An employee has requested that the Commission grant him a waiver of the conflict of interest rule.

          Denied. The Commission has no authority to waive an appearance of impropriety for an official or employee.

 

           An employee has notified his department that he intends to resign on a specific date in a few months. His County position includes responsibility for and oversight of complex and very technical designs implemented by particular current vendors. Two of those vendors have expressed interest in hiring him subsequent to his resignation and he expects to take a position with one of them. The employee understands that after retirement he is prohibited from working for either vendor on projects involving the County on which he gave an opinion, conducted an investigation, or otherwise was directly and materially responsible for such matter in the course of his former official duties.

 

           The employee has a nationally recognized expertise in his profession. He has been the manager for a lengthy, expensive, and prolonged project undertaken by his department. His duties included planning, design, and overseeing/evaluating the calculations and work of consultants and contractors for compliance with the design. As a result of his pending retirement and his possible employment by one of the two firms who have made offers, his department has reassigned many of his duties to other employees. However, the department states that it has no other employee with the technical level of expertise to perform certain remaining tasks: a guidance document for his successor which necessarily involves analysis and evaluation of the two vendors’ work and consultation with current vendors on technical issues related to a County facility. The department states that without the employee’s unique expertise, it will not be able to comply with the completion deadline for a portion of the project. The employee told the Commission that although the County could make a national search and hire a similarly qualified consultant to perform these duties that process would cause a significant delay in the completion of portions of the larger project, to the financial detriment of the County.

 

Sections 2.03.105 provides specific waiver authority to the Commission, limited to issues involving (A) the post-employment restriction and (B) the financial disclosure statement:

Section 2.03.105. – Waivers of restrictions.

A.        Notwithstanding the provisions of this Division, upon the written request of any County Department or of any individual who is or was a County employee or County official, the Commission may grant a waiver of the specific prohibitions governing post-employment restrictions if the Commission determines that the literal application of such prohibition in a particular case is not necessary to achieve the public purposes of this Division or would result in an undue hardship on any current or former employee, official or County Department.  Any such waiver may be granted only by written decision of the Commission.  All requests of waivers will be handled in an expeditious manner by the Ethics Commission.(sic)  Any person who acts in good faith reliance upon any such waiver decision shall not be subject to discipline or other sanction hereunder with respect to the matters covered by the waiver decision provided there was a full disclosure to the Commission of all material facts necessary for the waiver decision.

 

B.        Upon the written request of any individual who is or was a County official or County employee, the Commission may grant a waiver to the specific disclosure requirements contained in section 2.03.107 if the Commission determines that the literal application of such prohibition in a particular case is not necessary to achieve the public purposes of this Division or would result in an undue hardship on any official or employee. Any such waiver may be granted only for one (1) year by written decision of the Commission. Any person who acts in good faith reliance upon any such waiver decision shall not be subject to discipline or other sanction hereunder with respect to the matters covered by the waiver decision provided there was a full disclosure to the Commission of all material facts necessary for the waiver decision.

 

C.        Any application for a waiver, any proceedings and any decision with respect thereto shall be maintained confidential by the Commission provided that:

1.   Public disclosure shall be made by the Commission upon the written request of the applicant;

2.   The Commission may make such public disclosure as it determines is required in connection with the prosecution of any violation of this Division;

3.   The Commission shall report to appropriate Federal and State authorities substantial evidence of any criminal violation which may come to its attention; and

4.   In the event that a waiver is granted, the waiver decision and the record of all proceedings thereto shall be open to public inspection.

      Prior Commission Opinions

            As long ago as 1996, the Commission recognized that an offer of future employment from even a potential vendor creates a situation where an appearance of impropriety is created unless the employee completely recuses from interactions affecting that vendor.  See Advisory Opinion 96-02, February 20, 1996.

          Continued interaction by the employee with either vendor with which he is considering future employment would create an improper appearance and violate the Ethics Code. The waiver authority granted to the Commission in the Ethics Code is specific and limited to situations involving the post employment prohibition and the filing of a statement of financial interests. The Commission has no authority to grant a waiver of an appearance of impropriety.

The Commission has no authority to waive an appearance of impropriety for an official or employee.

 

 

___________________________

Thomas P. Collins, Sr., Chairperson

New Castle County Ethics Commission

 

Decision: Unanimous