Whether it would violate the New Castle County Ethics Code if a County employee's duties include maintenance and drainage of County sewers, while the County employee's spouse owns a business providing the same services to private property owners - to the extent sewer maintenance and drainage is the private property owners' responsibility, rather than local government's.
Conclusion:
No. However, while acting in his capacity as a County employee, he must not refer a private property owner to his spouse's business, lest he create an appearance of impropriety. Likewise, he must not make any decision or take any action involving the adequacy or nature of work done by his spouse's business, lest he create an appearance of impropriety.
Analysis:
The fact that the County employee's duties entail maintenance and drainage of County sewers, while the County employee's spouse's business provides the same services for private property owners, does not - in and of itself - give rise to a violation of the New Castle County Ethics Code.
However, it is possible that while acting in his official capacity, on rare occasion, this County employee could have the opportunity to refer a private property owner in need of sewer maintenance and drainage services to his spouse's business.
On even :rarer occasion, this County employee could confront decisions involving work performed by his spouse's business. Section 2-30.2.(g) of the Ethics Code states: "County officials and county employees shall avoid an appearance of impropriety." "Appearance of impropriety" is defined as "conduct of a county [ ] employee . . . which undermines the public confidence in the impartiality of a governmental body with which a county [ ] employee is [ ] associated, by creating the appearance that the decision or actions of the county [ ] employee or the governmental body are influenced by factors other than the merits.1
Finding:
Thus, to avoid any appearance of impropriety, this County employee must abide by the following guidelines, while acting in his capacity as a County employee whose official duties entail sewer maintenance and drainage: a) he must not refer2 private property owners to his spouse's business3 and b) he must abstain from any decision or action involving in any way the adequacy or nature of work performed by his spouse's business.4 Should the County employee fail to follow these guidelines, an appearance of impropriety would occur.5
Furthermore, if the County employee fails to follow these guidelines and, in so doing, exercises his official authority for the private financial benefit of his spouse's business, his ethical breach would escalate from an appearance of impropriety to a more serious violation: a conflict of interest.6
L. Susan Faw
Ethics Counsel
May 5, 1994
Footnotes:
1See Section 2-30.1. Definitions.
2 The mere mention of his spouse's business could be construed as a referral and thus, must be avoided.
3 There may be internal departmental rules which prohibit county employees, while acting in their official capacity, from referring members of the public to private businesses. The Ethics Code exists separate and apart from such rules and regulations and in no way supersedes or modifies them.
4 This County employee should abstain, enabling a fellow County employee to make any decision or take action pertaining to this County employee's spouse's business. Such decisions or actions will arise rarely, if ever. Abstention is therefore a satisfactory means of resolving the appearance of impropriety. See Advisory Opinions 91-02, 01-04 and 92-05; see also Section 2-30.2.(f) (requiring county officials and employees to abstain from voting, if required to vote on a matter which would result in a conflict of interest).
This is to be distinguished from the situation raised in Advisory Opinion 92-07. There, the Commission found that there would be an appearance cf impropriety created if County building and code inspectors, moonlighting in the construction industry, were permitted to inspect their own or their employers' work. The ethical dilemma could not be cured by having the moonlighting employee abstain so that a fellow County inspector could inspect this work. If County building and code inspectors were permitted to moonlight in the construction industry and have fellow inspectors inspect work done by the moonlighting inspectors or their employers, appearances of impropriety would occur on a regular and frequent basis, "taint[ing] the integrity of the entire inspection process." Such is not the case here, where this County employee would rarely, if ever, confront decisions involving his spouse's business. Such decisions dLo not appear to be an essential and integral part of this employee's job. On that rare occasion, this County employee may notify his supervisor, so that assignment of that decision or action can be made to another employee. Under these circumstances, abstention is an appropriate and adequate response.
5 The request for an advisory opinion does not state whether the County employee would be employed by his spouse's business on a part-time basis. If this were to occur, the Ethics Code imposes no additional restriction. That is to say, the County employee must recuse himself from actions or decisions pertaining in any way to the adequacy or nature of his spouse's business, because he has a personal and financial interest in the success of that business which potentially interferes with his official duties as a County employee involved in sewer maintenance and drainage. This potential ethical problem is no greater and no less should the County employee moonlight for his spouse's business.
6 Section 2-30.2. (a) provides: "No county official or county employee shall engage in conduct that constitutes a conflict of interest." For a county employee, a "conflict of interest" is "[u]se . . . of the authority of his [ ] employment . . . for the private pecuniary benefit of himself, a member of his immediate family or a business with which he is associated." A "business with which [a county employee] is associated" includes any business entity organized for profit in which the employee's spouse is an owner or has a financial interest. See Section 2-30.1. Definitions.
