Whether an employee who is a pensioner of a private business may provide guidance to County employees regarding matters brought before the County by that private business.
Conclusion:
In order to avoid creating an appearance of impropriety, the requester may not provide guidance and must recuse himself by informing both his superiors and supervisees that he is not to be consulted for advice regarding the private business and must make a deliberate effort to avoid informing himself about those issues.
Facts:
A private business is seeking certain reductions in its financial obligations to the County from the requester’s department. The requester supervises the County employees involved in assisting the private business in the procedural process. The requester receives a pension from that business which will not be affected by the outcome of the private business’ interaction with the County.
Code or Prior Opinion:
Every County official and employee must consider the ethical rules stated in the Code of Conduct when using their County authority. The requesting official is properly examining his authority to supervise other employees in a matter where a charge of favoritism could arise.
New Castle County Code Section 2.03.103A prohibits County employees or officials from using County authority for personal or private financial benefit.1
New Castle County Code Section 2.03.104(A)(1) prohibits the creation of an impression in the reasonable member of the public that an official or employee’s official action is affected by personal interests which impairs his or her competence, integrity and honesty, or that the department where he serves will look as though it is showing partiality in a given matter.
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.2
Analysis:
The requester’s pension is not affected by the outcome of the private business’ interaction with the County and, therefore, does not create a conflict of interest pursuant to Code section 2.03.103. However, the reasonable member of the public may believe that the requester would give more attentive service to the needs of the business than to some other entity seeking assistance from his supervisees because of the financial support the requester receives from the private business. The means to avoid creating this appearance of impropriety is for the requester to recuse himself from involvement in any matters brought by the private business.
In various published opinions the Commission has defined recusal as withdrawing from sponsorship, deliberations, vote, research, preparation, discussion, negotiations, contract formation, policymaking, planning, decision making, implementation and prohibiting any private or public discussion of a measure raising a conflict or improper appearance. For example, in Advisory Opinion 06-08, at p. 4, the Commission held that when a conflict exists, participation in research, preparation, discussion or implementation is barred; in Advisory Opinion 06-12, at p. 6, the Commission stated that a conflict requires the individual to recuse from policymaking, planning or decision making; in Advisory Opinion 07-11, at pp. 9-10, the Commission stated that an official was barred from participating in decisions about a conflicting matter. 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". Commission Recusal Brochure at 2.
Finding:
The Commission finds that the hardship to the County exceeds the financial benefit to the requester and that waivers would not reduce public confidence in the fairness of the Department’s hiring practices. A limited waiver in the matter of the litigation is GRANTED only until the discovery phase of the case begins. A waiver is GRANTED in the contract matter for the duration of the arbitration.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON
THIS 21st DAY of FEBRUARY 2013.
__________________________
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).
2. In any case where a person has a legal and/or statutory responsibility with respect to action or nonaction on any matter where the person has a personal or private interest and there is no provision for the delegation of such responsibility to another person, the person may exercise responsibility with respect to such matter, provided that promptly after becoming aware of such conflict of interest, the person 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. If the matter is one in which the legal and/or statutory responsibility requires the person to vote upon the issue, the written statement filed with the Commission shall be read into the public record prior to the time the person's vote is cast. Any person choosing to abstain from voting on an issue where or she has a conflict shall state the reasons for his or her conflict on the record; an abstaining voter need not file the written statement with the Commission required when acting on, rather than abstaining from, an issue involving a conflict.
2New 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
