Whether a conflict of interest would exist or an appearance of impropriety created if a County employee accepted a gift of a shirt, hat or tickets from a vendor if the employee had no authority to affect County business relationships with the vendor.
It would not violate the Code of Ethics if the employee accepts a gift of negligible value from the vendor under the described circumstances but the employee must also comply with the arguably more strict administrative personnel policy 5.04 and conform his conduct to the subsequent decision of the General Manager of his department.
The employee making this request picks up supplies from a County vendor as part of his County duties. The employee has no input into the selection of the vendor or any County authority relating to the vendor aside from receiving the contracted goods. The vendor periodically offers small gifts to the employee such as shirts, hats, or tickets, and the employee wants to know whether acceptance of a gift would violate the Ethics Code. The Commission assumes the following facts: the gifts of shirts or hats are of negligible value, worth less than $25.00 each1; the gifts serve to advance the advertising interests of the vendor; the employee only intends to accept only gifts with an aggregate value under $25.00, the employee does not intend to use or wear the vendor's gifts in a public situation in which he is in official status. The Commission has no information about the value of the tickets.
Code or Prior Opinion:
The conflict of interest rules at New Castle County Code Section 2.03.103(A)(1) prohibit the use of official authority by a County official "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." 2 The Code's conduct rules at Section 2.03.104(A) recite a prohibition on conduct creating an appearance that the decisions or actions of a County official are influenced by factors other than the merits of the matter for decision, thereby undermining public confidence in the impartiality of the governmental body with which the official is associated.3
In the case of gifts, these conflict and appearance rules are further refined by New Castle County Council's new gift ordinance, #06-022, signed into law April 3, 2006, which prohibits acceptance of gifts of greater than negligible value from entities doing business with or regulated by the County, with limited exceptions.4 New Castle County Code Section 2.03.104 (H) states in pertinent part:
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 value 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 entirely is not considered accepted by the recipient.
In addition gifts are prohibited in the following circumstances:
. . .
3. No gift shall be accepted by a County official or employee for performing an official duty or service or as an incentive to perform an official duty or service unless the gift is a public and commemorative gift of de minimis value in honor of public service or unless the gift is tendered by a governmental source or association of governmental sources. The commemorative gift shall be promptly recorded in a public gift log.
4. Gifts of greater than negligible value from entities doing business with, regulated by, or which may be reasonably foreseen to do business with or be regulated by the County within the next three years, with the exception of gifts described in subsections I(5), I(6), I(7) of this Division, shall not be accepted by officials, employees, or governmental departments unless a prior Advisory Opinion is sought from the Ethics Commission regarding compliance with the Code of Ethics. Any such gift or donation of other than negligible value which is accepted following the receipt of an Opinion of the Commission shall promptly be recorded by the recipient in a public gift log.
. . .
Ordinance 06-022 is expressly conditioned on the right of elected officials to establish more stringent gift rules for their appointees and employees. Code Section 2.03.101 states in relevant part: "(D). This Division is intended to establish a minimum standard for ethical conduct and financial disclosure. Elected officials may superimpose conduct rules for officials and employees which are more strict, but not less strict, than these minimum standards. The Ethics Commission has jurisdiction to decide whether superimposed rules fall below the minimum standards expressed in this Division."
New Castle County administrative personnel policy 5.04, defines a "gift" as "any gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other item having monetary value . . .". The policy states that an employee may not solicit or accept any gift "from a vendor or supplier or offered to promote a product or service." However, it also states that the definition of gift does not include "items of a de minimus value such as . . .t-shirts, mugs, hats . . . and other unsolicited advertising or promotional items." It is not clear whether this exclusion applies to items from vendors. That policy also recognizes "that there may be rare circumstances where it is permissible for an employee to accept a gift or benefit. In such circumstances: a) approval must be obtained from the department general manager or row officer, and the Exception to Personnel Policy 5.04 Form shall be filed within 48 hours to fully disclose the specific exception; . . . c) questions regarding whether the gift is an exception to this policy shall be decided by the department general manager or row officer. If the department general manager or row officer is unable to make this decision, the New Castle County Ethics Commission shall be contacted for an advisory opinion." Interpretation of County administrative policy must be made by the Administration and is not within the competency of the Ethics Commission.
Prior to the enactment of Ordinance 06-022 on April 3, 2006, the Commission permitted an employee or official to accept gifts with an aggregate value of $75.00 per donor per year as long as the gift or gifts were not intended or accepted to improperly influence the recipient and did not create an appearance of impropriety in the public. A gift or gifts in excess of $75.00 were deemed a matter for the Commission to examine prior to acceptance. Acceptance of a gift of any value had to be reported to the appropriate supervisor. SeeAdvisory Opinion 91-07 (December 9, 1992). Subsequent to April 3, 2006, and the enactment of Ordinance 06-022, the $75.00 value consideration is no longer pertinent to a consideration of whether acceptance of a gift violates the Code of Ethics.
The Commission believes that the best practice for any employee or official is to decline any gifts from entities regulated by or doing business with the County since refusing such gifts encourages and reinforces trust in the public that its government is conducting itself with impartiality and fairness in all its business relationships. However, although Ordinance 06-022 discourages acceptance of gifts, it does not absolutely prohibit the receipt of gifts of negligible value (under $25.00) from a vendor. The ordinance merely bars such a gift from a vendor when the offer of the gift results in a conflict of interest - the exercise of official authority for personal or private benefit - or when the acceptance of the gift creates a perception in the public mind that receipt impairs the individual's ability to carry out official duties with integrity, impartiality and competence.
Conflict of Interest
In this case, the potential gifts, excluding the tickets, are assumed to be of negligible value. The Commission has insufficient information about the tickets and cannot include them in this analysis. If the tickets exceed a negligible value, they are prohibited by Section 2.03.104(H)(4) unless they fall within the non-profit exceptions described in I(6) or I(7). The employee has not sought these gifts, has not used his County position to extract the offer, and possesses no influence in the present County business relationship with the vendor, and is not expected to have any in the reasonably foreseeable future. Although a hat or shirt would financially benefit the employee in a personal sense, the value is very small and the Commission finds no improper motive in the donor or receiver and no conflict of interest created by acceptance.
Appearance of Impropriety
The more difficult question is whether the acceptance of any gift from a County vendor, an entity expected to continue to seek a business relationship with the County in the future, creates a perception of impropriety in the public mind. The Commission judges whether an appearance of impropriety would be created using the standard developed by the courts for judicial public officials which has been described 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 determining the relevant circumstances, the courts advise looking at the totality of facts. In re Williams, 701 A.2d 825, 832 (Del. Super. 1997); Advisory Opinion 05-06. In this case, since the employee has no authority to affect the business relationship between the County and the vendor and the value of the hats or shirts is within the definition of negligible, the Commission does not believe the public would find that the employee's integrity, impartiality or competence would be impaired by acceptance.
However, if the employee establishes a pattern of routinely or repeatedly accepting such gifts from this or any other vendor, purveyor of services to the County, or entities regulated by his department, the Commission will have to reconsider its finding regarding both conflict of interest and appearance of impropriety in relation to that individual.
Additionally, in this case the question of whether the employee may accept the vendor's gift does not end with the decision of the Commission regarding the Ethics Code. That is only the first step because Administration personnel policy 5.04 superimposes an arguably more strict gift rule on employees. Pursuant to the Ethics Code and that policy, the employee must also consult the General Manager of his department before accepting a gift from a vendor.
It will not violate the Code of Ethics if the employee accepts a gift of negligible value from the vendor under the described circumstances but the employee must also comply with the arguably more strict administrative personnel policy 5.04 and follow the direction of the General Manager of his department.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS 12th DAY OF APRIL, 2006.
John McMahon, Chairperson
1. New Castle County Code Section 2.03.102. Definitions, states in pertinent part: Negligible value means value of less than twenty-five dollars ($25.00).
2. New Castle County Code Section 2.03.103. Prohibitions relating to conflicts of interest in pertinent part:
A. Restrictions on exercise of official authority.
1. No County employee or official knowingly or wilfully shall use the authority of his or her office or employment or any confidential information received through his or her holding County office 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 wilfull violation of this section if the action benefits the Count;y official or employee, his or her spouse or his or her dependent children (whether by blood or by law).
3. New Castle County Code Section 2.03.104. Code of Conduct.
A. No County employee or County official shall engage in conduct which, while not constituting aa violation of Section 2.03.103(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 an appearance that the decision or action of the County employee, county official or governmental body are influenced by factors other than the merits.
4. New Castle County Code Section 2.03.104(I) states in pertnent part:
Gifts which may be accepted.
. . .
5. A gift consisting of drinks or snacks of a negligible value offered during the conduct of official business meetings, served to all individuals present and consumed on the premises, may be accepted.
6. A gift of a ticket of attendance, or an invitation which waives the cost, valued at less than $101.00, for publicly advertised or regularly scheduled functions of a non-profit organization, civic or government group, or association of businesses or trade groups, which is open to the public may be accepted without recording in a public gift log.
7. A gift of a ticket of attendance, or an invitation which waives the cost, valued at more than $101.00, for publicly advertised or regularly scheduled functions of a non-profit organization, civic or government group, or association of businesses or trade groups, which is open to the public and the gift shall be promptly recorded in a public gift log.
5. New Castle County Code Section 2.03.102 defines Reasonably Foreseeable as "an event which should be expected or anticipated based upon credible past and present facts known to a reasonable observer or participant at the time a decision is made or an action taken".