Filing Number: 07-10
Subject: Gifts
Keywords: employee, gifts, supervisor
Decision By: Commissioners: John McMahon, Thomas Collins, Miguel Gonzalez, V. Eugene McCoy, Mark Murowany
Contact Email: admin@nccethics.org
 
Status: Active

Question:

            Whether a supervisor may accept a gift valued at less than ten dollars ($10.00) from a person in a lower pay scale.1

Conclusion:

            The Commission believes that an exception to the Code gift rules is appropriate in this unique circumstance. The occasion for the gift will not recur before the employee's pending retirement and the acceptance of the gift will not affect the supervisor's integrity, competence or impartiality in the exercise of her County duties. Common sense supports the supervisor's proposal to permit acceptance and donation of the gift to a charity in the employee's name in order to avoid a repetition of the workplace disruption resulting from the employee's bizarre past conduct.

Facts:

             A County supervisor requests permission to accept a birthday gift of negligible value from a person in a lower pay scale. The supervisor reports that the motive for the gift, valued at $10.00 or less, is simple appreciation of the work relationship between the parties and tendered in honor of the supervisor's birthday. The employee has given gifts to the supervisor on this occasion in the past, prior to the enactment of the Code gift rules. When the supervisor attempted to return the gifts the employee refused to accept them and exhibited an emotional and disruptive response, even though the supervisor explained that she was precluded from accepting such gifts under her department's policy. As a result of this repeated response in the past, the supervisor requests permission to accept the gift and donate it to a charity in the employee's name. The supervisor notes that this long time County employee is retiring in the near future and that no repetition of this situation will occur after that time.

Code or Prior Opinion:

Code Provisions
 
             1.     Conflict of Interest and Conduct Rules
 
            The conflict of interest rules at Code Section 2.03.103(A)(1) restrict the use of official authority by a County official or employee, prohibiting exercise "for the personal or private benefit of himself or herself, a member of his or her immediate family or a business with which he or she is associated."2 The Code's conduct rules at Section 2.03.104(A) also recite a prohibition on creating an appearance that the decisions or actions of a County employee, County official or governmental body are influenced by factors other than the merits of the matter before it, thus undermining the public confidence in the impartiality of the governmental body with which the individual is associated.3 That means that conduct may be prohibited not only when personal benefit is at issue but also when it would cause a reasonable member of the public, with knowledge of the relevant facts, to question the objectivity or fairness of an official, an employee, or of the department associated with the official or employee.
 
            2.     Gift Rules
 
            Because of the strong possibility of creating an appearance of impropriety in situations involving gifts, the Code recites some specific circumstances when these provisions must be carefully considered. In 2006, New Castle County Council adopted the first County ordinance specifically directed at acceptance of gifts by officials and employees. See New Castle County Ordinance 06-022, codified as New Castle County Code Sections 2.03.102 (amended), 2.03.104 (H-J), and 2.03.107 (B)(7)(amended) (2006). The definition section of the Ethics Code at Section 2.03.102, defines gift as:
 
[A]nything that is received without consideration of equal or greater value. The term "gift" shall not include a political contribution otherwise reported as required by law or a commercially reasonable loan made in the ordinary course of business. A gift to a member of an official or employee's family, or a gift which is not personally accepted by an official or employee but is controlled by or directed by that person to another recipient, is considered to be a gift to the official or employee. Any gift of more than de minimis value accepted by a County official or employee, or by his or her spouse or dependant child because of the official or employee's holding public office or employment, must be promptly entered in a public gift log as a recordable gift by the employee or official. A gift is considered accepted upon receipt or control or direction unless it is promptly returned in its entirety.4
 
            New Castle County discourages the acceptance of gifts from the public by officials and employees and absolutely prohibits acceptance of any gift regardless of value which is intended or received to influence official conduct. Section 2.03.104 (H) of the code of conduct states as follows:
 
New Castle County discourages the acceptance of gifts from the public by County employees or County officials. No County employee or County official shall accept any compensation, gift, payment of expenses, promise of future financial benefit, or any other thing of monetary value which is intended or received to influence the vote, official action or judgment of the recipient or which creates the reasonable perception in the public that the vote, official action or judgment of the recipient would be influenced or impaired by the gift. An unsolicited gift which promptly returned it its entirety is not considered accepted by the recipient.5
 
In addition, gifts are prohibited in the following circumstances:
 
1.      Any gift of greater than de minimis value which is not promptly recorded in a public gift log.
2.     No gift of cash shall be accepted other than a political contribution otherwise reported as required by law.
3.     No gift shall be accepted by a County official or employee for performing an official duty or service or as an incentive to perform an official duty or service unless the gift is a public and commemorative gift of de minimis value in honor of public service or unless the gift is tendered by a governmental source or association of governmental sources. The commemorative gift shall be promptly recorded in a public gift log.
4.     Gifts of greater than negligible value from entities doing business with, regulated by, or which may be reasonably foreseen6 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), I(6), and 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.
5.            County officials or employees in supervisory positions shall not accept gifts from individual persons they supervise or from individual employees in a lower pay scale other than on an infrequently occurring milestone occasion (such as birth, death in family, marriage, divorce, retirement, casualty) or a de minimis hospitality gift on social occasions held outside of the workplace. On any other occasion, receipt of gifts shall be limited to group gifts, in which the amount contributed is both voluntary and of a de minimis amount per individual, and the names of the individual donors are not disclosed to the recipient. Gifts tendered as a result of a relationship described in subsection I(9) shall be an exception to this rule.
 
            Code section 201.104(I) lists certain categories of gifts which may be accepted and creates a provision in subsection (10) permitting employees and officials to request guidance from the Commission about a gift which is not described as acceptable in that section.7 It states "An Advisory Opinion request shall be made to the Ethics Commission prior to the acceptance of any gift not described by or limited in paragraphs 1 through 9".
 
Commission Precedent
 
            Prior to enactment of Ordinance 06-022, Ethics Commission gift rules were found only in the Advisory Opinions of the Commission. The seminal Advisory Opinion on gifts was issued on December 9, 1992, (a reissue of Advisory Opinion 91-07), and involved the question of whether officials and employees could accept gifts or invitations to social, sporting or other events generally open to the public from persons with whom the County had a relationship. That Opinion stated the basic and over-riding principle that a gift, of whatever value and whatever its source, may not be offered or accepted where the intent of the gift is to influence the conduct of the County employee or official in an improper manner.
 
            Ordinance 06-022 superceded any conflicting Commission opinion issued after 1992, such as those which established a level of $75.00 for a "modest" gift and decreed that absent evidence of improper circumstances gifts under that value would be presumed not to violate the Code. Nevertheless, the 2006 Ordinance adopted the underlying standards expressed in the all the prior opinions, reciting that "[n]o County employee or County official shall accept any compensation, gift, payment of expenses, promise of future financial benefit, or any other thing of monetary value which is intended or received to influence the vote, official action or judgment of the recipient or which creates the reasonable perception in the public that the vote, official action or judgment of the recipient would be influenced or impaired by the gift."

Analysis:

            Even though the Ethics Code now draws some clear lines about gifts to officials and employees from the public to prevent misuse of office and creates guidance about acceptable gifts from subordinates in order to improve fairness in supervisory relationships, it also provides the avenue of Advisory Opinions for the Commission to apply common sense to the varied and unpredictable situations that arise in the workplace. This matter appears to be one of those cases. Here, the motive for the gift appears to be simple appreciation for a long standing employment relationship, the situation will not be repeated in the future because the employee will sever that relationship in the coming months through retirement, and because of the imminent retirement, the supervisor has no ability to affect the financial future of the employee. In addition, the gift is of extremely small value, the employee has exhibited bizarre and disruptive conduct when the supervisor attempted to return such gifts in the past, and the supervisor proposes to donate the gift to a charity in the employee's name.

Finding:

             The supervisor may accept and donate the gift. Under these unique circumstances, the acceptance of the gift is not intended to nor would affect the supervisor's integrity, competence or impartiality in the exercise of her County duties and common sense supports the supervisor's proposal to avoid workplace disruption and permit acceptance and donation of the gift to a charity in the employee's name.
 
            In issuing this Advisory Opinion, the Ethics Commission is applying the New Castle County Code of Ethics, which establishes the minimum level of ethical conduct required of County officials and employees. The Commission cautions, however, that each County department, board, or other unit of County government is free to, and may impose as part of its own policy, additional or greater restrictions on its officials and employees than those set forth in this Opinion.
 
            BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS 11th DAY OF JULY, 2007.
 
__________________________
John McMahon, Chairperson
 
Decision: Unanimous

Footnotes:

1 New Castle County Code, at Section 2.03.102, defines de minimis as an economic consequence which has a cost or value less than fifty dollars ($50.00 and defines negligible value as value of less than twenty-five ($25.00.)

2 Section 2.03.103. Prohibitions relating to conflicts of interest, in pertinent part:
A.     Restrictions on exercise of official authority.
1.     No County employee or official knowingly or willfully shall use the authority of his or her office or employment or any confidential information received through his or her holding County office or employment for the personal or private benefit of himself or herself, a member of his or her immediate family or a business with which he or she is associated. This prohibition does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the County official or employee, a member of his or her immediate family or a business with which he or she or a member of his or her immediate family is associated. There will be a rebuttable presumption of a knowing or willful violation of this section if the action benefits the County official or employee, his or her spouse, or his or her dependent children (whether by blood or by law).

3 Section 2.03.104. Code of conduct, in pertinent part:
A. No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.03.103(A)(1) [conflict of interest], undermines the public confidence in the impartiality of a governmental body with which the County employee or County official is or has been associated by creating an appearance that the decision or action of the County employee, County official or governmental body are influenced by factors other than the merits.

4 New Castle County Code Section 2.03.102 defines public gift log as "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."
            Section 2.03.107(B)(7) requires certain officials or employees who receive a gift valued at $200.00 or more, including certain transportation, lodging or hospitality payments and reimbursements exceeding $200.00 in the course of a single occurrence, to report that gift to the Ethics Commission on a Statement of Financial Interests form. The only exceptions are gifts received from a member of the immediate family which are motivated by that relationship and expense payments or reimbursements from governmental bodies or associations of governmental bodies.

5 New Castle County Code, at Section 2.03.102, defines promptly as "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."

6 New Castle County Code, at Section 2.03.102, defines reasonably forseeable as "an event which should be expected or anticipated based upon credible past and present facts known to a reasonable observer or participant at the time a decision is made or an action taken." 

7 New Castle County Code, at Section 2.03.104(I) creates 9 categories of gifts which may be accepted as long as they do not represent a conflict of interest or appearance of impropriety. These categories include gifts tendered and accepted under clear circumstances demonstrating relationships that exist apart from the employment relationship.