Whether an elected official may accept temporary outside employment with a private business which may require him to represent it before the County or his Office.

           The official must decline the offer of employment. The Ethics Code prohibits County officials from representing private enterprises, for payment or on a volunteer basis, before any department of the County other than in the context of his or her official duties. In this situation, if the official's agency is asked to or participates as a vendor in the private enterprise, as is customary in this type of event, the official cannot adequately protect the public's interest because he would have conflicting responsibilities to both employers. The Code remedy of recusal, permitting a subordinate to make the decision whether his agency participates in the event, is not effective in this case because the official's agency is very small and every aspect of its public business is subject to his actual day-to-day control. The only remedy for this representation conflict would be to bar the County's participation in the private event but such a remedy, while benefiting the official, would fail to protect the public interest because it would serve to reduce the County's ability to provide valuable information to the public and restrict the public's access to that information.

          The Commission received a request for an Advisory Opinion from an elected official whose office is associated with a type of function in which the public participates both within and without County government. The function is the subject matter of many commercial enterprises. The official is asking for guidance on whether he may accept prospective outside employment on a temporary basis in a friend's business which is sponsoring a public, for-profit event of the type in which the official's office frequently participates as a vendor. As a result of the official's experience with such events, the official has developed expertise in planning and operation which the employer wants to utilize. The official's states that his name will not appear in any publicity related to the event and none of the employment related to the event will be done on County time, with County property, or at any County facility.

 

          The official also asks whether, if he is not permitted to financially benefit from the proposed association with the event, he may associate without pay or by donating his fees to the non-profit organization renting the facility to the business.¹ The request is silent as to whether the official's agency intends to participate as a vendor at the event.

 

 

          The Ethics Code has two general and two specific provisions affecting the official's request for guidance. The general provisions are conflict of interest and appearance of impropriety; the specific conflict provisions are representation of a private interest before the County and acquiring a financial interest in a private business.

 

 

          Section 2.03.l03(A)(1) of the Ethics Code sets forth the activities prohibited as a conflict of interest, as follows:

 

No County employee or County official 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 County 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.    . . .

 

 

          Section 2.03.104(A) of the Code prohibits conduct which would create an appearance of impropriety, as follows:

 

No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.03.l03 (A)(l) [Conflict of Interest], 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 decisions or actions of the County employee, County official or governmental body are influenced by factors other than the merits.

 

 

          Section 2.03.103(B) of the Code prohibits officials from assuming representation of a private entity before the County government. It states as follows:

 

B. Restrictions on representing another's interest before the County.

 

1. No County employee or County official may represent or otherwise assist any private enterprise with respect to any matter before the County Department with which the employee or official is associated by employment or appointment.

 

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 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.

 

 

          Section 2.03.104(B) prohibits acquiring a financial interest if the official may become involved in decisions affecting that interest. It states as follows:

 

B.     No County employee or County official shall acquire a financial interest in any private enterprise which such employee or official has reason to believe may be directly involved in a decision to be made by such official or employee in an official capacity on behalf of the County.

 

 

          A County official may engage in outside private employment, without limitation, if that private business has no relationship to his official duties. See Advisory Opinions 94-05, 98-08, 99-06. In such a case, there can be no conflict of interest or appearance of impropriety. However, even when the private business is entirely unrelated to the County position, an official may not use his public office to assist the private business: he may not refer clients of his County office to the private business, Advisory Opinion 94-02; he may not solicit business from County customers for the private enterprise, Advisory Opinion 93-02; he may not influence, even indirectly, the selection of the business or its associates for County work, Advisory Opinion 94-06; he may not use his position as a County official to advance his interests in the private business, Advisory Opinion 04-11².

 

          When outside employment has some nexus with County Government by regulation or contract, the official is quite limited in his range of conduct. If a private business is expected to seek or require the exercise of authority by the official or his department, the official may not accept employment from it. Advisory Opinion 93-01. If the private employer or another business associated with it comes before him or his agency, he must recuse himself from any act of authority regarding either business. Advisory Opinions 04-11, 04-09. Finally, he may not accept employment in a private business for performing the same duties in the private business that he performs in his public office. Advisory Opinions 91-05, 01-03.

           The Commission notes that the elected official making the request for guidance is widely known and associated in the eye of the public with the subject matter of the planned event to be conducted by his friend's business. In fact, he has quite properly sought to enhance his office's involvement with the subject matter during his years in office. Furthermore, because of those many years in office, he has become an expert on the subject, acquiring knowledge the prospective employer obviously seeks. His proposed employment, while using skills developed through his County job, does not involve the same duties. Personal use of the knowledge he has incidentally accrued while performing his County function is not contraindicated in this situation as he would not be using the authority of his office in performing the outside employment. Thus, the proposed employment is not a conflict of interest in that regard.

 

          However, a conflict issue would be raised if any County department or his office is invited to or participates as a vendor in the event, as his office has done in similar events in the past. In such a situation, if the official were to accept the employment, for pay or as a volunteer, he would be in the position of representing a private enterprise before a County agency. If he accepts any remuneration or donation to charity for his work, he would be acquiring a financial interest in an entity seeking the authority of his office. Both situations are violations of the Code.

 

          Even if his agency participates in the event without paying a fee and even if the official is an unpaid volunteer for the private enterprise, he cannot adequately protect the public's interest if he is on both sides of the table in such a contractual enterprise, as he would have conflicting responsibilities to both employers. The Code remedy of recusal, permitting a subordinate to make the decision whether his agency participates in the event, is not effective in this case because the official's agency is very small and every aspect of its public business is subject to his actual day-to-day control. Furthermore, because of its size such a delegation of authority would not dissipate an improper appearance that a decision to participate in the event was not made on the merits of the event but on the relationship with the official.³

 

          Were the official permitted to accept the employment, the only remedy for these representation problems would be to prohibit the official from involving the County in any aspect of the private enterprise with which he is associated. However, such a rule would also deprive his County agency of an opportunity to disseminate valuable information to the public and deprive the citizens of an opportunity to obtain that information, solely for the private benefit of the official himself. Therefore, representation conflicts like these must be resolved in favor of the public interest, not the individual's private interest.

 

          Additionally, there are significant problems inherent in accepting the employment which do not lie in the issue of financial benefit to the official. Those problems are not avoided if the official volunteers his services or causes a donation to a nonprofit in lieu of salary. The Commission believes an appearance of impropriety would be created if the official accepts the employment and the public were to become aware of the official's employment relationship with the event. A substantial risk exists, which cannot be prevented or remedied, that the public would believe that New Castle County was endorsing the event, to the financial benefit of the employer and the official and to the detriment of competitors, because the official is so well known.

          Thus, the Commission finds that in order to avoid violating the conflict of interest and appearance of impropriety provisions of the Code, the official must decline the offer of employment.

 

          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 12^th DAY OF JANUARY, 2005.

 

____________________________

Dennis S. Clower, Chairperson

 

Decison: Unanimous