An official on a County regulatory board requests guidance about whether an accusation that he has personal animosity toward the agent of an applicant requires him to recuse himself from his official duties.
Conclusion:
The official is not required to recuse himself from further proceedings involving the agent. Personal animosity is insufficient to show bias in the absence of substantial facts demonstrating that the disfavor actually infects the official conduct or that a reasonable member of the public would believe that the personal dislike is likely to adversely affect official conduct. The burden of demonstrating bias on the part of a government employee or official requires a showing that the official or employee's conflicting interest in the outcome of the proceeding is concrete, personal and not remote. The accusation at issue is limited to a claim of personal animosity toward the applicant's agent and does not implicate a violation of the conflict of interest rules. Assuming awareness of all of the agent's accusations as well as the comment made by the official cited by the agent, the Commission does not believe a reasonable member of the public would find the agent's evidence compelling or reach a conclusion that the official's decision on the application would be infected with bias.
Facts:
The official requesting guidance is a member of a County regulatory board. An agent for a party coming before that board has accused the official of being "closely allied" with persons alleged to be antagonistic to the agent in prior years and that at a hearing a few months ago the official, while acting in official capacity as a board member, made comments characterized as "snide and cynical" toward the agent during a hearing.1 The accusation made no allegations about the official's attitude toward the actual party to the proceedings or about the application at issue. The agent has requested that the official recuse himself from further involvement in the application process. The official states that he disagrees with the allegations and characterizations made by the agent and believes that he can continue to be an impartial member of the regulatory board.
Bias
Our law, both State and federal, requires that government decision makers must be unbiased and impartial and present the appearance of such.2 Bias, whether positive or negative, stems from an outside source, not from the proceeding itself, and results in a decision on some basis other than what the official learned from his or her official participation in the matter before him. A test for bias is whether the circumstances of a matter could reasonably be interpreted as having the likely capacity to tempt the official to depart from his or her duty to the public.3
There is a presumption that government officials fulfill their duties with honesty, impartiality, and integrity; the burden to prove otherwise is on the person who asserts bias.4 Bias can stem from a number of sources: pecuniary interest, family or business association, prejudgment of the facts or law, prior involvement in the issues to be adjudicated, or being the target of personal animosity and criticism to a degree which is reasonably perceived to affect one's official conduct. The burden to demonstrate bias is substantial and evidence of mere possibility of bias is insufficient. If bias is shown to exist, due process requires the official to abstain or recuse him or herself from all aspects of the proceeding or matter in issue.
Code or Prior Opinion:
The conflict of interest rule at Code Section 2.03.103(A)(1) prohibits the use of official authority by a County official or employee "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."5 A financial, personal, family or business interest affected by the outcome of a hearing imputes bias to the decision maker which is only remedied by recusal. The Code's conduct rules at Section 2.03.104(A) recite a prohibition on conduct creating an appearance that the decisions or actions of a County official are influenced by factors other than the merits of the matter, thereby undermining public confidence in the impartiality of the governmental body with which the official is associated.6 Even if there is no actual bias, if the appearance of bias would exist in the eye of the informed and reasonable member of the public, again recusal is mandated.
When a private financial interest or conflict is at issue, the Commission advises the requester to recuse himself or herself entirely, see Advisory Opinions 92-05, 94-04, 99-01, 04-11, 05-05, 05-06, 05-18. Complete cessation of outside endeavors also have been required when recusal from official duties is not sufficient to avoid an appearance of impropriety. See Advisory Opinions7-05, 04-09, 04-14, and 05-03. In other appropriate cases, County officials and employees are advised to recuse themselves from those portions of their duties which create conflicts or improper appearances. See Advisory Opinions 97-01, 97-09, 99-04, 05-05, 05-12. If a conflict or improper appearance exists but the employee or official cannot delegate his or her duty, Code section 2.03.103(A)(2) requires that person to make a public disclosure of the private conflict or involvement and then permits him or her to exercise County authority following the specified public disclosure. See Advisory Opinion 05-19.7
Analysis:
Code Section 2.03.101(B) recognizes that "many public officials are citizen-officials who bring to their public offices the knowledge and concerns of ordinary citizens and taxpayers." Thus, the burden to show bias is substantial because if remote, speculative, or nebulous interests were permitted to disqualify public officers, the community would be deprived of the services of some of its most capable citizens. If this burden were not so substantial, unscrupulous applicants would be tempted to cry "wolf" in order to remove perceived present or future impediments to a desired conclusion in the administrative process. The burden of demonstrating bias requires a convincing showing that the official or employee's interest in the outcome of the proceeding is concrete, direct and personal.
Bias is not demonstrated by showing that an official or employee merely dislikes an applicant or agent. Due process does not require that applicants or their agents have a right to the personal approval of members of a regulatory board. If this Commission were to agree with the agent's apparent proposition that personal distaste is automatic bias, the function of many County regulatory boards would grind to a halt and applications important to County citizens would languish in the absence of quorums. This is particularly true in a small area such as New Castle County where personal contacts are frequent. In the absence of concrete facts demonstrating that the disfavor actually infects the official conduct or that a reasonable member of the public would believe that personal dislike adversely affects official conduct, personal animosity alone is insufficient to show bias.
The Ethics Code not only requires an analysis of the evidence of actual bias but also a determination of whether a reasonable member of the public who is aware of all of the relevant facts would believe that official conduct would be infected with the alleged bias. It is in this latter analysis that the Ethics Commission is in a unique position to assist an employee or official because the Code places the Commission in the stead of the reasonable member of the public in order to determine that objective finding. Additionally, resort to the Ethics Commission for an Advisory Opinion protects the employee or official in future proceedings as long as the dictates of the Opinion are followed.8
Finding:
What the Commission finds most significant about the facts underlying this request is the complete absence of an allegation of bias about the application itself or toward the party bringing that application. The accusations here are limited to speculation about the official's relationship to some persons who apparently do not hold the agent in high esteem, with an underlying assumption that the official also does not hold the agent in high esteem. The "evidence" of this lack of esteem cited by the agent is even more nebulous: a factual question directed to the party which included a self-depreciating reference to the official himself.
It is on this flimsy foundation that the agent apparently concludes that an absence of personal admiration for him automatically translates into bias against his client's application. Such an unsupported assumption falls far short of demonstrating that the official has a personal, direct and concrete interest in the outcome of the application which prevents him from performing his duty in the public interest. Thus, the accusations do not present claims of violation of the conflict of interest rules because of financial or personal interest in the outcome of the application.
The only other potential basis for recusal would be to avoid creating an appearance of impropriety. The Commission judges whether an appearance of impropriety would be created by a decision not to recuse by using the standard developed by the courts for judicial public officials which has been described as "conduct [which] would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the official's ability to carry out [official duties] with integrity, impartiality and competence is impaired." In determining the relevant circumstances, the courts advise looking at the totality of facts. In re Williams, 701 A.2d 825, 832 (Del. Super. 1997); Advisory Opinion 05-06. Assuming awareness of all of the agent's unsupported accusations and the comment made by the official, the Commission does not believe a reasonable member of the public would find the agent's logic compelling or reach a conclusion that the official's decision on the application would be infected with bias.
A contentious demeanor can sometimes be expected in regulatory proceedings and even open hostility does not in and of itself create bias. Although the criticism in the accusation disparages the official's alleged choice of associates as persons whom the agent does not admire and the agent accuses the official of conspiring with them to his detriment, given the agent's obvious proclivity for inflammatory rhetoric these accusations, arising in a regulatory hearing, are not the type or degree of personal criticism which the reasonable person would find disqualifying in future proceedings in this or other matters concerning the agent.
The official is not required to recuse himself from further proceedings in the matter involving the agent.
In issuing this Advisory Opinion, the Ethics Commission is applying the New Castle County Code of Ethics, which establishes the minimum level of ethical conduct required of County officials and employees. The Commission reminds each County elected official that he or she has authority to impose as part of his or her own policy additional or greater restrictions on subordinate officials and employees than those set forth in this Opinion. See, Section 2.03.101(D).
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS 12th DAY OF JULY 2006.
_________________________
John McMahon, Chairperson
Decision: Unanimous
Footnotes:
1 Only one comment was made by the official about the agent at the 25 minute hearing. The official requested that the party rather than the agent respond to his question about the application. In a self-deprecating manner, the official stated "I am not ure that [the agent] has the mentality to interpret my gutteral mutterings".
2 Withrow v. Larkin, 421 U.S. 35 (1975); Acierno v. Folsom, 337 A.2d 309 (Del.Supr. 1975); Quaker Hill Place v. Saville, 523 A.2d 947, 966 (Del. Super. 1987)
3 First Nat. Monetary Corp. v. Weinberger, 819 F.2d 1334 (6 Cir. 1987); Petition of Bergen County Utilities Authority, 553 A.2d 849 (N.J. Super. 1989).
5 Sectopm 2.03.103. Prohibitions relating to conflicts of interest, states in pertinent part:
(A) Restrictions on exercise of official authority.
1. No County employee or official knowingly or willfully 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. This prohibition does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the County official or employee, a member of his or her immediate family or a business with which he or she or a member of his or her immediate family is associated. There will be a rebuttable presumption of a knowing or willful violation of this section if the action benefits the County official or employee, his or her spouse, or his or her dependent children (whether by blood or by law).
6 New Castle County Code Sec. 2.03.104. Code of conduct.
A. No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.03.103(A)(1) [conflict of interest], 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 decision or action of the County employee, County official or governmental body are influenced by factors other than the merits.
7 Section 2.03.103. Prohibitions relating to conflicts of interest, states in pertinent part:
(A.) Restrictions on exercise of official authority.
2. In any case where a person has a legal and/or statutory responsibility with respect to action or nonaction on any matter where the person has a personal or private interest and there is no provision for the delegation of such responsibility to another person, the person may exercise responsibility with respect to such matter, provided that promptly after becoming aware of such conflict of interest, the person files a written statement with the Commission fully disclosing the personal or private interest and explaining why it is not possible to delegate responsibility for the matter to another person. If the matter is one in which the legal and/or statutory responsibility requires the person to vote upon the issue, the written statement filed with the Commission shall be read into the public record prior to the time the person's vote is cast. Any person choosing to abstain from voting on an issue where [he] or she has a conflict shall state the reasons for his or her conflict on the record; an abstaining voter need not file the written statement with the Commission required when acting on, rather than abstaining from, an issue involving a conflict.
8 New Castle County Code Section 2.04.102(I) states in pertinent part:
. . . It shall be a complete defense in any enforcement proceeding initiated by the Commission and evidence of good faith conduct in any other civil or criminal proceeding if the requester, at least twenty-one (21) working days prior to the alleged violation, requested the opinion from the Commission in good faith, disclosed truthfully all the material facts and committed the acts complained of either in reliance on the opinion or because of the failure of the Commission to provide an opinion within twenty-one (21) working days of the Commission's receipt of request or such later extended time.
