May a homeowner, who is employed by New Castle County in the Department of Community Services, apply for and receive a New Castle County Community Services administered Housing Rehabilitation loan, if the homeowner's County job responsibilities do not include taking or recommending official action of a non-ministerial nature.
Conclusion:
Yes. An individual who is employed in the Department of Community Services may apply for and, assuming satisfaction of all requirements of an established loan program, receive a New Castle County Community Services administered Housing Rehabilitation loan, since the homeowner's County job responsibilities do not include taking or recommending official action of a non-ministerial nature.
Facts:
The Department of Community Services of New Castle County administers a loan program, which is funded by the Delaware State Housing Authority. The purpose of the program is to preserve the State's housing stock by providing low interest loans to investors and low and moderate income owner-occupants for help in repairing heating, electrical, plumbing, roofing and structural problems.
Analysis:
The requesting party is employed by the Department of Community Services in a position which is ministerial in nature. He does not "take or recommend official action of a non-ministerial nature" and, therefore, is not a "County employee" for purposes of the Ethics Code.1 Nor is he a "County official", since he was not elected or appointed to any County office.2 Accordingly, the restrictions of the Ethics Code do not apply to him. See. e.g., Advisory Opinion 98-02 (June 16, 1998) and Advisory Opinion 96-04 (May 10, 1996) (both decisions holding prohibitions of Ethics Code are not applicable to individuals not meeting the Ethics Code's definition of "County employee" and "County official").The requesting party, thus, may apply for and, assuming satisfaction of all the requirements of the program, may receive the loan.3See, Advisory Opinion 92-08 (December 4, 1992) (holding that the Department of Community Development and Housing may grant a home rehabilitation loan to a homeowner who satisfies all requirements of an established loan program, but is employed by the County).
The facts in the present scenario are distinguishable from Advisory Opinion 91-04 (May 17, 1997) (recommending preventative measures be taken to ensure an appearance of impropriety was not created by an employee of the Department of Community Development and Housing who wished to apply for a similar type loan), since, unlike the present scenario, the requesting party in Advisory Opinion 91-04, appeared to fit the definition of "County employee", and had discretionary responsibilities with regard to the program. Such is not the case here.
Finding:
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 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.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON OCTOBER 6, 1998.
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David J.J. Facciolo, Chairperson
Footnotes:
1 Section 2-172 of the Ethics Code 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.
2 Section 2-172. Definitions.
3 In so finding, this opinion does not address the issue of whether such a loan is proper, if the employee was a "County employee" under the Ethics Code and also worked for the Department of Community Development and Housing. But see, Advisory Opinion 92-08 (December 4, 1992).
