Whether a vendor who does not have a current contract with the County may pay the transportation, lodging and other costs for the Deputy Administrator and another employee of a County agency for a demonstration of a new product for which the agency may solicit bids in the future.
Conclusion:
Acceptance of the expense paid trip by an official who has direct or indirect decision-making authority for future purchases from a potential vendor would create an appearance of impropriety. A reasonable member of the public with knowledge of the relevant facts would suspect that the vendor had an illegitimate purpose in offering the trip or that the official's ability to carry out his duties impartially in regard to the vendor would be impaired.
Facts:
An administrator in a County agency has requested an Advisory Opinion as to whether he and a fellow official or employee may accept travel and housing expenses for a two day visit to a computer and imaging vendor to learn about a product for which his office may solicit bids in the future. The vendor does not have a current contract with the official's office but the Opinion request states that the vendor could be a possible future bidder for computer services for the office. The request is silent about the position held by the accompanying person, does not indicate whether the requesting official has input into bid specifications, decision making authority over bids, and does not describe the bidding process. However, the official's job title is defined by the County as one in which there are responsibilities for planning and initiation of computerization and for supervising the security of recorded documents.
Code or Prior Opinion:
Despite the limitations of the information contained in the request, the Commission first notes that there is a legal presumption of integrity in the conduct of government officials. Beebe Medical Center v. Certificate of Need Appeals Board, Del. Super, C.A. No. 94A-01-004, Terry, J. (June 30, 1995). The Commission predicates this Opinion on the following assumptions: that the vendor may have no better way to demonstrate its product than by in-person visits from potential customers; there is no significant social or entertainment value to this trip; the trip is not meant to and will not benefit the administrator personally but rather educate him for the benefit of the County (and the vendor) in his agency's future selection of products. Finally, the Commission also assumes that such a fact finding trip is a legitimate business activity and could be made at County expense under certain conditions.
There are two issues arising under the New Castle County Ethics Code: whether acceptance of the vendor paid trip creates a conflict of interest and whether such conduct would create an appearance of impropriety.
Section 2.03.l03 (A)(1) of the Ethics Code sets forth the activities prohibited as a conflict of interest, as follows:
No County employee or County official 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 County 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.
Section 2.03.104(A) of the Ethics Code sets forth the activities prohibited as an appearance of impropriety. It states:
No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.03.l03 (A)(l), 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 decisions or actions of the County employee, County official or governmental body are influenced by factors other than the merits.
Based on the factual assumptions made above, the Commission does not find that the trip presents a situation where the official is using his County employment for personal or private benefit. There is, therefore, no issue of conflict of interest under 2.03.103 (A)(1).
However, the second issue remains: whether accepting such a trip at the expense of the vendor would present an appearance of impropriety. The question to be answered in that regard is would a reasonable member of the public, including a reasonable competitor, with knowledge of the relevant facts, entertain a suspicion that the vendor had an illegitimate purpose in offering the trip or that the official's ability to impartially carry out his duties related to the planning of computerization for his office would be impaired by relationships developed as a result of this trip. If such suspicions are reasonable, an appearance of impropriety would be created and the Ethics Code would be violated by acceptance of the trip.
Similar but not identical issues have been addressed in the context of vendor paid trips in prior Opinions of the Commission. In Advisory Opinion 91-01 (April 22, 1991), a County employee was not permitted to accept a $100.00 honorarium when he attended a symposium that was presented for the ostensible benefit of a vendor. In Advisory Opinion 92-09 (December 4, 1992), a County employee who wrote equipment specifications but was not involved in choosing vendors or reviewing bids which were put out by another County department, was permitted to accept transportation, lodging and hospitality costs from a vendor.
In Advisory Opinion 96-03 (May 10, 1996), an official was permitted to accept costs for attendance at a demonstration of an upgraded product where the vendor had a current long-term contract with the official's agency and the demonstration was offered to resolve on-going complaints through the acquisition of the upgraded product under the current contract at no additional cost to the County. Significantly, in that Opinion this Commission distinguished the situation from one in which a vendor was "vying with others to sell the County a new product or service." The Commission noted at footnote 3, in pertinent part:
The Commission would be concerned that payment of expenses incurred as a result of a product demonstration by a vendor competing for County Business would violate the Ethics Code by creating the appearance that the officials or employees whose expenses were paid by the vendor would then recommend contracting with the vendor because it paid their expenses. In other words, it could create the appearance that their judgment was "influenced by factors other than the merits".
Analysis:
The Commission believes that the pivotal facts in the request now before it are the official's described job duties that include significant responsibilities relating to the choice of computer services and the vendor's potential as a competitor for future County business. If he did not have this direct or indirect ability to affect the interests of the vendor, a reasonable person would not perceive impropriety in the trip. That reasonable person would probably find that the cost savings and educational benefit to the County as well as the absence of personal benefit to the official eliminated any suspicion of ethical impropriety.
However, since the request states that the vendor could be a potential future bidder and the official's job description shows that that his position is one from which he has direct or indirect influence in the choice of vendors, the suspicion that the official's judgment may be impaired or the public trust undermined by preferential treatment cannot be eliminated. Therefore, acceptance of this trip by this official would create an appearance of impropriety and the official may not accept the trip at the vendor's expense.
Finding:
The facts imparted in the request do not afford the Commission sufficient information to render an Opinion regarding the propriety of acceptance of the trip by the accompanying official or employee. In the absence of any specific facts, the Commission declines to extend this ruling to the accompanying person. See, State Public Integrity Commission Opinion No. 00-29 (declining to rule in the absence of specific facts). The accompanying official or employee or his superior may address a request to the Commission if that would be helpful.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS 20th DAY OF NOVEMBER, 2003.
