Whether a County employee, employed by the Development and Licensing Division of the Department of Public Works, may accept an invitation to a social function, valued at $100.00, from a trade association whose members he regulates.
Conclusion:
No. There would be an appearance of impropriety, in violation of the Ethics Code Section 2-173(g), if an employee employed by the Development and Licensing Division of the Department of Public Works, accepted an invitation and attended a social function, valued at $100.00, from a trade association since the employee exercises regulatory control over the trade association's members.
Analysis:
Section 2-173(c) of the New Castle County Ethics Code explicitly prohibits any County official or employee from accepting anything of value for the purpose of influencing the County official's or employee's official action or judgment.1 It does not, however, in all instances, act as an absolute bar for an official or employee to receive something of value, provided its purpose is not to influence the employee or official.
In Advisory Opinion No. 91-07, revised and reissued December 9, 1992, the Ethics Commission held that gifts and invitations to a County official or employee, the value of which does not exceed $75.00, in the aggregate, per year, per donor, will be presumed not to create an appearance of impropriety.2 In arriving at this conclusion, the Commission acknowledged that the giving of gifts and invitations, less than $75.00 may "generate and maintain goodwill and. . . create an atmosphere of collegiality" between the donor and the county official or employee. Id. at 3. However, in regard to gifts and invitations whose value exceeds $75.00, the Commission did not establish an absolute ban but held that each situation must be evaluated upon the surrounding circumstances as to whether the "recipient official or employee is in a position to take any official action which concerns or is of direct interest to the donor". Advisory Opinion 91-07 at 4. A major factor in this determination is whether the intended recipient performs a regulatory function in regard to the donor. Id.
In the present instance, the intended recipient's job is regulatory in nature as it includes such responsibilities as determining whether or not the County Building Code has been met and whether appropriate licenses may be issued. Although the intended recipient does not regulate the trade association donor, per se, he does unquestionably regulate its members and, accordingly, he is in a position to take "official action which concerns or is of direct interest to the donor".
Finding:
Given the regulatory nature of the intended recipient's job, an appearance of impropriety would exist if he were to accept the invitation valued at $100.00.
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Mary Ann Matuszewski, Ethics Counsel
September 12, 1996
Footnotes:
1 Section 2-173(c) states: "No county official, county employee or nominee or candidate for county office shall solicit or accept a gift, loan, reward, or promise of future employment based on an intention of the county official, county employee or nominee or candidate for county office that the vote, official action or judgment of the county official or county employee or nominee or candidate for county office would be influenced thereby".
2 Section 2-172 states: "Appearance of impropriety means the conduct of a county official or county employee which does not constitute a conflict of interest but which undermines the public confidence in the impartiality of a governmental body with which a county officer or employee is or has been associated by creating an appearance that the decisions or actions of the county official, county employee or the governmental body are influenced by factors other than the merits". Section 2-173(g) states: "County officials and county employees shall avoid an appearance of impropriety".
