1. Whether a County Board member may participate in decisions concerning the County Board's retention and compensation of professionals, when he and his employer have business relationships with certain of those professionals.
2. Whether a County Board member may sit on the advisory board of a consultant retained by the County Board and attend an annual meeting of that advisory board at the consultant's expense.
Conclusion:
1. No. There would be an appearance of impropriety, under Section 2-30.2(g) of the Ethics Code, were this County Board member to participate in decisions concerning the Board's retention and compensation of any professionals, in light of his and his employer's business relationships with certain of those professionals. This Board member may participate in such decisions only to the limited extent permitted by Section 2-30.2(f) concerning voting conflicts.
2. Yes. This County Board member may sit on the advisory board of the County Board's consultant and attend an annual meeting of that advisory board at the consultant's expense. However, there would be an appearance of impropriety, under Section 2-30.2(g), were this Board member to participate in any decisions concerning the County Board's retention or compensation cf consultants. This Board member may participate in such decisions only to the limited extent permitted by Section 2-30.2(f) concerning voting conflicts. Also, payment by the consultant for transportation, lodging and hospitality in connection with its advisory board's annual meeting must be reported by the Board member on his Statement of Financial Interests.
Analysis:
The inquiring party is an appointee to one of New Castle County's several boards and commissions. As such, he is a County official subject to the New Castle County Ethics Code ("Ethics Code").1
The County Board on which this County official (hereinafter "Board member") sits retains several professionals and a consultant to assist the Board in the conduct of its business.
In connection with his private employment, this Board member and his employer have business relationships with certain of the professionals retained by the County Board. The nature of these relationships is such that the professsionals handle transactions for clients of the Board member and his employer which may generate income for the professionals, the Board member and his employer.
It bears emphasizing that these transactions for joint clients of the professionals, Board member and his employer have nothing to do with the County Board, its business or assets. And thus, neither the Board member nor his employer receives any pecuniary benefit as a result of any decisions made or actions taken by the Board member in his official capacity.2
Section 2-30.2(g) of the Ethics Code provides: "County officials and county employees shall avoid an appearance of impropriety." An "appearance of impropriety" is defined as:
The conduct of a county official or county employee which does not constitute a conflict of interest but which undermines the public confidence in the impartiality of a governmental body with which a county official or employee is or has been associated, by creating an appearance that the decisions or actions of the county official, county employee or governmental body are influenced by factors other than the merits.3
In light of his and his employer's business relationships with certain of the professionals retained by the County Board, this Board member's participation in any Board decisions concerning the retention and compensation of professionals creates an appearance of impropriety: it may appear to the public that the Board member's position regarding the retention or compensation of professionals is influenced by factors other than the merits.
Therefore, this Board member should recuse himself from any decisions regarding the retention or compensation of any professionals. If it is necessary for this Board member to vote in order for a decision to be rendered however, he should abide by Section 2-30.2(f) which provides:
Where voting conflicts are not otherwise addressed by the Constitution of the State of Delaware of by any law rules, regulations, order or ordinance, the following procedure shall be employed. Any county official or county employee, who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interests at the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote or approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein.4
* * *
Finding:
While this Board member is not prohibited from sitting on the County Board's consultant's advisory board and attending that advisory board's annual meeting at the consultant's expense, the Board member should not participate in any decisions regarding the retention or compensation of consultants.5 This would create an appearance of impropriety. The reasoning is the same as expressed above: as a member of the County Board's consultant's advisory board, this Board member's special relationship with the County Board's current consultant may create the appearance that his future decisions concerning the retention or compensation of any consultants are influenced by factors other than the merits. However, this Board member may act in accordance with Section 2-30.2(f) concerning voting conflicts, quoted above.
Transportation, lodging and hospitality paid by the consultant for the County Board member's attendance at the annual meeting of the consultant's advisory board must be reported on the Board member's Statement of Financial Interest, in accordance with Section 2-30.4(b)(8).
L. Susan Faw
Ethics Counsel
September 10, 1992
Footnotes:
1See Sec. 2-30.1 Definitions. "County official." This analysis however applies to all County officials, whether appointed or elected, and to County employees, as that term is defined by the Ethics Code. See Sec. 2-30,1, Definitions. "County employee."
2 It is for this reason that there is no "conflict of interest" here. There is no use by the Board member of the authority of his office for his or his employer's "private pecuniary benefit." See Sec. 2-30.1, Definitions. "Conflict or conflict of interest."
3See Sec. 2-30.1, Definitions. "Appearance of impropriety."
4 Sec. 2-30.2(f) expressly governs where voting would result in a "conflict of interest." However, the prescribed procedure is equally appropriate where voting would result in an "appearance of impropriety." See Advisory Opinion 91-02.
5 The consultant's advisory board consists of several representatives from the public sector, including others from state and local government.
