1.  Is a County official, as an employee of a large, private employer, a member of a subclass consisting of an industry, occupation or other group, affected to the same degree by a matter being submitted by the County official's employer for County approval, such that his or her vote on the matter would not constitute a conflict of interest?

 

         2.  May a County official vote on a matter, he or she otherwise would be prohibited from voting on, due to a conflict of interest, if four (4) votes are needed for the body to take action, and, if the County official were to abstain from voting, the votes of the body to which the County official belongs would be: three (3) affirmative, two (2) negative, and one (1) absent?¹

         Absent other facts, a County official's vote on a matter submitted by his private employer is not excepted, due to the large size of his employer, from constituting a conflict of interest, and does not qualify the County official as a member of a subclass consisting of an industry, occupation or other group, being affected to the same degree by a matter. Accordingly, the County official should follow Section 2-83(f) of the Ethics Code and, prior to the vote being taken, should: (1) publicly announce and disclose the nature of his or her interest at the meeting where the vote is being taken; and (2) abstain from voting. The County official should not vote on the matter, even if four (4) votes are needed to take action on the matter, and with his or her abstention, the vote would be three (3) in the affirmative, two (2) in the negative, and one (1) absent.

          The requesting party is a County official who also has private employment with a large, multinational company. His private employer has submitted numerous matters for County approval before the body to which the County official belongs. Some of the matters submitted for approval can not be rejected by the body. With regard to these certain matters, the body may either adopt, table or refer the matters back for further information.

 Conflict of Interest

 

          The New Castle County Ethics Code, section 2-83, prohibits County officials and employees from engaging in behavior constituting a conflict of interest or an appearance of impropriety. The New Castle County Ethics Code, section 2-82, defines "conflict of interest" as:

 

Use by a county official . . . 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. Conflict or conflict of interest does not include an action . . . which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the county official or county employee, a member of his or her immediate family or a business with which he or she or a member of his or her immediate family is associated.

 

          In Final Order--In Re Case Nos. 1-91 and 2-92, the Ethics Commission, employing the above section, sanctioned County officials for participating in a matter pertaining to their employer without publicly disclosing that relationship and abstaining from participation in the disposition of their employers' request. Absent other facts being provided, it is assumed that, in the present instance, the County official's employer, would receive some pecuniary benefit, if the matters it submitted were passed, thereby making it a conflict of interest, if the County official were to vote on the matters.² The fact that the authority of the body to which the County official belongs may not, in some of those matters, include the authority to reject the matter, as opposed[ to tabling, referring back, or approving the matter, would not the exempt the County official's voting on such matter from constituting a conflict of interest.

 

          The query remains, however, whether the County official, as an employee of a large employer, is a member of "a subclass consisting of an industry, occupation or other group which includes the county official...", which is "affected to the same degree" by the matter. Absent other facts presented, the mere fact that the County official is an employee of a large employer, as opposed to a smaller employer, does not make the County official a part of "a subclass consisting of an industry, occupation or other group" which is "affected to the same degree" by the matter. The Ethics Code makes no distinction between large and small employers in its definition of "business with which he or she is associated"³. Indeed, in Advisory Opinion 96-05, June 30, 1996, the Ethics Commission utilized the "subclass of an industry, occupation or other group which includes the county official or county employee" exception, in finding there was no Ethics Code violation for members of the Board of Pension Trustees and County Council, much smaller subclasses, to make recommendations or to vote upon an ordinance affecting County pensions, which ultimately may have affected the pensions of the members of these two bodies.⁴ The facts presented do not constitute a "subclass of an industry, occupation or other group" being "affected to the same degree" by the matters, such to remove the County official's vote on the matter from constituting a conflict of interest.

 

 

          Section 2-83(f) of the New Castle County Ethics Code sets forth the procedure which should be employed by a County offical when, in the discharge of his or her official duties, the County official would be required to vote on a matter that would result in a conflict of interest. This procedure generally provides that a county official or county employee, when faced with such a conflict of interest, "shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his or her interest at the meeting at which the vote is taken . . ."  Section 2-83(f) of the Ethics Code, however, also provides an exception to the above disclosure and abstention rule, namely:

 

[W]henever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under this section makes the majority or other legally required vote of approval unattainable, such members shall be permitted to vote if disclosures are made as otherwise provided in this section.⁵

 

          Assuming, as presented to the Ethics Commission, that four (4) votes are needed for the body to take action, and the matter has received (3) affirmative votes, two (3) negative votes, and one (1) absent vote, from the body to which the County official belongs, the above provision would not apply and the County official with a conflict of interest should not vote on the matter.⁶ Under the above scenario, the legally required vote of approval is attainable. Indeed, there are other votes that are available which would take the "legally required vote of approval" out of the realm of being "unattainable", i.e., the two negative votes.⁷

          Accordingly, even under the above voting scenario, the County official should not vote on the matter submitted by his employer.

 

 

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David J.J. Facciolo, Chairperson

⁴ Without ruling such, and for educational purposes only, the Ethics Commission contemplates that this exception might, for example, allow a County official who also had private employment as a physician to vote on a matter affecting all physicians, i.e., an ordinance to allow physicians to post larger signs than normally allowed under the Land Use Codes.

 

⁵ New Castle County Ethics Code, Section 2-83(f).

 

⁶ Although it is unclear whether this scenario is likely to occur under the presented facts, the Ethics Commission, for educational purposes, has opted to issue its guidance on this issue.

 

⁷ The Ethics Commission need not discuss the affect, if any, the absent vote has, since in the scenario presented there are two votes in the negative.