parte communication between an applicant and the Board, such as a nonpublic on site meeting and inspection prior to the public hearing, would create the appearance that the Board's decision regarding the requested variance is ' influenced by factors other than [those presented at the public hearing and thus - other than ] the merits'. . ." The Commission added in footnote 3 that "[t]his advisory opinion is not intended to address the propriety of an on site inspection by the Board should the Board determine, after hearing the evidence, that such an inspection is necessary in order to render a decision on an application for variance.

             A question of law regarding the commingling of investigatory and adjudicative function by an administrative body underlies this advisory opinion request. While it is clear that a regulatory body making administrative decisions must act with impartiality and avoid the appearance of bias, it is not clear whether the proposed conduct, substantive guidance to an applicant by the Board and/or the transmission of the board's investigatory findings prior to a determination on an individual's pending application, comports with established administrative or constitutional law. It is not within the limited jurisdiction of the Ethics Commission to decide this question of law; such jurisdiction lies with the County Law Department. If the Law Department would find that the proposed conduct comports with administrative or constitutional law, a question of appearance of impropriety will not arise as long as the information is transmitted in a manner which does not exclude the public.

             The Commission is without authority to determine whether providing substantive investigatory information and/or guidance to an applicant prior to the board's determination would be an improper commingling of investigative and adjudicative functions and thereby create an appearance of impropriety. The requester is referred to the County Law Department for determination of the question presented.

 

            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