Whether a County Department may accept a complimentary registration from a vendor who is sponsoring a conference in which the vendor's new products are showcased.

             Acceptance of a complimentary registration from the sponsor of the conference would create an appearance of impropriety since the sponsor is a current vendor, the conference will include presentations about the vendor's new products, and the department has the authority to affect the County's future contractual relationship with the vendor.

            A County department has requested guidance on whether it may accept a gift of a complimentary conference registration from a for-profit vendor which is sponsoring a conference which is of interest to the department. The conference is open only to users of the vendor's products and the County is sending a number of employees at County expense. One employee of the County's choice may have the substantial registration fee waived by the vendor.

 

            Most of the information to be provided at the conference involves updates on the vendor's current systems, changes in the systems, feedback to the vendor, and sharing information among the users of the products. However, the vendor also uses the conference to present new products to the attendees. Although the County department making this request does not execute contracts with the vendor, it has significant input into and participation with the executing department about the purchase of products used by the department.

Code provisions

 

            The New Castle County Ethics Code Section 2.03.103 conflict of interest provision prohibits using official authority for the personal or private benefit of the official or employee.¹ There is no issue of conflict of interest raised in this request for guidance because there is no potential for personal or private pecuniary benefit for an official or employee on the facts asserted.

 

            New Castle County Ethics Code Section 2.03.104 (A) prohibits conduct which undermines public confidence in the impartiality of a governmental body with which a County official or employee is associated by creating the appearance that the official actions and decision of the employee or department are influenced by factors other than the merits.² In this matter, acceptance of the complimentary registration would be made by an official or employee acting in official capacity on behalf of the County department and the appearance of impropriety standard is applicable.

 

 

            In Advisory Opinion 04-08, the Commission reviewed precedent in relation to a request from an individual from the same department who was offered a complimentary registration from the same vendor for the same conference. After reviewing previously issued opinions, the Commission determined that accepting the complimentary registration would create an appearance of impropriety because the employee had the authority to affect the future contractual relationship between the County and the vendor.

             The Commission believes that the standard for judging appearance of impropriety for judicial public officials, which 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." is equally applicable to the conduct of the County through the official acts of its officials and employees. 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 rationale expressed in Advisory Opinion 04-08 about the appearance created by acceptance of the complimentary registration by the employee is equally applicable here to acceptance on behalf of the County department. As stated in 04-08, "A reasonable competitor may well believe that [the vendor] is using the waiver of the fee to influence the County in its favor and that a future award of a contract to [the vendor] may be influenced by goodwill generated from the gift and not strictly on the merits of the product."

             Under the circumstances described in this request, acceptance of the complimentary registration would create an appearance of impropriety and violate the New Castle County Code of Ethics.

 

            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.