May a County Public Works employee, with inspecting, licensing, regulating and/or auditing responsibilities, accept a free ticket to attend a Flyers game at the Core States Center in a super/club box from a company with construction projects in New Castle County if the ticket states the cost is $66.50?
No. There would be an appearance of impropriety if a County Public Works employee with inspecting, licensing, regulating and/or auditing responsibilities accepted a free ticket to attend a Flyers game at the Core States Center in a super/club box from a company with construction projects in New Castle County since the actual cost to the donor and the value received by the recipient exceeds $75.00 even though the ticket states the cost is $66.50.
A County public works employee,1 with inspecting, licensing, regulating and/or auditing responsibilities, has been offered a free ticket to attend a Flyers game in a super/club box2 at the Core States Center by a company with construction projects in New Castle County. Refreshments will be provided. The ticket states on its face that the price is $66.50. The donor has advised the Commission that the cost per event to them, including food and beverages, for the box is $1646.34 and the box seats 21 persons. The donor has also told the Commission that the difference between the cost on the ticket ($66.50) and the rate when one divides the per event cost by the number of seats ($78.38) is the cost of paying for an attendant for the box. The Core States Center has advised the Commission that the cheapest ticket in a super/club box is $66.50 ($62.50 plus a $4.00 service fee) and that the cost of any refreshments is a separate and additional fee from the cost of the ticket. They further have advised the Commission that, although one cannot purchase a super/club box ticket on an individual basis, the cost of a seat on the same level as the super/club box tickets, if purchased on an individual basis, is $125. This does not include any refreshments.
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. 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.3 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. Thus, in Advisory Opinion 96-06, September 12, 1996, it was held that there would be an appearance of impropriety if a public works employee accepted an invitation and attended a social function, valued at $100.00, from a trade association since the employee exercised regulatory control over the trade association's members. Conversely, in Advisory Opinion 97-02, March 14, 1997, it was held that there would not be a violation of the Ethics Code for a row office employee with minimal regulatory responsibilities to accept a fruit basket valued at $200, on behalf of the entire office, from a client that the office services.
In the present instance, the employee in question exercises inspecting, licensing, regulatory and/or auditing responsibilities as to the donor. Thus, the issue then boils down to how to evaluate the value of the super/club box ticket, a ticket which can not be purchased on an individual basis and which includes, in addition to preferred seating at a sporting event, free refreshments.
In Advisory Opinion 91-07, revised and reissued December 9, 1992, the Commission generally held that, in determining the value of gifts or invitations, it was the "face" value of the ticket which controlled and not the "actual" value. In making such a statement, it was addressing the problem of assessing the value of a ticket when the actual value, i.e., the food and beverages at a dinner, was less than the cost of the ticket to attend the dinner. The Commission noted that, in such instances, there :is an intangible value to the ticket beyond the actual cost of the food and beverage which must be considered in the evaluation. In such cases, the Commission generally noted that the face value of the ticket was the best way to evaluate such a ticket.
In the present instance, however, under the donor's version of the costs, the face value of the ticket not only ignores the intangible value of sitting in preferred seats with available amenities which are not available on an individual basis, but it also ignores part of the actual cost of the super/club box-that is, the added cost to the donor of having an attendant provide services to the attendees at the game. Furthermore, under the Core State's Center version of the costs, the ticket price also ignores the cost of the refreshments, available at no cost to the attendees in the box.4
Thus, in the present case, under both the donor's and the Core State's Center's assessments of the costs, the face value of the ticket underestimates both the actual and intangible value of the ticket to the recipient and the actual cost to the donor.5 Therefore, given the fact that even the cost to the donor alone, much less the tangible and intangible value to the recipient, exceeds $75.00, there would be an appearance of impropriety for the County employee to accept the ticket and the employee cannot accept the ticket.
The Commission notes that, in this particular instance, it was not necessary for the Commission to actually determine the exact value of the ticket, since, both the cost to the donor, and the cost of a ticket on the same level, if purchased on an individual basis ($125.00), even without refreshments, exceeds $75.00.6 However, in some instances, depending upon the event and the stadium, the cost to the donor may be less than $75.00 and the closest comparable ticket price, absent refreshments may either exceed or be less than $75.00. The Commission believes that, in such instances, the totality of the circumstances must be viewed, including all costs, prices and amenities provided, and the propriety of the situation decided on an individual basis. The Commission, therefore, strongly urges that, prior to accepting any tickets to attend a function in super/club box seating, whether it be at Veterans Stadium for a Phillies or Eagles game, Frawley Stadium for a Blue Rocks game or some other stadium, that the intended recipient present the Commission with the issue,7 so that a determination can be made as to other functions and stadiums.
Mary Ann Matuszewski
March 14 1997
1 A County Public Works employee with inspecting, licensing, regulating and/or auditing 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 For purposes of this opinion, the term "super/club box" refers to a preferred seating box at various sporting and recreational events, leased by an individual, company, or some other entity, which seats a limited number of persons and which commonly has available a private lounge area, eating area and/or restrooms. Food and beverages, not normally available to non-super/club box ticket holders, are usually provided gratis to the attendees in the box, at the cost of the lessee
3 Section 2-173(g), , defines "appearance of impropriety" 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."
4 It is reasonable to assume that most persons attending a game in a super/club box consume at least $8.50 worth of refreshments, given the inflated prices of refreshments generally charged at stadiums and the availability of the refreshments, at no charge, to the ticket holder.
5 It is not uncommon for the price printed on super/club box tickets not to reflect the actual cost or value. See, for example, CEO 95-036, Florida Commission on Ethics, December 1, 1995, where a ticket to a skybox at an Orlando Magic game, having a face value of $0, was valued at $105.00.
6 It is also understood that the cost of a ticket for the super/club box at the Core States Center for Flyers games is the same for that of the Philadelphia 76ers basketball team. Absent facts to the contrary, therefore, acceptance of a super/club box ticket for a 76ers game at the Core States Center would also be prohibited.
7 The Ethics Commission requests that the intended recipient give the Commission as much advance notice as possible so that the issue can be decided at the regularly scheduled monthly Commission meeting.