Does it violate the Ethics Code for a County plan examiner to have secondary employment in the private sector drafting shop details of construction materials for a company which does not do business with the county, submit plans for review, or seek licenses/permits from the County in the course of its regular business?

          There is no violation of the Ethics Code for a County plan examiner to have secondary employment in the private sector drafting shop details of construction materials for a company which does not do business with the county, submit plans for County review, or applies for licenses/permits from the County in the regular course of its business.

          The requesting party is a County plan examiner who reviews plans for BOCA compliance for residential and commercial structures. He wishes to obtain and retain employment in the private sector drafting shop details of construction materials. None of the plans submitted by contractors for review by the County, which he reviews in his County position, indicate who the manufacturer is of the material for which he would be drafting shop details. The private sector employer he seeks employment with does not do business with the County, submit plans for County review, or apply for licenses/permits from the County in the regular course of its business. Neither his position of plan examiner or his prospective private employment position is a prerequisite or necessary component for the other position.

          While the New Castle County Ethics Code does not prohibit secondary employment where there is no nexus between an employee's or official's County job and secondary employment, Advisory Opinion 94-05 (July 26, 1994), the Ethics Code, particularly Section 2-83(a) and Section 2-84, may, in some instances, restrict, or altogether prohibit, County employees and officials from obtaining secondary employment in the private sector when there is such a nexus present.¹ See, e.g.. Advisory Opinion 92-07 (January 28, 1993) (holding 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.); Advisory Opinion 00-06 (January 25, 2001) (holding County employees/officials who are attorneys and who serve the County as County Attorneys or who serve the County in a managerial capacity are restricted by Ethics Code as to secondary work in the legal profession.) These provisions state:

 

          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 cf 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.

 

          Indeed, the Ethics Commission, in Advisory Opinion 97-07 (April 12, 1997), discussed the above provisions and specifically relied upon Section 2-84, formerly Sec. 2-173(g), in prohibiting a County plan reviewer from having part-time employment with a business which frequently 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.

 

          Unlike Advisory Opinion 97-07 (April 12, 1997), however, the prospective employer in the present instance, while a supplier of materials used by the construction industry, does not submit plans to the County for review, work in tandem with the construction trade, do business with the County, or apply for licenses/permit in the regular course of its business. Although the generic use of materials that the requesting party's prospective employer manufactures may appear on plans reviewed by the County employee in his County position, the manufacturer of such materials are not listed on the plans.

           Accordingly, since the concerns discussed in Advisory Opinion 97-07 and in other related opinions, such as Advisory Opinion 92-07 and Advisory Opinion 00-06, are not present here, there is no violation for the County employee to obtain employment in the private sector in the requested position.

 

 

_______________________________

David J.J. Facciolo, Chairperson

 

Decision: Unanimous