Whether an employee may serve as an unpaid advisor to a nonprofit whose financial support is dependent on valuation of property by the County.
Conclusion:
In order to avoid creating an appearance of impropriety, the requester may serve as an advisor but must recuse himself from involvement in any matter concerning changes in the valuation policy of the County.
Facts:
The requester wishes to serve as an unpaid volunteer to advise a nonprofit on fiscal matters. The County provides valuation for properties which are assessed to provide resources for the nonprofit as well as for the County itself. His duties as a volunteer would include providing consultation and guidance on matters relating to the nonprofit’s budget as well as other recommendation functions.
Code or Prior Opinion:
County employees and officials are encouraged to participate in social and charitable community functions. The Code, at Section 2.03.01B, states a precept that can equally be applied to employees as well as officers: “It is recognized that many public officials are citizen-officials who bring to their public offices the knowledge and concerns of ordinary citizens and taxpayers. They should not be discouraged from maintaining their contacts with their community through their occupations and professions. Thus, in order to foster maximum compliance with its terms, this Division shall be administered in a manner that emphasizes guidance to public officials and public employees regarding the ethical standards established by this Division.” Every County official and employee must consider the ethical rules stated in the Code of Conduct to determine whether his or her volunteer activities might create an appearance of conflict with his County duties.
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 in which 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:
There is no financial conflict of interest arising from the duties of the volunteer position. The requester will serve without compensation and no benefit will accrue to his family or outside business from his service. Only the community will benefit.
Most of the duties involved in the volunteer position will not involve changes in the valuation policy of the County. However, an appearance of impropriety would be created if the reasonable member of the public believed that the requester’s County authority permitted him to influence the County valuation policy to benefit the nonprofit. The means to avoid creating this appearance is for the requester to recuse himself from involvement in any matters associated with issues of change in valuation policy by the County.
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. 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 policy making, 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:
In order to avoid creating an appearance of impropriety, the requester may serve as an advisor but must recuse himself from involvement in any matter concerning changes in the valuation policy of the County
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 9th DAY OF JANUARY 2013.
______________________
Gerald M. 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.
1New 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 merit.
