Whether a conflict of interest or an appearance of impropriety would be created if an official signed a resolution after he has previously refused to sign and publicly stated that he thought such an act would create a conflict of interest or an improper appearance.
Conclusion:
An official may perform a non delegatable ministerial action1 in relation to a matter in which the official has a probable conflict or fears creation of an improper appearance as long as the official puts the conflict or improper appearance on the public record before performing the ministerial act. Performing a purely ministerial act after publicly voicing a personal belief that such an act would create an improper appearance does not violate the ethics code.
Facts:
The ministerial duty of the Council president to sign ordinances is recited in the Delaware State Code. County Council rules define both ordinances and resolutions as "legislation". County Council rules indicate that its adoption of legislation is indicated by the attested signature of the Council president. That official has declined to sign a resolution stating that he believed that doing so would create a conflict of interest or appearance of impropriety. The requester has been consulted in the matter and asks the Commission for guidance on whether, in this situation, signing the resolution would be a violation of the New Castle County Ethics Code.
Code or Prior Opinion:
State Code provisions
Submission of ordinances to the County Executive: 9 Del.C. sec. 1156(b) states that "Every ordinance approved by the County Council shall be signed by the President of the County Council and presented forthwith to the County Executive." 9 Del.C. sec. 1145(b) also requires that the Council President be absent before the President pro tempore may assume the President's duties. It is not within the authority of the Ethics Commission to determine the definition of "absent" in this context and the Commission accepts the duty as both non delegatable and ministerial under state law.
County Council rules
Council practice is for the President to sign both ordinances and resolutions before forwarding them to the Executive. Council Rule 2 defines ordinances and resolutions collectively as "Legislation". Council Rule 2.1.2 references Appendix 1 for a sample ordinance but provides a sample resolution containing the Council President's signature. Council Rule 3.7 states that an ordinance becomes effective when, if "not signed within ten (10) days after presented to the County Executive after adoption by Council (indicated by the signature of the Council President attested to by the Clerk of Council) . . . ."
Ethics Code Provisions
Ministerial action: The New Castle County Ethics Code defines an action that a person performs in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of the person's own judgment as to the desirability of the action being taken, as "ministerial". See, New Castle County Code Section 2.03.102. Definitions, at n. 1, supra.
Conflict of Interest: New Castle County Code Section 2.03.103 of the Ethics Code has two parts. In subsection (A)(1) it prohibits the exercise of County authority for the benefit of the employee or official, his or her immediate family members, or businesses associated with them unless that exercise of authority affects them in the same manner as the general public or a subclass consisting of an occupation or industry.
In subsection (A)(2), the Code provides an exception for an official when his or her authority is non delegatable and he or she decides not to recuse or abstain in the face of a conflict. In such a case, the official must notify the Ethics Commission in writing describing the conflict and put the information about the conflict on the public record prior to exercising the non delegatable authority.2 The Commission previously has extended the application of this rule to appearances of impropriety.
Appearance of Impropriety: The Commission presumes, in the absence of contrary evidence, that County employees and officials conduct County business with personal integrity and for the benefit of the public. However, even when there is no actual violation of the conflict provisions, Section 2.03.104(A) prohibits the creation of an appearance of improper action. New Castle County Code Section 2.03.204A prohibits conduct which creates an appearance of impropriety even when there is no actual conflict of interest. An improper appearance is created when a reasonable member of the public "with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, [would hold] a perception that the official's ability to carry out [official duties] with integrity, impartiality and competence is impaired." The standard for judging the creation of such an appearance 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). The Commission has long applied this standard to the conduct of County officials and employees.
Advisory Opinions
In Advisory Opinion 05-19 the function of the Section 2.03.103(A)(2) exception was explained. That opinion interpreted the exception to permit an official who had the sole and non delegatable legal and or statutory responsibility with respect to action or non action on a matter to exercise responsibility with respect to such matter, provided that the official recused from any involvement as far as legally permissible, filed a written statement with the Commission fully disclosing the personal or private interest, and
In Advisory Opinion 07-12, the Council President had a conflict regarding a proposed land use ordinance. However, the appropriate district councilperson was unable to sponsor the matter. Council rules created sole authority in the Council President to assume sponsorship of the ordinance in this situation. The Commission found that a reasonable person, with knowledge of the Council rule, would not believe that the Council President's integrity was impaired if he assumed sponsorship under these conditions as long as he recused himself from any private or public discussion of the measure and he followed the provisions of Section 2.03.103(A)(2) if he voted.
In Advisory Opinion 10-12, an official with specific statutory responsibilities voluntarily delegated some of the legal authority assigned by law to him, apparently in recognition that the subsection 2.03.103 (A)(2) exception would not prevent the appearance of impropriety that the exercise of authority would create. Under the unique circumstances surrounding this official's assumption of his duties, the Commission held that this was the best solution currently available.
In Advisory Opinions 06-08 and AO 10-12, recusal was described as avoiding research, discussion and implementation of County action in a matter and instruction that supervisees and other persons must be directed not to report to the recused person about the matter. Recusal has also been described in various Commission documents and publications as prohibiting the following: participation, giving advice, providing input, direction, recommendation, crafting policy, making decisions, negotiating, contracting, discussing, as well as refraining from vote.
Analysis:
Every County official and employee must consider the ethical rules stated in the New Castle County Code when exercising his or her County authority. While it is always best to get a formal opinion from the Ethics Commission about a situation in which a conflict or improper appearance could arise, an official should refrain from acting if he or she believes in good faith that such act presents a conflict or an appearance of impropriety.3 To avoid a violation of the Ethics Code, such a recusal must be complete and encompassing. When voting or signing is involved, recusal includes disclosure on the public record immediately before the act.
However, in the case where the official acts pursuant to a binding legal directive under which the official has no opportunity to exercise his or her discretion in anyone's favor or to anyone's detriment, a potential conflict cannot present an improper appearance. As the Commission held in Advisory Opinion 07-21, an official with a non delegatable but ministerial duty related to legislation may perform the ministerial act regardless of conflict or improper appearance as long as he or she recuses from the matter in advance of performing the act and discloses the conflict or improper appearance on the public record when executing that duty. If an official were not permitted to act in such circumstances, the public would be deprived of the benefit of the decision of its elected representatives.
Finding:
The official may perform his non delegatable ministerial duty in relation to a matter in which the official has a probable conflict or fears creation of an improper appearance as long as the official puts the conflict or improper appearance on the public record before performing the ministerial act. The Commission finds that in this case the performance of a purely ministerial act after publicly voicing a personal belief that such an act would create an improper appearance does not violate the Ethics Code.
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.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS 13th DAY OF APRIL 2011.
______________________
Thomas P. Collins, Chairperson
Decision: Unanimous
Footnotes:
1NCC Code Section 2.03.102. Definitions. . . .
Ministerial action means an action that a person performed in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of the person's own judgment as to the desirability of the action being taken.
2New Castle County Code Section 2.03.103. - Prohibitions relating to conflicts of interest.
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 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 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 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.
3"Good faith" includes an effort to learn whether the Commission has previously offered an opinion on a similar or related matter. The Commission maintains a publicly accessible and searchable database of all its Opinions and Orders issued after 1991. It also retains Counsel who is available for consultation.
The Ethics Code provides immunity from an ethics prosecution if the requester of an opinion follows the advice given to him or her by the Commission. See, NCC Code Section 2.04.102 (I): "It shall be a complete defense in any enforcement proceeding initiated by the Commission and evidence of good faith conduct in any other civil or criminal proceeding if the requester, at least twenty one (21) working days prior to the alleged violation, requested the opinion from the Commission in good faith, disclosed truthfully all the material facts and committed the acts complained of either in reliance on the opinion or because of the failure of the Commission to provide an opinion within twenty-one (21) days of the Commission's receipt of request or such later extended time."
