May a County official vote upon a matter, if a client of his or his law firm has a financial interest in the matter?¹

          A County official must recuse himself, pursuant to Section 2-173(f), from voting upon a matter 'when a client of his or his law firm has a financial interest in the matter, if the official or his law firm represents the client on the same matter upon which the County official is to vote, since a conflict of interest would exist. Also, because an appearance of impropriety would exist, the County official must recuse himself from voting upon a matter when he knows or reasonably should know a client of his or his law firm has a financial interest in the matter, even if his or his firm's representation of the client is in an unrelated matter.

          The New Castle County Ethics Code, section 2-173, prohibits County officials and employees from engaging in conduct constituting a conflict of interest or appearance of impropriety. Section 2-172 defines “conflict of interest”, in significant part as:

 

Use by a county official or county employee of the authority of his or her office or employment or any confidential information received through his or her holding county office or employment for the private pecuniary benefit of himself or herself, a member of his or her immediate family or a business with which he or she is associated . . .

 

          Section 2-172 further defines “appearance of impropriety” as:

 

The conduct of a county official or county 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 officer or employee is or has been associated by creating an appearance that the decisions or actions of the county official, county employee or the governmental body are influenced by factors other than the merits.

 

          When, in the course of a County official’s or employee’s duties, he would be required to vote upon a matter which would result in a conflict of interest, the official or employee shall refrain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest.² The Commission has held that this same procedure should be followed whenever a County official or employee would be required to vote on a matter that would result in an appearance of impropriety. See, e.g., Advisory Opinion 91-02, July 30, 1991; Advisory Opinion 92-05. September 10, 1992.

 

          In determining whether or not a County official can vote upon a matter when a client of his or his law firm has a financial interest in the matter, the Commission is mindful of the purpose of the Ethics Code which acknowledges that “public office is a public trust and that any effort to realize personal financial gains through public office other than compensation provided by law is a violation of that trust”.³ It further is mindful of Section 2-171(b) of the Ethics Code which encourages citizen officials to maintain their contacts with their community through their occupations and professions. Finally, the Commission is cognizant of the following language in Section 2-171(c) addressing the duty of certain County officials to vote upon questions before them:

 

[I]t is a member of the County Council’s right and responsibility to vote upon all questions before the County Council and to participate in the business of the County Council and its committees, and in doing so, the Council member is presumed to be acting in good faith and in the public interest. The members of the County Council, however, acknowledge that the exercise of legislative rights is subject to limitations provided in this division when personal or private interests conflict with the public interest.

 

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           In light of the above Code provisions, the Commission advises that there would be a conflict of interest requiring recusal, if a County official were to vote upon a matter when: (i) a client of his or his firm has a financial interest in the matter, and (ii) the matter upon which the County official or his firm is representing the client is the same matter upon which he would be voting. The County official would be using his office to further his and his firm’s pecuniary interest, especially if payment to the official or his firm was, in part, result based. Even if, however, payment to him or to his firm was not result based, a conflict of interest would also exist, since the County official may appear to be using his County office for his or his firm’s pecuniary gain by casting a favorable vote upon his own work, thereby increasing his success as an attorney. The perception that the County official was voting to increase his or his firms’s success to please his or his firm’s clients would also exist, thereby creating an appearance of impropriety. See. Dick v. Williams, Ga. Ct. App., 452 S.E.2d 172 (1994)(holding appearance of impropriety existed when Board member voted on rezoning application, where applicants were represented by commissioner’s son’s law partner).

 

          A more difficult issue is whether the County official can vote upon a matter in which a current client of his or his firm has a financial interest, if the County official and his firm do not represent the client in that matter. The Commission again recommends recusal in this circumstance, if the county official knows or reasonably should have known of the client’s financial interest in the County Council matter. Indeed, the requesting party is required to make reasonable efforts to determine who his firm’s current clients are.⁴ Under these circumstances an appearance of impropriety would be created by his voting upon such a matter. The Commission has previously recognized that certain relationships which do not create a conflict of interest can, none-the-less, result in an appearance of impropriety requiring abstention from voting. Indeed, in Advisory Opinion 91-02, July 30, 1991, the Ethics Commission ruled that an appearance of impropriety requiring recusal from voting would exist, if a County official or employee voted upon a matter involving a project where the County official/employee had a relationship with the developer of the project⁵ and where the County official/employee had helped the developer obtain financing for the project. Similarly, in Advisory Opinion 92-02, June 12, 1992, the Commission held that an appearance of impropriety requiring recusal is created, if a County official or employee, serving on the board of a non-profit organization (County Pride) which had a joint venture with the Chamber of Commerce, were to vote on any matter involving the Chamber of Commerce.6 In the present case, it may appear that the County official’s vote was made to foster favorable client relations or in exchange for the client providing the County official or his firm with the client’s business, if he were to vote on a matter when his or his firm’s clients had a financial interest in the matter. Such an appearance undermines the public trust. Accordingly, the procedures set forth in Section 2-173(f) should be followed.

 

 

¹ Commissioner Frances West, Esq., recused herself from the matter. Only the Commissioners listed participated in the decision of this matter.

 

² Section 2-173(f). Restricted Activities.

 

³ Section 2-171. Purpose of Division.

 

⁴ Although a county official who is also an attorney would reasonably be expected to know the clients of his firm, whether or not he has knowledge of the financial interests of his client in the matter before County Council is a fact specific inquiry.

 

⁵ One of the developer's principals was related to the County official/employee by marriage and the county official/employee was also a co-owner of a different business venture with three principals of the developer. Advisory Opinion 91-02, July 30, 1991.

 

⁶ See also, Advisory Opinion 92-03, August 17, 1992 (recommending abstention from a grant award decision, if a County official's spouse's employer were to provide materials to an organization and the organization subsequently applies for a grant from the County); Advisory Opinion 92-05, September 10, 1992 (holding there would be an appearance of impropriety if a County Board member participated in the Board's decisions concerning its retention and compensation of professionals, when he and his employer have business relationships with certain of those professionals).