Filing Number: 12-02
Subject: Business Solicitation
Keywords: appearance of impropriety, business, County official, professional services, solicitation, vendor
Decision By: Thomas Collins, Gerald Turkel, Johanna Bishop, Miguel Gonzalez, James Keeley, Christopher Simon
Contact Email: admin@nccethics.org
 
Status: Active

Question:

          Whether an official may invite only one of several similar vendors to present its services in informational meetings the official sponsors for clients of his agency if the clients would be likely to contract with that vendor as a result of that meeting.

Conclusion:

          An improper appearance of favoritism would be created if the official selected one potential vendor over similarly situated competitors. The official may invite relevant vendors as presenters but may not exclude similarly situated competitors when a reasonable business opportunity arises from the opportunity to present.

Facts:

          The requester is an official in a County agency which is sponsoring a general meeting for clients of the agency in order to inform them about the functions of that agency. He would like offer a presentation from a vendor of related services for which the clients could individually contract. Competing vendors of related services would not be invited to make presentations.

Code or Prior Opinion:

Ethics Code Provisions
 
          The Ethics Code prohibits conduct which creates an appearance that a County official, employee or a County department is not impartial. Section 2.03.104 states in pertinent part:
 
No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.02.103(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 a appearance that the decision or action of the County employee, County official or governmental body are influenced by factors other than the merits. . . .
 
          The standard for judging the creation of such an appearance for judicial public officials has been described in Delaware courts as
 
conduct [which] would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the official's ability to carry out [official duties] with integrity, impartiality and competence is impaired." In re Williams, 701 A.2d 825, 832 (Del. Super. 1997).
 
          In determining the relevant circumstances, the courts advise the Commission to look at the totality of facts. The Commission has long applied this standard to the conduct of County officials and employees.
Section 2.03.103 B(2) of the Code restricts representation by an official of the interest of another before the County. It states, in pertinent part, "No county official may represent or otherwise assist any private enterprise with respect to any matter before the County. . ."
 
Prior Advisory Opinions
 
           In Advisory Opinion 09-04, May 13, 2009, an official asked whether he could provide access to an unrelated private business as a service for his employees. The business was not a potential contractor with the County and the official would not receive remuneration for providing the access. Access to the employees would provide a business advantage for the vendor over its competitors. The Commission held that providing such access would create an appearance of impropriety and create the perception that the official was using his office for the gain of a private entity. It wrote:
 
In affording access to the employees, the official is personally endorsing the for-profit business in a manner different from other such businesses which are not provided such access. Although the business is not aiming its services at County government, as appears to be contemplated in the Code's representation restrictions, the official would be acting in an official capacity when making this endorsement and therefore using his office for the future gain of the private entity as prohibited by Section 2.03.104(D).
 
Additionally, the provision of such access certainly would be perceived by the reasonable person to affect the official's and business' outside relationship since other customers of the business may not be able to provide such an easy path to new customers and the future profit they might bring. . . .
 
          In Advisory Opinion 95-02, November 7, 1995, the Commission found that an agency could not cosponsor a presentation with one of its competitors using the agency’s services. It wrote:
 
As stated, the Sponsor conducts business with the County agency on a regular basis. It is one of several other businesses - its competitors - which must utilize the County agency in the same manner - for the filing, processing and researching of legal records on behalf of private citizens.
 
The agency's cosponsoring of a seminar with one of the several private entities which must conduct business with the agency creates the appearance of a cozy relationship between the Sponsor and the agency, thereby enhancing Sponsor's public image. This appearance would engender in the public a perception that the agency favors Sponsor over its competitors or officially sanctions Sponsor's activities. That the agency would not favor the Sponsor or exercise its authority to the special benefit of the Sponsor is assumed. But the appearance to the public is that the agency's official actions are subject to influence by factors other than the merits, - hence the appearance of impropriety. …
 
 

Analysis:

          The Ethics Code does not prohibit the requester from sponsoring a meeting and invite relevant vendors as presenters. However, the requester may not exclude similarly situated vendors from presenting if that exclusion provides a significant business opportunity to the presenting vendor which is detrimental to the similarly situated competitors. Additionally, the conduct of selecting one among competitors would imply favoritism on the part of the requester and create the perception in the mind of the reasonable attendee and members of the public that he was not only not impartial but was advancing the private gain of the selected vendor.

Finding:

          An improper appearance of favoritism would be created if the official selected one potential vendor over other similarly situated vendors. The official may invite relevant vendors as presenters but may not exclude similarly situated competitors when a reasonable business opportunity arises from the opportunity to present.
 
          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 14th DAY OF MARCH 2012.
 
______________________
Thomas P. Collins, Chairperson
New Castle County Ethics Commission
 
Decision: Unanimous