Are individuals who are employed by the County, and whose job duties include performing an evaluation of another individual's job performance, considered "County employees" for Ethics Code purposes.

          Yes. Individuals who are employed by the County, and whose job duties include performing an evaluation of another individual's job performance, are considered "County employees" for Ethics Code purposes and, accordingly, required to file a Statement of Financial Interest.

          The New Castle County Ethics Code, as amended in 1996, defines a "County employee" as:

 

[A]n 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.

 

          Ordinance No. 96-046, which amended the definition of "County employee", broadened the previous definition of "County employee" by inserting the following phrase in the definition: "including but not limited to, action". The preamble of the ordinance states that the inclusion of this phrase to the definition of "County employee" is to ensure that the five areas listed in the definition are not deemed inclusive. ¹ Thus, under the amendment, individuals who are "responsible for taking or recommending official action of a nonministerial nature" are covered under the Code, even if the action does not fall in one of the five listed areas.

 

          The New Castle County Ethics Code further defines "Nonministerial action"² as "an action in which the person exercises his or her own judgment as to the desirability of the action taken". The Commission believes that "nonministerial action" is undertaken when an individual performs a job evaluation of another individual who is also employed by the County. Accordingly, an individual whose job responsibilities includes performing a job evaluation of another individual, who is also employed by the County, is considered a "County employee" for Ethics Code purposes.³ As such, he or she must also file yearly Statements of Financial Interests pursuant to Section 2-174(a) of the Ethics Code.

BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON OCTOBER 6, 1998. ________________________________ David J.J. Facciolo, Chairperson

¹ Ordinance No. 96-046 states, in part, "WHEREAS the definition of county employee extends to those taking or recommending action of a nonministerial nature, followed by a list of examples which are not intended to be all inclusive but which appear to be in the current definition . . ."

 

² Section 2-172. Definitions.

 

³ The Commission further notes that, since most performance reviews often have the potential of affecting an employee's salary by $500.00 or more, said action, in many instances would fall in category 5 of the prior definition.