Whether a manager would violate the Ethics Code if he gives holiday gifts of less than de minimis¹ value to persons he supervises.

            The manager may give and the supervisees may accept the holiday gifts of de minimis value. The Ethics Code draws some clear lines about gifts to officials and employees from the public and creates guidelines about acceptable gifts from subordinates to supervisors, but it neither discourages nor encourages gifts from supervisors to subordinates as long as the gifts do not violate the conflict of interest or appearance of impropriety rules. In this case, the motive for the gifts from the supervisor is appreciation, the employees have no official authority over the supervisor, the gifts will be valued at a de minimis amount or less, and will be tendered to all his supervisees on a holiday occasion known for a tradition of exchange of gifts between acquaintances and coworkers. Under these circumstances, the presentation to and acceptance of gifts by the supervisees does not violate the conflict of interest or appearance of impropriety rules of the Ethics Code since the gifts are not intended nor appear to affect the recipients' integrity, competence or impartiality in the exercise of their County duties.

             A County manager requests guidance on whether he may give holiday gifts of de minimis value to persons he supervises as an expression of his appreciation of their job performance. The employees have no direct authority over his position and do not contribute to his performance evaluation.

 

            1. Conflict of Interest and Conduct Rules

 

            The conflict of interest rules at Code Section 2.03.103(A)(1) restrict the use of official authority by a County official or employee "for the personal or private benefit of himself or herself, a member of his or her immediate family or a business with which he or she is associated."² The Code's conduct rules at Section 2.03.104(A) recite a prohibition on creating an appearance that the decisions or actions of a County employee, County official or governmental body are influenced by factors other than the merits of the matter before it, thus undermining the public confidence in the impartiality of the governmental body with which the individual is associated.³ That means that conduct may be prohibited even if not an actual conflict of interest if it would cause a reasonable member of the public, with knowledge of the relevant facts, to question the objectivity or fairness of an official, an employee, or of the department associated with the official or employee. Because of the strong possibility of creating an appearance of impropriety in situations involving gifts, these provisions must be carefully considered.

 

            2. Gift Rules

 

            In 2006, New Castle County Council adopted the first County ordinance specifically directed at acceptance of gifts by officials and employees. See New Castle County Ordinance 06-022, codified as New Castle County Code Sections 2.03.102 (amended), 2.03.104 (H-J), and 2.03.107 (B)(7)(amended) (2006). The definition section of the Ethics Code at Section 2.03.102, defines gift as:

 

[A]nything that is received without consideration of equal or greater value. The term "gift" shall not include a political contribution otherwise reported as required by law or a commercially reasonable loan made in the ordinary course of business. A gift to a member of an official or employee's family, or a gift which is not personally accepted by an official or employee but is controlled by or directed by that person to another recipient, is considered to be a gift to the official or employee. Any gift of more than de minimis value accepted by a County official or employee, or by his or her spouse or dependant child because of the official or employee's holding public office or employment, must be promptly entered in a public gift log as a recordable gift by the employee or official. A gift is considered accepted upon receipt or control or direction unless it is promptly returned in its entirety.⁴

 

            It is noteworthy that newly enacted Section 2.03.104 (I)(9) exempts the recording of gifts stemming from relationships that exists apart from the employment relationship if the gift is tendered and accepted under clear circumstances demonstrating that outside relationship.⁵

 

            New Castle County discourages the acceptance of gifts from the public by officials and employees and absolutely prohibits acceptance of any gift regardless of value which is intended or received to influence official conduct. Section 2.03.104 (H) of the code of conduct states as follows:

 

New Castle County discourages the acceptance of gifts from the public by County employees or County officials. No County employee or County official shall accept any compensation, gift, payment of expenses, promise of future financial benefit, or any other thing of monetary value which is intended or received to influence the vote, official action or judgment of the recipient or which creates the reasonable perception in the public that the vote, official action or judgment of the recipient would be influenced or impaired by the gift. An unsolicited gift which promptly returned it its entirety is not considered accepted by the recipient.⁶

 

In addition, gifts are prohibited in the following circumstances:

1.    Any gift of greater than de minimis value which is not promptly recorded in a pub gift log.

2.      No gift of cash shall be accepted other than a political contribution otherwise reported as required by law.

3.      No gift shall be accepted by a County official or employee for performing an official duty or service or as an incentive to perform an official duty or service unless the gift is a public and commemorative gift of de minimis value in honor of public service or unless the gift is tendered by a governmental source or association of governmental sources. The commemorative gift shall be promptly recorded in a public gift log.

4.     Gifts of greater than negligible value⁷ from entities doing business with, regulated by, or which may be reasonably foreseen⁸ to do business with or be regulated by the County within the next three years, with the exception of gifts described in subsections I(5), I(6), and I(7) of this Division, shall not be accepted by officials, employees, or governmental departments unless a prior Advisory Opinion is sought from the Ethics Commission regarding compliance with the Code of Ethics. Any such gift or donation of other than negligible value which is accepted following the receipt of an Opinion of the Commission shall promptly be recorded by the recipient in a public gift log.

5.     County officials or employees in supervisory positions shall not accept gifts from individual persons they supervise or from individual employees in a lower pay scale other than on an infrequently occurring milestone occasion (such as birth, death in family, marriage, divorce, retirement, casualty) or a de minimis hospitality gift on social occasions held outside of the workplace. On any other occasion, receipt of gifts shall be limited to group gifts, in which the amount contributed is both voluntary and of a de minimis amount per individual, and the names of the individual donors are not disclosed to the recipient. Gifts tendered as a result of a relationship described in subsection I(9) shall be an exception to this rule.

 

            Code section 201.104(I) lists certain gifts which may be accepted but those types of gifts are not relevant to this request.

 

 

Prior to enactment of Ordinance 06-022, Ethics Commission gift rules were found only in the Advisory Opinions of the Commission. The seminal Advisory Opinion on gifts was issued on December 9, 1992 (a reissue of Advisory Opinion 91-07), and involved the question of whether officials and employees could accept gifts or invitations to social, sporting or other events generally open to the public from persons with whom the County had a relationship. That Opinion stated the basic and over-riding principle that a gift, of whatever value and whatever its source, may not be offered or accepted where the intent of the gift is to influence the conduct of the County employee or official in an improper manner.

 

            Over the intervening years, the Commission addressed gift giving between County employees and officials, as opposed to gifts from outside sources, on only one occasion. In Order C03-04, the Commission found that group gifts from subordinates to a County official, valued at less than $75.00 per donor, given on a ceremonial occasion under circumstances reflecting the voluntariness of the gift, were not intended or received to affect the recipient's official conduct in an improper manner and did not violate the Ethics Code.

 

            Ordinance 06-022 supercedes any conflicting Commission opinions, such as those which established a level of $75.00 for a "modest" gift and decreed that absent evidence of improper circumstances gifts under that value would be presumed not to violate the Code. However, the 2006 Ordinance adopted the underlying standards expressed in the all the prior opinions, reciting that "[n]o County employee or County official shall accept any compensation, gift, payment of expenses, promise of future financial benefit, or any other thing of monetary value which is intended or received to influence the vote, official action or judgment of the recipient or which creates the reasonable perception in the public that the vote, official action or judgment of the recipient would be influenced or impaired by the gift."

            While the Ethics Code draws some clear lines about gifts to officials and employees from the public, and creates guidelines about acceptable gifts from subordinates to supervisors, it neither discourages nor encourages gifts from supervisors to subordinates as long as the gifts do not violate the conflict of interest or appearance of impropriety rules. In this case, the motive for the gifts expressed by the manager is appreciation, the employees have no official authority over the supervisor, the gifts will be valued at a de minimis amount or less, and will be tendered to all his supervisees on a holiday occasion known for a tradition of exchange of gifts between acquaintances and coworkers. Under these circumstances, the presentation to and acceptance of gifts by the supervisees does not violate the conflict of interest or appearance of impropriety rules of the Ethics Code since the gifts are not intended nor appear to affect the recipients' integrity, competence or impartiality in the exercise of their County duties.

            The Ethics Code will not be violated if the manager gives holiday gifts of de minimis value to all the persons he supervises as an expression of his appreciation of their job performance and the supervisees accept such 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. The Commission cautions, however, that each County department, board, or other unit of County government is free to, and may impose as part of its own policy, additional or greater restrictions on its officials and employees than those set forth in this Opinion.

 

            BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON THIS 13^th DAY OF DECEMBER 2006.

 

_________________________

John McMahon, Chairperson

 

Decision: Unanimous