May the director or head of the department or agency which previously employed a former County employee have access to the former employee's Statements of Financial Interests?¹

          The director or head of the department or agency which previously employed a former County employee may have access to the former employee's Statements of Financial Interests.

          New Castle County Ethics Code, Section 2-174(e) prescribes what individuals have access to County officials' and County employees' statements of financial interests. With regard to County employees, this section states, in part:

 

All statements of financial interests by a county employee containing financial information of a privileged or confidential nature shall not be deemed a public record for purposes of 29 Del. C. ch. 100. Nothing in this subsection shall be construed as prohibiting access by the ethics commission to all statements of financial interests filed in accordance with this division. Nothing in this subsection shall be construed as prohibiting access by the director or head of the department or agency by which a county employee is employed to all statements of financial interests filed by a county employee in accordance with this division. Id.

 

          The above language clearly provides that, while the Statements of Financial Interests of employees are not public documents, access should be given to the Ethics Commission and the director or head of the department or agency by which a county employee is employed. The Commission believes this language recognizes the necessity of a director or head of a department or agency to have full knowledge of the activities of his or her department or agency. The Commission further believes that the language of Sec. 2-171(a) evidences an intent that the Ethics Code be "liberally construed to promote complete financial disclosure as specified in this division with regard to public officials". Accordingly, the Commission holds that, given the purpose and intent of the above sections, it would make little sense to deny access by a director or head of a department or agency to an employee's statement of financial interests once the employee is no longer employed by the County. To do so would limit the director or department head's ability to fully understand the activities of his or her department or agency and/or to rectify any problems which might come to light through a former employee's filing of a Statement of Financial Interest.

 

          This does not mean, however, that anyone who has, or had, a supervisory interest in an employee may have access to the employee's Statement of Financial Interest. Rather, Sec. 2-174(e) limits the access to "the director or head of the department or agency.. .". Thus, with regard to a County employee, it is only the director or head of the department who has such access. Finally, if a director or head of a department or agency wishes to have access to a statement of financial interest, upon viewing such a statement, he or she will be required to sign a document indicating that he or she reviewed the Statement of Financial Interests document on a particular date, said document to be attached thereto.

 

_________________________

David J.J. Facciolo, Chair

¹ This request was filed by a former County employee. Sec. 2-402(9) of the Ethics Code gives the Ethics Commission the power and duty to:

 

[I]issue to any person, upon such person's written request, or to the appointing authority or employer of that person, upon the written request of such appointing authority or employer, an opinion with respect to such person's duties under division 2 of article ITT of this chapter.

 

          Since a former employee is an "individual", he is a "person" as defined by Sec. 2-172 of the Ethics Code. Since as a former employee, the requesting party had a "duty", and continues to have a "duty" to file a Statement of Financial Interest for the year following his employment with the County, Sec. 2-174(a), the Commission, accordingly, has the power to issue this advisory opinion.