Whether an elected official may remain on the board of a non-profit organization which will conduct all its activities on County property pursuant to a contract with the County.

             An appearance of impropriety would be created and the Ethics Code violated if the official remains on the board of the non-profit once the contract with the County is signed.

             The requester is on the board of a non profit which, in the past, has provided financial and volunteer support to a program operated by the County. The County administration recently issued a public request for proposals from private contractors to administer that program. Several entities applied. A bidder was selected but the negotiations with that entity failed. The next selected bidder was the organization in which the official is a board member¹. The official states that "at no time have I been a principal in any of the discussions with the County Administration regarding this matter."

 

            Prior to the response to the County's request for proposal, the non profit's and the County's interest aligned. The non-profit raised money and other services for a program that was planned, supported and administered by the County. However, the organization's relationship with the County will undergo a drastic change when a contract between the official's organization and the County is completed. The organization will not only take over the operation and administration of the current County program, subject to limited continuing County oversight, but also will operate other programs on County property from which it alone will benefit.

 

            Under the contract, the organization will confer closely with the County on the former County program, set its own goals for the independent programs, hire and supervise its own staff, purchase goods and services, and receive payments from its customers as well as payments from the County for services. Its interests and the County's, although not necessarily adverse, will no longer be aligned.

 

            The board will be responsible for hiring staff, securing services, and assisting in setting up program guidelines and administration. After that initial work, it will have oversight for the programs operating under the contract. The requester has not indicated that there will be any additional duties for the board other than those related to the County contract.

 

            The requester states that he understands that as a board member he must recuse himself from any involvement with the County about any aspect of the contract or the programs. He indicates that he also understands that he cannot represent the interests of the organization when acting in his capacity as a County official.

 

            Ethics Code Section 2.03.103A prevents an official from using his or her County authority or status for the private benefit of himself, his family, or an organization with which he is associated. Section 2.03.103B prohibits an official from representing any private enterprise with respect to any matter before the County unless the representation is within the exercise of his official duties. Section 2.03.104A also prohibits conduct which creates an appearance that a County department or official is not impartial.²

 

            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.

 

 

            The seminal rule regarding service on the board of a non-profit was announced long ago in Advisory Opinion 92-02. In that opinion, the Commission stated that "mere position on the board of directors of a non-profit which is not regulated by or does not contract with the County does not create, in itself, an appearance of impropriety. ... However, where the employee or official's County position figures prominently in the person's status with the non-profit, there is potential for an appearance to arise. This is particularly true when a private organization seeks regulation, contract, or benefit from the County or in fundraising. ..."

 

            In Advisory Opinion 10-11, an employee wished to join the board of a non-profit which made advisory operational recommendations to his department, as well as undertaking other actions not involving the County. The Commission permitted him to serve as long as he completely recused from any involvement in issues regarding recommendations to his department, or his department's recommendations to or from the non-profit or to members of the organization that the non profit represented.

 

            In Advisory Opinion 10-06, the Commission found that that the Ethics Code would be violated if an employee took a seat on the Board of a non-profit since the board's function was to oversee activity which was conducted under extensive and continuous regulation by the employee's County department. The interaction between the board and the department was so great that improper representation could not be avoided. The Commission also found that assumption of a leadership role in an organization extensively regulated by the employee's department would create an appearance of partiality in decisions made by that department concerning the non-profit.

 

            In Advisory Opinion 09-05, an official was on the board of a non-profit which had very infrequent involvement with the County. The Commission prohibited him from participating in the formation or execution of a contract with an agent for the County and required him to recuse himself from all of the board's discussions, negotiations, or votes relating to the non-profit's business with the County. See, Advisory Opinion 05-24.

 

            In Advisory Opinion 97-05, an appointed official wished to assume a leadership role in a non-profit. The Commission found that while the official could remain a member of the organization, she could not assume a leadership position. The Commission held that "when a County Official has a high profile, leadership position in an organization whose purpose and /or actual activities center upon influencing County government, an appearance exists that the County official is mingling the two positions and raises impartiality concerns. The appearance would exist that the County Official would be using the authority of her [County] office to further benefit of the organization."

             The official in this matter has long been involved with the non-profit and the County program it will take over under the contract. Once the contract is signed, his only function as a board member will be with the on going details of the contract and the non-profit's relationship with the County. If he remains on the board after that point, he would have to recuse from every discussion, every analysis, every decision related to the County in any way. Remaining on the board when he cannot participate in the business of the board would raise the appearance that official's County position "figures prominently in the person's status with the non-profit" (Advisory Opinion 92-02) or that he is using his County office "to further benefit of the organization". (Advisory Opinion 97-05).

 

            Unfortunately, after the contract is signed, the requester's situation will parallel that of the employee in Advisory Opinion 10-06, in which the Commission held that the Ethics Code would be violated if the requester held a position on the board of the non-profit "since the board's function [is] to oversee activity which [is] conducted under extensive and continuous [contractual] regulation by the ... County." As in Advisory Opinion 97-05, the requester may remain a member of the organization without creating an improper appearance but may not fill a leadership or board position.

 ¹New Castle County Code Section2.03.103C, Restrictions on contracting with the County, states in pertinent part: