Is a County employee who has very minimal supervisory responsibility and who occasionally completes a portion of other employees' personnel evaluations by providing objective answers to some of the questions, exercising official action of a nonministerial nature, such that he is required to complete a 1998 or 1999 Statement of Financial Interests?
Conclusion:
A County employee is not required to file a 1998 or 1999 Statement of Financial Interests when his supervisory and evaluation responsibility towards other employees is minimal and an incidental portion of his overall responsibilities, such that his actions cannot be deemed an "official action of a nonministerial nature".
Analysis:
Pursuant to New Castle County Ethics Code Section 2-86, as it existed for 1998 and 1999 financial disclosure,1 all County employees and officials, as defined under the Ethics Code, are required to file an annual Statement of Financial Interests. A County employee2 was defined under the Ethics Code for 1998 and 1999 financial disclosure as:
[A]n 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.
In Advisory Opinion 98-04 (October 6, 1998), the Ethics Commission held that individuals, whose job duties include performing an evaluation of another individual's job performance, are deemed "responsible for taking or recommending official action of a nonministerial nature", even if their action does not fall in one of the five listed categories. In the present instance, however, the employee's supervisory responsibilities are minimal, at best, and his input on the evaluation, which is subject to change by his superiors, and which must be reviewed by four other superiors, is limited to a portion of providing answers to primarily objective criteria.3
Finding:
Given the employee's limited involvement in this responsibility, the Commission distinguishes Advisory Opinion 98-04 and finds that the requesting party, in such instance, is not deemed to be "responsible for taking or recommending official action of a non-ministerial nature" and, accordingly, need not file a 1998 or 1999 Statement of Financial Interest.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON DECEMBER 11, 2000.
_______________________________
David J.J. Facciolo, Chairperson
Footnotes:
1 Subsequent to the due dates for the 1998 and 1999 filing of Statements of Financial interests, May 1, 1999 and May 1,2000, respectively, the Ethics Code was amended, redefming who must file Statements of Financial Interests. The ordinance setting forth Section 2-86 of the Ethics Code, the section of the Code now defining who must file Statements of Financial Interests, was adopted by County Council on July 11, 2000 and became effective 60 days after its passage by County Council. While the Ethics Code, as amended July 11, 2000 is currently in effect, this opinion is based upon the Ethics Code as it existed prior to the July 11, 2000 amendment.
2 The definition of "county employee" was also amended by passage of an ordinance on July 11, 2000. For purposes of this opinion, however, the applicable definition is the definition which was in effect prior to the July 11, 2000 amendments.
3 Given the employee's job description, it is likely that he will not be required to complete a year 2000 Statement of Financial Interests under the Ethics Code, as amended.
