Does it violate the Ethics Code if an aunt of a County Community Services employee were to apply for, and if qualified, receive a loan under a Community Services administered home repair program, if the County employee has responsibilities, including approval authority, with the administration of the loan program?

          It would not violate the Ethics Code, if an aunt of a County Community Services employee were to apply for, and if qualified, receive a loan under a Community Services administered home repair program, even if the employee has responsibilities, including approval authority, with the administration of the loan program, provided the employee: 1) does not represent or otherwise assist his aunt with respect to the matter; and 2) makes appropriate disclosures and recuses himself from all participation in the matter, with a supervisor performing the work he otherwise would perform. The Department should also continue with its policy of processing such applications on a first come, first serve basis and implement other safeguards, emphasizing the need for its employees to refrain from disclosing information regarding such programs to their friends, relatives, and acquaintances, prior to such information being made available to the public.

           The requesting party is a Community Services employee who has responsibility in the administration of a Community Services administered home repair loan program. More specifically, the employee, among other things, approves the evaluation of whether the applicant meets the qualifications of the loan program and the appropriateness of the work to be performed by the contractor. The requesting party testified that his aunt learned of the home repair loan program through a Senior Center to which she belongs and subsequently applied for the loan program. The requesting party further testified that he recused himself from all work on his aunt's application and it was reviewed and evaluated by his supervisor who approved the loan and the work. Finally, he testified that applications are considered on a first come, first serve basis and his aunt's application did not receive preferential consideration as to when it was considered or processed by Community Services.

 

          New Castle County Community Services has a list of eligibility requirements, including age, ownership, income level, and payment of tax, sewer and insurance, which an applicant must meet in order to qualify for the home repair loan program. It also has a list eligible improvements which can be performed under the program and sets a maximum of $5,000 for the work to be performed. The contractor performing the approved work is paid directly by the County.

           The New Castle County Ethics Code prohibits, among other things, County employees and officials from engaging in conduct constituting a conflict of interest or appearance of impropriety and from representing or otherwise assisting any private enterprise with respect to any matter before the County Department with which he or she works.

 

          With regard to restrictions on behavior constituting a conflict of interest, Section 2.03.103(A)(1) of the Ethics Code states, in significant part:

 

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 . . .

 

          Because the Ethics Code defines "immediate family" in Section 2.03.102 as "a spouse or dependent child . . .", the proposed behavior would not implicate the above provision. However, other prohibitions in the Ethics Code are applicable, as referenced above, and while not prohibiting the aunt from applying for or participating in the home loan program, would, none-the-less, prohibit the requesting party's from involvement in his aunt's application. Section 2.03.1 03(B)(1), for example, states:

 

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 appointment.

 

          Since the definition of "private enterprise", as set forth in Section 2.03.103, includes "any activity conducted by any person, whether conducted for profit or not for profit and includes the ownership of real or personal property. . ." and thus would encompass his aunt, the County employee is prohibited under Section 2.03.103(B)(1) from representing or otherwise assisting his aunt with the matter.

 

          Additionally, Section 2.03.104(A), prohibiting County employees and officials from engaging in conduct constituting an appearance of impropriety, also is relevant. This section states:

 

No county employee or County official shall engage in conduct which, while not constituting a violation of Section 2.03. 103(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. Section 2.03.104(A).

           Although there are eligibility requirements as to who qualifies and what work can be performed under the program, any participation by the employee in the processing of his aunt's application could still create the appearance that the approval of her application was influenced by factors other than the merits, i.e., his relationship to his aunt, and thereby result in undermining the public confidence in the impartiality of the Department of Community Services. Thus, to avoid such an appearance, the employee is precluded from being involved in the matter under this section, as well as Section 2.03.103(B)(l).

 

          The prohibitions contained in the Ethics Code restricting the employee from participating in the processing of his aunt's home loan, however, does not prohibit the aunt from applying for, and if qualified, from receiving a loan under the home loan program, if the employee refrains from any participation in the matter and other safeguards are taken.

           Accordingly, the employee and/or department should take the following steps: 1) The employee shall not represent or otherwise assist his aunt in the application or processing of the matter; 2) The employee shall not be involved at his county job with the approval or processing of his aunt's application or have any other involvement with her home loan or work performed under it. In order to remove the appearance that a subordinate might be influenced to approve the employee's aunt's application or work, with the hope of gaining favor with his superior, the employee's supervisor should be immediately advised of the employee's relationship with the applicant and the supervisor should perform the work on the matter the employee otherwise would have performed, but for his relationship to his aunt; 3) In order to ensure that relatives of employees are not given preferential treatment, the Department should continue, absent other exigencies, with its policy of processing applications on a first-come, first serve basis and should emphasize the need for its employees do refrain from disclosing to their friends, relatives, and other acquaintances information regarding the program prior to such information being available to the general public.

 

Insomuch that this opinion sets forth the minimal requirements which must be complied with under the Ethics Code, this opinion does not usurp the Department of Community Services from enacting more additional or more restrictive guidelines to addressing the issue presented.

 

 

_______________________________

P. Clarkson Collins, Chairperson

 

Decision: Unanimous