Whether the child of a County employee may accept a scholarship to college from a union whose members apply to the requesting employee for permits.
Conclusion:
The child of the requester may accept the scholarship since it is based upon the student’s own record of accomplishment and not awarded because of the employment status of the parent. However, even though the requester is the only Department employee qualified to issue permits required by the members of the union and in order to avoid creating an appearance of impropriety, he must recuse himself from interaction with members of that union who apply for permits, or, alternatively, his Department must create an immediate and transparent procedure to prevent Code violations from arising that is approved by the Ethics Commission and which provides oversight of all official interactions between the requester and members of that union.
Facts:
The requester is the parent of a student who intends to seek a college scholarship from a local union. The student is being sponsored for the scholarship by his grandfather, a retired member of this union. The student has achieved high academic success in high school where he has also performed as a three-sport athlete. The employment status of the requester is not material to the scholarship opportunity.
The requester’s Department has the statutory duty to issue permits for the type of work the union members perform. See generally, Title 9, ch. 25 of the Delaware Code. The requester has the technical expertise to issue permits required for those types of jobs, whether union or nonunion. The requester states that all persons requiring such permits must interact with him because the requester is the only employee in his Department qualified to serve in this capacity for those types of jobs.
Code or Prior Opinion:
Ethics Code Provisions
Ethics Code Section 2.03.103A1 prohibits an employee or official from using his or her County authority for personal benefit or the benefit of his or her family members. Similarly, Code Section 2.03.104D prohibits an employee or official from using his or her County office to secure unwarranted privileges, private advancement or gain. In this case, such a situation would arise if the requester granted a permit to a member of the scholarship-awarding union on an improper basis in order to advance the student’s application for the scholarship.
New Castle Ethics Code Section 2.03.104A prohibits conduct that undermines public confidence in the impartiality of a governmental body where 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." Such an appearance could arise if the requester grants the union member a permit on an appropriate basis but without any oversight of that interaction by higher authorities in the requester’s Department
The standard for judging the creation of an appearance of impropriety 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 Commission Guidance and Advisory Opinions
Recusal is the remedy the Code demands when an improper appearance could be created if an employee performs his regular duties. In 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". Commission Recusal Brochure at 2. There is only one Code exception to the obligation to recuse. The Code permits apparent contravention of its conflict or appearance provisions when an elected official has to take non-delegatable action. In such a case, the Commission must receive advance written notice of the conflict or improper appearance and that notice must be read into the public record before the action is taken. See, New Castle County Code Section 2.03.103 A2.
Appearance of personal financial benefit has often been the subject of advice to recuse. In Advisory Opinion 92-05, a board member was required to recuse himself from participation in decisions concerning consultants hired by the Board when he had a business relationship with some of them. In Advisory Opinions 94-04 and 06-06, officials were required to disclose and abstain from voting on matters that would affect their personal pecuniary interests. In Advisory Opinion 99-01 a County official was required to recuse himself from voting when a client of his employer had a financial interest in the matter. In Advisory Opinion 04-11, an official was advised to recuse himself entirely from sponsorship and vote on a matter concerning a client of his wife's business and in Order 05-04 an official was found to have inadvertently violated the Code when he failed to recuse himself in a matter brought by a client of his wife.
Analysis:
The requester's child has achieved academic success in high school where he has also performed as a three-sport athlete. He is being sponsored for the union scholarship by his grandfather, a retired union member. He is not employed by the County and his eligibility for the scholarship is not related to his parent's status as a County employee. Therefore, the Ethics Commission has no authority to prohibit him from applying for or accepting the scholarship.
The Ethics Code issue relates to the requester's official conduct, his use of official authority in relation to contemporaneous or subsequent processes which inure to the financial benefit of members of the union providing the scholarship. The requester's County Department has a state mandated duty to issue the permits in question when certain conditions are satisfied. At the present time, there is no other employee in the Department who has the expertise required to approve their issuance. Nevertheless, if the student applies to the union for the scholarship, in order to avoid the creation of an improper appearance, one of two things must occur: the parent-employee must request that his Department permit him to recuse himself from interaction with union members regarding the permits; alternatively, the Department must create a procedure which provides immediate and transparent oversight of all interactions between the requester and the union members. This alternative procedure would have to be submitted to the Ethics Commission for approval so the public is reasonably assured that no conflict or private gain can occur.
Finding:
The child of the requester may accept the scholarship since it is based upon the student’s own record of accomplishment and not awarded because of the employment status of the parent. However, even though the requester is the only Department employee qualified to issue permits required by the members of the union, in order to avoid creating an appearance of impropriety he must recuse himself from interaction with members of that union who apply for permits or, alternatively, his Department must create an immediate and transparent procedure to prevent Code violations from arising that is approved by the Ethics Commission and which provides oversight of all official interactions between the requester and members of that union.
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 12th DAY OF SEPTEMBER 2012.
_____________________
Gerald Turkel, Chairperson
New Castle County Ethics Commission
Decision: Unanimous
Footnotes:
1New Castle County Code Section 2.03.103. - Prohibitions relating to conflicts of interest. A. Restrictions on exercise of official authority.
1. No County employee or official knowingly or willfully shall use the authority of his or her office or employment or any confidential information received through his or her holding County office or employment for the personal or private benefit of himself or herself, a member of his or her immediate family or a business with which he or she is associated. This prohibition does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the County official or employee, a member of his or her immediate family or a business with which he or she or a member of his or her immediate family is associated. There will be a rebuttable presumption of a knowing or willful violation of this section if the action benefits the County official or employee, his or her spouse, or his or her dependent children (whether by blood or by law).
. . .
New Castle County Code Section 2.03.104. Code of conduct, in pertinent part: A. 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.
. . .
D. No County employee or County official shall use such public office to secure unwarranted privileges, private advancement or gain.
