Filing Number: 91-07
Subject: Gifts
Keywords: agency head, appearance of impropriety, appointed official, conflict, County official, department manager, disclosure, donor, elected official, employee, expenses, financial interests, gifts, impropriety, invitations, public notice, Statement of Financial Interests, supervisor, ticket, trade symposium, undue influence, unwarranted privilege, vendor
Decision By: L. Susan Faw, Ethics Commission Counsel
Contact Email: admin@nccethics.org
 
Status: Active

Question:

           Whether it would violate the New Castle County Ethics Code ("Ethics Code") if County officials and employees accepted gifts or invitations to social, sporting or other events generally open to the public from persons with whom the County has a relationship.1

Conclusion:

           The Ethics Commission will presume that gifts and invitations to a County official or employee, the value of which do not exceed $75.00 in the aggregate per year per donor, will not create an appearance of impropriety. Gifts and invitations the aggregate value of which exceeds $75.00 per year per donor will have to be evaluated based upon the surrounding circumstances. All gifts and invitations, no matter what the value, must be disclosed to the official or employee's director, department head, board chair or other superior.

Analysis:

           The issue presented is whether it would violate the Ethics Code if a County official or employee2 accepted gifts or invitations to social, sporting or other events generally open to the public from persons3 (hereinafter "donors") with whom the County has relationship.
 
          At the outset, it must be clearly stated that giving or accepting anything of value for the purpose of influencing a County official or employee's official action or judgment violates the Ethics Code: Section 2-30.2(b) bars any person from "offer[ing] or giv[ing] to a county official [or] county employee . . . a gift . . . based on the offeror's or donor's intent that the vote, official action or judgment of the county official or county employee . . . would be influenced thereby." Section 2-30.2(c) bars any "county official [or] county employee . . . [from:] solicit[ing] or accept[ing] a gift . . . based on an intention of the county official [or] county employee . . . that the vote, official action, or judgment of the county official or employee would be influenced thereby."
 
          The Commission recognizes however that many gifts and invitations are given to County officials and employees to generate and maintain goodwill and to create an atmosphere of collegiality. Unfortunately, such gifts and invitations may also be viewed as a means of ingratiating the donor with the donee, - particularly where their aggregate value per donor exceeds modest limits. Thus, the cost of generating goodwill can be the creation of an appearance of impropriety.4
 
          Accordingly, the Ethics Commission adopts the following guidelines regarding gifts and invitations:
 
1.       Gifts and Invitations Under $75.00. It will be presumed that the acceptance of gifts or invitations by a County official or employee not exceeding $75.00 in the aggregate per year per donor does not create an appearance of impropriety.
 
          This $75.00 line applies to the face value of the gift or invitation. For instance, a County official or employee may receive a ticket to a dinner the face value of which is $125.00, but the actual value of the dinner is only $35.00. The face value of the ticket determines whether the presumption applies, not any calculation of "actual" value.5
 
          Gifts and invitations which include a County official or employee's spouse or guest are attributable to that official or employee. For instance, if a County official or employee receives from a donor two tickets to an event and the face value of each ticket is $60.00, this would be construed as a gift having a value of $120.00 to the official or employee.
 
2.       Gifts and Invitations Over $75.00. A County official or employee may accept gifts or invitations which exceed in the aggregate $75.00 per year per donor. This opinion does not establish an absolute ban on accepting and receiving such gifts or invitations. Each situation must be evaluated based upon the surrounding circumstances, such as 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.
 
          This opinion addresses the issue of gifts and invitations generally. It is not based upon specific facts concerning a particular gift or invitation from a particular donor. It is anticipated that this will be the subject of future requests for advisory opinions directed to the Commission.
 
3.       Disclosure to Superior of All Gifts and Invitations. No matter what the value, all gifts and invitations must be disclosed to the County official or employee's director, department head, board chair or other superior. This disclosure should be made prior to acceptance if possible, or as promptly thereafter as is possible. Each department, board or other unit of County government should establish a simple procedure for the disclosure of such gifts and invitations. This is essential so that each segment of County government can monitor the extent to which donors may be engaging in pervasive and widespread "giving", evidencing an attempt to influence a County department. (See n.4 below.)
 
4.        Departmental Policy May Be More Restrictive. Each department, board or other unit of County government is free to impose greater restrictions on its officials and employees, such as an absolute ban. This opinion establishes the minimum that is expected and required under the Ethics Code. It does not usurp a director, department head, or board's authority to establish a more restrictive rule as part of its own policy.
 
5.        Disclosure on Annual Statement of Financial Interests. All officials and employees must be mindful of the duty to disclose certain gifts and invitations on their annual statement of financial interest. Section 2-30.4(b) (7) requires disclosure of all gifts valued in the aggregate at $200 or more. Section 2-30.4(b) (8) requires disclosure of payments made to cover transportation, lodging or hospitality received in connection with county office or employment where expenses for transportation exceed $200 and expenses for lodging and hospitality exceed $100, in the course of a single occurrence.

Finding:

                                                       
L. Susan Faw
Ethics Counsel
 
June 17, 1991 (Daniel Anker) Revised December 9, 1992

Footnotes:

1 Advisory Opinion 91-07 was initially issued on June 17, 1991. Recently, the Commission has received requests for clarification of that opinion. The Commission hereby withdraws its prior opinion issued on June 17, 1991 and substitutes this revised opinion.
 
2 For purposes of the Ethics Code, a "County employee" is "[a]n individual employed by the county who is responsible for taking or recommending official action of a nonministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person." Sec. 2-30.1. Definitions.
 
3 The term "person" is used here as it is defined in the Ethics Code: "A business, governmental body, individual, corporation, union, association, firm partnership, committee, club or other organization or group of persons." See Sec. 2-30.1. Definitions.
 
4Sec. 2-30.2(g) states that County officials and employees should avoid the "appearance of impropriety", defined as: "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 official or employee is or has been associated, by creating an appearance that the decisions or actions of the county official, county employee or governmental body are influenced by factors other than the merits." See Sec. 2-30.1. Definitions.
 
5 The Commission rejects the notion that the only "value" of attending certain functions and events is limited to, for instance, food and beverages consumed. There is an intangible "value" which arises from the opportunity to network and socialize with others which is best measured ]by the face value of the ticket for that function or event.
 
6For instance, the acceptance by County officials or employees who perform a regulatory function of gifts or invitations from those persons being regulated, is more likely to create an appearance of impropriety than the acceptance by County officials and employees who perform a policymaking role of gifts and invitations from persons within their constituency. The difference lies in the very direct impact an individual regulators daily activities and decisions have on the interests of those being regulated.