Whether a New Castle County official may accept a gift of transportation and hotel expenses on behalf of an association of counties in which New Castle County is a member in order to participate in a forum sponsored by another non-profit organization to which the association of counties was invited?
The Official may accept the gift of reasonable transportation and hotel expenses from the non profit association as a representative of the association of counties since he is not acting in his capacity as a County official and because the circumstances do not reasonably raise the potential for an appearance of impropriety.
The Commission has received a request for advice on whether the Ethics Code permits a County official to accept transportation and hotel expenses from the Urban Land Institute (ULI) to permit him to attend a Public Officials Forum in Washington D.C. as a representative of the National Association of Counties (NACo). In the alternative, the official asks whether he may accept transportation expenses from the NACo if not permitted to accept the expenses from ULI.
The Urban Land Institute is a nonprofit organization created in 1936 and based in Washington D.C. Its 20,000 members from around the world represent private and public land use and real estate development disciplines. Its purpose is to promote "open exchange of ideas, information and experience among local, national and international industry leaders and policy makers dedicated to creating better places. ... It does not lobby or act as an advocate for any single profession or industry." Seewww.uli.org. ULI is holding a two day forum on the topic of "Smart Growth on the Fringe" at a hotel in Washington, D.C.
The National Association of Counties was created in 1935 and the 2000 counties that comprise its membership represent 80% of the population of the United States. It has headquarters in Washington, D.C. and provides legislative research, technical advice and public affairs assistance to its members while acting as liaison with other levels of government. Its members consider it as the national advocate for county governments. It has a system of committees and councils and has ongoing projects dealing with the environment and sustainable growth, among other subjects. New Castle County is a member of NACo. Seewww.naco.org.
Code or Prior Opinion:
There are two principles which the Commission must address in analyzing this request for an Advisory Opinion: conflict of interest and 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.
In examining this Code provision, it must first be determined whether the official would be using the authority of his office or confidential information therefrom for his private benefit. The official has been asked by NACo to represent its interests at the ULI forum. Neither of these entities are business as they have not been organized for profit. 1 The official's authority at the forum will not stem from his position in New Castle County government but from NACo itself. Furthermore, the information exchanged at the Forum can reasonably be expected to inform the official and assist him in performing the duties associated with NACo and to only incidentally benefit him in his duties with New Castle County. Because his County position is not at issue, a conflict of interest does not exist in this situation.
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.
No reasonable application of the facts can be devised which would create an appearance that the official's conduct on behalf of New Castle County would be influenced by factors other than the merits if he accepted the gift of transportation and hotel expenses from ULI or the transportation from NACo. An appearance of impropriety stemming from a gift of a reasonable amount of money for transportation and hospitality from ULI or NACo in exchange for participating in the two day forum is negated by New Castle County's membership in NACo, the official's status as a representative of NACo in receiving the gift, the non-profit public interest nature of the organizations, the absence of advocacy activity on the part of ULI for any single profession or industry, and the absence of any circumstances showing an intent on the part of ULI or NACo to use this gift to induce improper conduct on the part of the official in relation to his official duties.
The official may accept. If the official accepts the gift of transportation and hospitality from ULI, the official will be required to report that information on his Statement of Financial Interests, which is available for public review. If he decides instead to accept only the gift of transportation from NACo, those funds do not have to be reported because NACo is an association of governmental bodies, and transportation funds from that source are an exception to the reporting rule.2
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 THIS 12th DAY OF MAY, 2004.
Dennis S. Clower, Chairperson
1 New Castle County Code sec. 2.03.103 defines business as follows: 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.
2 In section 2.03.107 B(7) the Ethics Code requires that a County official report the name and address of "the source and amount of any gift valued at two hundred dollars ($200.00) or more in the aggregate, including payment for or reimbursement of actual expense for transportation, lodging or hospitality received in connection with County office or employment". However section 2.03.103B(7) does not "apply to expenses reimbursed by a governmental body or associations of governmental bodies."