May a County Public Works employee, whose duties include reviewing plans for persons or businesses seeking permits, accept a part-time position with a business which commonly submits plans for review and works in tandem with the construction trade, if all the work he would be doing would be for projects outside the County and he would not review any plans in the County from his prospective part-time employer?
Conclusion:
No. An appearance of impropriety would exist if the employee were to obtain part-time employment with a business which frequently submits plans for review and works in tandem with the construction trade even if the employee's part-time work was for a different County and he abstained from reviewing any plans in the County from his prospective part-time employer.
Analysis:
Due to the nature of various public work's employees' powers and duties, the ability of these employees to undertake secondary employment in the construction industry is limited by the restrictions of the Ethics Code. Indeed, in Advisory Opinion 92-07, January 28, 1993, the Commission ruled that a County inspector can only undertake secondary employment in the Construction Industry if (a) he limits his work to work not subject to County inspection; and (b) he is not associated with a business which does any construction subject to County inspection. The purpose behind such limitations are to avoid any conflicts of interest or appearances of impropriety, which are prohibited by Sections 2-173(a) and (g) of the Ethics Code, respectively.
The Ethics Code1 defines "conflict of interest" as:
Use by a county official or county employee of the authority of his office or employment or any confidential information received through his holding county office or employment for the private pecuniary benefit of himself~, a member of his immediate family or a business with which he is associated.2
In the present interest there would be no conflict of interest since the employee would be limiting his work to work outside the County and he would not be reviewing any other work submitted by the part-time employer. Given these limitations, the focus then turns on whether an appearance of impropriety would exist if the employee accepted the part-time position. The Ethics Code3 defines "appearance of impropriety" as:
The conduct of a county official or employee which does not constitute a conflict of interest but which undermines the public confidence in the impartiality of a governmental body with which a county official or employee is or has been associated, by creating an appearance that the decisions or actions of the county official, county employee or governmental body are influenced by factors other than the merits.
In Advisory Opinion 92-07, January 28, 1993, the Commission ruled that an appearance of impropriety would exist if a County inspector inspected construction "done by his fellow inspector or by a business with which his fellow inspector is associated". It found that it would create the public perception that "official inspections are influenced by the County inspector's relationship with or allegiance to fellow County inspectors and to businesses with which fellow inspectors are associated." Advisory Opinion 92-07 at 4.
Finding:
In the present situation, the same concerns are present. That is, an appearance would be created that a particular review would be approved by a co-worker because of the employee's relationship with the part-time employer, and not because of the merits of the plan. Due to this appearance of impropriety, the part-time position should not be accepted by the employee.
In so holding, the Commission is cognizant of its holding in Advisory Opinion 93-01, March 5, 1993, wherein a County inspector was allowed to undertake secondary employment inspecting construction on behalf of banks to determine whether construction had progressed to the stage where additional funds should be released and also to review construction for members of the private sector to determine compliance with the Americans with Disabilities Act. It must be noted that in Advisory Opinion 93-01, unlike the present scenario, the persons seeking the inspections were not intimately involved with the construction trade. In the present factual situation, the prospective part time employer, while not a construction company, works in tandem with construction companies, making this situation fall under the gambit of Advisory Opinion 92-07.
Mary Ann Matuszewski
Ethics Counsel
April 12, 1997
Footnotes:
1 Section 2-172. Definitions.
2 A "business with which he is associated" includes "(a)ny business in which the (employee) is a director, officer, owner, employee or has a financial interest or a member of the (employee's) immediate family is a director, officer, owner or has a financial interest." Section 2-172. Definitions.
