Whether an official may operate an outside business that contracts with private associations to maintain real estate which may include structures inspected by the County department where he is employed.

          In order to avoid a violation of the Ethics Code, the requester must exclude even ordinary maintenance of the structures from his contracts and not perform any services for the private entities related to the structures inspected by his Department.

          The requester is an official in a County Department which is responsible for inspecting structures maintained by private associations on private property.¹

 

          The requester operates an outside business which contracts with private parties to maintain real estate, including incidental maintenance of such structures if they exist on the contract property. The requester does not include a separate price for such maintenance and the contracts exclude major maintenance on such structures.

 

          The Ethics Code prohibits conduct which creates an appearance that a County official, employee or a County department is not impartial. Section 2.03.104 states in pertinent part:

 

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 the creation of such an appearance for judicial public officials has been described in Delaware courts a

 

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.

 

            Section 2.03.103 B(2) of the Code restricts representation by an official of the interest of another before the County. It states, in pertinent part, "No county official may represent or otherwise assist any private enterprise with respect to any matter before the County. . ."

 

 

          In Advisory Opinion 09-04, May 13, 2009, an official asked whether he could provide access to an unrelated private business as a service for his employees. The business was not a potential contractor with the County and the official would not receive remuneration for providing the access. Access to the employees would provide a business advantage for the vendor over its competitors. The Commission held that providing such access would create an appearance of impropriety and create the perception that the official was using his office for the gain of a private entity. It wrote:

 

In affording access to the employees, the official is personally endorsing the for-profit business in a manner different from other such businesses which are not provided such access. Although the business is not aiming its services at County government, as appears to be contemplated in the Code's representation restrictions, the official would be acting in an official capacity when making this endorsement and therefore using his office for the future gain of the private entity as prohibited by Section 2.03.104(D).

 

Additionally, the provision of such access certainly would be perceived by the reasonable person to affect the official's and business' outside relationship since other customers of the business may not be able to provide such an easy path to new customers and the future profit they might bring. . . .

 

In Advisory Opinion 95-02, November 7, 1995, the Commission found that an agency could not cosponsor a presentation with one of its competitors using the agency’s services. It wrote:

 

As stated, the Sponsor conducts business with the County agency on a regular basis. It is one of several other businesses - its competitors - which must utilize the County agency in the same manner - for the filing, processing and researching of legal records on behalf of private citizens.

 

The agency's cosponsoring of a seminar with one of the several private entities which must conduct business with the agency creates the appearance of a cozy relationship between the Sponsor and the agency, thereby enhancing Sponsor's public image. This appearance would engender in the public a perception that the agency favors Sponsor over its competitors or officially sanctions Sponsor's activities. That the agency would not favor the Sponsor or exercise its authority to the special benefit of the Sponsor is assumed. But the appearance to the public is that the agency's official actions are subject to influence by factors other than the merits, - hence the appearance of impropriety. …

          The primary function of the requester's business appears to be unrelated to the structures inspected by his Department as he does not make additional charges under his contracts for ordinary maintenance of them. However, the plain language of Section 2.03.103 B(1) and the Advisory Opinions cited above make clear that he cannot engage in any outside activity which is regulated by or inspected by his Department, even as a subcontractor, because such conduct would create a perception in the reasonable member of the public that his coworkers would be improperly influenced by his association with the regulated private entity.

          In order to avoid a violation of the Ethics Code, the requester must exclude even ordinary maintenance of the structures from his contracts and not perform any services for the private entities related to the structures inspected by his Department. 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.

 

 

______________________

Thomas P. Collins, Chairperson

New Castle County Ethics Commission

 

Decision: Unanimous

¹29 Del. C. §5805 (d) Post-employment restrictions.