New Castle County
Ethics Commission
Login to Gift Log

Browse Documents

00-06

Outside Employment

Commissioners: David Facciolo, P.Clark Collins, I.Jaime Figueras, Joseph Maloney, Ludwig Mosberg, Vincent Oliver, Frances West

admin@nccethics.org

Active

Question:

          Does it violate the Ethics Code for County officials or employees who are Attorneys, and who are employed by New Castle County, either as County Attorneys or in a managerial capacity, to have a private legal practice?

Conclusion:

          New Castle County employees or officials, who are either County Attorneys or who serve the County in a managerial capacity, who wish to have a private legal practice, are limited by the restrictions on representing another's interest before the County as set forth in Section 2-83(b) of the Ethics Code. Additional restrictions, such as restrictions on the exercise of official authority, Section 2-83(a), and those contained in Section 2-84, including the prohibition on appearances of impropriety, further restrict the nature and scope of the attorneys' secondary employment in the private practice.

Analysis:

          I.  New Castle County Ethics Code, Section 2-83(b), states, in significant part:
 
          (b) Restrictions on representing another's interest before the county
 
(1)  No county employee or county official may represent or otherwise assist any private enterprise with respect to any matter before the county department with which the employee or official is associated by employment or appointment.
 
(2)  No county official may represent or otherwise assist any private enterprise with respect to any matter before the county. This prohibition is to be considered personal to the county official and is not, for purposes of the New Castle County Ethics Code only, deemed to impact other members of a firm, business, or other employer by which the County official is employed.
 
          While there is nothing in the Ethics Code specifically precluding County employees and officials from secondary employment in the private practice of law, the above provision is a limitation upon the scope of that secondary employment: (1) A County employee or official who is also an attorney, and who wishes to have secondary employment in the private practice of law, cannot accept cases which would require him or her to represent or otherwise assist any private enterprise1 with respect to any matter before the county department with which the employee or official is associated by employment or appointment; (2) If the attorney is a County official, the limitation is broader, prohibiting the official from representing or otherwise assisting any private enterprise with respect to any matter before the county.
 
          In addition to the above limitations, the Ethics Code also provides other restrictions which may be applicable and which further restrict a County official's or employee's private practice of law, such as Ethics Code Section 2-83(a)(1) restrictions on the exercise of official authority and Ethics Code Section 2-84 Code of Conduct provisions, including, subsection 2-84(a) prohibiting conduct constituting an appearance of impropriety. These sections state, in significant part:
 
          Sec. 2-83(a) Restrictions on exercise of official authority
 
(1)  No county employee or county official shall use 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 personal or private benefit of himself or herself, a member of his or her immediate family or a business with which he or she is associated . . .
 
          Sec. 2-84. Code of Conduct
 
(a)  No county employee or county official shall engage in conduct which, while not constituting a violation of section 2-83(a)(1), undermines the public confidence in the impartiality of a governmental body with which the county employee or county official is or has been associated by creating an appearance that the decisions or actions of the county employee, county official or governmental body are influenced by factors other than the merits.
 
          Thus, additional prohibitions exist, which might limit the County official's or employee's acceptance of certain cases or representation of certain irtdividuals or private enterprises. For example, even if the attorney official or employee is not representing the individual or private enterprise with respect to any matter specifically before the county, the Ethics Code would be violated, if he or she were to represent the individual or private enterprise on another related matter which would result in the attorney official or employee using the authority of his or her office, or confidential information obtained from holding office, for the benefit of his or her law practice. Similarly, the attorney official or employee may be limited from accepting cases or representing an individual andlor private enterprise on a matter not specifically before the County, if the representation would undermine the public confidence in the impartiality of the governmental body with which the County employee or official is associated by creating an appearance that the decisions or actions of the County employee or official or governmental body are being influence by such representation or relationship. Other Code of Conduct prohibitions, such as the Section 2-84(d) prohibition on using public office to secure unwarranted privileges, private advancement or gain, or the Section 2-84(e) prohibition in engaging in activity which might reasonably be expected to require or induce a County employee or official to disclose confidential information may also pose further limitations.
 
          II.  It should be noted that limitations upon secondary employment have long been established by the Commission. For example, in Advisory Opinion 92-07 (January 28, 1993), the Commission held that a County inspector must not be associated with a business which does any construction subject to County inspection, thereby prohibiting the County inspector's employment by, or having a financial interest in, such a business. Likewise, in Advisory Opinion 97-07 (April 12, 1997), the Commission held that a County Public Works employee, whose duties included reviewing plans for persons or businesses seeking permits, could not accept a part-time position with a business which commonly submitted plans for review and worked in tandem with the construction trade, even if the employee's part-time work was for a different County and he abstained from reviewing any plans in the County from his prospective part-time employer.

Finding:

          III.  Conclusion
 
          Given the above authorities, the Commission holds that attorneys who are employed by New Castle County, either as County Attorneys or in a managerial capacity, who wish to have a private legal practice, may do so, but are limited by the restrictions on representing another's interest before the County, as set forth in Section 2-83(b) of the Ethics Code. Additional restrictions, such as the restriction on the exercise of official authority, Section 2-83(a), and those contained in Section 2-84 Code of Conduct, including the prohibition on appearances of impropriety, further restrict the scope and nature of the attorneys' secondary employment in the private practice, as required by the specific position of the County official or employee with the County and the specific nature of his or her private clients and/or issues raised by such representation.
 
          In making such a ruling, the Commission is not making a ruling as to any other rule, law, or regulation, County or otherwise, which may be applicable to the County Official or employee. Certain such rules, such as professional codes, may dictate more stringent restrictions than those imposed here. Additionally, each department, board or other unit of County government is free to impose greater restrictions on its officials and employees. This opinion does not usurp a director, department head, board or other unit's of government authority to establish a more restrictive rule as part of its own policy. Advisory Opinion 91-07 (December 9, 1992).
 
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON JANUARY 25, 2001.
 
_______________________________
David J.J. Facciolo, Chairperson

Footnotes:

1 Section 2-82 of the New Castle County Ethics Code defines "private enterprise" as: "any activity conducted by any person, whether conducted for profit or not for profit and includes the ownership of real or personal property. Private enterprise does not include any activity of the federal, state or local government or of any department, authority or instrumentality of the federal, state or local government."

Back