Filing Number: 14-07
Subject: Solicitation
Keywords: donation, employee, fundraising, gifts, private business, public purpose, solicitation
Decision By: Johanna Bishop, James Keeley, Beatrice Patton Dixon, Paula Jenkins-Massie, Sally Jensen, Eric Monzo, Christopher Simon
Contact Email: admin@nccethics.org
 
Status: Active

Question:

           Whether the provisions in a proposed administrative policy and a solicitation letter for a seasonal charity drive will violate the Ethics Code.

Conclusion:

           A solicitation by the sponsoring County Department, conducted in accord with the information supplied to the Commission, would not violate the Ethics Code.

Facts:

           The requesting Department provided the Commission with a copy of the proposed administrative policy underlying the purpose of the solicitation, a copy of the proposed solicitation letter, and a list of targeted businesses. The administrative policy states that the public purpose of the solicitation of businesses served by the sponsoring Department is to assist underprivileged New Castle County residents to meet specific seasonal needs. The letter is to be sent to approximately 20 local businesses which stock a specific type of goods being solicited for the charity drive. Only donations of the specified goods will be accepted and donations of cash or checks are specifically banned. The letter notes that all donations are voluntary and will not affect current or future relations with the County or the sponsoring Department. The donations will be collected or received by members of a Department which is not conducting the solicitation and which does not directly serve the businesses receiving the letter. The donations will be listed in a public document which identifies the donor, the type, and value of the donation.

Code or Prior Opinion:

Code provisions
 
            The New Castle County Ethics Code at Section 2.03.104 J (1) limits the circumstances under which solicitation of the public may occur.
 
            Section 2.03.104J. Solicitation.
1. Solicitation from entities which do business with or are regulated by New Castle County are prohibited unless such solicitation is pursuant to New Castle County written policy decision and for the benefit of the public. 
 
            The Ethics Code’s conduct rules at Section 2.03.104(A) also recite prohibitions affecting such solicitation. That subsection prohibits exercise of official authority which creates an appearance that the decisions or actions of a County official or his or her department are influenced by factors other than the merits of the matter for decision. This prohibition exists because such conduct undermines public confidence in the impartiality of the individual or governmental body with which the employee or official is associated.1
 
            An improper appearance is created when a reasonable member of the public "with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, [would hold] a perception that the official's ability to carry out [official duties] with integrity, impartiality and competence is impaired." 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.
 
Prior Opinions
 
           The seminal opinion on the topic of solicitation of County businesses is Advisory Opinion 06-09, June 14, 2006. In that opinion 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 required prior Commission review.
 
            In that opinion, the Commission analyzed the impact of older decisions:
 
            Past interpretations of the Code of Ethics have permitted solicitation activities by County employees under restricted circumstances but the relevant Commission precedent predates . . . Sections 2.03.104 (H), (I), and (J). A majority of the existing opinions relate to situations in which the official or employee is seeking donations on behalf of a private charitable enterprise. In most of those opinions the Commission analyzed questions of the appropriate boundaries for the relationship between the County status of the employee or official and the targeted entity.
 
           In Advisory Opinion 01-08, the Commission determined that an employee could participate in fund-raising for a nonprofit as long as the employee did not seek to use his County position to influence official action for the nonprofit and abstained from participating as a representative of the County department on matters involving the nonprofit. It required the employee to avoid personally soliciting funds from entities for which he directly performed County services. It also required him to minimize any appearance that the party being solicited would receive favorable treatment from the County or feel compelled to donate because of the employee’s County status by prohibiting the employee from signing any direct written solicitation made to persons regulated by his department and requiring him to avoid mention of his County department in solicitations. [Emphasis added]
 
            Advisory Opinion 95-02 addressed the question of whether a County agency could co-sponsor an educational seminar about the legal process administered by the County agency with one of the private users of the agency. The Commission found while the agency could participate in the seminar, co-sponsorship would violate the Code by creating an appearance of impropriety. “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.” [Emphasis added]
 
            In Advisory Opinion 06-09, the Commission was concerned with the elimination of the appearance that the donation would result in a special benefit to or preference for the donor and the inherently coercive effect of County status on the entity solicited, and focused on the method used to select the donors. After reviewing all of the circumstances surrounding the solicitation, the Commission found that the particular proposed solicitation could be conducted but imposed a number of parameters under which the solicitation could take place.
 
            If the restrictions are accepted, solicitation may be undertaken. Those conditions are: the Executive must comply with the ordinance by issuing a written policy authorizing the solicitation for the Ice Cream Festival which identifies the public benefit; cash donations shall not be accepted; there can be no public or private identification of the donors as joint sponsors2 ; a written solicitation, emphasizing the voluntary nature of the contribution and the absence of any effect on current or future County relationships, should be made to all potential appropriate donors by the County Executive on behalf of the citizens of the County; a donor must provide written corroboration identifying and valuing the donation at the time it is made; the employee or official who accepts the donation may not have provided, and his or her department may not provide in the reasonably foreseeable future, direct services for the donor3 ; a contemporaneous public document is maintained which lists the donors, type and value of all donations.

Analysis:

           The policy statement and the solicitation letter in this case appear to comply with the restrictions announced in Advisory Opinion 06-09.

Finding:

           A solicitation by the sponsoring County Department, conducted in accord with the information supplied to the Commission, would not violate the Ethics Code.
 
            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 NOVEMBER 2014.
 
 
 
_______________________________
Johanna P. Bishop, Chairperson
New Castle County Ethics Commission
 
Decision: Unanimous

Footnotes:

New Castle County Code Sec. 2.03.104. Code of conduct.
1A. 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.
2This restriction does not preclude public acknowledgment of donations.
3Section 2.03.102, Definitions, in pertinent part:
Reasonably Foreseeable means 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.