Whether an elected official may cast his vote on matters previously processed by a County regulatory board on which a business associate serves.
Conclusion:
Through election, appointment, or employment, all County officials and employees share the same fiduciary duty to the citizens of New Castle County. Officials and employees are presumed to act with integrity and good faith unless circumstances show otherwise. The requester may cast a vote on matters previously considered by a County Board on which a business associate serves unless there is evidence of conflict of interest or evidence creating an improper appearance on the part of the requester.
Facts:
An elected official is associated with a private business that also employs a person who serves on a New Castle County regulatory board. That person is not employed by the requester nor does the coworker report to the requestor. Decisions voted upon by the regulatory board come before the elected official for vote.
Code or Prior Opinion:
Code Provisions
Every County official must consider the ethical rules stated in the Code of Conduct to determine whether his or her official conduct might create a conflict of interest or an appearance of conflict.
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 where he serves will look as though it is showing partiality in a given matter.2
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.
Prior Opinions
In Advisory Opinion 06-06, the Commission stated that it presumes that "County officials and employees act with integrity and good faith unless circumstances show otherwise". In that Opinion the Commission held that "unless undisclosed facts demonstrate that there are other circumstances . . . creating the reasonable perception that the official's conduct would be influenced by factors other than the merits of the measure at issue, a vote will not create and appearance of impropriety".
In Advisory Opinion 99-03, the Commission found that in the absence of a pecuniary interest, it could be within the duties of a Council member "to express the views [on a rezoning] he or she believes to be in the best interest of his or her councilmanic district."
In Order 03-02, June 25, 2004, the Commission found no violation of the Ethics Code when a Councilperson voted for an ordinance that was favored by his former employer and former associates. The substance of the legislation was the subject of significant local partisan debate in the County's general constituency and there was no evidence of private benefit to the Councilperson from enactment.
In Order 08-03, July 11, 2008, the Commission dismissed a complaint that an official improperly communicated with selected members of his constituency. The Commission held that "if an official or his or her family do not have any interest in the substance of proposed legislation to a greater degree than the general public or a subclass consisting of an industry, occupation or other group which includes them, no evidence of bad faith, corruption, or improper personal interest arises just because the official consulted with selected constituents about legislation or took a position on that matter. If an official could be considered to have such a private interest different from the general public or a subclass of an occupation or industry, but the matter is part of his non-delegable duties and he believes his participation in the matter is in the public interest, he may act provided he follows the public notice provisions of Section 2.03.103(A)(2)." [See n.1, supra]
In Advisory Opinion 09-03, an official asked whether meeting with parties opposed to a land use issue for the purpose of exploring compromise would violate the County Code of Ethics. The Commission found no violation and stated, "in this case, neither the elected official nor his family have a personal interest in the ordinance different from a subgroup of other residents of his district and he is not prohibited from performing his legislative duties. The Commission agrees that it is well within the sphere of those duties to confer with members of the public in order to assist, where possible, with forming a consensus for the public good. Since there is no evidence of improper motive in the elected official's conduct, the Commission will provide the official with 'the presumption of fair dealing and honesty as well the time honored privilege due an elected representative of the people to conduct interactions with his constituents and others as he chooses without intrusion from the Commission.' citing Advisory Opinion 08-03. This presumption is afforded whether the elected official meets with opponents or proponents of legislation -- individually, separately or together as the official sees fit."
Analysis:
Absent evidence of improper motive for an official's conduct, the Commission provides an official with a “presumption of fair dealing and honesty”. As it held in Advisory Opinion 08-03, “The Commission does not believe inquiry into how an elected official formulates his opinions on pending legislation or with whom he discusses such matters are within its jurisdiction without some objective evidence of misuse of official authority. Such an interpretation protects "the integrity of the legislative process by insuring the independence of the individual legislator." U.S. v. Brewster, 408 U.S. 501, 507 (1972). In this case, both the elected official and the appointed official share the same fiduciary duty to act to benefit the citizens of New Castle County. That duty is not breached regardless of similar or divergent positions taken by them on any particular issue. Therefore, there is no conflict or improper appearance created when, in the absence of evidence of improper personal benefit, the requester casts his vote on a matter previously voted upon by the coworker/official.
Finding:
Through election, appointment, or employment, all County officials and employees share the same fiduciary duty to the citizens of New Castle County. Officials and employees are presumed to act with integrity and good faith unless circumstances show otherwise. The requester may cast a vote on matters previously considered by a County Board where a business associate serves unless there is evidence of conflict of interest or evidence creating an improper appearance on the part of the requester.
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 10th DAY OF APRIL 2013.
______________________
Johanna P. Bishop, 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.
