Filing Number: 10-01
Subject: Official Communication
Keywords: appearance of impropriety, communication, constituent, elected official, official business, public purpose, representation
Decision By: Commissioners: Thomas Collins, Gerald Turkel, Edward Danberg, James Keeley, V. Eugene McCoy, Vincent White
Contact Email: admin@nccethics.org
 
Status: Active

Question:

            Two elected officials requested guidance on whether they may use County resources to send letters to all new voters in their districts in order to introduce themselves and advise the residents of available County, State and private resources.

Conclusion:

            The requesting officials may use County resources to send the introductory letters and attachments which are non-partisan in nature and contain information deemed helpful to persons in their districts.

Facts:

            The letters in question are written on County letterhead and include information regarding the office held by the sender and the means to contact the sender through County phone numbers and County email. The letters and attached materials are being sent to voters regardless of political affiliation from a list compiled by a State agency. The documents provide no information on the political affiliation of the sender or recipient, do not present any information regarding the candidacy of the official for office,1 do not mention, solicit, or link to any information concerning political contributions, and both officials inform the recipients that they have the opportunity to sign up to receive a newsletter only if they choose to do so. The documents attached to the letters include frequently used phone numbers and emergency numbers and sample newsletters.

Code or Prior Opinion:

Code Provisions
 
            Both County law and the Ethics Code forbid the use of County resources to advance partisan positions. New Castle County Code Section 26.01.019(B) states, in pertinent part:
  1. No employee in the classified or unclassified service shall, during regular working hours, take part in the management or affairs of any political party or in any political campaign or perform any service for any political party other than of an incidental nature to the official job description of the employee, except to exercise his or her right as a citizen privately to express his or her opinion and to cast his or her vote.
  2. No employee in the classified or unclassified service shall at any time use or attempt to use his or her position with the County as a means of implementing or promoting the solicitation of any assessment, subscription, contribution or service for any political party.
     The conflict of interest rule at New Castle County Code Section 2.03.103(A)(1) prohibits the use of official authority by a County official or employee "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 Ethics Code conduct rule at Section 2.03.104 D prohibits all County employees and County officials from using their "public office to secure unwarranted privileges, private advancement or gain." 3
 
Prior Commission Opinions
 
            In Complaint Final Order 04-01, the Commission found that an official violated the Ethics Code when she used County personnel for partisan political purposes. The Commission held "Using County taxpayer's resources to advance partisan political goals undermines public confidence in the impartiality of government actions. Therefore, even in the absence of a specific County rule prohibiting the use of unclassified employees for partisan political purposes, Ms. Freebery's conduct created an appearance of impropriety."
 
            In Complaint Final Order 08-02, the Commission found that the subject of the complaint violated the Ethics Code when he knowingly permitted an employee to prepare fundraiser invitations for him in his County office.
 
            In Advisory Opinion 07-01, an elected official asked whether he could advertise that he held a County position on his private vehicle. He was not using any County resources to do so. The Commission held that "Advertising to secure or maintain public office is a constitutionally protected right and in itself does not reflect any improper motive to obtain special treatment."

Analysis:

             The Code and the Opinions are clear and consistent. An official cannot use County communication equipment or computers, letterhead, county paid postage, printing facilities, or County staff for purposes other than official business.4 Official business does not include direct or indirect reference to partisan advocacy, electioneering, fundraising, or any type of political solicitation, including links to websites for such purposes.
 
            In this case, the officials who want to send the letters have a high public profile by virtue of their County positions and they are in a unique position to inform a large swath of the public about the breath of services available. Certainly, a private benefit accrues to an incumbent who becomes well known as a helpful source but such benefit arises from the duties of the position and is not unwarranted. Conversely, if an incumbent, because of the manner in which he or she performs official duties, becomes known for being a distant or unhelpful source, a negative effect attaches as a result of the same high profile.
 
            Assisting the public's access to and use of resources in New Castle County is, in some measure, part of any County official's official function. The Commission notes that neither of the requesting officials fits the Code definition of "candidate" for office at this time, nor identifies his or her political affiliation. See, n.1, supra. While the Commission notes that the political affiliation of an elected official is information that is part of their official status and frequently helpful to the voter, if an official has decalared for office or filed the necessary official paperwork, the timing and content of such letters will be carefully scrutinized by the Commission for direct or indirect partisan advocacy.
 
            The content of the mailings which are the subject of their request appear to fit under the category of official business. The source of the names of the recipients is a non-partisan state agency and the recipients are neither selected on a partisan basis nor by prior contribution to or affiliation with the official. The letters serve to introduce the current office holder to the new voter and provide general information about financial and service resources available in the County. The letters and attachments inform the reader where and how to contact the official and direct the recipient to County maintained links and access numbers and addresses for government employees. The letters make no mention, reference, or link, direct or indirect, to partisan information or fundraising.

Finding:

             The requesting officials may use County resources to send the introductory letters and attachments which are non-partisan in nature and contain information deemed helpful to persons in their districts.
 
            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.
 
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS 17th DAY OF JANUARY 2010.
 
_______________________________
Thomas P. Collins, Chairperson
 
Decision: Unanimous

Footnotes:

1 Candidate, as defined in New Castle County Code Sec. 2.03.102, "means any individual who seeks nomination or election to County office by vote of the electorate, whether or not such individual is nominated or elected. An individual shall be deemed to be seeking nomination or election to such office if he or she has taken the action necessary under the laws of the State to qualify himself or herself for nomination or election to such office. The term shall include individuals nominated or elected as write-in candidates unless they resign such nomination or elected office within thirty (30) days of having been nominated or elected."

2 New Castle County Code Section 2.03.103. Prohibitions relating to conflicts of interest, states 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 New Castle County Code Section 2.03.104. Code of conduct. D. No county employee or County official shall use such public office to secure unwarranted privileges, private advancement or gain.

4 Of course, certain de minimis incidental personal use of electronic equipment is permitted under general County rules. See New Castle County Personnel Policy 4.06.