Whether a conflict of interest would exist or an appearance of impropriety created if a County employee accepted a gift of a shirt, hat or tickets from a vendor if the employee had no authority to affect County business relationships with the vendor.

            It would not violate the Code of Ethics if the employee accepts a gift of negligible value from the vendor under the described circumstances but the employee must also comply with the arguably more strict administrative personnel policy 5.04 and conform his conduct to the subsequent decision of the General Manager of his department.

            The employee making this request picks up supplies from a County vendor as part of his County duties. The employee has no input into the selection of the vendor or any County authority relating to the vendor aside from receiving the contracted goods. The vendor periodically offers small gifts to the employee such as shirts, hats, or tickets, and the employee wants to know whether acceptance of a gift would violate the Ethics Code. The Commission assumes the following facts: the gifts of shirts or hats are of negligible value, worth less than $25.00 each¹; the gifts serve to advance the advertising interests of the vendor; the employee only intends to accept only gifts with an aggregate value under $25.00, the employee does not intend to use or wear the vendor's gifts in a public situation in which he is in official status. The Commission has no information about the value of the tickets. 

 

            The conflict of interest rules at New Castle County Code Section 2.03.103(A)(1) prohibit the use of official authority by a County official "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." ² The Code's conduct rules at Section 2.03.104(A) recite a prohibition on conduct creating an appearance that the decisions or actions of a County official are influenced by factors other than the merits of the matter for decision, thereby undermining public confidence in the impartiality of the governmental body with which the official is associated.³ 

 

            In the case of gifts, these conflict and appearance rules are further refined by New Castle County Council's new gift ordinance, #06-022, signed into law April 3, 2006, which prohibits acceptance of gifts of greater than negligible value from entities doing business with or regulated by the County, with limited exceptions.4  New Castle County Code Section 2.03.104 (H) states in pertinent part:

 

 

            Ordinance 06-022 is expressly conditioned on the right of elected officials to establish more stringent gift rules for their appointees and employees. Code Section 2.03.101 states in relevant part: "(D). This Division is intended to establish a minimum standard for ethical conduct and financial disclosure. Elected officials may superimpose conduct rules for officials and employees which are more strict, but not less strict, than these minimum standards. The Ethics Commission has jurisdiction to decide whether superimposed rules fall below the minimum standards expressed in this Division."

 

 

            New Castle County administrative personnel policy 5.04, defines a "gift" as "any gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other item having monetary value . . .". The policy states that an employee may not solicit or accept any gift "from a vendor or supplier or offered to promote a product or service." However, it also states that the definition of gift does not include "items of a de minimus value such as . . .t-shirts, mugs, hats . . . and other unsolicited advertising or promotional items." It is not clear whether this exclusion applies to items from vendors. That policy also recognizes "that there may be rare circumstances where it is permissible for an employee to accept a gift or benefit. In such circumstances: a) approval must be obtained from the department general manager or row officer, and the Exception to Personnel Policy 5.04 Form shall be filed within 48 hours to fully disclose the specific exception; . . . c) questions regarding whether the gift is an exception to this policy shall be decided by the department general manager or row officer. If the department general manager or row officer is unable to make this decision, the New Castle County Ethics Commission shall be contacted for an advisory opinion." Interpretation of County administrative policy must be made by the Administration and is not within the competency of the Ethics Commission.

 

 

            Prior to the enactment of Ordinance 06-022 on April 3, 2006, the Commission permitted an employee or official to accept gifts with an aggregate value of $75.00 per donor per year as long as the gift or gifts were not intended or accepted to improperly influence the recipient and did not create an appearance of impropriety in the public. A gift or gifts in excess of $75.00 were deemed a matter for the Commission to examine prior to acceptance. Acceptance of a gift of any value had to be reported to the appropriate supervisor. See Advisory Opinion 91-07 (December 9, 1992). Subsequent to April 3, 2006, and the enactment of Ordinance 06-022, the $75.00 value consideration is no longer pertinent to a consideration of whether acceptance of a gift violates the Code of Ethics.

            The Commission believes that the best practice for any employee or official is to decline any gifts from entities regulated by or doing business with the County since refusing such gifts encourages and reinforces trust in the public that its government is conducting itself with impartiality and fairness in all its business relationships. However, although Ordinance 06-022 discourages acceptance of gifts, it does not absolutely prohibit the receipt of gifts of negligible value (under $25.00) from a vendor. The ordinance merely bars such a gift from a vendor when the offer of the gift results in a conflict of interest - the exercise of official authority for personal or private benefit - or when the acceptance of the gift creates a perception in the public mind that receipt impairs the individual's ability to carry out official duties with integrity, impartiality and competence.

 

 

            In this case, the potential gifts, excluding the tickets, are assumed to be of negligible value. The Commission has insufficient information about the tickets and cannot include them in this analysis. If the tickets exceed a negligible value, they are prohibited by Section 2.03.104(H)(4) unless they fall within the non-profit exceptions described in I(6) or I(7). The employee has not sought these gifts, has not used his County position to extract the offer, and possesses no influence in the present County business relationship with the vendor, and is not expected to have any in the reasonably foreseeable future. Although a hat or shirt would financially benefit the employee in a personal sense, the value is very small and the Commission finds no improper motive in the donor or receiver and no conflict of interest created by acceptance.

 

            The more difficult question is whether the acceptance of any gift from a County vendor, an entity expected to continue to seek a business relationship with the County in the future, creates a perception of impropriety in the public mind. The Commission judges whether an appearance of impropriety would be created using the standard developed by the courts for judicial public officials which has been described 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 looking at the totality of facts. In re Williams, 701 A.2d 825, 832 (Del. Super. 1997); Advisory Opinion 05-06. In this case, since the employee has no authority to affect the business relationship between the County and the vendor and the value of the hats or shirts is within the definition of negligible, the Commission does not believe the public would find that the employee's integrity, impartiality or competence would be impaired by acceptance.

 

           However, if the employee establishes a pattern of routinely or repeatedly accepting such gifts from this or any other vendor, purveyor of services to the County, or entities regulated by his department, the Commission will have to reconsider its finding regarding both conflict of interest and appearance of impropriety in relation to that individual.

 

            Additionally, in this case the question of whether the employee may accept the vendor's gift does not end with the decision of the Commission regarding the Ethics Code. That is only the first step because Administration personnel policy 5.04 superimposes an arguably more strict gift rule on employees. Pursuant to the Ethics Code and that policy, the employee must also consult the General Manager of his department before accepting a gift from a vendor.

            It will not violate the Code of Ethics if the employee accepts a gift of negligible value from the vendor under the described circumstances but the employee must also comply with the arguably more strict administrative personnel policy 5.04 and follow the direction of the General Manager of his department.

 

 

______________________

John McMahon, Chairperson

 

Decision:  Unanimous

 

Decision:  Unanimous