In Section 2.03.102, the following relevant terms are defined by the Ethics Code, as follows:

Gift means anything that is received without consideration of equal or greater value. … A gift is considered accepted upon receipt or control or direction unless it is promptly returned in its entirety.

Governmental body means any department, authority, commission, committee, council, board, bureau, division, service, office, official, administration, legislative body, or other establishment in the executive, legislative or judicial branch of a state, a nation or a political subdivision thereof or any department performing a governmental function.

Private enterprise means any activity conducted by any person, whether conducted for profit or not for profit and includes the ownership of real or personal property. Private enterprise does not include any activity of the federal, State or local government or of any department, authority or instrumentality of the federal, State or local government.

Promptly means within thirty (30) days when used in reference to recording the acceptance of a gift in a public gift log or returning such a gift to the donor.

Public gift log means a public document kept by County Council, a County department, or County agency for the purpose of memorializing the acceptance of gifts by County employees and officials and which shall include entries for the date of receipt, the name, workplace or other address of the donor and recipient, a description of the gift and an approximate valuation.

The New Castle County Ethics Code prohibits conduct on the part of County officials or employees which either creates the appearance of impropriety even where no direct conflict of interest is present.  Specifically, conduct which creates an appearance of impropriety is prohibited by Section 2.03.104(A) of the New Castle County Code.^[1]  To determine if an appearance of impropriety exists, the Delaware courts have stated that “[t]he test is… if the conduct would create in reasonable minds, with knowledge of all relevant facts, a perception that an official’s ability to carry out [his or] her duties with integrity, impartiality and competence is impaired.”  Hanson v. Delaware State Public Integrity Com’n, 2012WL3860732, at *16 (Del.Super. 2012), aff’d, 69 A.3d 370 (Del.Supr. 2013); and “[t]he test for appearance of impropriety is whether the conduct 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 [the official’s] responsibilities with integrity, impartiality and competence is impaired.”  In re Williams, 701 A.2d 825, 832 (Del.Super. 1997).  The courts have advised the Commission to look at the totality of the facts presented, and this Commission has historically applied this standard when reviewing the conduct of County officials and employees.

            It is a violation of the New Castle County Ethics Code if a County official or employee uses his or her office or employment for his or her personal or private benefit, the benefit of a member of his or her immediate family, or a business with which he or she is associated.[2]  Economic benefits thereby derived with a de minimus impact may be exempted. [3]  

            The acceptance of gifts by New Castle County employees and officials can be complicated, and the acceptance of gifts by County employees and officials is discouraged.[4]   Further, Section 2.03.104.H.4 states:

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. through 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. 

The Ethics Code must be consulted to determine the circumstances under which a gift may be accepted.  Section 2.03.104.I.9 of the Code states that “[a]n Advisory Opinion request shall be made to the Ethics Commission prior to the acceptance of any gift not described by or limited in Subsections I.1. through I.9.”

            Prior Commission Opinion

            In Advisory Opinion 96-07, the Commission opined that a County employee with building and construction code responsibilities, was not permitted to sell fundraising raffle tickets to the contractors that the County employee regulated even if the tickets were for non-profit organizations and/or political candidates when the profits from the ticket sales went to the non-profit and/or the political candidates and not to the County employee.  In rendering its opinion, the Commission stated that the sale of such tickets by the County employee would create an appearance of impropriety, contrary to the Ethics Code.  In that instance, a contractor who purchased a ticket from the County employee for a cause favored by that County employee would create an appearance that the contractor was ingratiating himself in the favor of the County employee. Further, it created an appearance that the County employee’s actions and/or decisions were being influenced by the contractor’s purchase of the tickets, and not by the merits as to whether the contractor met the applicable building and construction code.  The Commission determined that this would violate the Ethics Code in that the sale of such tickets by the County employee would cause the public to believe that the County employee was making inspections more favorable to contractors who purchased tickets from him, and less favorable to those who did not.  Additionally, the Commission noted that the fact that the proceeds from the raffle tickets went to a non-profit organization or a political campaign and not to the County employee, did not remove the taint, especially when the County employee was directly soliciting the sale of the tickets.   

            The fact that the raffle tickets were sold in the lobby of the governmental building in which the requester works is not an issue which renders the situation violative of the Ethics Code.  The requester was at liberty to pass by the place in the lobby where the tickets were being sold, and the process of buying the raffle ticket did not use time for which the requester was being paid to perform work for the County.

In rendering this advisory opinion, this Commission has applied the New Castle County Ethics Code, which establishes the minimum level of ethical conduct required of County officials and employees.

Decision:  Unanimous