May an individual employed by the County, who owns and operates a private business, and whose County job responsibilities include providing information, assistance and direction to the public, bid for a County contract, valued over $500, on behalf of her private business?

          It does not violate the Ethics Code for an individual employed by the County, who owns and operates a private business and whose County job responsibilities include providing information, assistance and direction to the public, to bid and contract with the County for a contract valued over $500, on behalf of her private business. Since the individual is not considered a "County employee" under the Ethics Code, the restrictions of the Ethics Code do not apply to her.

          The requesting party is employed by the County and has job responsibilities which require her to provide information, assistance and direction to the public. She also owns and operates a private business and requests that her business be allowed to bid on, and ultimately accept, if awarded, County contracts.

 

          The New Castle County Ethics Code sets forth various restrictions which must be considered when a County employee or official wishes to contract with the County on behalf of a private business the employee or official is associated. These restrictions include prohibitions on conflicts of interest and appearances of impropriety, as set forth respectively in sections 2-173 (a) and (g) of the Code, and limitations set forth in the contract and bid provision of the Code, section 2-173(e).¹ Prior to making such an analysis, however, it should first be determined whether the person seeking to contract with the County is a County employee or official, as defined by the Ethics Code, and, thus, under the jurisdiction of the Ethics Code. See, Advisory Opinion 96-04 (May 10, 1996)(holding Ethics Code does not prohibit non-covered employees from contracting with the County).

 

          The New Castle County Ethics Code, section 2-172, as amended defines "County employee" as:

 

an individual employed by the county who is responsible for taking or recommending official action of a nonministerial nature including, but not limited to, action with regard to: (1) Contracting or procurement; (2) Administering or monitoring grants or subsidies; (3) Planning or zoning; (4) Inspecting, licensing, regulating or auditing any person; or (5) Any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person.

 

          In the present situation, the requesting party is not considered a "County employee" for Ethics Code purposes. Although the requesting party may need to exercise her own independent judgment at times regarding her job responsibilities, given the nature of her job, such work is not tantamount to being "responsible for taking or recommending official action of a nonministerial nature". See, Advisory Opinion 97-08 (November 15, 1996)(holding pump mechanic who exercises own judgment as to how to perform certain repairs was not a "County employee" for Ethics Code purposes). She also does not qualify as a "County official" since she was not elected or appointed to County office.² Accordingly, the requesting party is not under the jurisdiction of the Ethics Code.

          The Ethics Commission cautions, however, that although there would be no restrictions imposed upon the requesting party from the Ethics Code, it is making no ruling as to any other County, departmental, or other rule. Each department, board or other unit of County government is free to impose greater restrictions on its officials and employees. This opinion establishes the minimum that is expected and required under the Ethics Code. It does not usurp a director, department head, or board's authority to establish a more restrictive rule as part of its own policy. Advisory Opinion 96-08 (November 15, 1996).

 

 

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David J.J. Facciolo, Chairperson

¹Section 2-173 provides, in significant part, that a County employee or official, as defined by the Ethics Code, may enter into a contract valued at $500 or more with the County, provided that the contract has been awarded through an open and public process, with prior public notice and subsequent public disclosure. It further provides, however, that the county official or employee "shall not have any supervisory or overall responsibility for the implementation or administration of the contract".

² Section 2-172 of the Ethics Code defines "County official" as "any person elected or appointed to any county office, including appointment to any county board or commission".