Whether a County employee, with County building and construction code inspection responsibilities (hereinafter "County inspector"), can sell fund raising tickets to the contractors that he regulates for non-profit organizations and/or political candidates when the proceeds from the ticket sales go to the non-profit organizations and/or political candidates and not the County inspector.1
No. There would be an appearance of impropriety, in violation of Ethics Code Section 2-173(g), for the County inspector to sell fund raising tickets to the contractors that he regulates.
Section 2-173(c) of the New Castle County Ethics Code 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.
In the present instant, to the extent that the purchase of fund raising tickets can be viewed as a gift2 or a reward, there is no evidence that the solicitation or sale of the tickets are for the purpose of influencing the county inspector and, therefore, no violation of this section can be said to exist. Thus, this section does not prohibit the activity in question.
The Ethics Code, however, also bars officials and employees from conduct which constitutes the appearance of impropriety,3 defined as:
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.
Here, the appearance exists that, by purchasing the fund raising tickets to a cause the county inspector favors, the contractor is ingratiating himself in the favor of the county inspector. Thus, the appearance exists that the County Inspector is being influenced by the contractor's purchase of the tickets and not by the merits and, accordingly, will make inspections more favorable to the contractor, if the tickets are purchased and, less favorable, if the tickets are not purchased. The contractor also may feel pressure to purchase the tickets for fear that its failure to do so may result in less favorable inspections. The fact that the proceeds from the tickets go to a non-profit organization or a political campaign, and not the county inspector, does not remove the taint, particularly if the County inspector is directly soliciting the sale of these tickets. For example, if the tickets were to a fund raiser for a political candidate who, if successful in his bid for office, would have control over the County inspector, the taint is as equal, if not worse, than if the proceeds went directly to the County inspector.
Although the Commission generally applauds and does not wish to stifle community activism, such as fund raising efforts for non-profit organizations, where there is an appearance that a county employee's actions may be motivated by something other than its merits, than the activity in question can not be allowed, despite any good intentions on the county employee's behalf, as it would undermine the integrity of county government. The county inspector should not sell the tickets.
Mary Ann Matuszewski, Ethics Counsel
November 21, 1996
1A County employee with County building and construction code inspection responsibilities is a "county employee" subject to the provisions of the New Castle County Code of Ethics. The Code, as amended, defines "county employee" as "(a)n individual employed by the county who is responsible for taking or recommending official action of a nonministerial nature including, but not limited to, action with regard to . . . (4) inspection, licensing, regulating or auditing any person. . . ." A "nonministerial action" is one "in which the (county employee) exercises his own judgment as to the desirability of the action taken." See, Section 2-172. Definitions.
2 The term fund raiser, by its very definition, implies that the consideration received by the purchaser of the tickets is less than the cost of the tickets. See, Section 2-172. Definitions.