Whether a County employee, who is a board member of a nonprofit organization which functions in a County representative district, may occasionally serve in a secondary position as an assistant to an elected official who represents that district.
Conclusion:
Unless the requester is relieved of the secondary service to the official who represents the district where the nonprofit functions, the requester must resign from the leadership position on the nonprofit.
Facts:
The requester is a member of the board of an organization that operates a nonprofit land use facility in one of the County representative districts. In that board leadership capacity, the requester has contact with various County departments to obtain services for the facility. The requester’s primary County job is as an assistant to an elected official for another representative district, however, on infrequent occasion, she is asked to assist the official who represents the area where the nonprofit operates and who votes on issues concerning that organization.
Code or Prior Opinion:
Code Provisions
County employees and officials are encouraged to participate in social and charitable community functions. The Code, at Section 2.03.01B, states: “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.
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.
In order to avoid creating an appearance of using his or her County authority in favor or a private interest, Code section 2.03.103B prohibits all County employees from advocating for or representing any private interest before the department which employs them unless that advocacy is part of their official duties. It states, in pertinent part, "No County employee . . . may represent or otherwise assist any private enterprise with respect to any matter before the County Department with which the employee . . . is associated by employment or appointment." Performing work for a private entity which is presented to the County for review or action is such representation. The Commission found an exception to this rule only when an official or employee is presenting work on his own residence. See Advisory Opinion 05-02, February 9, 2005.
Prior Opinions
In Advisory Opinion 97-05, April 12, 1997, a County official was directed to resign a leadership position in a civic association in order to prevent an appearance of impropriety. The official’s direct supervisor had the duty of voting upon issues concerning the association and was subject to lobbying from the civic association members. The official was permitted to maintain membership in the civic association, however. The Commission held that "when a County Official has a high profile, leadership position in an organization whose purpose and /or actual activities center upon influencing County government, an appearance exists that the County official is mingling the two positions and raises impartiality concerns. The appearance would exist that the County Official would be using the authority of her [County] office to further the benefit of the organization.”
In Advisory Opinion 99-04, November 9, 1999, the Commission advised that the Ethics Code would not be violated if a member of the Board of Adjustment to served as president of his neighborhood civic association because “95% of its business” was not related to the County. However, the Commission required the official to follow a recusal procedure if a matter affecting his neighborhood civic association came before the Board. In Advisory Opinion 05-24, December 28, 2005, an employee was permitted to serve on the board of a nonprofit because he would be able to recuse himself in those "few occasions when matters concerning the nonprofit come before his agency."
In Advisory Opinion 13-03, March 13, 2013, a County Board member was permitted to continue to serve as president of her neighborhood maintenance association since that entity did not appear before nor advocate on issues that came before her County Board. However, if the association should ever come before the Board or advocate before the County on issues affecting the Board, she was required to recuse herself from involvement as a Board member and as an association official.
Analysis:
The basic rule of conduct announced in Section 2.03.103B1 prohibits the requester from bringing any matter before her department on behalf of the nonprofit, regardless of her primary or secondary job assignment. The requester’s service in her primary job does not create a suspicion of partiality or breach of that rule since the nonprofit organization is not located within that district. However, when the requester is assigned to the district where the nonprofit is located, the Commission’s analysis in AO 97-05 is applicable: "[W]hen a County Official has a high profile, leadership position in an organization whose purpose and /or actual activities center upon influencing County government, an appearance exists that the County official is mingling the two positions and raises impartiality concerns. The appearance would exist that the County Official would be using the authority of her [County] office to further the benefit of the organization.”
Although recusal is a frequent tool advocated by the Commission, it does not solve the appearance problem raised by the secondary position. Recusal would not remove the suspicion in the reasonable member of the public that the organization in which the requester holds a prominent position would receive special treatment as a result of the requester's County job assignment. Additionally, in the case of recusal, the County would be deprived of a substantial number of services for which it compensates the requester.
The Commission suggests that the requester advise her superior of the ethics issue presented and ask that her secondary assignment be changed to avoid service in the district where the nonprofit functions. If that request cannot be accommodated, the requester must resign from the leadership position which causes the conflict with the secondary position.
Finding:
Unless the requester is relieved of the secondary service to the official who represents the district in which the nonprofit functions, the requester must resign from the leadership position on the nonprofit.
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 7th DAY OF MAY 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. . . .
3New Castle County Code Section 2.03.103B. Restrictions on representing another's interest before the County.
1. No County employee or County official may represent or otherwise assist any private enterprise with respect to any matter before the County Department with which the employee or official is associated by employment or appointment.
2. No County official may represent or otherwise assist any private enterprise with respect to any matter before the County. This prohibition is to be considered personal to the County official and is not, for purposes of the New Castle County Ethics Code only, deemed to impact other members of a firm, business, or other employer by which the County official is employed.
3. This subsection shall not preclude any County employee or County official from appearing before the County or otherwise assisting any private enterprise with respect to any matter in the exercise of his or her official duties.
