Whether an official violated the Ethics Code by accepting gifts of substantial value from subordinates.

 

 

          The official did not violate the Ethics Code in exchanging gifts of equal value with personal friends and accepting four group gifts of substantial value from other subordinates. The individual members of the groups giving the gifts contributed under $75.00 each, the gifts were given on traditional ceremonial occasions, the donors reported that they were not pressured to make contributions, the gifts were not intended and were not shown to affect the conduct of the official in regard to County duties.

 

 

          A timely filed a Statement of Financial Interests revealed that the official had accepted three individual gifts from subordinates valued in excess of $200.00 each and four group gifts from other subordinates valued in excess of $500.00 each in the preceding year. An investigation revealed that the official had a practice of exchanging gifts with the individual donors and that the value of the gifts exchanged were approximately equal. The individual donors reported that the gifts reflected long-term personal friendship and that there was no pressure to exchange gifts. All of these persons emphasized that the exchange of gifts had no relation to or affect on their County employment

 

          A number of the members of the groups who provided gifts were contacted and reported that the value of their individual contributions to the group gifts was generally well under $75.00, that they were not pressured to contribute and that there was no intent or affect on their employment status. Some persons stated that they had received gifts of equal or greater value from the official at other times.

 

          The official was also interviewed and confirmed that none of the gifts in question were cash, that the individual gifts were part of a long standing pattern based on personal friendship, that the group gifts were received on traditional ceremonial occasions such as Christmas or birthday,¹ were estimated to be in the $30.00 to $50.00 or less per person range, and that the official had given gifts of equal or greater value to many of the persons in those groups on similar occasions during the year.

 

 

          The New Castle County Ethics Code has two main provisions: conflict of interest and appearance of impropriety.

 

 

          The conflict of interest provision, New Castle County Code section 2.03.103 A (1), states in pertinent part:

 

(1) No County official or County employee 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 . . .

 

          A conflict of interest is created when an official accepts anything of value offered for the purpose of influencing the official's official action or judgment. In such a situation, an official breaches the public trust by advancing his or her own personal interests at the expense of the public good.

 

          The Ethics Code defines a "gift" in section 2.03.102 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." When a gift is offered or accepted for an improper purpose, the value of the gift is not material. In Advisory Opinion 91-07, the Ethics Commission advised that any gift intended or appearing to influence official conduct is in violation of the Code, but that it would presume that gifts which do not exceed $75.00 in value per year per donor were not intended to exert such influence, absent factual circumstances to the contrary. The Opinion noted that any gift, of whatever value, had to be reported to the employee's or official's superior and that any unit of County government was free to impose a more restrictive policy on acceptance of gifts.

 

          The Ethics Code, at section 2.03.107 B(7), requires an official or employee who receives gifts valued at $200.00 or more in the aggregate to report those gifts to the Ethics Commission on a Statement of Financial Interests form. Gifts from a spouse, parent, parent by marriage, sibling, child, grandchild, or other family member are excepted when the circumstances make it clear that the motivation for the gift was a personal or family relationship. Reimbursement of expenses from a governmental body or association of governmental bodies is also excluded from the reporting requirement.

 

          At the time the official filed the report of the gifts, the County Human Resources Department had personnel policy 5.04 in force, a "zero gift tolerance" policy which was not interpreted to prohibit gifts between employees and officials, but extended only to gifts offered by persons from outside County government. That policy subsequently has been revised and now expressly permits exchanges of gifts between employees of a value under $75.00 which do not have the purpose of influencing the recipient's official conduct.²

 

          The approximately equal exchanges between the official and the individual donors were not "gifts" for the purposes of the Ethics Code and do not implicate the Code's conflict of interest provisions. Furthermore, the investigation showed that the gifts from the groups at Christmas and on the official's birthday were not the result of improper pressure, did not occur under circumstances reflecting an intent or effect of influencing the official's employment conduct toward the subordinates, and appeared to be within the $75.00 per person per year limit. Under these conditions, the official cannot be shown to have used the authority of office for personal or private benefit and a conflict of interest did not exist.

 

 

          The remaining issue is whether acceptance a group gift of such substantial value from subordinates creates an appearance of impropriety. Such an appearance can exist even where there is no conflict of interest and no wrongdoing on the part of an official. New Castle County Code section 2.03.104A states:

 

No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.02.103(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 a appearance that the decision or action of the County employee, County official or governmental body are influenced by factors other than the merits.

 

          The standard for judging appearance of impropriety 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). The Commission believes that standard is equally applicable to the conduct of elected officials.

 

          In determining the relevant circumstances, the courts advise the Commission to look at the totality of facts. In this case the totality of facts are that the acceptance of a gift from subordinates was and is not currently prohibited by County administrative rules, that the value of the individual contributions to the group gifts appears to be under $75.00 per donor per year, that some of the donors received gifts of equal or greater value from the official on other occasions during the year, that the group donors were not coerced to contribute, and that no effect on County employment was expected or occurred as a result of the gifts.

 

          The Commission concludes that a reasonable person, with knowledge of these facts, would not perceive an appearance of impropriety on the official's part or inability to conduct the duties of office in a fair and responsible manner. The Commission finds no violation of the New Castle County Code of Ethics in the official's acceptance of the reported gifts. The complaint is dismissed.

 

 

____________________________

Dennis S. Clower, Chairperson

 

Decision: Unanimous