Whether a proposed Ordinance which authorizes solicitation and acceptance of gifts for a public purpose must specify a comprehensive solicitation policy.
Conclusion:
The Ordinance is not required to include a comprehensive solicitation policy because Code Section 2.03.104 J.1. and prior Commission opinions prescribe the parameters of any solicitation by County officials or employees from entities that do business with or are regulated by the County
Facts:
An ordinance is being considered that creates a County entity which is authorized to “seek, obtain, and utilize … private funding” to be used to protect the quality of life in New Castle County. The requester is aware that in Final Order 11-02, October 12, 2011, the Commission found that an ethics code violation occurred in part because a County department failed to create procedure in conformity with Code Section 2.03.104 J.1
Code or Prior Opinion:
Code provisions
New Castle County Code Section 2.03.104 I.2. permits the acceptance of gifts made to the people of New Castle County as long as the gift does not create an improper appearance and is recorded in a public gift log.2 Whether an improper appearance is created is a decision within the authority of the New Castle County Ethics Commission. See, New Castle County Sections 2.03.101 and 2.04.102I.3
New Castle County Code section 2.03.104J regulates the practice of solicitation of entities regulated by or that do business with County government. Such solicitation is prohibited unless the County Administration or Council creates a written policy for that particular solicitation which also states the specific benefit or benefits which accrue to the public.
Prior Opinions
In Advisory Opinion 06-09, June 14, 2006, the Commission discussed solicitation of gifts for the benefit of the public and stated that when written policy is in place permitting solicitation for the benefit of the public, the particular solicitation must be reviewed in advance by the Ethics Commission for compliance with the appearance of impropriety provisions of the Ethics Code. The factors for review cited in that opinion include: a clearly identified public purpose; that a donation does not consist of currency; the donor is not to be called a "sponsor" with the County; a written solicitation must emphasize the voluntary nature of the gift and the absence of any effect on current or future relationships between the County and the donor; the solicitation should be made to all potential appropriate donors; a donor must provide written corroboration of the gift and its value; the official or department which accepts the donation must not must not provide direct services in the reasonably foreseeable future to the donor; the department's public gift log must identify the donor, type and value of the gift.
Analysis:
The Code and prior Commission opinions cited above create mandatory parameters for solicitation of gifts from regulated entities or those that do business with the County. However, other than the prohibition on creating an improper appearance, the Code and, therefore, Commission rules do not address the solicitation of entities which are NOT regulated by nor do business with the County. Thus, if the Ordinance is passed as now drafted, the County entity it creates will be governed by the existing Code gift and solicitation rules regarding regulated and contracting businesses and may only solicit pursuant to a written policy specifying the purpose of the solicitation and its benefit to the public. It must also follow restrictions announced in AO06-09 and other Commission guidance.
If the sponsors of the Ordinance wish to create more stringent or far reaching rules for the entity’s conduct regarding gifts, they may add them but such additional rules are not required by the Ethics code.
Finding:
The Ordinance is not required to include a comprehensive solicitation policy because New Castle County Code Section 2.03.104 J.1. and prior Commission opinions prescribe the parameters of any solicitation by County officials or employees from entities that do business with or are regulated by the County.
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 7th DAY OF MAY 2013.
______________________
Johanna P. Bishop, Chairperson
New Castle County Ethics Commission
Decision: Unanimous
Footnotes:
1In Final Order 11-02, October 12, 2011, the Commission found a violation of Code Section 2.03.104J in the failure to create a written policy covering the solicitation of regulated entities. “A reasonable person would not believe that in this case the type of gifts solicited for the benefit of the public were of an improper nature in themselves. However, the reasonable person reviewing the facts of this case would conclude that the failure of the official's agency to enact a clear written policy for solicitation as well as its lack of oversight of the subcommittee were the root causes of the violation of the written solicitation rule and ensuing creation of an appearance of impropriety.”
2New 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 Subsection 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 decisions or actions of the County employee, County official or governmental body are influenced by factors other than the merits.
. . .
I. . . .
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.
. . .
3New Castle County Code Section 2.03.101. Purpose of Division.
A. It is hereby declared that public office is a public trust and that any effort to realize personal financial gains through public office other than compensation provided by law is a violation of that trust. It is further declared that the people have a right to be assured that the financial interests of holders of or nominees to or candidates for public office do not conflict with the public trust. Because public confidence in government can best be sustained by assuring the people of the impartiality and honesty of public officials, this Division shall be liberally construed to promote complete financial disclosure as specified in this Division. Furthermore, it is recognized that clear guidelines are needed in order to guide public officials and employees in their actions. Thus, this Division intends to define as clearly as possible those areas which represent conflict with the public trust.
B. It is recognized that many public officials are citizen-officials who bring to their public offices the knowledge and concerns of ordinary citizens and taxpayers. They should not be discouraged from maintaining their contacts with their community through their occupations and professions. Thus, in order to foster maximum compliance with its terms, this Division shall be administered in a manner that emphasizes guidance to public officials and public employees regarding the ethical standards established by this Division.
C. It is intended that this Division be administered by an independent commission composed of members who are cognizant of the responsibilities and burdens of public officials and employees and who have demonstrated an interest in promoting public confidence in government.
D. This Division is intended to establish a minimum standard for ethical conduct and financial disclosure. Elected officials may superimpose conduct rules for officials and employees which are more strict, but not less strict, than these minimum standards. The Ethics Commission has jurisdiction to decide whether superimposed rules fall below the minimum standards expressed in this Division.
New Castle County Code Section 2.04.102 I. Powers and duties, in pertinent part:
In addition to other powers and duties prescribed by law, the Commission shall:
. . .
I. Issue to any person, upon such person's written request, or to the appointing authority or employer of that person, upon the written request of such appointing authority or employer, an opinion with respect to such person's duties under Division 2.03.100. Such opinion shall be in writing and shall be provided within twenty-one (21) working days after the Commission's receipt of the request, provided that the time may be extended for good cause. It shall be a complete defense in any enforcement proceeding initiated by the Commission and evidence of good faith conduct in any other civil or criminal proceeding if the requester, at least twenty-one (21) working days prior to the alleged violation, requested the opinion from the Commission in good faith, disclosed truthfully all the material facts and committed the acts complained of either in reliance on the opinion or because of the failure of the Commission to provide an opinion within twenty-one (21) days of the Commission's receipt of request or such later extended time. The person requesting the opinion may require that the opinion, when made available for public inspection, shall contain such deletions and changes as shall be necessary to protect the identity of the persons involved.
. . .
4New Castle County Code Section 2.03.104. Code of conduct, in pertinent part:
. . .
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.
2. Personal solicitation of donations by County officials and County employees, or by their agents, spouses or minor children, from subordinates of the County official or employee is prohibited.
3. Elected Officials may set office-wide, non-coercive solicitation policies intended to benefit charitable entities or events if the policy does not create a conflict of interest or appearance of impropriety and does not violate Subsection J.2.
