Whether an official would commit a violation of the Ethics Code if he knowingly voted on a matter which affected the financial interests of the spouse of fellow official who had not recused himself from the vote.

            Since there is a total absence of facts supporting a perception of collusion or improper conduct on the part of the requesting official, the Commission concludes that if the requesting official casts his vote upon sole consideration of the public's interest in a matter concerning his fellow official's spouse, he will not violate the Code of Ethics. If the requesting official believes that the public interest may be better served by disclosure of his concern over improper appearance, he may invoke the disclosure and abstention procedure outlined in the Ethics Code.

            An official (hereinafter "fellow official") has a spouse who is a full partner in a business which comes before the County agency in matters upon which he and the requesting official (hereinafter "requesting official") vote. The officials are co-equals and each has an independent constitutional and non-delegable duty to vote on matters before their agency. The requesting official asks whether the ethics code requires a fellow official to recuse himself when legislation affecting that official's spouse's business comes for a vote and whether the requesting official may vote on such legislation if he is aware that the fellow official did not recuse.

 

            The County Ethics Code is premised on the rationale that "public office is a public trust and that any effort to realize person financial gains through public office other than compensation provided by law is a violation of the public trust. It is further declared that the people have a right to be assured that the financial interest of the holder of or nominees to or candidates for public office do not conflict with the public trust." See New Castle County Code Section 2.03.101.

 

            The conflict of interest rule recited in Section 2.03.103(A) restricts the use of official authority by a County official or employee to actions for the public good:

 

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).

 

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.

 

            The New Castle County Code extends the imputed barrier of conflict to conduct affecting members of an official's immediate family. "Immediate family" is defined in Section 2.03.102 as "a spouse, child whether by blood or operation of law, parent, step-parent, spouse's parent or child, or sibling of the whole or half blood of a County official or employee". According to the requesting official, the spouse of the fellow official is a full partner in a business which brings matters before the County agency and the spouse financially benefits from its actions.¹ By virtue of the code definition, the financial gains of the spouse are imputed to the husband office holder. Therefore, the husband's vote on matters concerning his spouse's business raises a question of violation of subsection (1) of the rule against using official authority for private benefit.

 

            Even when there is no conflict relationship or financial gain at issue, every County official and employee must consider the additional ethical prohibition in Section 2.03.104(A) against creating an impression in the reasonable member of the public that his or her vote is affected by personal interests which impair his or her competence, integrity and honesty or that his agency or department will look as though it is showing partiality in a matter. That section states:

 

No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.02.103(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 a appearance that the decision or action of the County employee, County official or governmental body are influenced by factors other than the merits.

 

            The standard for judging the creation of such an appearance for judicial public officials has been described in Delaware courts 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 re Williams, 701 A.2d 825, 832 (Del. Super. 1997). In determining the relevant circumstances, the courts advise the Commission to look at the totality of facts. The Commission has long applied this standard to the conduct of County officials and employees.

 

            If a conflict of interest or improper appearance exists, a violation of the Ethics Code can be avoided by either of two courses of conduct: The best and most frequently recommended method is complete and total recusal from any County matters associated with the spouse's business and abstention from vote.

 

            The alternate method is full compliance with the exception provisions recited in subsection (2) of Section 2.03.103(A). That subsection recites strict provisions for avoiding an ethical violation when County authority is exercised by an official who has legal or statutory responsibility with respect to action or nonaction on a particular matter in which the law does not provide for delegation of that authority. In such a case, the official must review his or her ethical duty before deciding to exercise County responsibility, recuse himself or herself from involvement in the matter as far as possible, and file a written statement with the Ethics Commission fully disclosing the personal or private interest involved and explaining why it is not possible to delegate or refrain from the exercise of authority. That law also requires the official to read that written statement into the public record prior to the time the person's vote is cast. However, if an official decides to abstain from voting on an issue where he or she has an ethical conflict, he or she is still required to place the reason for the conflict on the record prior to the abstention but does not require that a written statement be filed with the Commission.

 

 

            In the past, the Commission has recommended the choice of full recusal and abstention from vote when a conflict of interest question appears. In Advisory Opinion 92-03 the employer of a County official's spouse anticipated submitting a bid to an organization which might subsequently apply for a County grant. Even though the Commission found no conflict of interest in the relationship of the organization with the official, the official was advised to abstain from all participation in the grant award in order to avoid creating an appearance of impropriety. Such a course of conduct was held to "reflect the highest ethical standards."

 

            In Advisory Opinion 99-01 a conflict of interest was found and a County official was advised to recuse himself from voting if his client or a client which his law firm represented in the same matter had a financial interest before him. He was also advised that an improper appearance would be created if he did not recuse himself from voting when he knew or reasonably should have known that a client of his or his law firm had a financial interest in a matter, even if he or the firm represented the client only in unrelated matters. In that Opinion, the Commission advised recusal in any case where, although there was no conflict of interest, a vote would create an improper appearances to the public.

 

            In Advisory Opinion 99-08 a County official's parent was doing business on an unrelated project with the owner of land subject to County approval. Under the law at that time, a parent was not included in the definition of conflict of interest but the Commission held that an improper appearance would be created if the official did not recuse from the matter, publicly disclose the nature of the personal relationship and abstain from the vote.

 

            In Advisory Opinion 04-11 the Commission held that an official would create an appearance of impropriety if he did not publicly disclose the relationship, recuse himself and abstain from vote on a matter in which a client of his spouse's business had a pecuniary interest.

 

            In Advisory Opinion 05-19 an official had non-delegatable legal and/or statutory responsibility with respect to action or non-action in County government. If he did not exercise his authority in certain matters, the function of County government ceased in those areas. Regulatory issues affecting a private enterprise in which he and his family had a pecuniary interest came before him for final approval. The Commission acknowledged that a conflict of interest existed but determined that in this case the official could exercise County authority if he recused himself as far as possible from involvement in the matter, and followed the Section 2.03.103(A)(2) procedure by filing a written statement with the Commission fully disclosing the private interest and explaining why it was not possible to delegate responsibility for the matter.

 

            In Advisory Opinion 06-06 a county official asked whether he could ethically vote on a land use measure affecting homes in his community. The Commission held that if the official did not have a financial interest affected by the measure, there was no conflict of interest. If, however, the official determined that he did have an affected financial interest or there were other circumstances impairing his integrity, impartiality or competence in the public eye, he must follow the directive of Section 2.03.103(A)(2) if he intended to vote, communicating the potential conflict to the Commission in writing and placing that information on the public record before casting his vote.

 

            Finally, in Order C05-04, the Commission held that an official violated the Ethics Code when he cast his vote in a matter affecting a client of his wife. The Commission cited prior opinions on the issue and reminded the official that the disclosure and vote procedure recited in Section 2.03.103(A)(2) had been available to him. "In the future, if the official elects not to recuse himself in matters concerning clients of his spouse, the Code requires that he notify the Ethics Commission in advance in the manner described in New Castle County Code Section 2.03.103(A)(2) so that the public will be on notice and the Commission may have an opportunity to offer guidance and prevent a similar violation."

            The Commission is mindful that both the officials discussed in this request have obligations related to the exercise of County authority that they cannot delegate to anyone else and that both are directly responsible to the County citizens for their conduct. On the facts stated, the spouse-official could have a conflict of interest issue but, absent his direct request, that issue may not be resolved in this Opinion because the question is not raised by him.²

 

            The Commission is able to address the question of the personal responsibility of the requesting official and determine that he has no conflict of interest issue because he has no familial or business relationship with his fellow official's spouse or her business. He does not have to recuse himself or otherwise limit his action on the matter on that premise. However, the requester also appears to ask whether his vote for a measure benefiting his associate's spouse, in conjunction with a vote by that fellow official, would create an appearance of partiality to the reasonable member of the public and thereby violate the Code. The law presumes that public officers act in good faith and in the public interest unless otherwise demonstrated by facts. An improper appearance is created when a reasonable member of the public "with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, [would hold] a perception that the official's ability to carry out [official duties] with integrity, impartiality and competence is impaired." There are no relevant circumstances reported in this request to overcome the presumption of good faith and public interest.

            Since there is a total absence of facts supporting a perception of collusion or improper conduct on the part of the requesting official, the Commission concludes that if the requesting official casts his vote upon sole consideration of the public's interest in a matter concerning his fellow official's spouse, he will not violate the Code of Ethics. If the requesting official believes that the public interest will be better served by disclosure of his concern over improper appearance, he may invoke the disclosure and abstention procedure outlined in the Ethics Code.

 

            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 10^th DAY OF JANUARY 2007. ________________________ John McMahon, Chairperson Decision: Unanimous