The Ethics Commission received a complaint alleging that a County official created an appearance of impropriety by failing to recuse himself from a vote on a matter brought by a County department which benefited his spouse's client.
CONCLUSION
The Commission finds that the official's vote caused an appearance of impropriety and that in the future he must recuse himself when his spouse has a business association with a private beneficiary in a matter before him. The Commission finds that the official made an attempt to avoid an ethical violation and did not knowingly or willfully violate the Ethics Code. The Commission declines to issue any sanction.
SUBSTANTIATED FACTS
The record discloses that two associated measures were brought before the official for a vote on the same date: the first was sponsored by a private owner represented by the official's spouse and the second measure was sponsored by a County department and involved the same property owned by the sponsor of the first measure. Several years prior to the current owner's or the spouse's involvement in the measures at issue, the County department had determined that a change of the first type in the absence of a change of the second type would be clearly detrimental to the public interest. The County department had opposed a prior owner's proposal for a change of the type described in the first measure. At that time, the prior owner had opposed a County request for a change similar to that advanced in the second measure.
When the department was notified that the new owner, the spouse's client, wanted to advance a measure of the first type and, aware that the new owner would be benefited by the second change and without any prompting from the private owner, the department seized the opportunity to sponsor the second measure which it had long believed would substantially benefit the public. The spouse's client did not oppose the change sponsored by the department.
The first measure, if examined standing alone, had previously been declared detrimental to the public interest by the County department. The second measure, if examined standing alone, was detrimental to the financial interest of the spouse's client. The combined effect of both measures was a benefit not only to the current owner but also to the public.
ETHICS CODE PROVISIONS
The conflict of interest rule recited in New Castle County Code Section 2.03.103(A) restricts the use of official authority by a County official or employee:
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 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).
2. In any case where a person has a legal and/or statutory responsibility with respect to action or nonaction on any matter where the person has a personal or private interest and there is no provision for the delegation of such responsibility to another person, the person may exercise responsibility with respect to such matter, provided that promptly after becoming aware of such conflict of interest, the person files a written statement with the Commission fully disclosing the personal or private interest and explaining why it is not possible to delegate responsibility for the matter to another person. If the matter is one in which the legal and/or statutory responsibility requires the person to vote upon the issue, the written statement filed with the Commission shall be read into the public record prior to the time the person's vote is cast. Any person choosing to abstain from voting on an issue where [he] or she has a conflict shall state the reasons for his or her conflict on the record; an abstaining voter need not file the written statement with the Commission required when acting on, rather than abstaining from, an issue involving a conflict.
The New Castle County Code extends the imputed barrier of conflict to members of an official's immediate family which is defined in New Castle County Code Section 2.03.102 as "a spouse, child whether by blood or operation of law, parent, step-parent, spouse's parent or child, or sibling of the whole or half blood of a County official or employee". Although the official's spouse did not represent the property owner in the second measure and therefore did not receive direct financial benefit from it, the spouse had a business relationship with the property owner in the first measure and the owner received benefit in the second measure.1 Such an intertwined association raises a question of appearance of impropriety, pursuant to New Castle County Code section 2.03.104A.
An appearance of impropriety can exist even where there is no conflict of interest and no wrongdoing on the part of an employee or official. Section 2.03.104A states:
No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.02.103(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 a appearance that the decision or action of the County employee, County official or governmental body are influenced by factors other than the merits.
The standard for judging appearance of impropriety for judicial public officials has been described in Delaware courts as "conduct [which] would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the official's ability to carry out [official duties] with integrity, impartiality and competence is impaired." In re Williams, 701 A.2d 825, 832 (Del. Super. 1997). In determining the relevant circumstances, the courts advise the Commission to look at the totality of facts. The Commission believes that standard is equally applicable to the conduct of County officials and employees.
RELEVANT PUBLISHED COMMISSION OPINIONS
The Commission published an opinion describing a similar situation in Advisory Opinion 04-11, August 11, 2004. In that matter the question presented by an official was whether the official's sponsorship and/or vote on a measure which directly affected a client of the official's spouse's created a conflict of interest or appearance of impropriety. The Commission found that although the spouse did not represent the client in the particular matter and there was no conflict of interest, an appearance of impropriety would arise from sponsorship and/or vote since a reasonable member of the public would believe that the official's sponsorship and/or vote was made to advance the spouse's business interests with that client. In accord with prior cited precedent, the official was directed to withdraw his sponsorship of the measure and recuse himself from deliberation and vote in the manner described in Code section 2.03.103A(2) (cited previously at page 3).
Although the official who is the subject of this complaint apparently consulted legal counsel and followed the advice tendered, the official's conduct did not comport with the Ethics Code or the rule of Advisory Opinion 04-11 and its predecessors. Although he did recuse himself from voting on the first measure, in which his spouse represented the client, he voted on the second measure and the two measures combined to benefit his spouse's client. The reasonable person with knowledge of the facts could perceive that the official's ability to cast an impartial vote in the second matter was impaired by his spouse's business relationship with the client in the first matter.
RULING
The Commission finds that the official's vote caused an appearance of impropriety and that in the future he must recuse himself when his spouse has a business association with a private beneficiary in a matter before him. The totality of the circumstances in this matter also reveal that the official made his conflict public, consulted legal counsel, and acted in good faith on that advice before casting his vote. The Commission finds that the official made an attempt to avoid an ethical violation and did not knowingly or willfully violate the Ethics Code and declines to issue any sanction.
In the future, if the official elects not to recuse himself in matters concerning clients of his spouse, the Code requires that he notify the Ethics Commission in advance in the manner described in New Castle County Code Section 2.03.103(A)(2) so that the public will be on notice and the Commission may have an opportunity to offer guidance and prevent a similar violation.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON APRIL 12, 2006.
_________________________
John McMahon, Chairperson
Vote: Unanimous
Footnotes:
1. Section 2.03.102 Definitions, in pertinent part: Business means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit.
. . .
Business with which he or she is associated means any business in which the person is a director, officer, owner or employee; or a business in which a member of the person's immediate family is a director, officer, owner or has a financial interest.
