Filing Number: 14-1
Subject: Solicitation
Keywords: employee, fundraising, solicitation
Decision By: Johanna Bishop, James Keeley, Miguel Gonzalez, Paula Jenkins-Massie, Christopher Simon
Contact Email: admin@nccethics.org
 
Status: Active

Question:

            Whether a County department may hold a fundraising event without violating the Code prohibition on employee and client solicitation.

Conclusion:

  The County Executive or his designee may permit the sale of fundraiser tickets to employees of the department as long as the office procedures for such sales are non-coercive and do not contravene the prohibition on solicitation by superiors of subordinates or employees in a lower pay grade. The department’s staff may solicit members of the public who have a professional relationship with the department as long as they are not current or foreseeable vendors or persons in businesses regulated by the County.

Facts:

            The requester states that her department wishes to advise a County department whether it may sponsor a fundraising event in which employees who wear obvious County insignia would solicit department employees and certain members of the public to buy tickets.  The beneficiary of the fundraiser would be a section of the County department sponsoring the fundraiser. The sector of the public to be solicited is composed, primarily, of persons who are professionally associated with the department, although not as vendors or regulated entities.

Code or Prior Opinion:

Code provisions
 
            The New Castle County Ethics Code at Section 2.03.104 J limits the circumstances under which solicitation of employees or the public may occur.
            Section 2.03.104J. Solicitation.
 
1.      Solicitation from entities which do business with or are regulated by New Castle County is prohibited unless such solicitation is pursuant to New Castle County written policy decision and for the benefit of the public.
2.      Personal solicitation of donations by County officials and County employees, or by their agents, spouses or minor children, from subordinates of the County official or employee is prohibited.
3.      Elected Officials may set office-wide, non-coercive solicitation policies intended to benefit charitable entities or events if the policy does not create a conflict of interest or appearance of impropriety and does not violate Subsection J.2. The Commission retains the authority to judge whether department rules meet the minimum standard expressed in the Code.
 
            The Code also prohibits a County official or employee from using his or her status with the County to obtain a benefit for a private entity. 
 
            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.
 
Prior Opinions
 
In Advisory Opinion 13-07, May 7, 2013, the Commission addressed whether specific solicitation rules were required in a particular ordinance. It noted that the Commission solicitation rules “do not address the solicitation of entities which are NOT regulated by nor do business with the County.” 
 
In Advisory Opinion 06-09, June 14, 2006, the Commission determined that Code Section 2.03.104(J) permitted solicitation of entities which do business with or are regulated by New Castle County only when a number of restrictive conditions were fulfilled, including a written County policy describing the solicitation's benefit for the public and requiring prior Commission review.
 
In Advisory Opinion 10-02, January 17, 2010, the Commission was questioned about the propriety of putting an electronic link on a County website through which citizens could donate to a political campaign. It stated, “While mere identification of an elected official's affiliation with a political party on a County resource is not, in itself, partisan political activity, the rule of Advisory Opinion 10-01 is applicable here: ‘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. [footnote omitted] 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 Advisory Opinion 01-08, October 16, 2001, an employee asked about participation in fundraising activities on behalf of a non-profit.  The Commission required the employee to avoid personally soliciting funds from entities for which he directly performed County services and, “[w]ith regard to public relations and fund-raising, the Ethics Code does not prohibit the requesting party from participating in such activities for the organization, provided he does not use his position at the County to attempt to raise funds for the organization. Thus, while the requesting 'party can participate in public relations and fund-raising on behalf of the organization, it would constitute a conflict of interest for him to use or attempt to use the authority of his County office on behalf of the non-profit organization.’ From an appearance of impropriety standpoint, he must take care to ensure such fund-raising is not enmeshed with the requesting party's role at the County.”
 
            In Advisory Opinion 10-03, January 17, 2010, the Commission advised a candidate for County office who was also an employee: “Campaign activity and activity for the County must be completely segregated: no discussion of campaign activity during the workday of the candidate or during that of any other County employee, no political solicitations or distribution of campaign or fundraising materials in the County workplace or County offices unless part of a County sponsored presentation for all candidates, no use of County insignia or uniforms in campaign activities, no direct or indirect linking of County websites to campaign websites, and of course, no use of any County resources to benefit a political campaign.”

Analysis:

             The first issue to be resolved in this request is whether the targeted non-employee purchasers of the fundraiser tickets do business with or are regulated by the County. The information provided to the Commission reveals that while some of those persons may be theoretical consumers of the Department’s services in the same manner as all County residents, the persons to be targeted primarily are professional associates of the employees who work with the department on a cooperative basis. They are not past or future vendors and they are not regulated by any County department.
 
            Although, as stated in Advisory Opinion 13-07, the solicitation rules do not address fundraising concerning such persons, other Ethics Code conduct rules do impact such solicitations, particularly the prohibitions against selling fundraising tickets while identifying oneself as a County official or employee. See, 203.104D. This identification readily occurs when solicitors are wearing County uniforms or insignia or otherwise proclaim their status with the County. The prohibition on advancing a private interest in such a manner exists in order to prevent the creation of an appearance or belief that purchasers will obtain special treatment or status if they respond to a fundraising request from a County official or employee. However, in this case, unlike the situation in Advisory Opinion 01-08, the professional relationship between the sellers and the buyers means, even absent uniforms, insignia, or other means of identification, the buyers are necessarily aware of the sellers’ connection to the County department.  Furthermore, the benefit here is for the County itself, not an outside entity. The solicitation in this case cannot create a perception or expectation of special treatment or favoritism or improper personal or private gain.
 
            The solicitation rules do address the status of the employees. Those rules permit elected officials to set up office wide parameters for charitable solicitation in County offices. See, Section 2.03.104J.3. However, those parameters cannot contravene the rule that supervisors and persons in higher pay grades (and their agents and/or family members) may not personally solicit subordinates to buy fundraiser tickets or products. See, Section 2.03.104J.2. Reading these two sections of the Code in parity means that an elected official may permit a department to use County resources to solicit employees for a charitable benefit as long as the solicitation procedures adopted contain no taint of coercion and ensure that participation is truly voluntary. Of course, the Commission retains the authority to judge whether a particular practice creates an improper appearance.

Finding:

The County Executive or his designee may permit the sale of fundraiser tickets to employees of the department as long as the office procedures for such sales are non-coercive and do not contravene the prohibition on solicitation by superiors of their subordinates or employees in a lower pay grade. The department’s staff may solicit members of the public who have a professional relationship with the department as long as they are not current or foreseeable vendors or persons in businesses regulated by the County.
 
            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 12th DAY OF FEBRUARY 2014.
           
 
                                                _______________________________
Johanna P. Bishop, Chairperson
New Castle County Ethics Commission
 

Decision:  Unanimous