Whether a County official may accept invitations, valued at more than $75.00, to attend public events sponsored by businesses which contract with the County or which are reasonably expected to be seeking contracts with the County.
A reasonable member of the public, who has knowledge of all the relevant circumstances described herein, would not believe that accepting the invitations would impair the official's integrity, impartiality, or competence. In this case, the appearance of impropriety is ameliorated because the invitations are extended for publicly advertised events, there are numerous other attendees representing a broad cross section of the public who are unrelated to the donors, opportunity for private contact from the donors is limited by the nature of the events, the value of the invitations, though significant, is not at a level which would create a sense of obligation in the recipient or concern on the part of the reasonable person, attendance creates a public benefit in the opportunity for County government to disseminate and exchange ideas with the citizens with little cost to the taxpayer, the Ethics Commission has an opportunity, in advance, to assess whether an improper appearance would be created, and the official is required to timely report the receipt of the gifts in a public document. The official may accept the invitations to the events so long as the acceptance is timely reported by date, source and value in a public record and, if valued at $200.00 or more, reported on the Statement of Financial Interests when that form is next filed with the Ethics Commission.
The County official requests guidance on the question of whether he may accept invitations tendered to himself and his wife which exceed $75.00 in value from entities contracting with or intending to contract with the County. The official relates that the invitations are extended by sponsors of community promotions which are widely publicized and which honor individuals for noteworthy achievements beneficial to the public or which sponsor events as fundraisers for non-profit entities to which the public has access. The invitations include the value of the public portion of the event as well as contemporaneous functions that are limited to only a broad cross section of invitees. The official has previously accepted invitations to these and similar events in his capacity as an official for another government employer. The Commission is aware that the official's County agency requires him to promptly record the date, source, and amount of these types of gifts in a publicly available record. The Commission notes that similar invitations for such events are usually offered to a large number of civic and business leaders, representing the sponsors' target customers in a broad range of governmental and non-governmental professions and occupations.
Code or Prior Opinion:
One of the Commission's governing policies, recited in Section New Castle County Code Section 2.03.101(B), recognizes that "many public officials are citizen-officials who bring to their public offices the knowledge and concerns of ordinary citizens and taxpayers. They should not be discouraged from maintaining their contacts with the community through their occupations and professions. Thus, in order to foster maximum compliance with its terms, this Division shall be administered in a manner that emphasizes guidance to public officials and public employees regarding the ethical standards established by this Division."
The Ethics Code, at Section 2.03.102, defines gift as "anything that is received without consideration of equal or greater value. The term "gift" shall not include a political contribution otherwise reported as required by law or a commercially reasonable loan made in the ordinary course of business."1
The conflict of interest rules at Code Section 2.03.103(A)(1) restrict the use of official authority by a County official or employee "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 creating an appearance that the decisions or actions of a County employee, County official or governmental body are influenced by factors other than the merits of the matter before it, thus undermining the public confidence in the impartiality of the governmental body with which the individual is associated.3 Because of the strong possibility of creating an appearance of impropriety in situations involving gifts from entities regulated by, doing business with, or seeking to do business with the County, these provisions must be carefully considered before accepting a gift, regardless of amount or to which member of the immediate family it is directed.
The Commission has addressed questions concerning the acceptance of personal gifts by individuals from entities regulated by or doing business with the County approximately 10 times in the period 1991 to date.4 The seminal Advisory Opinion on such gifts was issued on December 9, 1992 (a reissue of Advisory Opinion 91-07), and involved the question of whether officials and employees could accept gifts or invitations to social, sporting or other events generally open to the public from persons with whom the County has a relationship. That Opinion stated the basic and over-riding principle that a gift, of whatever value, may not be offered or accepted where the intent of the gift is to influence the conduct of the County employee or official in an improper manner. In the Opinion, the Commission recognized that gifts which exceed "modest limits" may be viewed as a means of ingratiating the donor with the recipient and defined a modest gift as one valued at $75.00 or less per year per donor. It reasoned that while a gift below that amount was probably not intended to improperly influence employee or official, absent suspicious circumstances, gifts of higher value had to be evaluated individually to determine whether the recipient was in a position to take any official action which would be of direct interest to the donor. The Commission further held that gifts given to members of an official's or an employee's immediate family as a result of the official's or employee's County status would be considered to be a gift to the employee or official. Finally, it required that all gifts must be disclosed to the recipient's department head or superior and that each unit of government should establish a simple procedure for the disclosure of such gifts. The Commission's Opinions address only the acceptance of gifts which are valued in excess of $75.00 and they turn on the issue of the donor's relationship to the County. They do not address the "modest" gifts mentioned in Advisory Opinion 91-07. For example, in Advisory Opinion 91-01, an honorarium, which could be received either directly or contributed to a charity of the recipient's choice, was prohibited because it was offered by a current County vendor. In Advisory Opinion 94-03, the Commission held that an honorarium was not prohibited since there was no current or potential contractual or vendor relationship with the County.
Questions about social gifts were resolved in similar fashion. In Advisory Opinion 96-06, the Commission prohibited the acceptance of a social invitation offered by a trade association whose members were directly regulated by the recipient. Similarly, in Advisory Opinion 97-03, it prohibited the acceptance of a gift from an entity whose business was directly regulated by the County. In contrast, in Advisory Opinion 97-02, an employee of an office that did not exercise regulatory or contractual authority was permitted to accept a gift on behalf of the entire agency from a donor who used the agency's services.
The issue of costs and reimbursement was the subject of Advisory Opinion 96-03, in which the Commission permitted an employee to accept costs attendant to a vendor's demonstration of an upgraded product because the vendor was performing according to an existing contract which could not be affected by the demonstration, the demonstration was offered to resolve a problem that had been the subject of County complaints under the contract, and the vendor was not vying to sell the County a new product or service. In Advisory Opinion 04-07, an official was permitted to accept a gift of transportation and lodging from a national non-profit organization for a meeting on a topic of public interest to County government. The invitation was extended to the official because of his position in a second national organization in which the County was a member and which was composed of similar government officials. The Commission noted that the non-profit did not advocate before County government and that the gift was offered to the official because of his position in the second organization and not because of his position with the County. However, in Advisory Opinion 03-07, an official who had decision making authority for future contracts for his agency was not permitted to accept costs attendant to a demonstration which included a showing of the potential vendor's new products and in Advisory Opinion 04-08, an employee who had the authority to affect future contractual relationships with vendors was prohibited from accepting a complimentary registration from the vendor/sponsor of conference which would incidentally showcase the vendor's new products.
Conflict of Interest
The invitations at issue clearly fall within the definition of "gift" since the recipient will not provide greater or equal value to the sponsor for attending the event. However, acceptance of the invitations does not appear to implicate the conflict of interest rules prohibiting use of official authority for private benefit because the official is not using the authority of his office to seek out the invitations for his or his spouse's private benefit. While he receives such unsolicited invitations as a result of his status as a County policymaker and the unquestionable motive of such invitations is to encourage a favorable attitude toward the donor in the official and the public, the official does not accept in official capacity nor conduct County business with the donor or its associates at the events. In fact, the events often take place at other than business hours, time during which the official could otherwise could be enjoying personal choices with his family. While the donor does enjoy the incidental prestige of securing the official's presence at the event, there is no other direct benefit to it.
Furthermore, the official is not attempting to improperly enrich himself at the expense of the public interest since, while the value of the invitations is greater than $75.00, the events he describes occur only once per year and the value is neither extreme or unusual nor so large as to incur a sense of obligation in the reasonable recipient. In addition, the invitation is for a community or public social function and it is customary that some portion or all of the value of the invitation is generally directed toward the underlying non-profit beneficiary of the event, either by direct donation or through the sponsorship. The particular situation described in this request does not appear to represent a violation of the conflict rules of the Ethics Code.
Appearance of Impropriety
However, the topic of acceptance of gifts, especially in the situation described in this request, requires a careful balancing of the appearance of impropriety standard and Commission's governing policy. In this case, the official is being offered invitations to events which are best described as public events, and which may occur at locations open to the public, by sponsors who are private entities either currently doing business with the County or which may be reasonably expected to seek such business. Even though the motives of the donors are not entirely altruistic, the Commission recognizes that these types of events provide very useful opportunities for County officials to exchange ideas with a broad range of important community contacts who could probably not be assembled at a County sponsored function. The Commission also realizes that the County budget, funded by the taxpayers, would not support paid attendance to enable its employees and officials to exchange ideas at similar events. The Commission judges whether an appearance of impropriety would be created by the acceptance of the invitations by 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.
The most important negative perception which can arise from the acceptance of gifts by a public official is that, because of the gift, the donor is getting access to and/or official action from the public official different from that a member of the general public can achieve. A member of the public would have reason to question the impartiality and integrity of an official who accepts excessive or lavish gifts from an entity which has business regulated by the County or has business pending or with the County, if the official accepts substantial meals5, property, or entertainment from such an entity or its associates, if the official does not make prompt public disclosure of the source and amount of gifts from such entities, or if the official intentionally exchanges private access to himself or subordinates in return for a gift of any type or amount. However, that perception does not reasonably arise if a gift has negligible value, access does not occur in exchange for the gift, the donor has nothing of reasonably probable pecuniary significance to gain from the official at the current date or in the future, or the gift is available to a broad subclass of the public.
The situation described in this request lies between those extremes. In this case, the negative perception is ameliorated because the invitations are extended for publicly advertised events, there are numerous other attendees representing a broad cross section of the public who are unrelated to the donors, opportunity for private contact from the donors is limited by the nature of the events, the value of the invitations, though significant, is not at a level which would create a sense of obligation in the recipient or concern on the part of the reasonable person, attendance creates a public benefit in the opportunity for County government to disseminate and exchange ideas with the citizens with little cost to the taxpayer, the Ethics Commission has an opportunity, in advance, to assess whether an improper appearance would be created, and the official is required to timely report the receipt of the gifts in a public document.
The Commission finds that a reasonable member of the public who has knowledge of all the relevant circumstances described herein, would not believe that the official's integrity, impartiality, or competence would be impaired by accepting the invitations. Therefore, the official may accept the invitations to the events discussed so long as the acceptance is timely reported by date, source and value in a public record and, if valued at $200.00 or more, reported on the Statement of Financial Interests when that form is next filed with the Ethics Commission.
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 11th DAY OF MAY, 2005.
Dennis S. Clower, Chairperson
1The Ethics Code, at Section 2.03.107(B)(7), also requires an official or employee who receives any gift valued at $200.00 or more in the aggregate, including transportation, lodging or hospitality payments and reimbursements exceeding $200.00 in the course of a single occurrence, to report that gift to the Ethics Commission on a Statement of Financial Interests form. The only exceptions are gifts received from a member of the immediate family which are motivated by that relationship and expense payments or reimbursements from governmental bodies or associations of governmental bodies.
2 Section 2.03.103. Prohibitions relating to conflicts of interest, states in pertinent part:
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).
3 Sec. 2.03.104. Code of conduct.
A. No County employee or County official shall engage in conduct which, while not constituting a 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 The Commission has addressed gift giving between County employees and officials, as opposed to gifts from outside sources to employees or officials, on only one occasion. In Order 03-04, the Commission found that group gifts from subordinates to a County official, valued at less than $75.00 per donor, given on traditional ceremonial occasions under circumstances reflecting the voluntariness of the gift, and not intended to or received to affect the recipient's official conduct in an improper manner, did not violate the Ethics Code.
5 The phrase "substantial meals" does not include limited drinks or snacks at official business meetings during which such refreshments are traditionally served to all participants and are consumed on the premises.