Whether an employee of the Department of Special Services may serve on a regulatory board of a municipality.
Conclusion:
The employee may serve on the municipal regulatory board as long as he recuses himself from any policy-making, planning or decisions on matters performed by the County for the municipality and refrains from disclosing non-public information he may obtain in his County position to, or use it for the benefit of, the municipality. In addition, he must be careful not to attempt to influence official conduct of fellow County employees or officials as they deal with the municipality in the course of their County positions.
Facts:
A New Castle County employee performs functions which are not regulatory in nature, are not associated with County zoning, and generally do not involve plans, services, or funding to the municipality in question. His department has infrequent interaction with the municipality in a limited area and most contacts involve ministerial matters.1 He states that in his County position he does not receive confidential information that would affect the municipality.2
He states that he was solicited to serve on a land use board in the New Castle County municipality where he is a resident. The employee agrees that in the remote possibility that the County were to be involved in an application to the regulatory board he would recuse himself as a representative of the municipality.
Code or Prior Opinion:
Code provisions
The New Castle County Ethics Code Section 2.03.103 conflict of interest provision prohibits using official authority or confidential information received through County employment for the personal or private benefit the employee. This means that an employee cannot use a County position or non-public information developed from that position to enhance his or her status on personal outside endeavors.3 That section also restricts the employee from representing the interests of a private enterprise before the employee's County department.4
In addition, Code Section 2.03.104 (A) prohibits conduct which undermines public confidence in the impartiality of a governmental body with which a County employee is associated by creating the appearance that the official actions and decision of the employee or department are influenced by factors other than the merits.5 Section 2.03.104 (E) warns that County employees may not place themselves in outside positions which might reasonably be expected to require or induce them to disclose confidential information acquired by reason of their public position.6
Commission Precedent
In Advisory Opinion 92-02, the Commission held that while there was no violation of the Code by officials and employees who served as members of the board of a non-profit corporation, the officials and employees would have to recuse themselves from County matters involving organizations which had joint ventures with the non-profit. In Advisory Opinion 97-09, the Commission found that it did not violate the Code for a County employee who exercised discretion in the administration of HUD funds to serve on the board of a non-profit which, through a joint venture, operated a program with a second organization which had been a recipient of County HUD funds, as long as the employee recused himself in his County position from consideration of any application for HUD funds from any enterprise associated with the non-profit. The Commission noted that "the employee must be knowledgeable, with regard to the organizations the non-profit organization funds or is in a joint venture with, to ensure that she has no involvement at the County if they are also applicants for the County administered HUD money." A similar theme was recited in Advisory Opinions 97-11 and 99-04.
In Advisory Opinion 97-04 , the Commission found no conflict of interest where a member of a County Board also was a paid member of a State Board although the State occasionally submitted matters to the official's County Board. The Commission determined that because of the non-profit nature of the State and the limited scope and nature of the Board member's State position, the member could recuse herself to avoid a conflict and the appearance that she was influenced by her service for the state. Similarly, in Advisory Opinion 05-05, an employee whose department had ministerial duties which involved a municipality was permitted to serve on a board for that municipality as long as the employee did not become involved in or perform any non-ministerial acts in her County position for the municipality. In Advisory Opinion 05-21, a highly placed appointed County official was permitted to serve as an elected member of a local government as long as he recused himself from all County duties which provided access to confidential information regarding land use or redevelopment policy affecting the local government or, alternatively, unless he recused himself from involvement as an elected local official from any aspect of planning, execution, decision-making, or voting regarding County land use.
Analysis:
The employee does not violate the Code by being appointed to the regulatory board because he did not use his County status to obtain the municipal appointment and, therefore, could not have used County authority for personal or family financial benefit. Apparently, the employee was asked to join the municipal board because of his personal professional expertise, status as a resident, and his interest in the administration of his local government. None of these things reflect improper conduct.7
Additionally, the employee's position on a board which hears zoning issues for the municipality would not reasonably be expected to require or induce him to disclose confidential or non-public information since his department is not involved in zoning matters affecting the city. Additionally, he has volunteered to recuse himself from any exercise of authority for the municipality in circumstances which involve New Castle County government.
Furthermore, as his department performs only limited services for the municipality, he would not be expected to contravene the Code restriction on representing a private interest before his department.
However, he is expected to be vigilant when his department performs such services and avoid any attempt to influence the official conduct of fellow County employees or officials. However, the Section 2.03.104(A) conduct rule requires him to recuse himself if his County position becomes involved in policy, planning or decision-making about County services for the municipality.8 If he fails to recuse, he will cause the reasonable member of the public to question the impartiality of his department's conduct. Such a failure would be a violation of subsection (A) because the public confidence in the merits of his department's actions toward the municipality would be impaired.
Finding:
The employee may serve on the municipal regulatory board as long as he recuses himself from any policy-making, planning or decisions on matters performed by the County for the municipality and refrains from disclosing any non-public information he may obtain in his County position to, or use it for the benefit of, the municipality. In addition, he must be careful not to use his status with the County to obtain any benefit for the municipality by representing its interests to his fellow employees.
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 cautions, however, that each County department, board, or other unit of County government is free to, and may impose as part of its own policy, additional or greater restrictions on its officials and employees than those set forth in this Opinion.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS 13th DAY OF SEPTEMBER 2006.
__________________________
John McMahon, Chairperson
Decision: Unanimous
Footnotes:
11. New Castle County Code Sec. 2.03.102. Definitions, in pertinent part:
Ministerial action means an acttion that a person performed in a prescribed manner in obedience to the mandate of legal authority, without regard to the exercise of the person's judgment as to the desirability of the action being taken.
2New Castle County Code Sec. 2.03.102. Definitions, in pertinent part:
Confidential information means information not obtainable from reviewing a public document or from making inquiry to a publicly available source of information.
3 Section 2.03.203. 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 law).
4 Section 2.03.103(B). Restrictions on representing another's interest before the County, in pertinent part:
1. 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 or appointment.
5 Section 2.03.104. Code of conduct, states in pertinent part:
A. 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 decision or action of the County employee, County official or governmental body are influenced by factors other than the merits.
6 Section 2.01.104. Code of conduct, states in pertinent part:
E. No County employee or County official shall engage in any activity beyond the scope of such public position which might reasonably be expected to require or induce such County employee or County official to disclose confidential information acquired by such employee or official by reason of such public position.
7 The municipal board is not considered an associated business because it is not a legal entity organized for profit as described in Section 2.03.102 which states:
Business means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit.
