Whether a conflict of interest or appearance of impropriety would be created if an employee of the Land Use Department accepted used brick from a contractor who was operating under a permit from that department.

             The Ethics Code would be violated if the employee accepted the gift of salvage from an entity he regulates. Since the employee's knowledge of the existence of the salvage items stems from his position in the Land Use Department and he is in a position of direct regulatory authority over the owner of the bricks, acceptance of any gift would create an appearance that its receipt would impair the employee's judgment. Acceptance of the salvage also would violate his Department's policy on gifts.

             The requester wants to receive salvaged bricks from a construction project operating under a permit from his Department. He personally has direct regulatory authority over the project. He states that the salvage material is generally destined for a landfill and that 100 such bricks would be valued at $20.00 or under.

Code Conflict Provisions

 

            No County official or employee is permitted to use his or her status as a County employee or the authority of his or her County office for his or her own private benefit.¹ However, there are certain circumstances in which an employee may accept a gift from a member of the public, as long as no improper appearance is created.² In the case of a donor who, as here, is regulated by the County, the value of the gift may not exceed $25.00. The gift must also meet two other criteria: a determination that the gift does not create the reasonable perception in the public that the vote, official action or judgment of the recipient would be influenced or impaired; and recordation in the Public Gift Log maintained by his Department.

 

Code Conduct Provisions

 

            Every County official and employee must consider the ethical rule stated in the Ethics Code of Conduct, Sec. 2.03.104(A)(1), and restated in the regulations regarding gifts, Sec. 2.03.104 H, which prohibits the creation of an impression in the reasonable member of the public that the official or employee's official action is affected by personal interests which impair his or her competence, integrity and honesty, or that his agency or department will look as though it is showing partiality in a matter. An improper appearance is created when a reasonable member of the public "with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, [would hold] a perception that the official's ability to carry out [official duties] with integrity, impartiality and competence is impaired."³

 

Prior Commission Opinions

 

            The only relevant prior opinion regarding gifts of salvage materials was Advisory Opinion 04-04, issued April 14, 2004. In that case a Department of Community Services employee was permitted to accept a gift of salvage building materials because she did not gain the information about the availability of the material as part of her job, she had only ministerial contact with the owner of the salvage, and her desire to accept the material had been approved by her supervisor. The current gift law section of the Code was not enacted until 2006.

 

Department Policy

 

            The employee's Department has a gift policy which is more stringent than that imposed in the Ethics Code and which states that "no gift shall be accepted by a New Castle County employee from any member of the public when the gift is given as a result of contact created by a New Castle County business relationship." Land Use Policy No. 1.1.04.⁴

             Although the New Castle County Code discourages employees from accepting gifts from the public, it permits an employee to accept a gift from a County regulated entity valued at under $25.00 and recorded in the employee's Department's gift log, as long such acceptance does not create the reasonable perception that the official action or judgment of the employee would be influenced or impaired.

 

            In this case, unlike AO04-04, the requester obtained knowledge of the availability of the material during the course of the performance of his County job and he is in the line of direct County authority over the salvage owner's construction project. In these circumstances, acceptance of any gift by the employee would create a reasonable perception in a member of the public that the employee's judgment would be impaired. In addition, the employee's Department maintains a policy against the acceptance of any gifts by its employees, a policy which is more restrictive than the Ethics Code gift rules.

             The Ethics Code would be violated if the employee accepted the gift of salvage from an entity he regulates. Since the employee's knowledge of the existence of the salvage items stems from his position in the Land Use Department and he is in a position of direct regulatory authority over the owner of the bricks, acceptance of any gift would create an appearance that the gift would impair the employees' judgment. Acceptance of the salvage also would violate his Department's policy on gifts.

 

            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.

 

 

______________________

Thomas P. Collins, Chairperson

 

Decision: Unanimous