Whether an employee's acceptance of a monetary gift for performing duties on her own time for a non-profit which does business with the County would violate the Code of Ethics.

            The employee would violate the gift provisions of the Code of Ethics and create an appearance of impropriety if she accepted a monetary gift from a non-profit which does business with the County for activities which were intertwined with and indivisible from the duties for which she received payment from the County.

             As part of her County duties, an employee administratively assisted a private non-profit entity to become contractually associated with the County. She also performed similar duties for the non-profit on her own time which have enhanced the non-profit's ability to enter and maintain this relationship. The administrative duties were commingled and the effects are not distinguishable. The non-profit currently uses County resources through the employee's agency and the one of the employee's County functions is to work closely with the non-profit in providing services to County citizens. The non-profit has informed the employee's superior that it wishes to give a monetary bonus to her for the work she volunteered to it outside the work day. The supervisor asks whether the employee may accept the bonus.

 

            The gift law sections of the Ethics Code, enacted by Council in April 2006, appear determinative regarding this request. Section 2.03.104(H) discourages the acceptance of gifts in most circumstances and absolutely prohibits them in others. It states, in pertinent part:

 

New Castle County discourages the acceptance of gifts from the public by County employees or County officials. No County employee or County official shall accept any compensation, gift, payment of expenses, promise of future financial benefit, or any other thing of monetary value which is intend or received to influence the vote, official action or judgment of the recipient or which creates the reasonable perception in the public that the vote, official action or judgment of the recipient would be influenced or impaired by the gift. An unsolicited gift which is promptly returned in its entirety is not considered accepted by the recipient.¹

 

In addition, gifts are prohibited in the following circumstances:

 . . .

2.      No gift of cash shall be accepted other than a political contribution otherwise reported by law.

3.     No gift shall be accepted by a County official or employee for performing an official duty or service or as an incentive to perform an official duty or service unless the gift is a public and commemorative gift of de minimis value² in honor of public service or unless the gift is tendered by a governmental source or association of governmental sources. The commemorative gift shall be promptly recorded in a public gift log.

4.     Gifts of greater than negligible value³ from entities doing business with, regulated by, or which may be reasonable foreseen to do business with or be regulated by the County within the next three years, with the exception of gifts described in subsections I(5)[ticket of attendance less than $101], I(6)[ticket of attendance more than $101.00], and I(7)[training expensed from government] of this Division, shall not be accepted by officials, employees or governmental departments unless a prior Advisory Opinion is sought from the Ethics Commission regarding compliance with the Code of Ethics. Any such gift or donation of other than negligible value which is accepted following the receipt of an Opinion of the Commission shall promptly be recorded by the recipient in a public gift log. [Bracketed information added.]

 

            Section 2.03.104(I)(1) permits employees and officials to accept gifts "that do not have any market value as presented or any reasonably foreseeable future monetary value, such as a card, plaque or framed certificate with the recipient's name inscribed, or a child's drawing."

 

Prior Commission Opinions

 

            The 2006 gift law ordinance memorialized the reasoning and findings of the Ethics Commission's Advisory Opinions issued between 1991 and early 2006 but added some new and specific rules, recited under Code sections, 2.03.204 (H) and (I), noted above. Prior to the enactment of those more detailed 2006 gift rules, the Commission, through its opinions, had permitted an employee or official to accepts gifts of an aggregate value of under $75.00 dollars per donor per year under two conditions: 1) as long as the gift was not intended or accepted to improperly influence the recipient, and 2) the gift did not create an appearance impropriety in the mind of the public. Subsequent to the changes created by the April 2006 ordinance, the $75.00 value is no longer pertinent to a consideration of whether a gift violates the Code of Ethics but the influence and appearance considerations are now included in the County Code.

 

            In many of the pre-2006 cases, authority to accept any gift turned on whether the recipient or his agency was in a regulatory, contractual and/or business relationship with the donor. In Advisory Opinion 96-06 an employee was prohibited from accepting an invitation valued at $100.00 for a social function of a trade association because the employee exercised regulatory control over its members. In Advisory Opinion 97-03 an employee was prohibited from accepting a ticket for a sporting event from a business regulated by his department. In Advisory Opinion 04-08 an employee who had authority to affect future contractual relationships was not permitted to accept a complimentary registration from a County vendor to a conference which included presentations about the vendor's products. In Advisory Opinion 05-14 an employee was not permitted to accept a monetary gift from a business which was a recipient of County emergency service because the employee was paid by the County for his conduct. In that matter, the employee was permitted to accept a plaque from the business and the business made a donation to a charity of its choice in the employee's name. In Advisory Opinion 06-07, the only relevant post April 2006 Opinion regarding gifts, the Commission authorized an employee to accept a gift of negligible value (under $25.00) from a vendor because the employee neither had nor ever would have authority to affect the business relationship between the County and the vendor.

            The request in this case is controlled by Section 2.03.104(H) (2), (3), and (4) and the reasoning of those Opinions. Section H(2) prohibits the employee from accepting any gift of whatever value if it is cash (or cash equivalent, i.e., gift cards, money orders, checks, savings bonds, bank accounts, etc.).

 

            Furthermore, Section H(3) prohibits an employee from accepting a gift for performing County functions. In this case the County paid the employee for her County services to the non profit and her personal, volunteered duties were intertwined with those County duties and indivisible in outcome. Acceptance of a gift under these circumstances would create the appearance either that she was being paid for some of her County duties or that she was using her County position and resources for personal financial advantage.

 

            Finally, and perhaps most importantly, the donor maintains a current contractual relationship with the employee's County department and interacts directly with the employee in her County status. Certainly, if the employee accepted a monetary gift from the non-profit, a reasonable member of the public would believe that this employee could not exercise her duties impartially as far as this non-profit was concerned. Acceptance of a gift under these circumstances would transgress the rules established in the pre-2006 Opinions and violate the intention underlying the whole of Section 2.03.104(H).

 

            It is understandable that the employee is highly regarded by the non-profit because of her admirable and selfless devotion to its charitable purpose. The Commission suggests that the New Castle County Ethics Code would not be contravened if the process described in Advisory Opinion 05-14, discussed above, were followed: the employee could accept an inscribed plaque of de minimis value and the non-profit could make a financial contribution to a charity of its choice in honor of the employee. However, Commission authority extends only to the County employee and this suggestion may be rejected by the non-profit. It is offered only because the Commission appreciates the non-profit's reasonable desire to demonstrate its gratitude to the employee.

            The employee would violate the gift provisions of the Code of Ethics and create an appearance of impropriety if she accepted a monetary gift from a non-profit which does business with the County for activities which were intertwined with and indivisible from the duties for which she received payment from 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. The Commission cautions, however, that each County department, board, or other unit of County government is free to, and may impose as part of its own policy, additional or greater restrictions on its officials and employees than those set forth in this Opinion.

 

            BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS 13^th DAY OF FEBRUARY, 2008.

 

_________________________________

John McMahon, Chairperson

 

Decision: Unanimous Reconsideration request submitted 7/8/09 - DENIED