Whether elected officials may vote on a matter in which they had prior significant involvement as part of their official duties.

           The officials may vote because their involvement in the state process is part of their official duties and they do not have a personal interest in the matter greater than that of the general public in their representative districts.

           The requesters are persons who have become part of a formal state process because of their status as County officials. The purpose of that process is to determine and/or affect a compromise between the County and parties adverse to it. The officials themselves cannot actualize the compromise although other persons involved in the state process are able to do so. The officials, as members of a County public body, will have the opportunity, in conjunction with their peers in that body, to approve or disapprove any compromise which is reached. The officials ask whether they will create a conflict of interest if they vote on a matter they may have helped craft.

Ethics Code Provisions

 

            Every County official and employee must consider the ethical rules stated in the New Castle County Code of Conduct before exercising County authority. Ethics Code Section 2.03.103 prevents an official from using his or her County authority, such as a vote, for personal benefit unless that benefit affects the public or a subclass consisting of an industry, occupation, or other group in which the official is a member to the same degree. The Code also prohibits conduct which creates an appearance that a County department or board is not impartial. Code Section 2.03.104(D) forbids an official or employee from using his or her County office to secure unwarranted privileges, private advancement or gain.¹

 

            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). In determining the relevant circumstances, the courts advise the Commission to look at the totality of facts. The Commission has long applied this standard to the conduct of County officials and employees.

 

Prior Advisory Opinions

 

            In Advisory Opinion 06-06, the Commission stated that it presumes that "County officials and employees act with integrity and good faith unless circumstances show otherwise". In that Opinion the Commission stated that "unless undisclosed facts demonstrate that there are other circumstances ...creating the reasonable perception that the official's conduct would be influenced by factors other than the merits of the measure at issue, a vote will not create and appearance of impropriety".

 

            In Advisory Opinion 99-03, the Commission found that in the absence of a pecuniary interest, it could be within the duties of a Council member "to express the views [on a rezoning] he or she believes to be in the best interest of his or her councilmanic district."

 

            In Order 03-02, June 25, 2004, the Commission found no violation of the Ethics Code when a Councilperson voted for an ordinance which was favored by his former employer and former associates. The substance of the legislation was the subject of significant local partisan debate in the County's general constituency and there was no evidence of private benefit to the Councilperson from enactment.

 

            In Order 08-03, July 11, 2008, the Commission dismissed a complaint that an official improperly communicated with selected members of his constituency. The Commission held that " if an official or his or her family do not have any interest in the substance of proposed legislation to a greater degree than the general public or a subclass consisting of an industry, occupation or other group which includes them, no evidence of bad faith, corruption, or improper personal interest arises just because the official consulted with selected constituents about legislation or took a position on that matter. If an official could be considered to have such a private interest different from the general public or a subclass of an occupation or industry, but the matter is part of his non-delegable duties and he believes his participation in the matter is in the public interest, he may act provided he follows the public notice provisions of Section 2.03.103(A)(2)." [See n.1, supra]

 

            In Advisory Opinion 09-03, an official asked whether meeting with parties opposed to a land use issue for the purpose of exploring compromise would violate the County Code of Ethics. The Commission found no violation and stated, "in this case, neither the elected official nor his family have a personal interest in the ordinance different from a subgroup of other residents of his district and he is not prohibited from performing his legislative duties. The Commission agrees that it is well within the sphere of those duties to confer with members of the public in order to assist, where possible, with forming a consensus for the public good. Since there is no evidence of improper motive in the elected official's conduct, the Commission will provide the official with 'the presumption of fair dealing and honesty as well the time honored privilege due an elected representative of the people to conduct interactions with his constituents and others as he chooses without intrusion from the Commission.' Advisory Opinion 08-03. This presumption is afforded whether the elected official meets with opponents or proponents of legislation -- individually, separately or together as the official sees fit."

             There is no evidence of improper motive in this case. The requesters are involved in the state process as County officials and not in a personal capacity. They are attempting to explore compromise in a public matter in an even more formal manner than that described in Advisory Opinion 09-03. The benefit the officials derive from the process is no different from that of the members of their districts and they are answerable to the public for their conduct as participants in the process. The officials retain the non delegable right to vote in the affirmative or the negative when and if the compromise comes before their agency.

            The officials may vote because their involvement in the state process is part of their official duties and they do not have a personal interest in the matter greater than that of the general public in their representative districts.

 

            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 13^th DAY OF JULY 2011.

 

______________________

Thomas P. Collins, Chairperson

 

Decision: Unanimous