Whether the requester's recusal steps are sufficient to eliminate an appearance of impropriety.

          The requester's recusal is sufficient to dispel an appearance of impropriety: he consulted the Ethics Commission regarding his recusal, notified his superiors of his recusal, delegated his office's investigative duties to an independent contractor, relinquished his authority to judge the competence of the investigation and determine its outcome to another County authority, notified the entity investigated about his recusal, and requested this Advisory Opinion as to sufficiency. He retained only the limited authority to provide procedural guidance since there is no other person in his office qualified to do so. A reasonable member of the public, cognizant of these facts, would not conclude that the requester's ability to carry out his official duties with integrity, impartiality and competence is impaired.

          The requester holds a County position that provides sole authority to him to initiate investigations related to certain County matters. In a personal context, the requester is substantially involved with a nonprofit organization that has no connection with County government other than infrequent small grants from the County which are unrelated to the requester's office. The need for a confidential investigation within the sphere of the requester's County authority arose regarding a County vendor. The vendor operates in the same general field as the requestor's associated nonprofit organization but it is not a competitor with the associated nonprofit for County business or grants. The requester determined, after consultation with the Commission's counsel, that the requester's activity with the associated nonprofit might generate an allegation of improper appearance in regard to his investigation of the vendor, even though the vendor and nonprofit do not compete. The requester recused himself, as far as his position permits, by contracting with an independent expert to perform the investigation of the vendor. That person will not report to him but to the head of a County entity which advises the requester's office. The requester notified his superiors and other affected County officials about his recusal. As a result of staffing and authority limitations, the requester retains limited responsibility to provide procedural advice to the parties to the investigation.

 

          New Castle Ethics Code Section 2.03.104A prohibits conduct which undermines public confidence in the impartiality of a governmental body with which a County employee is associated by creating the appearance that the official actions and decisions of the employee or department are influenced by factors other than the merits.

 

          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.

 

 

          In Advisory Opinion 06-14, October 11, 2006, the Commission addressed a question on the proper extent of recusal of a County Official whose spouse had been contacted by a County vendor regarding employment. After reviewing Opinions dating from the early 1990s, the Commission concluded: “On numerous prior occasions the Commission has identified situations in which a County official or County employee must disclose a personal interest or relationship and abstain from participation in County responsibilities in regard to that interest. Most of those situations involved the personal activities of the particular County employee or official: outside employment, business relationships, and membership on boards or organizations . . . [T]he advice in all these opinions was uniform: the official or employee must disclose the situation to his or her superior and ask that all persons he or she supervises be directed not to report to him or her about it. The employee or official was counseled to completely recuse himself or herself from research, discussion and implementation of the County action in the matter . . .”

 

           In Advisory Opinion 06-11, July 12, 2006, the Commission found that an allegation was not sufficient to require an official to recuse. In that case, the official was accused of alleged bias against an agent for an applicant. The bias claim did not extend to the application itself. The Commission found “Such an unsupported assumption falls far short of demonstrating that the official has a personal, direct and concrete interest in the outcome of the application which prevents him from performing his duty in the public interest. Thus, the accusations do not present claims of violation of the conflict of interest rules because of financial or personal interest in the outcome of the application . . . A contentious demeanor can sometimes be expected in regulatory proceedings and even open hostility does not in and of itself create bias. Although the criticism in the accusation disparages the official's alleged choice of associates as persons whom the agent does not admire and the agent accuses the official of conspiring with them to his detriment, given the agent's obvious proclivity for inflammatory rhetoric, these accusations, arising in a regulatory hearing, are not the type or degree of personal criticism which the reasonable person would find disqualifying in future proceedings in this or other matters concerning the agent.”

 

          In Advisory Opinion 05-19, August 10, 2005, the Commission held that “When an official has a legal and or statutory responsibility with respect to action or non-action on any matter where the person, a member of his immediate family or a business with which he or his family is associated has a personal or private interest and there is no provision for delegation of such responsibility to another person, the official may exercise responsibility with respect to such matter, provided that he recuses himself from any involvement as far as legally permissible and 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.”

 

          In Complaint 11-05 Final Order, September 14, 2011, the Commission discussed the conduct creating a sufficient recusal. It stated: “In various published opinions, the Commission has defined recusal as withdrawing from sponsorship, deliberations, vote, research, preparation, discussion, negotiations, contract formation, policy making, planning, decision making, implementation and prohibiting any private or public discussion of a measure raising a conflict or improper appearance . . . In other published guidance, the Commission has stated ‘As soon as the potential conflict or improper appearance arises or is recognized, the official or employee must cease participation in the matter . . . Recusing from participation includes ending advice, input, direction, recommendation, or discussion, as well as refraining from vote’. See, Commission brochure on RECUSAL, page 2.”

          The question the requester places before the Commission is not whether the requester should have recused himself but whether he has done so in a manner sufficient to dispel a claim of improper appearance. Once he made the decision to recuse, he was required to follow the guidance of Advisory Opinion 06-14 and Final Order 11-05 as far as his non delegatable duties permitted. See Advisory Opinion 05-19 regarding non delegatable duties. According to the requester's factual report, he has done so: he consulted the Ethics Commission regarding his recusal, notified his superiors of his recusal, delegated his office's investigative duties to an independent contractor, relinquished his authority to judge the competence of the investigation and determine its outcome to another County authority, notified the entity investigated about his recusal, and requested this opinion as to sufficiency of his recusal. He retained only the limited authority to provide procedural guidance as there is no other person in his office qualified to do so.

             The requester’s recusal is sufficient to dispel an appearance of impropriety: he consulted the Ethics Commission regarding his recusal, notified his superiors of his recusal, delegated his office’s investigative duties to an independent contractor, relinquished his authority to judge the competence of the investigation and determine its outcome to another County authority, notified the entity investigated about his recusal, and requested this Advisory Opinion as to sufficiency. He retained only the limited authority to provide procedural guidance as there is no other person in his office qualified to do so. A reasonable member of the public, cognizant of these facts, would not conclude that the requester’s ability to carry out his official duties with integrity, impartiality and competence is impaired.

 

           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

 

 

 

______________________

Gerald Turkel, Chairperson

New Castle County Ethics Commission

 

Decision: Unanimous

¹ New Castle County Code Section 2.03.104. Code of conduct, in pertinent part: