Whether The County administration may accept services and funding from a nonprofit organization to create and distribute educational material for the benefit of the public.
Conclusion:
The Administration may accept the services and funding from the nonprofit for the benefit of the public since the nonprofit does not have a business or regulatory relationship with the County and the gifts would not create an appearance of impropriety in the mind of the reasonable citizen.
Facts:
The requester is a member of the Executive branch. She states that a nonprofit organization, which does not do business with nor is regulated by the County, has offered to assist the County in creating a booklet and to distribute information about County services available to a certain segment of County residents. The booklet would be distributed free of charge and contain a disclaimer that the County does not endorse or support the nonprofit.
Code or Prior Opinion:
Ethics Code Provisions
The New Castle County Ethics Code at Section 2.03.104 permits a County official or employee to accept gifts made to the public under certain conditions.
I. Gifts which may be accepted.
. . .
2. Gifts made to the people of New Castle County may be accepted by a representative or agent of County Government as long as the gift does not create an appearance of impropriety. Such a gift shall not become the property of or be attributed to the representative or agent. The gift shall remain in locations controlled by New Castle County. Any such gift shall be promptly recorded in a public gift log.
New Castle Ethics Code Section 2.03.104A prohibits conduct which undermines public confidence in the impartiality of a governmental body with which a County employee is associated by creating the appearance that the official actions and decisions of the employee or department are influenced by factors other than the merits.
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." 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.
Prior Advisory Opinions
In Advisory Opinion 10-10, November 10, 2010, the Commission held that a representative of County Council could accept a gift made to the people of New Castle County since the acceptance of the gift did not create an appearance or expectation of favoritism for the donor and the gift would be recorded in a public gift log.
Analysis:
The requester made a short presentation to the Commission and provided examples of the proposed brochure. She demonstrated that the disclaimer would be in a prominent position and estimated the value of the nonprofit's contribution. She stated that the gift would be recorded in a public gift log. The Commission determined that the gift was of the type that could be accepted for the benefit of the public and did not create an improper appearance.
Finding:
The Administration may accept the services and funding from the nonprofit for the benefit of the public since the nonprofit does not have a business or regulatory relationship with the County and the gifts would not create an appearance of impropriety in the mind of the reasonable citizen.
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.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS 11th DAY OF APRIL 2012.
______________________
Gerald Turkel, Chairperson,
New Castle County Ethics Commission
Decision: Unanimous
Footnotes:
1New Castle County Code Section 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 2.02.103(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.
