May a county official sponsor, participate in and vote upon a matter, if a client of his or her prospective employer has a financial interest in the matter, and the matter, if passed, would be against the interests of the Client?
Conclusion:
No. Under the facts presented, a County official may not sponsor, participate in, and/or vote upon a matter, if a client of his or her prospective employer has a financial interest in the matter, even if the matter appears to be against the interests of the future employer's client and the official anticipates voting against the interests of the future employer's client. Such participation would constitute an appearance of impropriety. (Decison: June 9, 2000)
Reconsideration
Date: June 12, 2000
Upon reconsideration, the requesting party has provided additional facts tothe Ethics Commission regarding the timing of the original work of the ordinance, its introduction, and the client's hiring of the prospective employer, indicating that the requesting party had completed substantial work on the matter prior to the client retainng the prospective employer.
While the Commission adheres to the basic principles in its June 9, 2000 opinion that an appearance of impropriety is created, if a county official were to participate in a matter in which a client of her prospective employer has an interest, such an appeaance is negligble where, as here: (1) the confict or appearance of impropriety did not exist at the time the requesting party completed substantial work on the matter; and (2) the official's vote and sponsorship appear to be contrary to the client's, her prospective employer's, and her own interest. Given this unique situation, the Commission's decision is amended to recognize the above exception that it would not violate the Ethics Code for a County official to continue her sponsorship, and vote upon the matter, in this particular instance, provided the vote is contrary to the apparent interests of her prospective employer and self. Full disclosure of her relationsip with the prospective employer to the public, however, must be made immediately, if she is to continue sponsorship and also must be made prior to voting at the meeting where the vote is to be made.
Facts:
The requesting party is a County official who has accepted an offer of future non-County employment with a firm who recently acquired a client who has a financial interest in a matter which the requesting party has sponsored. The requesting party sponsored the matter prior to learning of her prospective firm's representation of the client. The requesting party has represented that the client is displeased with the matter and has represented that adoption of the matter would not benefit the client or the prospective employer.
Analysis:
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 Advisory Opinion 99-01, (March 1, 1999), the Ethics Commission held that a conflict of interest would be created, if a County official were to vote upon a matter, when a client of his or his law firm had a financial interest in the matter, if the official or his firm represented the client on the same matter upon which the County official was to vote. Similarly, in Advisory Opinion 00-01, (May 9, 2000) the Ethics Commission held that a County official should not participate in a matter pertaining to his employer and should publicly disclose his relationship and abstaining from participation in the disposition of their employers' request. Advisory Opinion 00-01 contemplated a private pecuniary benefit would result to the official's employer, if the ordinance was passed.
In the present instance, however, it is represented that passage of the matter would not benefit the client of the prospective employer or the prospective employer. For purposes of this conflict of interest analysis, this representation is accepted and, accordingly, since there is no private pecuniary benefit to the county official or a business to which he or she is associated, there is no conflict of interest by the official's sponsorship, participation in, and/or vote on the matter.
Appearance of Impropriety
The Ethics Code, section 2-83, also prohibits conduct which constitutes an appearance of impropriety, defined 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.1
Although the requesting party has represented that the matter in question is against the interests of her prospective employer's client and, thus, possibly her prospective employer's interest, this fact alone does not dissipate the appearance of impropriety created by a county official voting on a matter that a client of his or her prospective employer has a financial interest in. An appearance to the public may still exist that, due to the relationship of the county official to the firm, the matter in question is being compromised i.e., would the ordinance be stronger against the client's interests, if not for the prospective employment? Even if the matter was originally drafted prior to the client hiring the prospective employer, an appearance may still exist that subsequent action by the official was being compromised, due to this relationship.2
While the Commission recognizes that the recusal of the county official in such an instance may actually inure a benefit to the prospective employer's client, whether a county official's involvement in an issue creates an appearance of impropriety should not turn on how a particular official or employee intends to vote. Rather, the Ethics Commission has consistently required County employees and officials to automatically refrain from participation in a matter, without considering how the official or employee intended to vote or act, if the relationship involved could appear to compromise the integrity of the governmental body. See. i.e. Advisory Opinion 91-02,(July 30, 1991)(relationship through marriage, prior representation, business partners); Advisory Opinion 92-03,(August 17, 1992)(organization to whom an official's spouse's employer may submit a bid to provide materials to); and Advisory Opinion 99-08,(January 11, 2000)(parent's business partner on unrelated project).3
Finding:
Accordingly, assuming that another council member will continue sponsorship of the matter, the County official should withdraw her sponsorship, and should follow the Section 2-83 recusal process by disclosing the nature of her interest in the matter and abstain from voting upon the matter.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION THIS JUNE 9, 2000.
________________________________
David J.J. Facciolo, Chairperson
Reconsideration
Date: June 12, 2000
(Decision by: David J.J. Facciolo, Esq. (Chair), Dr. I. Jaime Figueras, Esq., L. Mosberg, Ph.D., and Frances M. West, Esq.).
Upon reconsideration, the requesting party has provided additional facts to the Ethics Commission regarding the timing of the original work of the ordinance, its introduction, and the client's hiring of the prospective employer, indicating that the requesting party had completed substantial work on the matter prior to the client retaining the prospective employer.
While the Commission adheres to the basic principles in its June 9, 2000 opinion that an appearance of impropriety is created, if a county official were to participate in a matter in which a client of her prospective employer has an interest, such an appeaance is negligble where, as here: (1) the confict or appearance of impropriety did not exist at the time the requesting party completed substantial work on the matter; and (2) the official's vote and sponsorship appear to be contrary to the client's, her prospective employer's, and her own interest. Given this unique situation, the Commission's decision is amended to recognize the above exception that it would not violate the Ethics Code for a County official to continue her sponsorship, and vote upon the matter, in this particular instance, provided the vote is contrary to the apparent interests of her prospective employer and self. Full disclosure of her relationsip with the prospective employer to the public, however, must be made immediately, if she is to continue sponsorship and also must be made prior to voting at the meeting where the vote is to be made.
The Commission notes that in making such a ruling, that its ruling is limited to the Ethics Code only. It is not making any ruling as to any other rule, law, or regulation, County, professional or otherwise, which may be applicable.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS JUNE 12, 2000.
________________________________
David J.J. Facciolo, Chairperson
Footnotes:
1Section 2-82, Definitions.
2The fact that the county official has not begun her employment with the firm yet, or has not received any compensation from the firm yet, does not lessen the appearance of impropriety. Indeed, in Advisory Opinion 96-02 (February 20, 1 996)(holding that a offer of future employment by a vendor to a county employee, even if made in jest, required recusal of the employee from evaluating of competing vendors and abstain from voting) the Ethics Commission recognized that the prospect of future employment could create the appearance of a compromise of the employee's decision. See also, Section 2-83(c)(prohibiting county officials and employees from soliciting or accepting a promise of future employment based on an intent to influence vote, action, or judgment.)
3Indeed, numerous issues are created if such assessments were to turn on how a person intended to act on a particular issue. For example, if a matter is amended prior to vote in such a way that it weakens the adverse effect on the prospective client, should the county official be allowed to vote? Is an official's or employee's own determination that a matter is against the interests of a particular client a sufficient basis upon which to allow an official or employee to vote upon a matter where his or her employer or prospective employer has a client with a financial interest in the matter?
