Does it violate the Ethics Code for a Special Services inspector to become a certified home inspector and conduct inspections for the public?

          It would not violate the Ethics Code for a Special Services inspector to have secondary employment conducting residential inspections to determine the condition of residential properties, except that he may not inspect new construction, nor conduct inspections to determine New Castle County Code compliance.

          The requesting party is a County inspector, employed by the ]Department of Special Services. In this capacity, he primarily inspects sewer lines and laterals for Code compliance when a development is in its initial stages. He also inspects County funded projects and structures, not for code compliance, but to determine whether the project is proceeding according to specifications. He does not inspect any residential properties for code compliance, although he previously performed this function for the County. As a means of earning additional income, he wishes to become a certified home inspector and conduct home inspections for members of the public, such as prospective buyers and sellers of residential property, to determine the condition of the property.

          The New Castle County Ethics Code contains provisions which may restrict, or altogether prohibit, County employees or officials from obtaining secondary employment in the private sector where there is a nexus between the County employee's or official's County job and the proposed secondary employment.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.); and 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).

 

          The County inspector's proposed secondary employment implicates two main sections of the Ethics Code, namely, Sections 2-83(a) and 2-84(a). These provisions on conflicts of interests and appearances of impropriety, respectively 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 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.

           In Advisory Opinion 93-01 (March 5, 1993), the Ethics Commission had the opportunity to advise whether County inspectors could have secondary employment conducting certain types of inspections for the public sector. In discussing the various types of inspections proposed by the requesting party in that opinion, the Commission found that it would not violate the above provisions, nor the Ethics Code, for the County inspector to inspect residential properties, excluding new construction, and separate and apart from County code compliance, for members of the public sector.

          The Commission believes that the above finding is consistent with the current request and likewise finds that it would not violate the Ethics Code, if the requesting party were to conduct inspections for the private sector, to determine the condition of homes for prospective buyers and sellers, provided that the inspections are not for code compliance and are not for new properties. In so finding, the Commission notes that the requesting party should not hold himself out, or market himself, with regard to his secondary employment, as being, or having special skills or qualifications because of his employment as, a County inspector. Finally, the Commission cautions that, if the purpose or scope of the inspections change, the requesting party refer to Advisory Opinion 93-01 and contact the Ethics Commission for further guidance.

 

          In rendering this opinion, the Ethics Commission notes it is construing the New Castle County Code of Ethics, which establishes the minimum level of ethical conduct required by County employees and officials. The Commission cautions, however, that each County body, department, agency, office, or board, is free to and may imposed additional or greater restrictions on its officials' and employees' secondary employment activities than those discussed here.

 

 

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David J.J. Facciolo, Chairperson