An official has asked whether he may accept two complimentary tickets valued at $60.00 each from a non profit civic organization to attend a publicly advertised holiday celebration sponsored by that organization.

            The official may accept the tickets from the non-profit since he does not have any financial interest in the entity, the non-profit does not do business with nor is it regulated by the County and, in light of the value of the tickets and under the circumstances reported, a reasonable member of the public would not believe that acceptance of the tickets would impair the official's independent judgment or that the official was using his public office for private gain.¹

            An elected official has been offered two $60.00 complimentary tickets by a non-profit civic organization to attend its holiday celebration event which will take place in the evening. If he attends, he will not be required to perform any official County duties. The civic group once received a very small County grant for community activities but is not a current grantee and has no applications pending before the County. The broad scope of its community activities are outside any area of County authority or concern.

            The Code provisions relevant to this request are the definition of "gift" and the conflict of interest and appearance of impropriety provisions.

           

            The New Castle County Ethics Code, at Section 2.03.102, defines gift as "anything that is received without consideration of equal or greater value. The term "gift" shall not include a political contribution otherwise reported as required by law or a commercially reasonable loan made in the ordinary course of business."²

 

Sec. 2.03.103. Prohibitions relating to conflicts of interest states:

 

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).

 

Sec. 2.03.104. Code of Conduct states:

 

A.     No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.03.103(A) (1), 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.

 

 

            The Commission's seminal Opinion on the acceptance of gifts is found in Advisory Opinion 91-07 (reissued December 9, 1992). In the Opinion, the Commission recognized that gifts which exceed "modest limits" may be viewed as a means of ingratiating the donor with the recipient and defined a "modest" gift as one valued at $75.00 or less per year per donor. It reasoned that, absent suspicious circumstances, a gift below that amount was probably not intended to improperly influence employee or official, while gifts of higher value had to be evaluated individually to determine whether the recipient was in a position to take any official action which would be of direct interest to the donor. The Commission further held that gifts given to members of an official's or an employee's immediate family as a result of official or employee County status would be considered to be a gift to the employee or official. Finally, it required that all gifts must be disclosed to the recipient's department head or superior and that each unit of government should establish a simple procedure for the disclosure of such gifts. In Advisory Opinion 05-09, the Commission found no appearance of impropriety in the acceptance of complimentary tickets exceeding a modest value which were extended for a publicly advertised event. The Commission reasoned that numerous other attendees representing a broad cross section of the public were similarly invited, the value of the invitation was not at a level which created a sense of obligation in the recipient or concern on the part of the reasonable person, attendance created a public benefit in the opportunity for County government to disseminate and exchange ideas with the citizens with little cost to the taxpayer, the advertised and open nature of the event limited private contact with the donor, the Ethics Commission had an opportunity, in advance, to assess whether an improper appearance would be created, and the official timely reported the receipt of the gift in a document available to the public.

             The Ethics Code provisions necessarily come in to play in the acceptance of a gift of any value. In this situation there are no reported circumstances evidencing a conflict of interest, an intent by the official to use his County office or authority to improperly enrich his personal financial interests or a business with which he is associated. However, the analysis of acceptance of the gift does not end with a consideration of the conflict of interest rule. The Code demands that official conduct must also meet the test of not creating a situation in which a reasonable person would believe that the use of official authority was based on factors other than the merits of the decision or action before the official or employee.

 

            Like the conflict of interest analysis, this prohibition must always be considered when the question is the acceptance of any gift, modest or of greater value. The standard used by the Commission for judging whether an appearance of impropriety would be created is one that has been developed for judicial public officials and 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 determining the relevant circumstances, the courts advise the Commission to look at the totality of facts. In re Williams, 701 A.2d 825, 832 (Del. Super. 1997). That standard is equally applicable to the conduct of County officials and employees. Advisory Opinion 05-06.

 

            In this matter, the two tickets are a gift which exceeds the modest value defined in Advisory Opinion 91-07. However, the tickets are of a relatively low value, the official did not seek them and the gift was offered by a non-profit community organization which represents the interests of a broad cross section of his constituents and does not have business pending before him. The totality of circumstances here reveals that although the official was offered the tickets because of his County status, he will be attending at a time when he could have chosen to attend to personal activities. The Commission is also aware that such invitations are properly tendered to public officials in good faith in order to familiarize them with specific community activities and exchange community concerns and viewpoints and that acquiring such knowledge will benefit County taxpayers without any associated cost. Under these particular circumstances, the Commission believes that the official's ability to carry out his County duties with integrity, impartiality and competence would not be impaired by the acceptance of the two tickets and that the reasonable person would believe that an invitation of this limited value would not affect the official's exercise of independent judgment in regard to the donor.