How far should a locally elected official have to go to avoid business dealings in his city or county?
That question is being tested in Frederick County, where County Commissioner Kirby Delauter has chosen to ignore a county ethics commission's opinion directing his construction firm, W.F. Delauter & Son Inc., to stop doing business in the county.
We think he's right to do so. The Frederick County Ethics Commission's decision, issued in 2010, briefly reversed and then put back into effect last year, was far too sweeping in its prohibition and, unfortunately, demonstrates that sometimes well-meaning efforts to create high ethical standards for officeholders can stray too far from common sense.
First, a bit of background. Mr. Delauter, a Republican, was elected as part of a four-person slate in 2010 that promised a pro-business, smaller government approach to the growing county. His company builds roads, water and sewer systems, storm water management and other forms of infrastructure.
Mr. Delauter's clients include Frederick County, so even before the company president took office two years ago, he asked the ethics board for an opinion on what he should do — expecting that he might have to recuse himself from certain votes involving construction contracts or regulations.
Instead, the commission advised him that he could no longer bid for county work. That was perfectly reasonable in our view. While the county's sealed bidding process might preclude the commissioner from getting favorable treatment, any revisions to a contract involving his firm would be ultimately reviewed by county employees who serve at the pleasure of the county commissioners.
Although Mr. Delauter may only be one of five board members, (all of whom are Republicans) it wouldn't be hard to imagine members of his slate siding with him in any contract dispute. As the ethics commission noted, the voters have a right to "be assured that the impartiality and independent judgment of public officials and employees will be maintained."
But here's where the commission went too far. It also ruled that since county employees may have to regulate Mr. Delauter's company (chiefly through the inspections process), he should not do business of any kind in the county "when that work will be subject to inspection and approval by county employees or officials."
That kind of ethical purity may sound appealing, but how far might such reasoning go? What if a county commissioner wanted to build a home? That work, too, would have to be inspected. What if that home was broken into, or what if the commissioner was stopped for speeding? Government-employed police might be involved.
Indeed, it's difficult to imagine any county resident leading a life wholly untouched by county services or employees. In addition to police and inspections, there's schools and trash collection, libraries, water and sewer service, roads and a jail (although one would like to think a commissioner wouldn't have a direct stake in that last one).
Mr. Delauter says not doing business for the county will cost his firm about 30 percent of its revenue, but doing no work of any kind in the county would mean a loss of about 70 percent. That would seem too much to ask of him and guarantee only that local business owners, at least those in the construction trade, never serve in public office.
In such cases, we believe the better course is usually to assure transparency. The public has a right to know when an elected official faces a genuine conflict of interest. Such records should be made available to all whenever possible. It's also reasonable to expect elected officials to refrain from voting on matters directly pertaining to their business or properties, particularly those that might increase the value of those investments.
In addition, there should be sufficient "whistle blower" protections in place so that county employees — building inspectors, included — can report any possible unethical behavior by a supervisor or elected officials without fear of retribution.
So far, no further action has been taken against Mr. Delauter despite his refusal to follow the commission's advice (beyond not bidding for county work). It appears unlikely to in the future as the board's membership has grown and those who wrote the opinion no longer represent a majority. But the panel ought to go further and not leave its earlier finding in place.
Without that, the ethics commission has raised serious doubts about who can hold public office in Frederick County. Business owners ought to have a seat at the governing table — even those whose businesses are sometimes regulated by the county.