Does it violate the Ethics Code for a former County official to represent an applicant before the board he formerly chaired, if the former official's service with the board ended less than two years prior to the proposed representation of the applicant and the former official had no involvement with the matter before his former board?
Conclusion:
Assuming applicability of the post-employment restrictions of the Ethics Code, it would not violate the Ethics Code for a former County official to represent an applicant before the board he formerly chaired, even if the former official's service with the board he formerly chaired ended less than two years before his proposed representation of the applicant, since, in the particular instance, the former official: (1) did not give an opinion; (2) did not conduct an investigation; or (3) was not otherwise directly and materially responsible for such matter in the course of his official duties as a county official.
Facts:
The requesting party is a former County official, who served as chair of a County board until approximately one year ago. He recently was asked to represent an applicant before the board he formerly chaired. While chair of the County board, the former official heard similar type of applications, but he had no involvement on the particular application. The current applicant did not appear before the board, nor was any application regarding the current location or current issue before the board, while the former official was a member of the board.
The former official did not have any involvement with the drafting, or passage of any legislation, regulations, or substantive guidelines regarding the law which his board interpreted, relevant to the current application. He stated that he did not have any confidential information gained by reason of his position as a member or chair of the board. No facts to the contrary were presented. The former official's service with the County ended after July 11, 2000, the day that County Council passed an ordinance to amend the Ethics Code, adding post-employment restrictions and relevant definitions to the Ethics Code, but before the effective date of the ordinance which occurred 60 days from the July 11, 2000 passage of the ordinance.
Code or Prior Opinion:
The New Castle County Ethics Code post-employment restriction, Section 2.03.103(D), states:
No person who has served as a County employee or County official shall represent or otherwise assist any private enterprise on any matter involving the County for a period of two (2) years after termination of employment or official status with the County, if the person gave an opinion, conducted an investigation or otherwise was directly and materially responsible for such matter in the course of official duties as a County employee or official. Nor shall any former County employee or County official disclose confidential information gained by reason of public position nor shall the person otherwise use such information for personal gain or benefit.
Analysis:
Assuming application of the July 11, 2000, amendments to the Ethics Code to the requesting party for purposes of this opinion11, the applicant who wishes to have the former official represent it qualifies as a "private enterprise"2. Additionally, while the New Castle County Ethics Code does not define the term "matter", the Commission finds that the application before the former official's board constitutes a "matter" as that term is generally used.3 Thus, since it has been less than two (2) years since the former official has served on the County board, the relevant query is whether the former County official "gave an opinion, conducted an investigation or otherwise was directly and materially responsible for such matter in the course of official duties . . ."
The Delaware Superior Court and State Public Integrity Commission, when interpreting the State of Delaware's post-employment restriction, which is identical to New Castle County Section 2.03.103(D), both have held that it is not a violation of the post-employment law for a former board member to represent an applicant before his former board, if the former board member had no involvement in the particular matter while serving on the board. Beebe v. Certificate of Need Appeals Board, Del. Super., C.A. No. 94A-01-004, Terry, J., 1995 WL 465318 (June 30, 1995), affd Del. Supr., 676 A.2d 900 (1996); State Public Integrity Commission Opinion No. 00-29 at 73. Likewise, in the present instance, no facts have been presented that the former official gave an opinion, conducted an investigation or was otherwise directly and materially responsible for such matter in the course of his official duties as a County official.
In the present instance, the former official did not have any involvement with the relevant parties, location, or application during his service on the board. While the former official may have heard similar type applications during his service on the board, his role and involvement as a member and chair of the board was not such as to render a finding that he was "directly and materially responsible" for the current matter in the course of his official duties as a County official. He was not asked to represent the applicant until a year after his County service had ended. Additionally, since the former official represented to the Commission that he did not obtain any confidential information by reason of his position, and the Commission is aware of no facts to the contrary, the post-employment provision prohibiting disclosure of, or use of, confidential information is not an impediment to his representation of the applicant.
Finding:
Therefore, under the specific facts presented to the Commission, it would not be a violation of the postemployment restrictions of the Ethics Code for the former official to represent the applicant before his former board in this particular instance. 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 former County official. 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 the authority of any director, department head, board or other unit of government, from establishing a more restrictive rule as part of its own policy. Advisory Opinion 91-07, as amended December 9, 1992.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON OCTOBER 3, 2001.
_____________________________________
P. Clarkson Collins, Jr., Chairperson
Decision: Unanimous
Footnotes:
1Given the Commission's ultimate opinion in this matter, this opinion does not address whether the post-employment section is, in fact, applicable to the requesting party, who served as an official at the time the ordinance adding the post-employment section was passed, but had resigned from County service prior to the ordinance's effective date. For purposes of this opinion, and for educational purposes, the Commission assumes that such restriction is applicable.
2 Section 2.03.102 of the New Castle County Ethics Code defines "private enterprise" as:
[A]ny 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.
3For example, New Castle County's Ethics Code post-employment section is identical to the State of Delaware's post-employment restriction, 29 Del.C. section 5805(d). Title 29 Del.C. section 5804(6), defines "matter", as used in the post-employment restriction, as: "any application, petition, request, business dealing or transaction of any sort". Webster's New World College Dictionary, 3rd edition, defines "matter" as including: "6(a) something that is the subject of discussion, concern, action, etc; thing or affair [business matter] . . .".
