New Castle County
Ethics Commission
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94-01

Family

L. Susan Faw, Ethics Commission Counsel

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Question:

           Whether it would violate the New Castle County Ethics Code if a County official's adult stepchild, employed by a temporary agency, were assigned to work for a company (hereinafter "Company") with which the County contracted for the provision of services, where selection of the Company was not within the County official's authority.

Conclusion:

           No. The facts presented do not suggest any conflict of interest, violation of the contract restrictions, or appearance of impropriety under the Ethics Code.

Analysis:

Conflict of Interest   
 
          Section 2-30.2. (a) states: "No county official or county employee shall engage in conduct that constitutes a conflict of interest." For a county official, a "conflict of interest" is defined as "[u]se . . . of the authority of his office [ ] or any confidential information received through his holding county office [ ] for the private pecuniary benefit of himself, a member of his immediate family or a business with which he is associated."1
 
          The facts presented do not create a "conflict of interest" for three reasons:
 
          1) Under the Ethics Code, an adult stepchild is not "a member of [a county official's] immediate family," since he is not a dependent child.2 2) Since "the county official's duties do not include selection of the Company for purposes of contracting with the County, the official has no opportunity to use the "authority of [his] office", - meaning "the actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular county office"3 (for pecuniary gain or otherwise).  3) Even if the county official had the authority to select the Company to contract with the County, the county official's selection would not inure to the stepchild's private pecuniary benefit. The flow of money from the County to the Company to the temporary agency to the county official's stepchild is simply too attenuated to constitute the "private pecuniary benefit" envisioned by the Ethics Code.
 
Appearance of Impropriety
         
           Section 2-30.2.(g) states: "County officials and county employees shall avoid an appearance of impropriety." "Appearance of impropriety" is defined as "conduct of a county official . . . which undermines the public confidence in the impartiality of a governmental body with which a county officer [ ] is [ ] associated, by creating the appearance that the decision or actions of the county official [ ] or governmental body are influenced by factors other than the merits."4  Again, since the county official does not have the authority to select the Company, there is no decision or action to which an "appearance of impropriety" could attach.
 
Contracting with the County
 
          Section 2-30.2.(e) of the Ethics Code states:
 
No county official or county employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the county or any subcontract valued at $500 or more with any person who has been awarded a contract with the county with which the county official or county employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded.5

Finding:

           For unknown reasons, instead of using the defined language found throughout the Code - "member of the immediate family", Section 2-30.2.(e) speaks in terms of "spouse" and "child." The Commission concludes that this language is the same as "member of the immediate family". An adult emancipated stepchild is not a "child" for purposes of this section. Therefore, there would be no violation of Section 2- 30.2. (e)
____________________________
L. Susan Faw, Ethics Counsel
 
March 11, 1994

Footnotes:

1 See Section 2-30.1. Definitions.
 
2 "Immediate family" includes "[a] spouse or dependent child of a county official or employee whether by blood or operation of law." See Section 2-30.1 Definitions.
 
3 See Section 2-30.1. Definitions.
 
4 See Section 2-10.1 Definitions.
 
5 Although not specified in the request for an advisory opinion, it is assumed that the Company's contract with the County exceeds the $500 threshold set forth in Section 2-30.2.(e).

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