Whether the Ethics Code would be violated if a recently appointed County official provides, though a corporation in which he has a financial interest, a donated service unrelated to his County duties to the public at a County sponsored event under a long standing contract with a local business.

          Under the reported facts, the official's performance under a private contract with a local business, which predates his tenure with the County, to provide a free service to the public which is unrelated to his County duties, does not violate the Ethics Code.

          The requester, an individual with a significant financial interest¹ in a subchapter S corporation, recently became a County official. The S corporation has had a decade long contractual relationship with a local business, performing in an advertising capacity 5 to 8 times a year at charitable or public events on behalf of the business. The local business has had a frequent past practice of donating the services of the official's advertising vehicle to the County's annual Ice Cream Festival for use, without charge, as a benefit to the public. The official appears in public as the operator of the advertising vehicle but does not function as a spokesperson for the local business. The business of the S Corporation is not related to any County government function and the official's position with in the S Corporation is not in anyway similar to his County function. The local business is not involved in issues pending before his County department, and he would be able to recuse himself and delegate involvement in any matters concerning the local business if they arose.

 

          The conflict of interest rules at Code section 2.03.103(A)(1) restrict the use of official authority by a County official or employee "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."² An issue of conflict of interest is not raised in this request. First, there is no financial relationship between the County and the official's Corporation.³ Second, given the recency of his County employment and the preexisting duration of his relationship with the local business, there is no possibility that he is using his public office for personal or private pecuniary benefit in obtaining this contract.

 

          The code of conduct provisions at Code section 2.03.104(A) recite a prohibition on creating an appearance that the decisions or actions of a County employee, County official or governmental body are influenced by factors other than the merits of the matter before it. It states in pertinent part:

 

A. No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.03.103(A)(1) [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 decision or action of the County employee, County official or governmental body are influenced by factors other than the merits.

 

          Under the facts as reported, this provision has some application since the private contract would be performed at a County function.⁴

 

          One of the concerns reflected in the prior Opinions of the Commission is that when an official becomes widely known as a County policy maker or as a spokes person for such an individual, the official's actions in his or her County role and his or her private role may become confused in the eye of the public. Such confusion may create an appearance of impropriety, lending County authority to the private pursuits or creating an appearance of County partiality to the private endeavor. When this is foreseeable, the Commission has required the official to forgo the private conduct. For example, in Advisory Opinion 97-05, a Council member's aide was prohibited from holding a leadership role in a civic group which advocated before Council. In Advisory Opinion 04-14, a County official was prohibited from accepting outside employment because his recusal from involvement in public business concerning the employer would have been detrimental to the public interest. In Advisory Opinion 05-03, an official who functioned as a public spokesperson for a County policymaker was prohibited from filling an executive position in an outside business because the business publicly advocated and discussed positions concerning County practices and expenditures for which the policymaker was responsible.

          In this case, there is no likelihood of public confusion between the official's public duties and his private business similar to that experienced in the Opinions recited above. The business of the Corporation and the duties of the County official are not similar and do not overlap in any way. The Corporation is not regulated by, does not contract with, or advocate before the County. It would be obvious to the reasonable person that the advertising vehicle is not County sponsored, owned, or affiliated and, since the official has been only recently employed by the County, he has not yet developed a high profile in the public's eye and would suffer little recognition when appearing in his private capacity. The requester reports that he is would be able to recuse himself from any official involvement with the local business and the law prevents him from contracting with the County on behalf of his S Corporation absent arms' length negotiation or public bidding. A reasonable person with knowledge of all these facts would not find that the impartiality of the governmental body associated with the official has been impaired or that the integrity or competence of the official would be called into question if he fulfilled his contract with the local business to donate the services of his Corporation's vehicle to the public at the Ice Cream Festival.