Whether the Ethics Code permits the County administration to sell advertising space on its website and other County assets and, if permissible, whether such advertising must be restricted in any way?
Conclusion:
The Ethics Commission does not have jurisdiction to decide whether advertising on the County's website or on its other assets is in the public interest and must accept the Executive's or the Council's conclusion on that question. However, the conduct of officials or employees charged with implementing a decision to make such advertising available is subject to the prohibitions enacted in the Ethics Code, such as those against endorsing the interests of a private entity, creating an appearance of improper favoritism, or degrading the County's image and credibility. Therefore, acceptable use policies on the source, type, form and content of such advertising must be formulated by the Administration or Council in order to avoid violation of the Code. Once those restrictions are drafted, the Commission can review the policies and provide guidance in accord with the Ethics Code.
Facts:
County Council passed a resolution requesting that the administration look into the possibility of raising funds by making advertising space on the County website available to the public. The Administration is also considering whether to sell advertising on other County assets.
Code or Prior Opinion:
Code provisions
New Castle County Code Section 2.03.101 defines the purpose of the Ethics Commission as providing guidance to public officials and public employees regarding the minimum standards of ethical conduct and financial disclosure established by the Ethics Code. It is charged with promoting public confidence in government by assisting those officials and employees to comply with their responsibilities under the Code.
The Ethics Code's conduct rules in Code Section 2.03.104 recite prohibitions affecting the conduct of individual officials and employees when personal financial conflict is not at issue. Subsection (A) prohibits exercise of official authority which creates an appearance that the decisions or actions of a County official or employee or his or her department are influenced by factors other than the merits of the matter for decision. This prohibition exists because such conduct violates the public trust by undermining public confidence in the impartiality of the governmental body with which the employee or official is associated.1
The standard for judging the creation of such an appearance 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). In determining the relevant circumstances, the courts advise the Commission to look at the totality of facts. The Commission has long applied this standard to the conduct of County officials and employees.
New Castle County Code Sec. 2.03.104 (J)(1) prohibits solicitation from entities which do business with or are regulated by New Castle County with the exception of solicitation which is conducted pursuant to written County policy that identifies the public benefit for the approved cause.2
Prior Commission Decisions
Past Commission interpretation of the Code of Ethics has permitted solicitation activities by County employees under restricted circumstances but the prior opinions, except for two recent ones, predate the solicitation law enacted in 2006 (Code Sections 2.03.104 (H), (I), and (J)).
Those older opinions involve situations in which the official or employee is seeking donations on behalf of a private charitable enterprise. In most of those opinions the Commission analyzed questions of the appropriate boundaries between the County status of the employee or official and the targeted entity. See, e.g., Advisory Opinions 96-07 and 93-02. Also of note is Advisory Opinion 01-08, in which the Commission required an employee to avoid personally soliciting funds from entities for which he directly performed County services. It required him to minimize any appearance that a party being solicited would receive favorable treatment from the County or feel compelled to donate because of the employee's County status by prohibiting the employee from signing any direct written solicitation to persons regulated by his department and requiring him to avoid mention of his County department in oral or written solicitations.
In Advisory Opinion 95-02, the Commission addressed the question of the appearance of favoritism in addressing whether a County agency could co-sponsor an educational seminar with one of the private users of the agency. The Commission found while the agency could participate in the seminar, co-sponsorship would violate the Code by creating an appearance of impropriety. "The agency's cosponsoring of a seminar with one of the several private entities which must conduct business with the agency creates the appearance of a cozy relationship between the Sponsor and the agency, thereby enhancing Sponsor's public image. This appearance would engender in the public a perception that the agency favors Sponsor over its competitors or officially sanctions Sponsor's activities."
The first of the more recent Opinions issued pursuant to the 2006 solicitation rules, Advisory Opinion 06-09, addressed the concern that successful solicitation by the County would create an appearance that a donation would result in a special benefit to or preference for a donor. The Commission determined that new Code Section 2.03.104(J) permitted solicitation of entities which do business with or are regulated by New Castle County when a number of restrictive conditions were fulfilled, including a written County policy describing the solicitation's benefit for the public and requiring prior Commission review.3
The second opinion, Advisory Opinion 07-08, is more relevant to the issue raised by this request. It involved a proposed contract between the County and a vendor in which the County would receive the use of a dedicated cable access television channel in exchange for its agreement to permit the vendor to solicit and retain all funds from entities wishing to advertise on that channel. The proposed contract avoided the pitfalls described in the pre 2006 opinions because all solicitation and exchange of money was to be handled by the vendor's employees, not the County employees. The concerns about the appearance of favoritism were ameliorated by the use of a written and broadcast notice to all potential advertisers against the expectation of preferential services. Finally, the County's image and reputation were protected by use of a number of restrictions regarding the type of advertiser permitted, as well as the content and form of the message, such as prohibiting political advertising and use of Public Broadcasting advertising standards.4
Analysis:
The Code does not give the Ethics Commission authority to decide whether the sale of advertising on County assets is in the public interest or to draft an acceptable use policy regarding the sale of advertising. Those tasks are solely within the jurisdiction of the Administration or Council. The Commission is limited to deciding whether the proposals advanced by the Administration or Council comport with Ethics Code provisions.
If the Administration or Council balances the question of the money for the sale of advertising against the erosion of the County's image of impartiality, a risk of appearing to endorse businesses that can afford to advertise, or degradation of the County assets themselves and decides that the sale of advertising space is in the public interest, it must examine the nature of restrictions necessary to avoid an appearance of impropriety and draft an acceptable use policy.
The Code gives the Commission authority to review that policy. In the interest of assisting the Administration or Council to comply with the Code if they choose to sell advertising, subjects additional to those considered in Advisory Opinions 06-09 and 07-08, may be considered when developing an acceptable use policy: First Amendment considerations about the County's control of the content of the advertising; termination rights for the County; identification of which assets should be involved; whether the solicitation for advertising should be outsourced; whether advertisers who are in arrears in making payments to the County or cited for violations of Code or other laws should be excluded; whether a limitation on the amount of revenue, either in dollar value or by percentage, from any one advertiser or categories of advertisers, should be considered; whether the particular advertisement under consideration is consistent with the place and use for which it is proposed; whether businesses and their agents which are subject to Land Use Department regulation should be excluded because of adverse public perception about impartiality; whether all political advertising should be prohibited; whether particular types of advertising would cause offense to certain members of the public (inherently dangerous products, guns, tobacco, alcohol, abortions, religion, pornography, etc.) should be excluded; whether a disclaimer should be added to each advertisement and in what size; whether links to the advertiser's web site should be included if the business' service or products advances the goals of County government or excluded if they do not; whether logos or product pictures should be permitted or disallowed; whether pop-ups, interactive, or audio ads should be permitted; whether the proposed advertising in content or form distracts from the County's message.
Careful consideration of these and other restrictions may aid in avoiding a perception that County government is for sale and increase public confidence that the County government conducts its business in a fair and impartial manner and in the public interest. If and when an acceptable use policy is drafted, the Ethics Commission will promptly review it in detail and provide specific guidance.
Finding:
The Ethics Commission does not have jurisdiction to decide whether advertising on the County's website or on its other assets is in the public interest and must accept the Executive's or the Council's conclusion on that question. However, the conduct of officials or employees charged with implementing a decision to make such advertising available is subject to the prohibitions enacted in the Ethics Code, such as those against advancing the interests of a private entity, creating an appearance of improper favoritism, or degrading the County's image and credibility. Therefore, acceptable use restrictions on the source, type, form and content of such advertising should be formulated by the Administration or Council in order to avoid violation of the Code. Once those restrictions are drafted, the Commission can review the policies and provide guidance from the Ethics Code.
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 10th DAY OF JUNE 2009.
______________________________
Thomas P. Collins, Chairperson
Decision: Unanimous
Footnotes:
1 New Castle County Code Sec. 2.03.104. Code of conduct, in pertinent part:
. . .
A. No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.03.103(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 an appearance that the decision or action of the County employee, County official or governmental body are influenced by factors other than the merits.
. . .
2 New Castle County Code Section 2.03.104(J) states:
J. Solicitation.
1. Solicitation from entities which do business with or are regulated by New Castle County are prohibited unless such solicitation is pursuant to New Castle County written policy decision and for the benefit of the public.
3 Advisory Opinion 06-09 stated:
From the standpoint of the Ethics Code rule against creating an appearance of impropriety, the Commission believes that if restrictive conditions are imposed, improper expectation and coercion can be minimized to a degree whereby the reasonable County citizen would not conclude that a donation to the Ice Cream Festival is coerced or would return an unfair benefit to the donor. If the restrictions are accepted, solicitation may be undertaken. Those conditions are: the Executive must comply with the ordinance by issuing a written policy authorizing the solicitation for the Ice Cream Festival which identifies the public benefit; cash donations shall not be accepted; there can be no public or private identification of the donors as joint sponsors [this restriction does not preclude public acknowledgement of donations]; a written solicitation, emphasizing the voluntary nature of the contribution and the absence of any effect on current or future County relationships, should be made to all potential appropriate donors by the County Executive on behalf of the citizens of the County; a donor must provide written corroboration identifying and valuing the donation at the time it is made; the employee or official who accepts the donation may not have provided, and his or her department may not provide in the reasonably foreseeable future, direct services for the donor ; a contemporaneous public document is maintained which lists the donors, type and value of all donations.
4 For example, requests for advertising space would not be accepted from liquor stores, bars, manufacturers of alcohol, tobacco, or firearms, adult bookstores, political parties, or gambling entities. However, the 15 second long advertisements would allow individuals or business to promote their product, service or company without reference to price, calls to action, or third party reviews.
