Whether a County employee may accept a gift valued in excess of $75.00 for emergency service to a business performed when the employee was on his personal time but officially on call 24 hours a day?
The employee may not accept a gift valued in excess of $75.00 from the business but the business may choose to honor the employee's heroic conduct by donating a gift to a charity of the business's choice.
A County employee, while on official on-call status but on his personal time, came to the emergency assistance of a business which is a client of his agency. His County position requires him to be available on a 24 hour basis to assist the public in the manner in which he aided the business. The business has scheduled a recognition ceremony for the County employee during the course of a company business meeting which is not open to the public. The employee's supervisor requests guidance on the question of whether the Ethics Code would be violated if the employee accepts a reward for the emergency assistance consisting of a plaque, a check for $500.00, and a donation of $500.00 to a charity of the employee's choice.
Code or Prior Opinion:
The conflict of interest rule at Code section 2.03.103(A)(1) restricts the use of official authority by a County official or employee:
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).
The definition section of the Code at 2.03.102 defines de minimis economic impact as "an economic consequence which has a value less than five hundred dollars ($500.00)".
Even in the absence of a conflict of interest, the Ethics Code at Sections 2.03.104(A) and (D) recite prohibitions on creating an appearance
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), 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.
. . .
D. No County employee or County official shall use such public office to secure unwarranted privileges, private advancement or gain.
County administrative policy generally precludes the acceptance of any gift in excess of $75.00 per donor per year. In Personnel Policy 5.04, "gift" is defined as "any gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other item having monetary value . . .". 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."
Prior Commission Opinions
The Commission has addressed only one prior fact pattern similar to that in the current request, Advisory Opinion 97-10. In that request, a County official was one of a number of individuals authorized to perform a governmental service in non-work hours at a location other than their regular place of business. Most of these individuals were not County officials or employees. The County official informed recipients of the service that there was no fee for his participation but, like the other providers of this service, he was customarily offered voluntary compensation from them. In his request to the Commission, the County official proposed accepting an honorarium valued at less than $75.00 for the non-work hours service and donating the honorarium to charity. The Commission held that the unsolicited honorarium received for using the authority of his office was akin to a gift and that the County official could accept and donate it to charity.
In Advisory Opinion 91-07, revised and reissued December 9, 1992, the Commission limited acceptance of gifts without prior approval by the Commission to those valued at under $75.00 per year per donor. In addition, those gifts must be offered and accepted under circumstances which do not raise conflict of interest or appearance of impropriety concerns. When the value of a gift exceeds that amount or the circumstances surrounding a smaller gift raise ethical questions, the recipient must seek advice from the Commission in order to determine whether the Ethics Code would be violated by acceptance.
The Commission has approved some gifts in excess of $75.00 and prohibited other gifts exceeding that value. For example, in Advisory Opinion 96-06, it held that an employee could not accept a gratuity valued at $100.00 from a trade association whose members he directly regulated. It made a similar finding based on donor-recipient relationship in Advisory Opinion 91-01 when it determined that an employee could not accept an honorarium for participating in a trade symposium held by a County vendor. On the other hand, in Advisory Opinion 05-09, the Commission permitted a senior official to accept the cost of attendance to an event held by community based non-profit organization, and valued in excess of $75.00, from an entity doing business with the County. The Commission determined that the acceptance of the gift did not create an appearance of impropriety because it was offered to the official for use outside working hours, the event was publicly advertised, there were numerous other invitees representing a broad cross section of the public who were unrelated to the donor, opportunity for private contact with the donor was limited by the nature of the events, the value of the invitation, though in excess of $75.00 and of significant value, was not at a level which would create a sense of obligation in the recipient or concern on the part of the reasonable person, attendance created a public benefit in the opportunity for County government to disseminate and exchange ideas with the public with little cost to the taxpayer, the official was required to timely report the receipt of the gift in a public document by his existing department policy, the Ethics Commission had an opportunity, in advance, to assess whether an improper appearance would be created, and the official was required to report any aggregate gift of $200.00 or more from the donor on his annual Statement of Financial Interests.
Conflict of Interest
In this situation, the value of the gift, which substantially exceeds de minimis value, as well as the gift itself implicates the Code's conflict of interest provisions. Although the employee was not on his regular work shift when he performed the emergency service, his County position requires him to be available to assist the public on a 24 hour basis and he performed the emergency service in a manner and within the scope of his official duty. Therefore, the proposed gratuity must be regarded as a substantial reward for performing those County duties for which he already received a salary.
The gift of a donation to the charity of the employee's choice cannot be regarded as anything other than as part of the gift to the employee. In Advisory Opinion 91-01, April 22, 1991, the Commission found equally impermissible the personal acceptance of an honorarium by an employee or one directed to a charity of his choice. "The Commission has determined that because of your position with the County and the fact that the symposium is for the ostensible benefit of a vendor of the County, it would be improper for you either to receive the honorarium directly or to instruct the vendor to contribute the honorarium to a charity of your choice. The vendor may, however, make a contribution of the honorarium to a charity of its designation."
Just as clearly, the employee in the request at issue did not perform his acts of assistance to the business with any intent to receive such a benefit and the business is not offering the gratuity to him to induce improper official conduct. However, if the employee knowingly accepts a pecuniary benefit from a client of his agency for performing his compensated County duties, he would be receiving an unwarranted and economically significant benefit because of his official position and would violate the conflict provisions Section 2.03.102(A)1, which creates a rebuttable presumption of a knowing or willful violation of the Code if the exercise of official action creates a personal or private benefit to the County employee.
Appearance of Impropriety
The other, and perhaps more significant, question raised by the request is whether the appearance of impropriety provisions of the Code would be implicated if the gift was accepted. The standard used by the Commission for judging whether an appearance of impropriety would be created is one that has been developed for judicial public officials and 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 determining the relevant circumstances, the courts advise the Commission to look at the totality of facts. In re Williams, 701 A.2d 825, 832 (Del. Super. 1997). This standard is equally applicable to the conduct of County officials and employees. Advisory Opinion 05-06.
The circumstances in this request are quite different from those outlined in Advisory Opinion 05-09 where acceptance of a gift from an entity with a business relationship with the County did not create an appearance of impropriety. In that matter, the official did not have to attend the non-profit function as a condition of his employment, he did not receive County compensation for his attendance, the gift he received was not of excessive value, and the benefit of his presence extended to both the County government and the public. Given the facts in this case, if this employee is permitted to accept a very substantial gift for performing his official duties, the reasonable member of the community may be encouraged to believe that rewarding County employees, over and above their taxpayer funded salaries, is the means to obtain exemplary service from or access to them. Such a public impression would discourage County employees from performing County services in a superior manner in the absence of the potential for a reward or some benefit beyond their official compensation and would impact the integrity of government itself.
In addition, the value of the gifts described here, aside from the plaque, is an amount so great as to reasonably create a personal feeling of gratitude toward the donor in the recipient. Unlike the gift in Advisory Opinion 05-09, this gift benefits only the recipient or his designee, not the public. A reasonable member of the public would understand that such a gift creates a sense of obligation toward the donor business which weakens an employee's ability, and perhaps also that of his coworkers, to provide impartial service to the donor. Finally, such adverse impressions would be exacerbated by the circumstances surrounding the presentation of this reward which is scheduled at a private function not open to the public. Over all, acceptance of the gift "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."
The Commission acknowledges that the intent of the business to honor the employee is not motivated by improper considerations and that the employee performed his duties in a clearly exemplary manner and well deserves the praise of the business and, in fact, the broader community. The Commission believes that the Ethics Code would not be violated if the employee accepted verbal accolades and a commemorative gift valued under $75.00, such as a plaque, and the business honored the employee by providing a donation to a charity of the business's choice in recognition of the employee's heroic performance of his official duties.
The employee may not accept a gift from the business valued in excess of $75.00.
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 8th DAY OF JUNE, 2005.
Dennis S. Clower, Chairperson
1 Absent obvious error or facial conflict, the Ethics Commission assumes that the party requesting the opinion has done so in good faith and disclosed truthfully all material facts to the Commission. See Section 2.04.102(I).