The New Castle County Ethics Code provides guidelines for the ethical conduct of public officials and employees. See Section2.03.101. The Code recognizes "that many public officials are citizen-officials who bring to their public offices the knowledge and concerns of ordinary citizens and taxpayers. They should not be discouraged from maintaining their contacts with their community through their occupations and professions." New Castle County Code Section 2.03.101B.

 

            The conflict of interest rules at New Castle County Code Section 2.03.103(A)(1) prohibit the use of official authority or any confidential information 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. . . . ."¹ This conflict rule means that an official or employee may not exercise any authority or use confidential information² derived from his or her County position in matters involving himself, his or her immediate family members or businesses associated with him or those family members, other than in those situations in which the employee or immediate family are affected in a manner no different from the general public, or a subgroup which includes them.

 

            Subsection 2.03.103(E) specifically prohibits the disclosure of confidential information: "No person shall disclose any information required to be maintained confidential by the Commission under the provisions of this Division."

 

            Additionally, the Code's conduct rules at Section 2.03.104(A), (E) and (F) also recite prohibitions affecting the exercise of County authority by an official even when direct financial conflict is not at issue. Subsection A prohibits exercise of official authority which creates an appearance that the decisions or actions of a County official or his or her department are influenced by factors other than the merits of the matter for decision. This prohibition exists because such conduct undermines public confidence in the impartiality of the governmental body with which the employee or official is associated.³ Subsection E prohibits any employee or official from engaging in outside activity which might reasonably be expected to require or induce him or her to disclose confidential information acquired by reason of the public position.⁴ Subsection F prohibits the official from disclosing confidential information gained by reason of public position or using confidential information for personal gain or benefit.⁵ There are criminal sanctions associated with a finding of violation of these provisions. See Sec. 2.03.103(F).⁶

 

            In reference to complaints, the Code broadly states: "No person shall disclose or acknowledge to any other person any information relating to a complaint, preliminary inquiry, investigation, hearing or petition for reconsideration which is before the Commission."⁷ A violation of this rule is a violation of the Ethics Code and punishable by the sanctions listed in Section 2.04.104.⁸

 

Prior Commission Opinions

 

            The Commission presumes that County officials and employees perform their duties in good faith and in accord with the rules. This presumption includes persons the County Executive and/or the Council confirm for positions on the Ethics Commission. "Absent some concrete evidence that an office holder uses [his status] to obtain some unwarranted privilege . . . or to avoid some personal consequence for his conduct, the presumption of good faith is accorded to the official. . . ." Advisory Opinion 07-01. (Whether using a personal vehicle to advertise the owner's candidacy for a County position violates the Ethics Code.) "There is a presumption that government officials fulfill their duties with honesty, impartiality, and integrity; the burden to prove otherwise is on the person who asserts [otherwise]. . . . The burden to demonstrate [a conflicting interest] is substantial and evidence of mere possibility . . . is insufficient. If [a conflicting interest] is shown to exist, due process requires the official to abstain or recuse him or herself from all aspects of the proceeding or matter in issue. . . . Thus, the burden to show [a conflicting interest] is substantial because if remote, speculative, or nebulous interests were permitted to disqualify public officers, the community would be deprived of the services of some of its most capable citizens. If this burden were not so substantial, unscrupulous applicants would be tempted to cry "wolf" in order to remove perceived present or future impediments to a desired conclusion in the administrative process. The burden of demonstrating [a conflicting interest] requires a convincing showing that the official or employee's interest in the outcome of the proceeding is concrete, direct and personal." Advisory Opinion 06-11. (Allegation that an official should recuse himself because of alleged bias against an applicant.)

 

            The only case in which confidentiality considerations stemming from an outside economic interest was deemed to so adversely impact a County position that the outside employment was prohibited was described in Advisory Opinion 05-26. In that case, a department wanted to hire a candidate who held outside employment as a private investigator. The County position required the use of a confidential criminal justice information data base. The owner of that data base barred any access by private investigators. Access to the information in the data base would be of significant economic advantage to such investigators. If the candidate continued the outside employment after hiring by the County, the owner of the criminal justice information would have denied access to him. Therefore, if the County employed this person, it would have had to expect that the owner's ban would be circumvented since use of the criminal justice information was essential to the County job. The Commission held that a "reasonable member of the public may question the candidate's loyalty and integrity, believing that the nature of the outside economic interest creates a situation in which the candidate would be expected or induced to disclose some of the confidential information to which he could obtain access."

 

            The more usual precedent in the case of outside economic interest has been to require the official or employee to recuse from all County matters involving confidential information which would be of interest in the outside employment. See, e.g., Advisory Opinion 05-06 (Elected official must recuse himself from all County issues affecting his outside employer, including indirect policy making and discretionary implementation matters); Advisory Opinion 05-21 (Recusal required from confidential information affecting a local government or, alternatively, from involvement in County land use matters as an elected official in a local government); see also, Advisory Opinion 06-12 (recusal from County activities related to a municipality if employee serves on a regulatory board of the municipality); Advisory Opinion 06-08 (Recusal required from all County action affecting the financial interest of an immediate family member's employer) but see, Advisory Opinion 07-06 (Recusal insufficient in the case of a lease with a non profit headed by an elected official and public notice and bid required.) and Advisory Opinion 04-09 (Recusal is required if highly placed official's son's business is regulated by the official's department; recusal is insufficient to remove appearance of impropriety if the official becomes associated with his son's regulated business.)