The Commission received a complaint of violation of the Ethics Code against a County official. It was alleged that the official coordinated efforts 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 official was a member of a subcommittee of a County agency. At a suggestion from a member of the public, the official arranged an informative program on October 14, 2010, featuring a nationally known speaker who had previously advised on a public project in Delaware. The County agency issued a press release, advertised the meeting as a function of the County agency, and scheduled the program to take place in a County building. There was no other coordination between the County agency and the subcommittee.
Some days prior to the advertised date of the program, the official 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 the official contacted the other subcommittee member and informed that person for the first time that the speaker required a fee and that the civic group was meeting that expense. The following day, the subcommittee member told the official that payment by the civic group was unacceptable because the subcommittee member felt it would create an improper appearance.
The subcommittee member expressed a wish to cancel the program approximately nine hours before it was advertised to start. The official canvassed some entities about interest in substitute sponsorship. The official then arranged a conference call between himself, the subcommittee member, and the Ethics Commission counsel to review the member's concern about the civic group donor. During that phone conference the official and the member 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.
The official then contacted two business entities to request shared donation for the speaker's fee. Neither of these businesses 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. At the beginning of the public service program that evening, the official 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.
The public service program was unquestionably a function of the County agency and was presented as a service to the public of New Castle County. Following the program, each the five businesses forwarded a check for $302.70 for its share of the gift directly to the speaker. Those gifts were promptly recorded in the County agency's public gift log, as mandated by the Ethics gift laws.
All the donors were interviewed and reported that they do not make applications to the official's agency. All the donors stated that they felt no pressure from the official to make a gift and that they were not promised, and did not expect, anything in return for the donation. All the donors reported that they made the gift as a form of public benefit and that they did not believe the officials received any type of benefit from the gift.
The subcommittee's program was publicly advertised and promoted by the efforts of the County agency's administrative staff. The press release, notices and minutes of the subcommittee meeting were filed with the County agency's administrative office. The County agency had no procedure in place requiring the subcommittees to report to it about public presentations or financial arrangements, nor any policy to give direction to the subcommittees about particular programs.
The rules and policies of the County agency do not include a written solicitation policy that conformed to the Ethics Code or which followed the guidance of the Commission on the subject of solicitation of entities regulated by or doing business with the County. The agency'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. The agency's employee handbook implies that solicitation is acceptable if it is coordinated with the agency's administrative office but does not describe the nature of the coordination.
Ethics Code Provisions
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." New Castle County 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. The standard for judging the creation of such an appearance for judicial public officials 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 re Williams, 701 A.2d 825, 832 (Del. Super. 1997).
Prior Commission Guidance
Advisory Opinion 06-09 discusses solicitation of gifts for the benefit of the public and states that when written policy is in place permitting 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. New Castle County Code Section 2.04.101H requires that the "At least four (4) members present at a hearing must find a violation by clear and convincing proof."
A reasonable person would not believe that in this case the type of gifts solicited for the benefit of the public were of an improper nature in themselves. However, the reasonable person reviewing the facts of this case would conclude that the failure of the official's agency to enact a clear written policy for solicitation as well as its lack of oversight of the subcommittee were the root causes of the violation of the written solicitation rule and ensuing creation of an appearance of impropriety. A reasonable person would also find that a contributing cause to the improper appearance was the late notice provided by the official to the fellow subcommittee member about the civic group's participation as donor of the speaker's fee.
Therefore, even though it was not the primary cause of violation, the official's failure to act in accord with the Commission's procedural rules regarding written solicitation of all appropriate donors created an appearance of impropriety by causing a reasonable member of the public, with knowledge of the preceding facts, to have the perception that the official's ability to carry out his official duties with impartiality was impaired.
The Commission finds by clear and convincing evidence that the official adversely affected the public confidence in his impartiality as a member a County agency by soliciting donations for a public purpose in the absence of a written solicitation to all appropriate donors.
Since the official's conduct was not the primary cause of the violation, the Commission declines to impose a sanction on the official.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION THIS 12TH DAY OF OCTOBER, 2011.
Thomas P. Collins, Sr., Chairperson