May a row office employee1 accept a holiday fruit basket valued at $200 from a client that the employee services, if the basket is shared with the entire office and the nature of the row office is such that it has a minimal, if any, regulatory or contractual relationship with the client?
Conclusion:
Yes. The row office employee2 may accept a holiday fruit basket valued at $200 from a client that the employee services, if the basket is shared with the entire office, since the office has minimal regulatory, contractual, or other such contacts3 with the client and since the value received per person, when the basket is shared, is minimal.
Analysis:
Section 2-173(c) of the New Castle County Ethics Code explicitly prohibits any County official or employee from accepting anything of value for the purpose of influencing the County official's or employee's official action or judgment.4 It does not, however, in all instances, act as an absolute bar for a county official or employee to receive something of value, provided its purpose is not to influence the employee or official.
In Advisory Opinion No. 91-07, revised and reissued December 9, 1992, the Ethics Commission held that gifts and invitations to a County official or employee, the value of which does not exceed $75.00, in the aggregate, per year, per donor, will be presumed not to create an appearance of impropriety.5 The reasoning behind such a holding is the acknowledgment that the giving of gifts and invitations, less than $75.00, may "generate and maintain goodwill and. . . create an atmosphere of collegiality" between the donor and the county official or employee. Id. at 3.
In regard to gifts and invitations whose value exceeds $75.00, however, the Commission did not establish an absolute ban but held that each situation must be evaluated upon the surrounding circumstances such as whether the recipient is "in a position to take any official action which concerns or is of direct interest to the donor". Advisory Opinion No. 91-07 at 4; see also, Advisory Opinion No. 96-06, September 12, 1996. Whether the recipient performs a regulatory function in regard to the donor is a key determinant in this analysis. Advisory Opinion No. 91-07 at 4; Advisory Opinion No. 96-06 at 2. Thus, in Advisory Opinion No. 96-02, the Commission held that an appearance of impropriety would exist if an employee of the Development and Licensing Division of the Department accepted an invitation and attended a social function, valued at $100.00, from a trade association since the employee exercised regulatory control over the trade association's members.
In the present instance, however, the employee has minimal regulatory, contractual or other such contacts with the client such that the integrity of County government would not be compromised upon acceptance of the basket. Although the value of the basket surpasses the $75.00 threshold amount established in Advisory Opinion No. 91-07, if the basket is openly shared with the rest of the office, the value to each person sharing the basket is minimal.6
Finding:
Thus, given the nature of the particular row office, as well as the fact that the basket will be shared among many, there would not be an appearance of impropriety for the employee to accept the basket if shared with the rest of the office. Finally, the Commission notes that, pursuant to the Ethics Code,7 the acceptance of any gift valued at $200 or more must be disclosed on the recipient's statement of financial interests for that year. In line with this requirement, the actual recipient should report the gift on his or her statement of financial interests and indicate that such gift was shared with the rest of the office.
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Mary Ann Matuszewski, Ethics Counsel
March 14, 1997
Footnotes:
1 "County employee" is defined by the New Castle County Ethics Code, Section 2-172, Definitions, as amended, as: "an individual employed by the county who is responsible for taking or recommending official action of a nonministerial nature including, but not limited to, action with regard to: (1) Contracting or procurement; (2) Administering or monitoring grants or subsidies; (3) Planning or zoning;(4) Inspecting, licensing, regulating or auditing any person; or (5) Any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person."
2 Although this advisory opinion was requested as to a County employee, as defined in note 1, above, it applies equally to any County official, as defined by Section 2-172, in the same row office.
3 "other such contacts" include those areas specifically listed in the definition of "county employee" as set forth in Section 2-172 of the Ethics Code. See, n.1, supra.
4 Section 2-173(c) states: "No county official, county employee or nominee or candidate for county office shall solicit or accept a gift, loan, reward, or promise of future employment based on an intention of the county official, county employee or nominee or candidate for county office that the vote, official action or judgment of the county official or county employee or nominee or candidate for county office would be influenced thereby".
5 "Appearance of impropriety" is defined by Section 2-172 of the Ethics Code as follows: "the conduct of a county official or county employee which does not constitute a conflict of interest but which undermines the public confidence in the impartiality of a governmental body with which a county officer or employee is or has been associated by creating an appearance that the decisions or actions of the county official or employee or the governmental body are influenced by factors other than the merits". Section 2-173(g) states: "County officials and county employees shall avoid an appearance of impropriety".
6 Indeed, given the number of employees in the particular office, the value to each employee would be approximately $6.00. 7See, Section 2-175(b)(7), Form of statement of financial interests.
