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Appearance of Impropriety

Commissioners: Thomas Collins, Gerald Turkel, Johanna Bishop, Miguel Gonzalez, James Keeley, Vincent White


Order Text:

             The Commission received a complaint of violation of the Ethics Code alleging that the official coordinated efforts with another official to solicit gifts for a public program from entities which had done business with and were regulated by the County in the absence of a written policy as required by the Ethics Code.
            The investigation showed that the officials were members of a subcommittee of a legislative body. At a suggestion from a member of the public, they decided to hold a special meeting of the subcommittee to present a forum on a topic of public interest. The officials arranged an informative program featuring a nationally known speaker who had previously advised on a public project in Delaware. The legislative body issued a press release and advertised the meeting as a function of the legislative body and scheduled the program to take place in a County building. There was no other coordination between the legislative body and the subcommittee.
            A number of days prior to the advertised date of the program, one of the officials (hereinafter "A") learned that the speaker expected payment for his presentation. A civic group volunteered to financially sponsor the speaker. The evening before the day of the program Official A contacted the other official (hereinafter Official "B", the subject of this complaint) and informed Official B for the first time that the speaker required a fee and that the civic group was meeting that expense. At the time of the telephone call, Official B was in the midst of a family emergency and asked to respond about that information the following day. Official B called Official A back the following morning, the day the program was scheduled, and told Official A that payment by the civic group was unacceptable to Official B because Official B felt such it would create an improper appearance.
            Official B expressed a wish to cancel the program approximately 9 hours before its advertised start because of the improper appearance. As a result of Official B's discomfort with the civic group donors and the impending start of the program, Official A canvassed some entities about interest in substitute sponsorship. Official A then arranged a conference call between Official A, Official B, and the Ethics Commission Counsel to review Official B's concern about the civic group donors. During the phone conference Officials A and B decided to go forward with the program with different financial donors for the speaker's fee, a change that they believed cured the improper appearance.            
            Following the phone conference, Official A contacted two business entities to request shared donation for the speaker's fee: neither were regulated by the County but one had been a County vendor in the current year. One of those businesses contacted three other businesses to join in the donation. Those three additional businesses, although not regulated by the County, were County vendors in the current year. Official B did not select the donors nor perform any solicitation acts.
            At the beginning of the public service program that evening, Officials A and B announced that the speaker's $1500.00 fee, plus minimal costs, was being donated for the benefit of the public and identified the five businesses making the shared gift. Following the program, each the five businesses forwarded a check for its $302.70 share of the gift directly to the speaker's office and Official B promptly recorded those gifts in the legislative body's public gift log, as mandated by the Ethics gift laws.
            All the donors reported to the investigator that they do not make applications directly to the Officials' agency, that they felt no pressure from Official A to make the gifts, that they were not promised anything in return, that they did not expect anything in return, and that they made the gifts as a form of public benefit. They all stated that they did not believe Official A or B received any type of benefit from the gift and each documented the value of its individual gift.
            The investigation revealed that public service program was a clearly a function of the legislative body and was presented as a service to the public of New Castle County.
            The investigation also demonstrated that the legislative body had no procedure in place requiring the subcommittees to report back to it about public presentations or financial considerations, or any mechanism to give direction to the subcommittees about particular programs presented in its name.
          A review of the rules and policies of the legislative body shows that it did not have a written policy which followed the guidance of the Commission on the subject of solicitation of entities regulated by or doing business with the County. The legislative body's rules discuss the acceptance and reporting of gifts, including those from entities regulated or doing business with the County, but do not address solicitation. However, a reference was found, in an employee handbook, which implies that solicitation is acceptable if it is coordinated with the body's Clerk's Office but does not describe the nature of the coordination. The legislative body's administrative staff publicly advertised and promoted subcommittee's program and the press release, notices and minutes of the subcommittee meeting were filed with its Clerk's office.
New Castle County Code
            Code Section 2.03.104 (I) (2) permits the acceptance of a gift donated to the citizens of New Castle County as long as the gift does not create an appearance of impropriety and is promptly recorded in a public gift log. There is no specification regarding the amount of the gift.
            New Castle County Code Section 2.03.104 (J) (1) states: "Solicitation from entities which do business with or are regulated by New Castle County are prohibited unless such solicitation is pursuant to New Castle County written policy decision and for the benefit of the public."
Appearance of Impropriety
            Code Section 2.03.104 (A) prohibits conduct which undermines the public confidence in the impartiality of a governmental body with which a County official is associated by creating an appearance that the decision or action of the official or governmental body are influenced by factors other than the merits.
Advisory Opinions
            Advisory Opinion 10-10 restates the Code's authorization for acceptance of gifts for the benefit of the public as long as the gift did not create an appearance of impropriety and was properly recorded.
            Advisory Opinion 06-09 discusses solicitation of gifts for the benefit of the public. It states that when written policy is in place permitting such solicitation for the benefit of the public, the particular solicitation must be reviewed in advance by the Ethics Commission for compliance with the appearance of impropriety provisions of the Ethics Code. The factors for review cited in that opinion include: a clearly identified public purpose; that a donation does not consist of currency; the donor is not to be called a "sponsor" with the County; a written solicitation must used to emphasize the voluntary nature of the gift and the absence of any effect on current or future relationships between the County and the donor; the solicitation should be made to all potential appropriate donors; a donor must provide written corroboration of the gift and its value; the official or department which accepts the donation must not must not provide direct services in the reasonably foreseeable future to the donor; the department's public gift log must identify the donor, type and value of the gift.
            The burden of proof regarding a determination of whether a violation of the Ethics Code occurred is the "clear and convincing" standard recited in Code Section 2.04.103F. That standard has been defined by the Delaware Supreme Court as follows: "to establish proof by clear and convincing evidence means to prove something that is highly probable, reasonably certain, and free from serious doubt." Hudak v. Procek, 806 A.2d 140, 147 (Del. 2002). The Procek court also cited the Delaware Superior Court Pattern Civil Jury Instructions definition: "evidence that produces in the mind of the trier of fact an abiding conviction that the truth of a factual contention is highly probable." Id. at § 4.3 (2000).
            The Commission does not find any evidence to support the allegation that Official B violated the solicitation rule of the Ethics Code since that official did not select the donors nor solicit anyone. Official B's assent to Official A's solicitation was premised on the official's understanding of a conversation with Commission Counsel.
            The reasonable person reviewing the facts of this case would conclude that the failure of the legislative body to enact a clear written rule for solicitation as well as its lack of oversight of the subcommittee were the primary causes of the problem at issue. The gifts, in themselves, did not create an improper appearance. In fact, the Commission agrees with the complainant, who told the investigator that he thought the gifts were in an amount that did not create an improper inference about the donors. The reasonable person would not believe the official's impartiality was impaired by acceptance of the gift under the circumstances in this case.
            Even in the absence of the legislative body's lack of a clear written policy, the Official complied with most of the Commission's guidance on solicitation. The receipt of gifts was discussed in advance with the Commission counsel and the legislative body does not supply direct services to the donors. The gifts unquestionably benefitted the public, the donations were made transparent at the start of the public program, and Official B promptly recorded them in a publicly available gift log as required by the Code.
            As a result of the unfortunately late notice from Official A, there was no time for Official B to make written solicitation requests to all appropriate donors, as described in AO06-09. Official B faced a Hobson's choice. On one hand, Official B would significantly inconvenience the public by cancelling, probably ineffectively, the program only hours before its publicized start even though the official believed, and the Commission now agrees, that the actual gifts, standing alone, would not create an improper appearance. On the other hand, Official B could eliminate the inconvenience to the public by going forward with the scheduled meeting but violate essentially procedural rules of the Commission intended to prevent an improper appearance that has not been found to exist in this particular case. Official B chose the latter and the Commission finds no clear and convincing evidence that Official B's cooperation with Official A in accepting a gift for the benefit of the public violated the New Castle County ethics code.
            Complaint 11-01 is DISMISSED.
Thomas P. Collins, Sr., Chairperson
Decision: Unanimous

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