Code of Conduct: Synopsis of 1996 Opinions
STATE PUBLIC INTEGRITY COMMISSION
Synopsis of 1996 Opinions
Table of Contents
Personal or Private Interests
Interest in Non-Profit Organization
Restrictions on the Exercise of Official Authority
Restrictions on Representing Another's Interest before the State.
Regulating Activities Where Spouse Has Interest
Client Referral to Spouse's Private Enterprise
Agency Contracts with Brother-in-Law
Holding Stock Interest in Non-Profit Organization
Contract with Company Regulated by Agency
Decisions where a Daughter is Involved
Subcontracting with a Firm which has a State Contract
Stock in Private Enterprise
Stock Holdings in Publicly Traded Company
Accepting Anything of Monetary Value
Employment
Local Government Employee Running for Elected Office
Running for Office While Serving as an Appointee to a State Board
Security Concerns
Employment with Companies Regulated by Agency
Employment With an Agency Contractor
Contracting with a State Agency
Consulting with facilities regulated by Employee's Agency
Teaching as Outside Employment for a Public School Teacher
Gifts, Payments, etc.
Scholarship
Tickets and Accommodations for an Athletic Event
Lunches from Vendors
Gift Certificate from Business Agent
Samples from Vendors
Payment to Honorary Officials
Payment of Expenses by Contractor
Reimbursement by a Non-Profit Foundation
Appearance of Impropriety
Confidential Information
Jurisdiction
Members of the General Assembly
Employees of Local Government
Judges, Prosecutors, and Local Government Police
Criminal Law Complaint
Post-employment
Soliciting Former State Clients
Moot Issue
"Particular Facts" Required
Computer Consultant to State Agency
Computer Consulting with Former Agency
Computer Services Contract
Former Employee's Participation in Selecting His Replacement
From Social Work to Computers
Limited Waiver Granted on Post-Employment Restrictions
Managing Computer Technicians
Limits on Post-Employment where Company Contracts with Former Agency
Insufficient Facts
(A) The Company With a State Contract
(B) The Company without A State Contract
(C) Restrictions on Using Confidential Information
Contract with Former Agency, But Not Same Agency Section
What's a "Matter" under the Post-Employment Provision?
(A) Approach to Interpreting the "Matter"
(B) Interpreting "Confidential Information"
(C) Can computer analysts from a partner's firm be used?
PERSONAL OR PRIVATE INTERESTS
Interest in Non-Profit Organization
A Division Director was also a volunteer member of a private non-profit organization. The organization asked the Director to consider chairing its Board of Directors. The organization did not compensate the individual as a volunteer member, and would not compensate her as a Board member. The Board engaged in such activities as deciding if the organization would pursue grants-in-aid, etc. Although most of its funding was from private companies, it would qualify for State grants. It rewrote its bylaws to say that if a State employee was on the Board, it would not ask for a grant from that agency. It would seek grants from other agencies.
(A) Restrictions on the Exercise of Official Authority
The Code of Conduct restricts State employees, officers and honorary officials from reviewing or disposing of matters where they have a personal or private interest that would tend to impair their judgment in performing official duties. 29 Del. C. § 5805(a)(1)(a). It also prohibits conduct that would raise public suspicion that the individual is engaging in acts violating the public trust and that would not reflect favorably on the State. 29 Del. C. § 5806(a).
This Commission has held that where a State employee was on the Board of a for-profit private enterprise, although the entity did not compensate her, it would be inappropriate for her to review or dispose of the company's contract application as part of her official duties because, as a minimum, it might appear improper, which the Code prohibits. See, Commission Op. No. 95-24. "Private enterprise" includes "non-profit" entities. See, 29 Del. C. § 5804(8).
Here, the organization's bylaws barred it from seeking funds from a State agency if an individual from that agency was on its Board. Thus, the Division Director would not review or dispose of any funding request from the organization because it would not seek funds from her agency, if she accepted a Board position.
However, if she did not become a Board member, but remained a volunteer, the bylaws did not bar the organization from seeking funds from her agency. The Commission concluded that she probably could not review or dispose of such request as part of her State duties. As a minimum, it might appear that because of her personal interest as a member, she might give preferential treatment to the organization if it requested funding. If such situations arose, she was directed to consider whether she should: (1) recuse herself; or (2) return to the Commission for an opinion on that specific situation; or (3) request a waiver from the Commission. The Commission may grant a waiver if it "determines that the literal application of such prohibition in a particular case is not necessary to achieve the public purposes of this chapter or would result in an undue hardship on any employee, officer, official or state agency." 29 Del. C. § 5807(a).
(B) Restrictions on representing another's interest before the State.
The Code also restricts State employees, officers and honorary officials from representing or assisting a private enterprise with respect to any matter before the State agency with which the employee, officer or official is associated by employment or appointment. 29 Del. C. § 5805(b).
The organization's bylaws made it clear that if the Division Director took a Board position, it would not seek funds from her Department. Thus, it appeared she would have no occasion to represent or assist the organization before the agency where she worked, if she served on the Board.
However, if she were not on the Board but just a member, then the organization's bylaws would permit it to seek funds from her agency. The Commission concluded that it appeared that the Code restricted her from assisting the private enterprise before her own agency, meaning that she could not, e.g., help prepare the organization's funding request. See, 29 Del. C. § 5805(b)(1).
"State officers" are further restricted. They may not represent or assist any private enterprise with respect to any matter before the State. 29 Del. C. § 5805(b)(2). "State officers" are persons who must file a financial disclosure form. 29 Del. C. § 5804 (12). Division directors are required to file. 29 Del. C. § 5812(a)(15). Thus, as a "State officer," she would be restricted from assisting or representing the organization, not only before her agency, but before any State agency. For example, if the organization wanted funds from an agency other than hers, the Commission concluded that it appeared that the Code prohibited her from such things as preparing its grant request as that would be assisting the private enterprise in seeking funding from another agency. (Commission Op. No. 96-64).
Regulating Activities Where Spouse Has Interest
The Code of Conduct requires honorary State officials who have a financial interest in any private enterprise which is subject to the regulatory jurisdiction of, or does business with, the State agency on which he serves as an appointee, to file with the Commission a written statement fully disclosing the same. 29 Del. C. § 5806(d). An honorary State official notified the Commission that he served on a regulatory agency which regulated activities in which his spouse planned to engage. He said he would recuse himself from decisions concerning his spouse.
Honorary State officials are restricted from reviewing and disposing of matters before the State where they have a personal and private interest which would tend to impair independence of judgment. 29 Del. C. § 5805(a)(1). One interest which, as a matter of law, tends to impair independence of judgment is one where a close relative would receive a greater benefit or detriment than members of the same class or group. 29 Del. C. § 5805(a)(2). "Close relative" is defined to include a spouse. 29 Del. C. § 5804(1). The Code also prohibits such persons from engaging in conduct that would raise suspicion among the public that he is engaging in acts violating the public trust and that would not reflect favorably upon the State. 29 Del. C. § 5806(a).
Without deciding if the spouse would receive a benefit or detriment greater than that received by others in the same class or group, the Commission held that if the honorary State official decided matters concerning his spouse, it could appear to the public that his judgment would be impaired, and therefore, it was appropriate that he recuse himself on such matters.
The Commission noted that a separate statute governing this particular regulatory body had specific provisions dealing with appointees having a direct or indirect pecuniary interest in the regulated activity. As the Commission had no jurisdiction to interpret that statute, it suggested the individual discuss compliance with that statute with the appropriate authority. The individual later notified the Commission that his spouse would not engage in the regulated activity as long as he served on the regulating agency. (Commission Op. No. 96-16).
Client Referral to Spouse's Private Enterprise
The Code permits State agencies to seek advisory opinions. 29 Del. C. § 5807(c). A State agency sought a decision on whether it could promote one of its employees, without creating a conflict. If promoted, a private enterprise owned by her husband was on the list of facilities to which clients from her office could be referred. Her agency identified certain internal procedures that were in place and asked if the promotion would result in a conflict, even with the procedures in place.
State employees cannot review or dispose of matters if there is a personal or private interest which tends to impair independence of judgment in performing official duties with respect to that matter. 29 Del. C. § 5805(a)(1). One interest, which as a matter of law, tends to impair judgment is where action or inaction by the employee would result in a benefit or detriment for a close relative to a greater extent than for others similarly situated. 29 Del. C. § 5805(a)(2). "Close relative" includes a spouse. 29 Del. C. § 5804(8).
Here, federal and State laws prohibited State employees from referring clients to a particular facility. The agency kept a list of all qualified facilities and the client or the client's family selected the facility from the list. Thus, the "matter" of selecting the facility was not a "matter" over which the employee had any review or disposition authority. Further, the agency had an individual who screened potential clients. After reviewing the applications, the screener assigned the clients to employees. It was agency procedure to assign employees to handle clients from a particular facility. Clients who resided in or selected the husband's facility would not be assigned to his spouse. Thus, the "matter" of deciding eligibility for applicants at her husband's facility was not a "matter" over which the employee had any review or disposition authority. As the agency would not assign the employee to clients who lived at her husband's facility, she would not evaluate the quality of care given at his facility. Thus, the "matter" of deciding quality of care was not a "matter" over which she had any review or decision making authority.
The Code also prohibits State employees from representing or assisting a private enterprise with respect to matters before the agency with which they are associated with by employment. 29 Del. C. § 5805(b)(1). Here, the "matters" which would be of interest to the private enterprise would be client eligibility, facility assignment, and client care. No input was required from the private enterprise regarding client eligibility as it was based on financial documents submitted by the potential client. No input was required from the private enterprise regarding facility selection as the client or the client's family selected the facility. Thus, no occasion for the employee to represent or assist the private enterprise on "matters" before the agency on client eligibility and facility assignment would occur. The agency would not assign the employee to cases where the clients lived at her husband's facility. Thus, she would have no information on the "matter" of client care on which she could represent or assist the private enterprise regarding the quality of care given those clients.
The agency said that one of its concerns was any appearance of impropriety as the Code prohibits conduct which would raise suspicion among the public that an employee is engaging in acts violating the public trust. 29 Del. C. § 5806(a). Here, the agency based client eligibility principally on mathematical calculations involving income and net assets contained in documents submitted by the applicant. A supervisor routinely reviews decisions on eligibility through the relatively simple process of reviewing mathematical calculations; not possible subjective statements by the employee. Additionally, the employee would not decide eligibility or have clients from her spouse's facility. Therefore, it was unlikely she could approve or deny eligibility in a way to benefit her spouse's facility. Additionally, the State employee has no control over the list or over which facility has space available.
The Code also prohibits disclosing confidential information gained by reason of public position or otherwise using such information for personal gain or benefit. 29 Del. C. § 5806(g). The employee, like all agency employees holding similar positions, had signed a confidentiality statement on disclosure or use information about applicants and clients. The employee said she was aware of and understood the prohibition, and never had, nor would she, violate the prohibition. (Commission Op. No. 96-76).
Agency Contracts with Brother-in-Law
A State employee was the lead point of contact for his agency's procurement activities. On occasion, requests for locksmiths went through his office. As part of his duties, he obtained quotes from vendors, and where appropriate sought public bids. His brother-in-law was a managing partner for a locksmith company. As such, quotes from that firm could be solicited and/or that company would submit bids when public notice and bidding were required. The agency, believing a conflict might exist, had the individual's supervisor solicit quotes or handle bids on locksmith needs. It asked if such action was sufficient to avoid a conflict.
The Code restricts State employees from:
(1) reviewing or disposing of matters if a personal or private interest tends to impair independent judgment in performing official duties; 29 Del. C. § 5805(a); and
(2) engaging in conduct that would raise suspicion among the public that an employee is acting in violation of the public trust. 29 Del. C. § 5806(a).
The Commission concluded that the agency had properly removed him from participating in this procurement activity because if he called and obtained quotes, his familial relationship might, as a minimum, tend to impair judgment. Even if it did not, the public could suspect that he would give his brother-in-law preferential treatment by: (1) calling him for a quote and not calling others; and/or (2) passing quotes of other contractors to his brother-in-law.
The Commission found that the procedures set up by the agency sufficiently removed any suspicion that he was engaged in activities violating the public trust because very few such requests came through his office; his supervisor decided if the bid complied with State procurement rules; and an individual from another section reviewed the contracts and judged the supervisor's recommendation on the bases of costs, competence, past track record, etc., of the contractor. (Commission Op. No. 96-42).
Holding Stock Interest in Non-Profit Organization
A State agency asked if it would raise any ethical issues if a non-profit 501(c)(3) private corporation were formed to promote the exchange and dissemination of certain client information between the State and private enterprises. According to the proposed bylaws, the private corporation would issue stock to certain State officers, such as an elected official, cabinet secretaries, and division directors. Representatives of private enterprises, which the State regulated, would hold the majority of the stock. The stock held would be voting stock and holders would, among other things, vote to elect the board of directors, which might include these State officers. Alternatively, it was asked if ethical issues could be eliminated if the State, instead of the individuals, held the stock.
The bylaws provided that the entities which would make up the private corporation would exchange certain client information. The State would be expected to contribute information to the network based on the data it collects on State clients. While other states have created such information networks, they were created by statute, not by incorporation of a private enterprise.
The Commission, by law, must base its advisory opinions on a particular fact situation. 29 Del. C. § 5807(c). Here, a particular fact situation did not yet exist as the legal entity of the private corporation had not been created and no State officer had participated in any aspect of the corporation's activities. However, to decide if such a private enterprise model would be used, guidance was needed on whether conflicts could arise from creating such a corporation. As the Commission may "provide assistance to state agencies, employees and officials in administering the provisions of this law," 29 Del. C. § 5809(10), this opinion is meant only to provide assistance to the State agencies and State officers involved to aid them in recognizing some areas where potential conflicts could arise. It is not meant to prejudge any activities engaged in by such officers, should they elect to be parties to this private enterprise. Further, it is not within the Commission's authority to suggest how a network, such as proposed here, should be legally structured, as that is a matter for the Attorney General.
With those limits in mind, having reviewed the bylaws and the purpose of the corporate organization, the Commission had concerns that where State officials join forces with private enterprises under these circumstances, in a corporate activity, as a minimum, it raises issues about the appearance of impropriety. Without detailing all of those concerns, the Commission points out two issues. For example, the private corporation will be made up, in part, of companies that the State regulates. It could appear to the public that State officers might, in making regulatory decisions, give preferential treatment to those companies with whom they have joined forces in a private enterprise. See, 29 Del. C. § 5805(a)(1) and § 5805(b)(2)(State officers cannot review or dispose of matters in which they have a personal or private interest that tends to impair judgment and State officers cannot represent or assist a private enterprise in matters pending before the State). It also may appear to the public that the State officers are obtaining confidential information in their official capacity and passing that information to private companies. See, 29 Del. C. § 5806(f) and (g)(regarding improper disclosure or use of confidential information gained by reason of public position).
If the State held the stock, as opposed to the individual officers, some State official would still have to make voting decisions, and perform other functions and responsibilities as a stock holder. Such official may encounter the same appearance problems. Accordingly, the Commission does not see where giving the stock to the State would necessarily eliminate some of the ethical issues that might arise.
The Commission has some concerns about whether State officials may, within the scope of their employment, enter such arrangement, regardless of any ethical issues. However, that question is for the Attorney General's office, not this Commission. (Commission Op. No. 96-56).
Contract with Company Regulated by Agency
Before being appointed to a State agency, an individual had a private contract to provide maintenance for a private enterprise. For a number of years after his appointment, the company was not subject to the agency's regulations. Because of a change in business operations, the company became subject to the agency's regulatory authority. The individual notified the Commission that he would recuse himself from decisions regarding the company. He asked if he needed to take additional steps to avoid any conflicts of interest.
Because the individual's appointed position resulted in more than $5,000 a year in compensation, he was considered a "State employee," under the Code of Conduct. See , 29 Del. C. § 5804(11)(a)(2).
State employees are restricted from participating on behalf of the State in the review or disposition of any matter pending before the State in which they have a personal or private interest. A personal or private interest in a matter is an interest which tends to impair a person's independence of judgment in performing duties with respect to that matter. 29 Del. C. § 5805(a)(1).
The Code also prohibits accepting outside employment if such acceptance would result in: (1) impairment of independence of judgment; (2) official decisions outside official channels; (3) preferential treatment to any person; or (4) any adverse effect on the public's confidence in the integrity of the government. 29 Del. C. § 5806(b).
The Code also prohibits employees from pursuing a course of conduct which will raise suspicion among the public that they are engaging in acts which violate the public trust and which will reflect unfavorably upon the State. 29 Del. C. § 5806(a).
As a minimum, it may appear that participation in regulatory decisions of a company with which he did business would raise suspicion among the public that his judgment may be impaired and that he might give preferential treatment to the company. Accordingly, his decision to recuse himself from matters affecting the company was appropriate.
The question of whether he should take further action was viewed in light of the other activities regulated by the agency. The agency had specific areas to regulate and decisions by it in areas of regulation outside the area which applied to this company, would not impact on the company. Accordingly, the Commission found no violation of the Code as long as he recused himself from decisions pertaining to the company. This would preclude him from reviewing or disposing of matters in which arguably he had a financial interest and would preclude any preferential treatment to the company in making official decisions.
As far as any appearance of impropriety, the Commission emphasized that he had a long standing contract with the company to perform the maintenance work before the company was ever regulated; he was performing the contract before his appointment; and his company was asked to continue to perform the work to give continuity to the plant maintenance. Thus, it is clear that any financial benefit received through the contract was not the result of his appointment.
The Commission concluded he need not recuse himself from other regulatory decisions, as those decisions would not impact on the regulatory decisions pertaining to the company. (Commission Op. No. 96-53).
Decisions where a Daughter is Involved
State employees may not review or dispose of State matters if they have a personal or private interest which tends to impair their independent judgment in performing duties with respect to those matters. 29 Del. C. § 5805(a)(1). A person's judgment tends to be impaired when any action or inaction on a matter would result in a financial benefit or detriment to a close relative to a greater extent than such benefit or detriment would accrue to others members of the same class or group of persons. 29 Del. C. § 5805(a)(2)(a). "Close relative" includes children. 29 Del. C. § 5804(1).
A State employee was asked to review an existing agency contract for expansion. The contract dealt with scheduling and testing. The agency's senior management decided to expand the contract because legislative changes dictated that the work be assumed by the existing contractor to free up agency staff. Persons at a higher level than the employee approved the negotiations. After the contract was re-negotiated, the contractor announced plans to hire additional workers. The announcement reflected the specific hiring criteria and the particular background needed. The employee's daughter, among other applicants, had the particular background and applied for a job.
The Commission found no violation of 29 Del. C. § 5805(a) as the State employee had no foreknowledge that her daughter would be considered for a position when the negotiations were occurring. Therefore, her judgment would not have been impaired because of her lack of knowledge. Also, no evidence suggested that her contract negotiations benefitted her daughter more than other members of the same class or group of persons. The contractor established the hiring criteria and hired other similarly qualified applicants. No facts suggested that the daughter received any greater benefit than that offered to other applicants.
The daughter would not work for the contractor in the same area as her mother and her mother had no responsibilities in the area of the subject matter (scheduling/testing) of the contract. (Commission Op. No. 96-44 (I)).
Subcontracting with a Firm which has a State Contract
A State agency solicited lease proposals for space to house several State agencies. Representatives from each agency which would use the space were on the Site Selection Committee. The committee narrowed the proposals to three candidate firms. One candidate firm intended to subcontract part of the work which would be required to prepare the site. An appointee to one of the State agencies which would be housed in the property owned the firm which would subcontract. Before the Site Selection Committee allowed the three candidates to present their proposals, the Commission was asked if it would violate the Code of Conduct if the appointee's firm subcontracted.
Under the Code of Conduct, "State employee" includes any person "who serves as an appointed member, trustee, director of the like of any State agency and who receives or reasonably expects to receive more than $5,000 in compensation for such service in a calendar year (not including reimbursement of expenses." 29 Del. C. § 5804(11)(a). As the individual who owned the subcontracting firm was appointed by the Governor and received a salary of more than $5,000 per year, for purposes of the Code of Conduct, he was a "State employee."
State employees may not:
(1) Review or dispose of matters pending before the State where there is a personal or private interest that tends to impair independence of judgment. 29 Del. C. § 5805(a)(1). One interest which tends to impair judgment is when action or inaction on the matter would result in a financial benefit or detriment to accrue to the person or private enterprise to a lesser or greater extent than others in the same class or group. 29 Del. C. § 5805 (a)(2).
The matter to be reviewed and disposed of was a leasing contract. The appointee's official duties did not include any aspect of leasing contracts. His duties were to decide regulatory matters. His agency did not regulate either his firm or the candidate firm. Also, he was not on the Site Selection Committee so he would not review or dispose of the lease. While his company might experience a financial benefit if it subcontracted, the financial benefit would not result from any action or inaction by him in his official capacity. Also, he would recuse himself from any discussion with his agency regarding the leasing decision. Thus, the Commission found that if his firm subcontracted as part of the candidate's team, it would not violate 29 Del. C. § 5805(a)(1) and (2).
(2) Represent or otherwise assist any private enterprise with respect to any matter "before the state agency with which the employee . . . is associated by employment or appointment." 29 Del. C. § 5805(b)(1).
Assuming the Site Selection Committee was a "State agency," it was not the State agency to which he was appointed. As he was not on the Site Selection Committee; would not discuss the matter with his agency, and would not participate in any presentation to the committee by the candidate firm, it would not violate 29 Del. C. § 5805(b), if his firm were a subcontractor.
(3) Enter any State contract for more than $2,000 (other than employment) unless the contract was made or let after public notice and competitive bidding. 29 Del. C. § 5805(c).
Although the law does not require solicitation for leasing proposals be subject to public notice and competitive bidding, the leasing contract was, in fact, advertised. Thus, there appeared to be no violation of 29 Del. C. § 5805(c).
(4) Engage in conduct that would raise public suspicion that the individual is engaging in acts violating the public trust. 29 Del. C. § 5806(a).
Regarding whether his participation as a subcontractor would raise suspicion among the public that he was engaging in activities violating the public trust, such concern was diminished because: (1) the proposals were subject to public notice and bidding; (2) the activities raised no technical violations of the statute; (3) he was not on the Site Selection Committee; (4) he would not personally appear or participate in the candidate firm's presentation to the selection committee; and (5) he would not discuss the leasing arrangement with his agency. Also, if his firm subcontracted, the work was only about 5% of the overall project costs. Other than the overall costs proposed, the primary criteria in selecting a candidate focused on site location, not the type of work his firm would subcontract to perform. Thus, it did not appear that the work of the subcontractor would affect the selection, regardless of the contractor. This fact also diminished any appearance that having his firm subcontract as part of one contractor's team would influence the selection of the contractor.
If his firm participated in the contract, it was not anticipated that his State agency would have any special needs from the subcontractor which would require him to discuss those needs with his agency. However, the Site Selection Committee had not decided which candidate would receive the contract. Even assuming that the candidate firm which wished to use his firm as a subcontractor were selected, and assuming his firm was kept as its subcontractor, the need for discussions and decisions between the individual in his private capacity and his agency were remote and speculative. As the Commission must render advisory opinions based only on a "particular fact situation," 29 Del. C. § 5807(c), it concluded that it was premature to rule on whether such discussions and decisions, if they needed to occur, would violate the Code of Conduct. The Commission advised the parties that they could seek an opinion should such situation arise. (Commission Op. No. 96-51).
Stock in Private Enterprise
A State officer owned a single share of stock in a small Delaware corporation, valued at approximately $600. The stock holding was not for investment purposes, but a "gesture of community support." The private corporation rented property it owned to a second corporation in which it held stock. The second corporation had a sublease agreement with the State. The private corporation did not receive any proceeds from the sublease agreement. The State officer was responsible for selecting someone to insure that the second corporation complied with its sublease agreement. As a State officer, he had no decision making authority over the corporation in which he held stock, and the amount of stock did not constitute a "financial interest" as defined by the Code of Conduct. However, he asked if holding stock in the first corporation would violate the Code of Conduct because he selected the person who would insure that the second corporation complied with the sublease.
The Code prohibits State officers from reviewing and disposing of matters in which they have a personal or private interest which tends to impair independent judgment in performing official duties with respect to that matter. 29 Del. C. § 5805(a)(1). As a matter of law, a person has an interest which tends to impair judgment if they have a "financial interest" in a private enterprise and any action or inaction would affect that interest to a lesser or greater extent than like enterprises or other interests in the same enterprise. 29 Del. C. § 5805(a)(2)(b). A person has a "financial interest" if he: (a) has a legal or equitable ownership interest of more than 10%; (b) expects to receive more than $5,000 in income during the year as an employee, officer, director, trustee or independent contractor; or (c) is a creditor in an amount equal to 10% or more of the debt of that enterprise. 29 Del. C. § 5804(4). Here, the individual's ownership interest was less than 10%; he received no income from the corporation; and he was not a creditor of the corporation.
While his stock holding did not meet the statutory definition of "financial interest," the Commission pointed to a Delaware Superior Court decision in which the Court relied only on the general prohibition against having an interest which tends to impair judgment, 29 Del. C. § 5805(a)(1) without any reference to the "financial interest" provision, 29 Del. C. § 5805(a)(2)(b), for an assumption that an individual had a conflict of interest. Beebe Medical Center v. Certificate of Need Appeals Board, Del. Super., C.A. No. 94A-01-004, Terry, J. (June 30, 1995), aff'd, Del. Supr., No. 304, Veasey, J. (January 29, 1996). The Code also prohibits engaging in conduct which could raise suspicion that they are violating the public trust. 29 Del. C. § 5806(a).
The Commission said that although the $600 stock did not constitute a "financial interest," the question was whether the holdings might create a perception of impropriety. The Commission held that under these facts, it found no justifiable imperception because: (1) the holding was small; (2) it was fully disclosed; (3) the basis of the holding was a "gesture of public support," as opposed to an investment opportunity; (4) he would recuse himself from reviewing decisions on whether the second corporation was complying with the sublease; and (5) the first corporation received no proceeds from the sublease agreement with the State. (Commission Op. No. 96-61).
Stock Holdings in Publicly Traded Company
As part of his State duties, a State officer was to find a company to fulfill a service contract. The service needed was highly technical and the State officer "did a lot of research," and "acquired a lot of knowledge," about companies which provided the highly technical service. Specifically, only three companies were the primary providers, and they had a substantial portion of the world market. He recommended that one of the companies provide equipment and phase-in services at more than $1 million. After the contract was issued, he learned that the company was making a public offering of its stock. He concluded that he could use his knowledge about the company without any conflict because his investment was less than the amount defined by the Code of Conduct as a "financial interest." He and his wife bought 340 of the 2 million shares offered.
He was to routinely monitor the contract for compliance and could decide if his agency needed additional services. If more services were needed, his recommendation "would carry a lot of weight." He also said other Delaware agencies and other jurisdictions might seek his recommendation on the company's ability to fulfill the contract. He said that although any sale would make the company look better, he did not think his decisions would affect the stock price. However, he recognized that his opinion could have an impact. He said that if the Commission found a violation he could delegate his decision making authority or liquidate the investment.
His investment was not enough to be a "financial interest" as defined by the Code. See, 29 Del. C. § 5804(5). However, the Commission noted other provisions which affected its decision.
First, the code prohibits reviewing or disposing of matters pending before the State where the individual has a personal or private interest which tends to impair judgment with respect to that matter. 29 Del. C. § 5805(a)(1). The Commission pointed out that the Delaware Superior Court interpreted the provision as requiring recusal of a decision maker on matters pending before the State where a private company employed the individual and the company was seeking a decision from his agency. The Court did not discuss the amount of any "financial interest." See, Beebe Medical Center v. Certificate of Need Appeals Board, Del. Super., C.A. No. 94A-01-004, Terry J. (June 30, 1995), aff'd, Del. Supr., No. 304, Veasey, J. (January 29, 1996).
Second, the Code restricts State employees from having "any interest in any private enterprise . . . which is in substantial conflict with the proper performance his duties." 29 Del. C. § 5806(b)(emphasis added).
Third, the Code prohibits conduct which could raise suspicion that the individual is violating the public trust. 29 Del. C. § 5806(a). The Commission noted that in a prior decision it said: "The significant import of Section 5806(a) is that employees are to pursue a course of conduct which will not 'raise suspicion' that their acts will 'reflect unfavorably upon the State and its government.' Actual misconduct is not required; only a showing that a course of conduct could 'raise suspicion' that the conduct reflects unfavorably." Commission Op. No. 92-11.
The Commission concluded that his investment created perception and possible conflict of interest problems because: (1) only three major companies provided the service; (2) the service was in a fast developing field; (2) this limited competitiveness was to be weighed against his decision making authority; (3) he would be routinely deciding if the equipment worked properly; (4) he would be the one to recommend additional services for his agency; (5) his decision making authority carried "a lot of weight" not only with his own agency but other Delaware agencies, and even other jurisdictions; and (6) no statute or rule prevented him from delegating his decision making authority. (Commission Op. No. 96-85).
ACCEPTING ANYTHING OF MONETARY VALUE
Concurrent Employment
Local Government Employee Running for Elected Office
An individual who worked for a city government was subject to the State Code of Conduct because it applies to local governments that have not adopted their own Code. 68 Del. Laws, c. 433 § 1. Besides holding his government position, he wished to run for office in a different city. The Commission referred the individual to its prior holding that no specific Code of Conduct provision prohibits running for elective office while employed by the government. Commission Op. No. 92-2.
As this individual was a law enforcement officer, he also was referred to the Police Officers' Bill of Rights regarding participating in political activities. See, 11 Del. C. § 9200(a). The restriction against police officers engaging in political activity while on duty or when acting in an official capacity or while in uniform was similar to the statute governing political activities by State Merit employees, which prevents them from engaging in political activity or soliciting political contributions, assessment or subscriptions during hours of employment or while engaged in State business. See, 29 Del. C. § 5954. Although the Commission has no jurisdiction over those laws, it noted that those restrictions were consistent with the Commission's interpretation of Code of Conduct provisions which preclude acts appearing to be improper and acts in substantial conflict with properly performing public duties under the concurrent employment provision. See, 29 Del. C. § 5806(a) and (b).
As the individual had not been elected to office, the Commission found that the issue of whether being an elected official would create an actual conflict with his government employment was not ripe for decision. It advised the individual that if elected, he should be aware of the restrictions on holding concurrent employment. See, 29 Del. C. § 5806(b).
He was advised that if elected, he would be subject to the State Code of Conduct not only in his employed position, but also in his elected position. It said if a particular fact situation arose after being elected, he could return to the Commission for an opinion on a particular fact situation. (Commission Op. No. 96-02). (Merit Employees, See, 29 Del. C. § 5954 & AG Op. No. 78-016).
NOTE: The Delaware Supreme Court, in a 1998 advisory opinion interpreting the State Constitution, held that a State trooper must resign as a State trooper if elected to the General Assembly as he would be exercising both legislative powers (enacting State laws) and executive powers (enforcing State laws) and the combination would be "antithetical to Separate of powers between the three branches of government." In Re: Request of the Governor for an Advisory Opinion, Del. Supr., 722 A.2d 307 (1998).
Running for Elected Office While Serving as an Appointee to a State Board
An individual who was an appointee to a State Board wanted to run for either a city or county elected position. He had not decided which one.
The Commission referred the individual to its earlier rulings which held the Code of Conduct does not specifically prohibit running for elective office. (Commission Op. Nos. 92-2 and 96-02). However, in those opinions, the Commission noted that the Code of Conduct does preclude acts appearing to be improper and acts in substantial conflict with properly performing public duties. 29 Del. C. § 5806(a) and (b). Viewing those provisions in the context of running for elective office, the Commission held that individuals seeking political office should not engage in political activities or solicit any political contribution, assessment or subscriptions during hours of State employment or while engaged in State business. See, Commission Op. No. 96-02.
It noted that apart from the Code of Conduct, other statutes prohibit certain persons from being a candidate or holding elective office. For example, Public Integrity Commission members cannot be elected or appointed to U.S. or State office or be a candidate for those offices, 29 Del. C. § 5808(b); the State Election Commissioner may not hold or be a candidate for office, 15 Del. C. § 301, etc. The Commission pointed to those provisions to alert the individual to check beyond the Code of Conduct for other statutes that might affect his decision to run for office.
The Commission held that it could not rule on whether any conflict would be raised if the individual were actually elected because it can render decisions based only on particular facts. 29 Del. C. § 5807(c). Here, the individual had not even decided which elected office he intended to seek. Assuming he was elected, it would still need a particular fact situation to decide if the concurrent employment would violate the prohibition against holding other employment where it may result in: (1) impairment of independence of judgment in exercising official duties; (2) undertaking to give preferential treatment to any person; (3) making a governmental decision outside official channels; or (4) any adverse effect on the confidence of the public in the integrity of the State government. 29 Del. C. § 5806(b). Without specific facts, the Commission would not speculate on whether holding the concurrent positions would violate the Code.
If the individual were elected, as an elected official he would be subject to the State Code of Conduct, unless the particular local government had adopted its own code of Conduct. See, 68 Del. Laws, c. 433 § 1. Only four local governments have adopted their own codes of conduct--Lewes, Newark, Wilmington and New Castle County. Also, as a State official, he would remain subject to the State Code of Conduct as a result of that position.
The Commission advised the individual that if elected and a specific situation arose, he should feel free to seek a decision from the Commission based on that specific situation. (Commission Op. No. 96-22). (Merit Employees, See, 29 Del. C. § 5954 & AG Op. No. 78-016).
Security Concerns
An agency asked if it would violate the Code of Conduct for one of its employees to accept part-time employment which would result in the employee having access to the agency's offices after duty hours. The agency was concerned that a security problem could occur, although no such incident had occurred. Further, the agency said its concern was not specifically about this individual. Rather, it resulted from a risk analysis determination that there could be a problem in granting agency employees access to areas where confidential information was retained as it could set precedent and create a problem.
The Code prohibits concurrent employment if it would result in: (1) impaired independence of judgment; (2) preferential treatment to any person; (3) government decisions outside official channels; or (4) any adverse effect on the public's confidence in the integrity of the government. 29 Del. C. § 5806(b).
The Commission issues advisory opinions on a particular fact situation. 29 Del. C. § 5807(c). As the agency concerns were not related to this individual and no security incident had occurred, the Commission held that the matter was not ripe for decision.
Further, the agency was charged by the federal government with risk analysis for security problems based on federal statutes and/or regulations. The Commission's jurisdiction is limited to implementing and administering the Code of Conduct. See , 29 Del. C. § 5808(a). Thus, it has no jurisdiction over federal provisions relating to security matters. (Commission Op. No. 96-09).
Employment with Companies Regulated by Agency
Employees of a State agency were offered temporary jobs by a company regulated by their agency. Their State position required them to enforce regulations against the company, when necessary. While performing the temporary job, they could observe whether the company was violating the regulations.
The Code prohibits outside employment if it may result in: (1) impaired independence of judgment in performing official duties; (2) preferential treatment of any person; (3) official decisions outside official channels; or (4) any adverse impact on the public's confidence in the integrity of the government of the State. 29 Del. C. § 5806(b).
Because they would be paid by a company for which they enforced State regulations and their off-duty work for the company could result in observations that State regulations were being violated, the Commission concluded that accepting the outside employment could adversely effect the public's confidence in the integrity of government because the public might assume the employees would give preferential treatment to the outside employer or assume that the employees' judgment could be impaired because of the conflict between performing duties for an employer against whom they must enforce State regulations. (Commission Op. No. 96-41).
Employment With an Agency Contractor
A company which contracted with a State agency was unable to fulfill the contract in three areas because it did not have the necessary expertise. The agency asked another agency if the contractor could hire some of its employees to provide the expertise. They would provide these services to the contractor during their off-duty hours. If the contractor could not hire these State employees, the contract restrictions would result in a funding reversion if the deadline were not met. The State employees who would fulfill the contract were well qualified to provide the services and would perform the functions during non-regular business hours so that it would not interfere with their full-time employment. One was a Merit employee and the other was a non-Merit employee. The agency asked if the contractor could hire the employees, and if so, whether they should be paid or receive compensatory time.
The Code restricts employees from accepting other employment if it would result in: (1) impaired judgment; (2) preferential treatment to any person; (3) government decisions outside official channels; or (4) appear improper. 29 Del. C. § 5806(b).
The Commission found no violation of the Code under these facts. Even assuming a violation, the Commission may grant waivers if there is an undue hardship for the State agency. 29 Del. C. § 5807(a). Here, the need of the agency to fulfill the contract obligation, with consideration of both the expertise required for the program and the need to meet the contract deadline, would constitute a hardship for the agency.
Regarding whether the employees should be paid or receive compensatory time, the Commission did not find that decision to be within its jurisdiction. Rather, the agencies should determine how compensation will be made based on the contract provisions and any other relevant law or rule. For example, as to the Merit employee, the agency might review such things as the Merit Rules regarding dual employment with another State agency (Rule 5.0500) and the Merit Rule on partial compensation received from another agency (Rule 5.0500). See, Merit Rules (Revised August 12, 1994). (Commission Op. No. 96-17).
Contracting with a State Agency
A State employee started his own computer company as an outside business. He asked if he could bid on a State contract that was to be publicly noticed and bid. The contract was not with his own agency, nor did he have any dealings with the agency in his official capacity. He asked if his outside employment violated the Code of Conduct.
The Code prohibits State employees or any private enterprise in which they hold a legal or equitable ownership of more than 10% (more than 1% if the corporate stock is regularly traded on the securities market) from bidding on State contracts of more than $2,000 if there is no public notice and bidding. 29 Del. C. § 5805(c). As there was notice and public bidding for this contract, the amount of the contract and the amount of the ownership interests were immaterial, and as a State employee, he could bid on the contract.
The Code also prohibits State employees from representing private enterprises before the agency by which they are employed. 29 Del. C. § 5805(b)(1). As he would not be representing the private enterprise before his own agency, there was no violation of this section.
Regarding whether his outside employment created a conflict, the statute provides:
No State employee shall have any interest in any private enterprise nor shall he incur any obligation of any nature which is in substantial conflict with the proper performance of his duties in the public interest. No State employee shall accept other employment . . . under circumstances in which such acceptance may result in any of the following:
(1) impairment of judgment in exercising official duties;
(2) an undertaking to give preferential treatment to any person;
(3) the making of a government decision outside official channels; or
(4) any adverse effect on the public's confidence in the integrity of the government.
29 Del. C. § 5806(b).
The Commission has previously held that to insure there is no substantial conflict with performing official duties, the individual should not perform any functions related to the outside employment during the hours when the individual is supposed to be performing State duties. See, e.g., Commission Op. Nos. 95-13, 95-30, 95-39. Here, the State employee would perform the contract obligations in the evenings and on weekends, when he was not working.
The facts do not appear to create a situation which would tend to impair judgment, or result in preferential treatment or decisions outside official channels because the agency with which he sought to contract was not the same agency where he was employed, and the official decisions made for the agency where he worked did not impact on the contracting agency or vice versa.
As the law permits State employees to contract with State agencies if there is notice and public bidding, and as he was not representing the private enterprise before the agency which employed him, it did not appear that such action would have any adverse effect on the public's confidence in its government.
However, the Commission bases its opinions on a particular fact situation. 29 Del. C. § 5807(c). If he were selected as the contractor and learned additional facts which raised issues under the above provisions, or any other Code of Conduct provision, he was to re-evaluate his situation and return to the Commission for additional advice if necessary. (Commission Op. No. 96-48).
Consulting with facilities regulated by Employee's Agency
A State employee who inspected certain private facilities for compliance with Federal and State regulations had duties which included going to the facilities, interviewing clients and residents, making observations, etc., and writing a report on whether the facility complied with regulations. When a facility had not complied with the regulations, it had to write a plan of correction, and submit the plan to his office for approval.
He was contemplating becoming a consultant during off duty hours and anticipated two consulting possibilities.
First, he asked if he could be a consultant to the same type of facilities in another state. He wanted to provide quality assurance to improve facility compliance with the State and Federal regulations. He said the Delaware facility owners, which his office licensed and certified, might also own the same kind of facility in other states and that he would seek clients from those Delaware owners.
Second, he asked if he could consult with the regulated facilities in Delaware if he transferred to another division in his own agency or to another State agency.
He would call the Delaware providers to see if they wanted to hire him. For out-of-state clients, which Delaware providers did not own, he would go door-to-door. He intended to tell prospective clients that he regulated such facilities in Delaware.
The Code prohibits outside employment under circumstances where it may result in any of the following:
(1) impairment of independence of judgment in exercising official duties;
(2) undertaking to give preferential treatment to any person;
(3) making government decisions outside official channels; or
(4) any adverse effect on the confidence of the public in the integrity of the State government. 29 Del. C. § 5806(b).
State employees, officers and officials also must not engage in conduct that would raise suspicion among the public that they are violating the public trust and that would not reflect favorably upon the State. 29 Del. C. § 5806(a).
State employees also may not use public office to secure unwarranted privileges, private advancement or gain. 29 Del. C. § 5806(e).
(A) Consulting Work Outside the State
The Commission concluded it might appear to the public that he would give preferential treatment to companies with facilities regulated in Delaware if he consulted for those same companies in other States. Thus, the public's confidence in the integrity of its government could be adversely affected, which would violate 29 Del. C. § 5806(b)(4).
Additionally, there could be an appearance of impropriety, even if the Delaware companies he regulated did not own the out-of-state facilities. When he inspected for compliance with federal regulations, federal monitors followed-up on his inspections. If he advised an out-of-state client how to comply with the same federal regulations he enforced in Delaware, and the federal agency that monitors his Delaware work challenged his advice, he could find himself in an adversarial role with the federal agency he must work with as part of his State position.
This Commission previously recognized that if an individual worked as a private consultant to companies outside of Delaware on the same matters his agency was responsible for in Delaware, his advice as a consultant could be later challenged, and his State position would certainly be brought out. Commission Op. 91-19. The Commission believed this adversarial position would reflect unfavorably on the employee's position of holding the public trust, and therefore would violate the Code. Similarly, if this employee advised clients outside of Delaware on federal regulations he enforced in Delaware, and had his advice challenged, his State position would certainly be brought out in an adversarial proceeding. This Commission must issue advisory opinions with a view toward consistency. 29 Del. C. § 5809(5). To insure consistency in its opinions, the Commission found that the activities he wished to engage in with out-of-state clients would violate 29 Del. C. §5806(a).
In soliciting out-of-state clients, he planned to inform prospective clients of his position as a specialist with Delaware and tell them he inspected the same type of facility in Delaware. Even if the out-of-state facilities were not owned or operated by a Delaware company regulated by his agency, he could persuade out-of-State clients to hire him because such facilities in all States have to comply with the federal regulations he enforces as part of his State job. Prospective clients may believe he has an inside track on applicable federal regulations. Also, if clients followed his advice, and later had a compliance problem, they might argue that because he inspects Delaware facilities for compliance with the same federal regulations, his advice carries an inspector's seal of approval.
The Code prohibits State employees from using public office to secure unwarranted privileges, private advancement or gain. 29 Del. C. § 5805(e). It also prohibits conduct that would raise the suspicion among the public that an employee is engaging in acts violating the public trust. 29 Del. C. § 5806(a). As a minimum, because he would be soliciting clients and telling them of his State position, it might appear to the public that he was using his State position to secure private clients for his own financial gain.
(B) Consulting with Delaware facilities
(1) While working in another position in the same agency
This employee had applied for another position in the same division where he presently worked. This would mean that he would still be an inspector in the same field, but would be inspecting different facilities.
Assuming he was selected for the position, the outside employment provision would still apply. See , 29 Del. C. § 5806(b)(4). If clients hired him to consult on issues regulated by his same division, it might appear that his clients would receive preferential treatment from the persons within that division.
This Commission previously ruled that accepting outside employment with businesses regulated by their agency would be improper for State employees. Commission Op. No. 96-41(where State employees enforced regulations against a specific industry, accepting outside employment with those same companies would be improper because, as a minimum, it could adversely affect the public's confidence in government because the public might assume that the employees would give preferential treatment to the outside employer when enforcing the regulations. Also, the public may believe that the employees' judgement would be impaired because of the conflict between performing duties for the outside employer and the need to enforce State laws against that same employer).
Beyond the outside employment restrictions, the Code prohibits State employees from representing or otherwise assisting private enterprises with respect to any matter before the State agency with which they are associated by employment. 29 Del. C. § 5805(b)(1).
Thus, if selected for the job, if he consulted with private facilities regulated by the same agency that employed him, he would be at least "assisting" them with respect to matters before his agency because he would be advising them on how to comply with the regulations enforced by his agency. Thus, the Commission concluded that serving as a consultant to a private enterprise regulated by his agency under such circumstances would violate 29 Del. C. § 5805(b)(1).
(2) If transferred to another agency
He also asked if he went to another State agency, whether consulting with the facilities in Delaware would be permissible. This Commission must issue advisory opinions based on "particular facts." 29 Del. C. § 5807(c). Without the particulars of what the job would entail, what regulatory authority would be exercised in the position, etc., the Commission did not have particular facts to render a decision. (Commission Op. No. 96-66).
Teaching as Outside Employment for a Public School Teacher
A State employee asked if it were a conflict of interest for him to hold outside employment teaching a private course similar to a course he taught in the public schools for students. He and his spouse owned a company that offered the course.
The Code of Conduct prohibits State employees from having any interest in a private enterprise or incurring any obligation of any nature in substantial conflict with the proper performance of official duties. It also prohibits outside employment if it may result in: (1) impaired independence of judgment in exercising official duties; (2) an undertaking to give preferential treatment to any person; (3) a government decision outside official channels; or (4) any adverse effect on the public's confidence in the integrity of the government. 29 Del. C. § 5806(b).
The employee did not conduct business related to his private enterprise during hours when he was working for the State. He also did not use supplies, vehicles, books, etc., from his State employment to teach the outside course. If he used State facilities to teach the course, his private enterprise would pay a rental fee set by the State. The course was advertised by either notice in newspapers or to insurance companies to their clients, and did not specifically target students at the school where he taught. Students or their parents from the public school might respond to the ads, but not many had done so. When teaching the outside course, he did not mention the specific school where he taught, but did say he was teaching a similar subject in public schools.
Under these facts, the Commission found no violation of the outside employment provision. (Commission Op. No. 96-20).
Gifts, Payments, etc.
Scholarship
A national professional association of government employees in a certain career field offered scholarship opportunities to public employees to attend a university course to enhance public administrative skills. The scholarship paid for tuition, room, board, etc. Some private companies contributed the tuition funds to the national association. The association and the university reviewed applications to decide who would receive a scholarship.
The Code of Conduct restricts acceptance of gifts, payment of expenses, or anything of monetary value if it may result in: (1) impaired judgment in exercising official duties; (2) preferential treatment to any person; (3) making government decisions outside official channels; or (4) any adverse impact on the public's confidence in the integrity of the government. 29 Del. C. § 5806(b).
The association offering the scholarship opportunity did not do business with and was not regulated by the individual's agency. The agency did not regulate the companies contributing to the tuition, but several were vendors. The individual had no personal role in selecting those companies as vendors for the agency; and was not aware that any contributor had any dealings with the agency, until after attending the course when the individual conducted a search to learn if the State agency had such dealings. The Commission concluded that the individual could not have given preferential treatment nor had impaired judgment when that individual did not choose the vendors. (Commission Op. No. 96-52).
Tickets and Accommodations for an Athletic Event
A State officer received passes to an athletic event and the cost of lodging while attending the event from a friend who was a State employee in another State. The friend received the passes from a corporation.
The standard for accepting gifts is whether such acceptance would result in: (1) impairment of judgment in exercising official duties; (2) preferential treatment to any person; (3) government decisions outside official channels; or (4) any adverse impact on the public's confidence in the integrity of its government. 29 Del. C. § 5806(b).
The friend worked for a State agency in another State and had no affiliations or business with the State officer's Department or with any Delaware State agency. Additionally, the corporate sponsor had no dealings with either the officer's Department or any State agency. The Commission found that accepting the gift did not raise an ethical issue. (Commission Op. No. 96-28).
Lunches from Vendors
Vendors for a State agency were selected to give product presentations during the employees' lunch hour. Although the purpose of the presentations was to educate the employees on the products, the selected vendors also provided lunches, such as sandwiches, pizza, etc. Employees were not required to attend and rarely could they receive educational credit for doing so. Although the employees who attended did not make direct decisions on whether such vendors would be used, they were trained professionals who provided opinions to those who decided if the product would be used. A representative from the agency and a vendor stated that no pressure was put on vendors to provide the lunches. They noted that without the lunches, the staff was not as inclined to attend. They asked if such lunches fell within the meaning of "gift" and whether acceptance violated the Code of Conduct.
The Code of Conduct restricts employees from accepting:
"other employment, any compensation, gift, payment of expenses or any other thing of monetary value under circumstances in which such acceptance may result in any of the following: (1) impairment of independence of judgment in the exercise of official duties; (2) an undertaking to give preferential treatment to any person; (3) the making of a governmental decision outside official channels; or (4) any adverse effect on the confidence of the public in the integrity of the government of the State." 29 Del. C. § 5806(b).
The Code of Conduct does not define "gift." The rules of statutory construction require terms to be read in their context and given their common and ordinary meaning consistent with the manifest intent of the General Assembly. 1 Del. C. §§ 301 and 303. The dictionary definition of "gift" is "something voluntarily transferred by one person to another without compensation." Merriam Webster's Collegiate Dictionary, p. 491 (10th ed. 1993). This definition seems consistent with the General Assembly's intent because the same provision separately refers to "any compensation" and "payment of expenses." Under the statutory terms, the lunches could be considered: (1) gifts; (2) payment of expenses; or (3) any other thing of monetary value.
No matter which term applies, the test is whether acceptance violates any of the four statutory criteria. The Commission presumed that acceptance would not actually result in impaired judgment, preferential treatment, or government decisions outside official channels. However, to decide if acceptance would adversely effect the public's confidence in the integrity of the government, the Commission looked at the totality of the circumstances. Although attendees had no direct decision making authority, their indirect authority was significant because they were trained professionals who could speak with authority on the product's value to those who decide which vendor to use. Further, the public could view the training as not so vital because no one was required to attend and educational credit was rarely given. Also, the unique timing of the sessions, only during lunch hours, could be viewed by vendors and the public as subtle pressure to provide lunch, especially as no one was required to attend and they generally were not given credit for doing so.
The Commission weighed this public view against the facts which diminished the question of an improper appearance: (1) the individuals did not directly decide matters about the product; (2) the meals were apparently not elaborate and apparently did not cost much; (3) vendors were not required to provide meals and the vendor who appeared before the Commission said he did not feel pressured; (4) the individuals who did attend might enhance their knowledge and skill; and (5) while educational credit was not generally provided, the Commission noted that the agency representative, who was a trained professional, believed the sessions were valuable.
The Commission found balancing these views difficult under these particular facts, but held that it must place the views within the purpose of the statute which is to insure the public's confidence in its employees and officials. 29 Del. C. § 5802. Statutes enacted for a public purpose are broadly construed to achieve that public purpose. See generally, 3A Sands, Sutherland Stat. Constr. Chapter 71, (5th ed. 1992). In balancing the views in favor of the public purpose, and under the particular facts of this case, the Commission concluded that accepting the lunches from vendors created a perception problem. The elements creating the perception problem were: (1) the indirect, but significant potential of influence on decisions; and (2) the people paying for the lunches were sales representatives, not professional instructors, so by the very nature of their job, a perception could exist that they could use the sessions as an indirect avenue to a sale (emphasis by the Commission).
Aside from the lunches, vendors also periodically provided pens, notepads, mugs or clipboards to the staff. The Commission held that because the recipients had no direct decision making authority, the issue was whether acceptance may raise an appearance of impropriety. The Commission assumed that the items were promotional in nature, e.g., carried the company's logo and not very costly. Aside from the minimal costs, the Commission noted the FDA regulated these particular vendors regarding what kind of items may be given. There were no facts presented to suggest that acceptance created a perception of impropriety. (Commission Op. No. 96-78).
Gift Certificate from Business Agent
A state employee was responsible for constituent relations in her division. As such, she responded to inquiries from certain business agents, such as the appropriate time for filing certain documents, status of a claim, etc. During the holiday season, she received a seasonal card from a business agent. Enclosed in the card was a $100 gift certificate. The card expressed appreciation for her assistance in matters related to her State job. She believed acceptance would create an appearance of impropriety and sought an opinion from the Commission.
Her statement to the Commission was that she gave the same type of information and assistance to this business agent as she gave to anyone else who made inquiries. The Commission found that acceptance would, as a minimum, create an appearance of impropriety resulting in an adverse effect on the public's confidence in the integrity of State government because it might appear that acceptance would result in preferential treatment to the business agent. Accordingly, the Commission directed that the gift be returned. (Commission Op. No. 96-04).
Samples from Vendors
Various vendors gave a State agency equipment samples to evaluate whether the equipment would be selected for official use by students/schools. A committee evaluated the equipment, and selected the vendor's equipment that would be for official use. The agency director asked if accepting the samples were proper. He also asked if he could use the samples as door prizes at a conference.
The Code of Conduct prohibits accepting anything of monetary value if acceptance may result in: (1) impaired judgment in exercising official duties; (2) preferential treatment to any person; (3) official decisions outside official channels; or (4) an adverse effect on the public's confidence in State government. 29 Del. C. § 5806(b).
As the official status selection was not within the director's sole discretion, and as sales representatives commonly provided evaluation samples, the Commission found no violation of the above provision, regarding accepting the samples.
Regarding using the samples as door prizes, the Commission found no specific applicable provision in the Code of Conduct. A general provision precludes State employees from engaging in conduct violating the public trust. 29 Del. C. § 5806(a). Because the equipment was only a sample to aid the decision making process, and the students/schools would have official regulation equipment for use, the Commission found no violation in using the samples as door prizes. (Commission Op. No. 96-59).
Payment to Honorary Officials
A State regulatory commission examined, licensed and renewed licences of applicants for certain licenses. A different agency selected a contractor to prepare examination questions. However, it might seek input from the commission members on the contractor.
To insure test questions prepared by the contractor reflected changes in the law and in industry practices, a panel of experts in that field reviewed the questions to decide which ones would be retained, updated or discarded to maintain the test validity. Two commission members and others, including some State employees, spent two (2) days reviewing 500 questions. The contractor offered each participant, not just the commissioners, $100 per