May a County official accept an unsolicited honorarium, not exceeding a net amount of $75.00 per year, per donor, to be donated to charity, for performing his normal County duties, when requested, during non-work hours and at a location other than the County building.
Conclusion:
A County official may accept an unsolicited honorarium,, to be donated to charity, not exceeding a net amount of $75.00, in the aggregate, per year, per donor, for performing his normal County duties, when requested, during non-work hours and at a location other than the County building.
Facts:
The requesting party is a County official who performs a service for individuals, when requested. The service he performs also can be performed by individuals who are not County officials, who have also been vested with the authority to perform this service.
It is common practice for such individuals to accept some compensation for performing this service. The service the requesting party provides can be provided within the County building, during regular work hours. Some individuals requesting his service, however, ask that he perform the service during non-work hours, at a location other than the County building.
The requesting party does not wish to accept honorariums for performing the service during regular work hours at the County building. He does, however, wish to accept honorariums, the net amount not to exceed $75.00, in the aggregate, per year, per donor, for the occasions that he performs said service during non-work hours, at a location other than the County building. The requesting party plans on donating the honorariums to a charity at the end of the year. When requested by the individuals seeking his services during non-work hours, at a location other than the County building, the requesting party advises that there is no fee for the services.
Analysis:
The New Castle County Ethics Code has various provisions which encompass the propriety of the acceptance of gifts and honorariums. Section 2-173(C) of the Ethics Code, for example, provides that:
No county official. . . shall solicit or accept a gift, loan, reward, or promise of future employment based on an intention of the county official.. .that the vote, official action or judgment of the county official. . . would be influenced thereby. Id.
Additionally, Section 2-173(a) of the Ethics Code prohibits County officials from engaging in conduct which constitutes a conflict of interest which, by definition, includes a County official using the authority of his office for his own private pecuniary gain.1 The Ethics Code also prohibits a County official from engaging in behavior which constitutes an appearance of impropriety,2 defined as:
the conduct of a county official . . . 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, county employee, or the governmental body are influenced by factors other than the merits.3
Relying on the above provisions, the Ethics Commission has issued numerous opinions dealing with the issues of gifts and/or honorariums. With regard to gifts, Advisory Opinion 91-07 (revised and reissued December 9, 1992) held that there is a presumption that any gifts or invitations, the value of which does not exceed $75.00, in the aggregate, per year, per donor, do not create an appearance of impropriety. The opinion further states that for gifts and invitations, the aggregate value of which exceeds $75.00, per year, per donor, an evaluation based upon the surrounding circumstances will have to be made. Thus, in Advisory Opinion 96-06 (September 12, 1997), the Commission held that an appearance of impropriety would exist if a Development and Licensing employee 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.
Likewise, in Advisory Opinion 97-03 (March 14, 1997), the Commission held that there would be an appearance of impropriety if a County Public Works employee with inspecting, licensing, regulating and/or auditing responsibilities accepted a free ticket to attend a Flyers game at the Core States Center in a super/club box from a company with construction projects in New Castle County, since the actual cost to the donor and the value received by the recipient exceeded $75.00, even though the ticket stated the cost was $65.00. In Advisory Opinion 97-02 (March 14, 1997), however, the Commission held that a row office employee could accept a holiday fruit basket valued at $200.00 from a client that the employee serviced, if the basket was shared with the entire office, since the office had minimal regulatory, contractual, or other such contacts with the client and since the value per person, when the basket was shared was minimal.
With regard to honorariums, the Commission also has had the opportunity to address their propriety under the Ethics Code. In Advisory Opinion 91-01 (April 22, 1991), for example, the Commission ruled that there would be an appearance of impropriety, if a county employee accepted an honorarium for participating in a trade symposium held by a vendor from which the County employee, on the County's behalf, purchased services. Conversely, in Advisory Opinion 94-03 (April 28, 1994), the Commission held that a County employee could accept an honorarium from a company, which organized educational seminars, for participating in a seminar the company organized about a particular legal process private citizens could initiate before a County agency, since there was no relationship between the County and the company organizing the seminar. Id. at 2.
Finding:
In the present situation, the Commission notes that under the current body of opinions dealing with gifts, a gift not exceeding $75.00, in the aggregate, per year, per donor, to the requesting party, regardless of the relationship, or lack of relationship, the donor has to the requesting party, is presumed not to violate the Ethics Code.4 Given the fact that, in the present instance, all individuals requesting the requesting party's services during non-work hours, at a location other than the County building, are told that there is no fee for said service, and the service is provided, whether or not an honorarium is offered, the Commission views the honorarium, in such instance, akin to that of a gift. Indeed, Black's Law Dictionary, 5th edition, 1979, p. 663, defines "honorarium" as "[I]n the civil law, an honorary or free gift; a gratuitous payment, as distinguished from hire or compensation for service.. .". Accordingly, since it is presumed that there would be no violation of the Ethics Code, if the requesting party were to accept a "gift" from an individual under the present circumstances, an "honorarium" whose net value does not exceed $75.00 in the aggregate, per year, per donor, likewise is not prohibited.5 The requesting party may accept honorariums under the circumstances presented.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON OCTOBER 29, 1997.
_______________________________
David J.J. Facciolo, Chairperson
Footnotes:
1 Section 2-172. Definitions.
2Section 2-173(g). Restricted Activities.
3 Section 2-172. Definitions.
4"Advisory Opinion 9 1-07 (revised and reissued December 9, 1992).
5 The Ethics Commission, in making such a ruling, is not ruling on the propriety of the acceptance of an honorarium exceeding $75.00, in the aggregate, per year, per donor, since such circumstances were not presented to the Commission. Likewise, the Ethics Commission's ruling is limited to its interpretation of the New Castle County Ethics Code only. This opinion does not address the propriety of such actions under any other law or Code or the legal and/or tax ramifications of such actions. Finally, the Ethics Commission reserves its right to alter and/or amend said opinion, should the Ethics Commission wish to revisit said issue in the future.
