Does it violate the Ethics Code for a former County official to represent an applicant before a board he formerly represented, if the former official's service with the board ended less than two years prior to any proposed representation of the applicant?

          There is no per se rule under the Ethics Code prohibiting a former official in all instances from representing an applicant before a board he formerly represented during the two year period immediately following termination of his service to the County or the board upon which he served. Rather, a former official's representation of an applicant before a board he formerly represented, within such time frame, is prohibited if the former official: 1) gave an opinion; 2) conducted an investigation; or 3) was otherwise directly and materially responsible for such matter in the course of his official duties. Additional material facts are needed to determine whether or not a particular situation meets one of these three criteria.

          The requesting party is a former County official who, while employed by the County, represented various County boards. He testified that the advice he rendered the boards he served was requested by the boards, and given by him, in open session and, thus, he did not have confidential information gained by reason of his public position. Less than two years after he left County employment and ceased his representation of such boards, he requested this advisory opinion inquiring generally whether he can represent applicants before the boards he previously represented. His request does not involve a particular fact situation nor reference a particular application or applicant.

          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.

 

          In Advisory Opinion 01-04 (October 3, 2001), a former County official who served as chair of a County Board presented a particular fact situation to the Ethics Commission wherein he inquired whether it would violate the Ethics Code for him to represent an applicant, approximately a year after his service with the County ended, before the board he formerly chaired. In such instance, and under the specific facts presented to the Commission, the Commission found that such representation would not violate the Ethics Code. The Ethics Commission, in A.O. 0 1-04, having the opportunity to explore the specific material facts of the request., including who the specific parties involved were, the location of the property, and specifics regarding the particular application, concluded "under the specic facts presented to the Commission" that such representation would not violate the post-employment section of the Ethics Code. In issuing such decision, the Ethics Commission referenced the Delaware Court's and State Public Integrity Commission's rulings on the State of Delaware's similarly worded post-employment statute, finding 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 4653 18 (June 30, 1995), aff'd Del. Supr., 676 A.2d 900 (1996); State Public Integrity Commission Opinion No. 00-29.

          In the present instance the requesting party is requesting a per se ruling that, as long as his representation does not involve the same parcel of property, his representation should not be prohibited. The Commission, in the absence of any specific facts, declines to adopt such a per se ruling at this time. It further declines to find, without specific facts presented, that any representation does not violate the Ethics Code, as requested by the requesting party, so long as the application "is unrelated to any previous matter before the Board", without particular facts from which it can make a determination as to what is or is not "unrelated to any previous matter". See, State Public Integrity Commission Opinion No. 00-29 (declining to rule in the absence of specific facts).