Whether an elected official violates the Ethics Code by advertising that he is a County official on a personal vehicle.
Advertising to secure or maintain public office is a constitutionally protected right and in itself does not reflect any improper motive to obtain special treatment. Absent some concrete evidence that an office holder uses such advertising to obtain unwarranted privilege as a motorist or to avoid some personal consequence for his conduct, the presumption of good faith is accorded to the official and the advertising does not violate the Ethics Code.
An official frequently places signs on his personal vehicle identifying him as the holder of a particular County office. He asks whether displaying such signage violates the Ethics Code by creating the appearance that he is using his office to avoid enforcement of traffic laws against him.
Code or Prior Opinion:
The Ethics Code permits officials and employees running for or elected to public office to accept and expend funds in accord with state and federal regulations. For example, in the Ethics Code definitions, Section 2.03.102 excludes from the definition of Gift "a political contribution otherwise reported as required by law." In Code Section 2.03.104(H), it specifically recites that political gifts of cash reported as required by law are not prohibited.1
Nevertheless, persons in public office are governed by the Ethics Code conflict of interest and conduct rules. 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
Even when there may be no financial gain at issue, every County official and employee must consider the additional ethical prohibitions in the Code of Conduct rules in Section 2.03.104. Foremost of those conduct rules is subsection (A), the overarching restriction against creating an impression in the reasonable member of the public that an official's or employee's conduct 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. See, generally, Commission Advisory Opinions at www.nccde.org/ethics.
An additional conduct rule in Section 2.03.104(D) specifically prohibits the use of public office to advance a private interest, regardless of financial consequence:
(D) No County employee or County official shall use such public office to secure unwarranted privileges, private advancement or gain.
This request for guidance on this topic is new to the Commission and there is little precedent on the issue. The Ethics Code does not bar an official or employee from running for or election to political office.3See Advisory Opinions 05-15, 02-01, and 95-01.
A conflict of interest occurs when some financial benefit could accrue to an official or employee or a member of his or her immediate family in the course of the exercise of official authority. Identifying one's occupation or office on a vehicle is not an exercise of official authority but is a right accorded by our constitution to all citizens under the First Amendment. Furthermore, there are no factual circumstances associated with the reported advertising to indicate that it is intended to or would produce a financial benefit. Speculation that under some hypothetical circumstances an unnamed police officer might refrain from ticketing a motorist who openly advertises holding a County office is an insufficient premise on which to base a conflict of interest.
The reported advertising does not support a conclusion of appearance of impropriety or violation of other conduct rule. An improper appearance is created by official conduct which makes a reasonable member of the public "with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, [hold] 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). The law presumes that public officers act in good faith and in the public interest unless otherwise demonstrated by concrete facts. In light of every citizen's right to seek political office and in the absence of any facts demonstrating an arguably improper motive, no reasonable person could believe that the requester's integrity or competence is impaired because he placed such advertising on his vehicle. Furthermore, such advertising cannot be described as an attempt to obtain unwarranted privileges, private advancement or gain from the elected office since the advertising merely serves as notice to the public of his presence and permits it to observe his conduct, for good or for ill.
Advertising to secure or maintain public office is a constitutionally protected right and in itself does not reflect any improper motive to obtain special treatment. Absent some concrete evidence that an office holder uses such advertising to obtain some unwarranted privilege as a motorist or to avoid some personal consequence for his conduct, the presumption of good faith is accorded to the official and the advertising does not violate 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 16th DAY OF FEBRUARY 2007.
John McMahon, Chairperson
1 New Castle County Code Section 2.03.104. Code of conduct.
. . .
(H) New Castle County discourages the acceptance of gifts from the public by County employees or County officials. No County employee or County official shall accept any compensation, gift, payment of expenses, promise of future financial benefit, or any other thing of monetary valued which is intended or received to influence the vote, official action, or judgment of the recipient or which creates the reasonable perception in the public that the vote, official action or judgment of the recipient would be influenced or impaired by the gift. An unsolicited gift which is promptly returned in its entirety is not considered accepted by the recipient.
In addition, gifts are prohibited in the following circumstances:
. . .
2. No gift of cash shall be accepted other than a political contribution otherwise reported as required by law.
2 New Castle County Code Section 2.03.102. Definitions, states in pertinent part:
Immediate Family means "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".
3 A limited exception to this principle exists in the case of members of the New Castle County Ethics Commission. NCC Code Section 2.04.101(D)(1) prohibits members of the Commission from holding or campaigning for any County office.