Table of Contents 1999 Synopses of Opinions Jurisdiction Allegations of Improper Hiring Procedures, Sexism, Racism, etc.1 Overcrowding and Lack of Medical Care in Correctional Facility2 Exposure to Toxic Fumes . . . . . . . . . . . . . . . . . .2 Disclosure of Business Dealings With Government Entities Local Government Official Contracting with Local Government3 State Employee Contracting with Agency to Transport Clients4 State Employee Conducting State Training. . . . . . . . . .5 Contracting with State Agency - Waiver Granted. . . . . . .6 Scope of the Code when Working for State Contractor . . . .9 Having an Occupation Regulated by the State . . . . . . . 15 Disclosure of Contracts of Local Officials. . . . . . . . 17 Part-time Contract with Another State Agency. . . . . . . 18 Personal or Private Interests Personal or Private Interests of General Assembly Members 20 Wife's Employment by Subsidiary when Another Subsidiary is Regulated by Agency Hiring Her Husband . . . . . . . . . . . . . . . . . 21 Soliciting for Private Enterprise . . . . . . . . . . . . 23 Waiver Granted - Personal Interest in Private Employment 25 Accepting Anything of Monetary Value Private Enterprise as Sponsor of State/Federal Event. . . 32 Dissent: . . . . . . . . . . . . . . . . . . . . . . 34 Gifts Gift to State Employees from Former Boss . . . . . . 34 Tickets to the Grand Gala. . . . . . . . . . . . . . 37 Random Drawing for a TV. . . . . . . . . . . . . . . 39 Payment of Expenses Corporate Aircraft Travel . . . . . . . . . . . . . 40 More Travel on Corporate Aircraft . . . . . . . . . 41 Tickets to an Exhibition . . . . . . . . . . . . . . 42 Panelist at a Conference . . . . . . . . . . . . . . 45 Recognition as an Alumnus. . . . . . . . . . . . . . 47 Briefcase and Painting . . . . . . . . . . . . . . . 48 Point-to-Point Tickets . . . . . . . . . . . . . . . 50 Concurrent Employment State Employee Serving as a Local Elected Official . 53 Employment with Temporary Agency which has State Contract56 "Other Employment" includes Dual State Employment. . 57 Out-of-state Contract with a Company which Contracts with Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 No Representation of Private Employer Before Own Agency64 Driving for a State Contractor . . . . . . . . . . . 65 Post-employment State Job Required Interacting with Contracting Agency's Division67 Serving as a Mediator . . . . . . . . . . . . . . . . . . 68 Waiver Denied--Agency Has Hiring Options without Violating Post- employment Law . . . . . . . . . . . . . . . . . . . . . . . . 69 The literal application of the prohibition is necessary to achieve the public purpose . . . . . . . . . . . . . . . . . . . . . . 72 There is no "undue hardship" on the employee or agency73 Working on a "Matter" Years Before Retirement . . . . . . 75 Non-Profit with State Contracts . . . . . . . . . . . . . 77 Waiver Granted with Some Restrictions: Home Visiting Program80 YMCA - Waiver Granted . . . . . . . . . . . . . . . . . . 83 Employment with Agency Contractor . . . . . . . . . . . . 86 Engineering Work for a Private Firm . . . . . . . . . . . 88 Responding to Agency's RFP dealing with Federal Regulations89 Private Employer Contracts with Former Agency . . . . . . 92 Time Can Sometimes Change "Matter". . . . . . . . . . . . 94 Time Again Changes "Matter" . . . . . . . . . . . . . . . 95 Two Year Post-employment Restriction is Not a Total Ban on Working on "Matters" Involving the State . . . . . . . . . . . . . . . 96 River and Bay Authority is Not a "Private Enterprise" Under the Code of Conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Working for Firm that No Longer Has State Contract, but May in the Future . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 If No Contact; No Representation; No Assistance--Then No Violation99 Consulting on Matters for Which an Employee Was Responsible100 Jurisdiction Allegations of Improper Hiring Procedures, Sexism, Racism, etc. Complainant alleged that a State officer violated the Code of Conduct by: "creating" jobs; "doctoring resumes" of persons not qualified for jobs; violating Merit policies in interviewing and hiring; pre-selection of job applicants; having employees work out of their job classifications; racism, poor management; failing to accommodate sick or injured employees when medical documents were provided; carrying a handgun on the job; "leering" at female employees; making sexual comments; infatuation with a female employee allegedly resulting in favoritism; misuse of state vehicles; misrepresentation in accounting reports; prohibiting "Christmas" luncheons but instead having a "Holiday" party; computer misuse; and suborning perjury. The Commission held that it had no jurisdiction over the allegations, and dismissed them pursuant to 29 Del. C.  5809(3) based on the following: This Commission's jurisdiction is limited to administering the laws in Title 29, Chapter 58. Commission Op. No. 95-5. It has no jurisdiction over personnel laws or regulations governing the hiring, management and compliance with Merit policies. Commission Op. No. 97-28. Title 29, Chapter 59 and other personnel laws govern those matters. Laws and regulations regarding allegations of sexual harassment such as "leering," making sexual comments, etc., are governed by laws and regulations administered by such entities as the Equal Employment Opportunity/Affirmative Action (EEO/AA) section under State Personnel, or the Department of Labor, or certain federal offices. Similarly, allegations of racism are governed by laws and regulations administered by such entities. Commission Op. No. 91-16. Alleged misuse of government vehicles and penalties for misuse are governed by Title 29, Chapter 71. Thus, such allegations might more properly be within the jurisdiction of the Department of Administrative Services. Misrepresentation in accounting reports is not in this Commission's jurisdiction. The authority to audit is given by statute to the State Auditor. See, 29 Del. C.  2906. The allegations of computer misuse were that programs were installed on the agency's computer without authority to do so. This Commission has no authority to decide which computer programs are proper for an agency to install or whether the installation may violate any licensing agreement with the software vendor. Whether the allegations raise issues of any criminal laws, such as theft of services, would be a matter for the Attorney General. Whether the allegations raise issues under any licensing agreement with the software vendor would be a matter for the vendor to decide if it could pursue. The allegation that the individual will not permit "Christmas" luncheons, but instead has a "Holiday" luncheon, is not within the Commission's jurisdiction. To the extent that complainant is trying to allege some type of religious discrimination, such matters again might more properly be addressed to EEO/AA. Generally, laws against religious discrimination restrict showing a preference or bias for one religion over the other. However, it is unclear what the basis might be because "Christmas," the term which the State officer will not use, is not observed by all religions. It also was alleged that the individual carries a personal handgun on the job. The Commission has no authority to decide if any State employee or official may carry a handgun or under what circumstances such action would be permitted. To the extent the allegations raise issues of whether he has legal authority to carry a handgun, the Commission has no authority to: license or revoke the license of any person carrying a handgun; or decide if carrying the handgun raises an on-the-job safety issue. Regarding the allegation of having State employees make false statements under oath, to the extent the allegation is that the individual is suborning perjury, this Commission has no authority to determine if perjury has occurred. The crimes related to perjury are in Title 11, Chapter 5. To the extent those laws are alleged to have been violated, the Commission has held that it lacks jurisdiction over Title 11, criminal code provisions. See, Commission Op. No. 96-10. (Commission Op. No. 98-42). Overcrowding and Lack of Medical Care in Correctional Facility A prisoner alleged that a State correctional facility was overcrowded; he had not received proper medical treatment; and the facility has not responded to his grievances. The Commission's jurisdiction is limited to Title 29, Chapter 58: "It does not have the unrestricted, roving authority to review administrative actions where there is no alleged specific violation of the Code of Conduct." Commission Op. No. 93-17. As the allegations did not constitute a violation of the Code of Conduct, the complaint was dismissed for failure to state a violation, pursuant to 29 Del. C.  5809(3). (Commission Op. No. 99-07). Exposure to Toxic Fumes A prisoner alleged that he was exposed to toxic fumes at a State correctional facility. He alleged that he experienced dizziness, headaches, memory loss, etc., due to the exposure. He said he was consulting with his attorney; was bringing an action against the State; and that an environmental specialist had documented this matter. The Commission has no jurisdiction over alleged medical complaints that arise in a correctional facility. Commission Op. No. 99-07. As none of the allegations constituted a violation of the Code of Conduct, the complaint was dismissed for failure to state a violation, pursuant to 29 Del. C.  5809(3). (Commission Op. No. 99-19). See, Commission Op. No. 99-35, "Personal or Private Interests of General Assembly Members," supra at pp. 20-21, for jurisdictional issue on personal or private interests that may create a conflict for General Assembly members. See, Commission Op. No. 99-34, "Scope of the Code when Working for State Contractor," supra at pp. 9-15, for jurisdiction issue on Merit Rules, salary issues, etc. Disclosure of Business Dealings With Government Entities Local Government Official Contracting with Local Government The State Code of Conduct applies to local governments which do not adopt their own Code of Conduct. 68 Del. Laws, c. 433  1. Thus, officials of such local governments must fully disclose business dealings with their government entity. 29 Del. C.  5806(d). "Full disclosure" means providing sufficient details for the Commission to decide if the Code of Conduct was followed. Commission Op. Nos. 98-11 & 98-23. Here, a town's representative and its official submitted a "Worksheet for Filing Disclosure of Financial Interests," and other information on three contracts which the official's company performed for the town: one for less than $250; one for just over $400; and one for just over $325. Such contracts require "arms' length negotiations." 29 Del. C.  5805(c). "Arms' length negotiations" means that "unrelated parties negotiated the contracts, each acting in his or her own self-interest, which forms the basis for a fair market value determination." Commission Op. Nos. 98-23 & 97-17. Also, Delaware courts, in ruling on arms' length negotiations, have said: "the most economically meaningful way to judge fairness is to compare the price paid with the price likely to be available in alternative transactions." Id.(citing Oberly v. Kirby, Del. Super., 92 A.2d 445 (1991)). The official did not review or dispose of the matter in his official capacity and did not represent his private enterprise before his own agency; and filed a full disclosure as required by the Code. See, 29 Del. C.  5805(a), (b), (c),  5806(d). Regarding an alternative transaction, the town's representative said that in these types of contracts, when other firms are brought in, they charge not only for the actual work, but for man- hours for traveling to and from the site, and while at the site. He charged only for materials and labor at the sites. The town's representative said its employees did not have the expertise to perform the work and the nearest company he could have called would have been from Dover. As that firm would have charged man-hours for the travel time to and from and at the site, the official charged less than could have been obtained from an alternative transaction. These facts did not create the appearance that he used his public office for private gain as prohibited by 29 Del. C.  5806(e). Based on those facts, the Commission found no violation. (Commission Op. No. 99-01). State Employee Contracting with Agency to Transport Clients A State employee wanted to contract with a State agency to provide transportation to its clients. For the following reasons, the Commission concluded that he could seek the contract with the agency without violating the Code of Conduct. The Code permits State employees to contract with the government if: (A) there is notice and public bidding if the contract is for more than $2,000. 29 Del. C.  5805(c); (B) the State employee does not represent or assist a private company before their own agency. 29 Del. C.  5805(b); (C) the State employee does not review or dispose of the matter where they have a financial interest. 29 Del. C.  5805(a); (D) the State employee files a full disclosure with the Commission when they do business with the State. 29 Del. C.  5806(a); (E) the State employee does not use public office for private gain; 29 Del. C.  5806(e); (F) the State employee's other employment is not in substantial conflict with performing their State job and will not result in: (1) impaired independence of judgment in performing official duties; (2) preferential treatment to any person; (3) official decisions outside official channels; or (4) any adverse effect on the public's confidence in its government. 29 Del. C.  5806(b). Here, the contract was publicly noticed and bid. Also, it was not with his own agency, and he was not involved with the contracting agency in his State capacity. Thus, he did not represent his private company before his own agency and would not review or dispose of the contract decision on behalf of any agency. Based on those facts, it did not appear that his judgment in performing official duties would be impaired or that he was in a position to make official decisions outside official channels regarding the contract. The contract provided that the agency "intends to contract with any and all companies licensed in the State of Delaware willing to accept the terms and conditions set forth by the Division." Also, he said that the agency would give its clients a list of all contractors so they could call any company they desired. Thus, it did not appear that his private company would receive any preferential treatment in the contract decision. Further, he would not work on the contract during hours when performing State duties. His drivers would provide the actual transportation, so he would not be called to provide transportation while on State time. (Commission Op. No. 99-03A). State Employee Conducting State Training A State employee asked if he could train State employees on a subject which was part of his expertise in his other employment. In his State job he was a trainer, but not in the area of his other employment. His other employment required that he be licensed. Besides having private clients, he taught at a school, training students in this subject. He wanted to give the training during State hours. It was expected that he would be paid his State salary while giving the training. He and his division director envisioned that the training sessions would be set-up through the State Personnel Training Unit and would be open to any State employee who desired to sign up. The Code of Conduct restricts State employees from: (A) reviewing or disposing of matters where they have a personal or private interest which tends to impair independent judgment. 29 Del. C.  5805(a); (B) representing or assisting a private enterprise on matters before the agency which employs the individual. 29 Del. C.  5805(b); (C) having other employment if it may result in: (1) impaired independence of judgment in performing official duties; (2) preferential treatment to any person; (3) official decisions outside official channels; or (4) any adverse effect on the public's confidence in the integrity of its government. 29 Del. C. 5806(b); and (D) using public office to obtain a personal gain. 29 Del. C.  5806(e). Whether he could be paid his State salary to train on matters which were part of his other employment was not an issue within this Commission's jurisdiction, as State pay issues are governed by other statutes and regulations. Similarly, it could not decide which agency would be responsible for paying, if such payment were permitted. Thus, it addressed only those issues within the purview of the Code of Conduct. The decision of whether the State Personnel Unit could use his expertise in its training program would be made by the State Personnel Office. Thus, he would not review or dispose of the matter in his official capacity, nor would he represent or assist his private enterprise before his own agency. Here, he wanted to tell the State trainees that he was licensed, so they would know of his credentials. If he informed them that his outside business provided this service, it might create the perception that he was trying to create business for his private enterprise. Thus, it could appear that he was using public office to obtain a personal financial benefit. Such appearance could have an adverse effect on the public's confidence in the integrity of its government. Similarly, the same perception, that he was using public office to obtain a financial benefit for the school, could arise if he informed them that he provided training at the school. Thus, the Commission held that he may say that he was licensed, but he may not take State attendees as his private clients. The Commission understood that this would be unlikely because he was not seeking new clients as his primary focus was to provide training at the school. Also, he could not refer to the school in his presentation to State employees. (Commission Op. No. 99-02). Contracting with State Agency - Waiver Granted The Commission may grant a waiver to Code prohibitions if the literal application of the law is not necessary to serve the public purpose or there is an undue hardship on a State employee, officer, honorary official, or a State agency. 29 Del. C.  5807(a). When a waiver is granted, the proceedings become a matter of public record. 29 Del. C.  5807(b). Laurence Raichle, an employee of the Division of Public Health, gave the Commission a letter showing that he had contracted with the Department of Health and Social Services (DHSS) to provide transportation for Medicaid patients who are not in State facilities. He did not have the full contract details and gave authority to the Commission's legal counsel to contact the agency for details. Based on information from: Philip P. Soul‚, Sr., Division of Social Services (DSS), Medicaid Director; Kay Wasno, EDS Corporation, Provider Relations Manager; and Mr. Raichle, the Commission granted a waiver so he could fulfill the contract. The Code permits State employees to contract with the government if: (A) there is public notice and bidding if the contract exceeds $2,000. 29 Del. C.  5805(c); (B) the State employee does not represent or assist a private company before their own agency. 29 Del. C.  5805(b); (C) the State employee does not review or dispose of the matter. 29 Del. C.  5805(a); (D) the State employee files a full disclosure with the Commission. 29 Del. C.  5806(a); (E) the State employee does not use public office for private gain. 29 Del. C.  5806(e); (F) the State employee's other employment is not in substantial conflict with performing their State job and will not result in: (1) impaired independence of judgment in performing official duties; (2) preferential treatment to any person; (3) official decisions outside official channels; and (4) any adverse effect on the public's confidence in its government. 29 Del. C.  5806(b). Here, the State employee did not review or dispose of the contract decision. Thus, there was no violation of 29 Del. C.  5805(a). Contract details were fully disclosed as required by 29 Del. C.  5806(d). Mr. Raichle had no decision making authority in his position as a nurse at the Delaware Hospital for the Chronically Ill (DHCI), Division of Public Health, regarding transportation service for Medicaid patients and does not transport Medicaid clients who are in State facilities because the State transports them. Thus, it did not appear that his judgment in performing official duties would be impaired or that he could obtain preferential treatment for his company from the State; and no facts suggested that he would make official decisions outside official channels, as prohibited by 29 Del. C.  5806(b). Additionally, before applying to be a Medicaid transportation provider, his company had privately contracted with private nursing homes to provide transportation for their cash clients. They suggested that as he was transporting their cash clients, if he could transport Medicaid clients at the same time from the private facilities it would be a better service contract. He also provides transportation for other activities, such as limousine service to airports, proms, etc., Thus, he did not create the business based on reliance on a State contract, which diminishes the possibility that he used public office for private gain under 29 Del. C.  5806(e). The restrictions which were not complied with were: (1) public notice and bidding; and (2) the requirement not to represent or assist a private enterprise before the agency which employs him. Regarding the public notice and bidding requirement, the employee pointed out, and Mr. Soul‚ and Ms. Wasno confirmed, that any member of the public can seek to contract as a Medicaid transportation provider. According to the contract, the amount paid to providers is at the sole discretion of the Delaware Medical Assistance Program developed by a formula, based on the Federal Medical Assistance Program and/or Delaware Medical Assistance Program laws and regulations. (Contract p. 2 of 7,  3). The purpose of the public notice and bidding requirement is to insure that State employees do not obtain an unfair advantage over other competitors for the same contracting opportunity. Since any member of the public may seek the contract and the amount paid is apparently not negotiable, it does not appear that he would be able to obtain an advantage over competitors. Accordingly, the Commission waived that provision for this contract because there was substantial compliance with the other code provisions and because the literal application of this specific provision, in this case, was not necessary to achieve the public purpose. See, 29 Del. C.  5807(a). However, for any future contracts, he was advised to stay alert to the public notice and bidding requirement when State employees seek State contracts of more than $2,000. Additionally, he contracted with DHSS, which is the Department that employs him. The restriction against representing or assisting a private enterprise before one's own agency is to insure that State employees do not obtain an unfair advantage as a result of receiving preferential treatment in decisions made by their colleagues. He said that he heard about the transportation contracts when he was in nursing school; not from the agency, and was not aware that the contract was with DHSS. The record reflects that the initial application was submitted and handled by EDS Corporation. According to Mr. Soul‚ and Ms. Wasno, EDS is a private company which contracts with the State to provide the service. EDS reviews the applications for compliance with the contracting standards and then sends its recommendation to the agency. The application does not require applicants to indicate if they are a State employee. No facts indicate that EDS was aware that he was a State employee and worked for the agency which issues the contract. Additionally, the contract is with the Division of Social Services; not with his own Division. Thus, his immediate colleagues were not involved in the decision. The correspondence indicating his selection as a provider came from EDS. There is nothing to indicate that his selection resulted from preferential treatment because, among other things, EDS was not aware that he was employed by DHSS; the selection was not made by his colleagues; and as noted, the amount paid is formula driven so he would not be able to negotiate a more favorable contract because of his State position. The Commission noted that the EDS letter states that the contract is with DHSS and the actual contract clearly states that the contract is with DHSS. A more careful reading of these documents may have alerted him to the fact that the contract was with his own agency. However, he stated that he was not aware of the statutory restrictions. He said that when he mentioned his transportation business to a co-worker, the co-worker pointed out that he might want to come to this Commission to insure there was not a problem. While he had entered the contract, he had not provided any services, and immediately came to the Commission. Nothing indicated any intentional violation. Based on these facts, while the letter of the law may have been violated, the spirit of the law--to insure that State employees do not obtain an unfair advantage over competitors or through contracts as a result of their State employment--was not violated and the Commission, therefore, granted a waiver. (Commission Op. No. 99-03B). Scope of the Code when Working for State Contractor A State employee was hired by a private enterprise which contracted with his State agency. He would not work on the Delaware contract, but on a contract the company had with another State. The Commission found no violation as long has he did not participate in his official capacity on matters related to the company. As he raised a number of issues regarding merit rules, collective bargaining, etc., the Commission addressed the limits of its jurisdiction. (A) Applicable Law Under the State Code of Conduct, State employees: (1) Who have a financial interest in a private enterprise which does business with, or is regulated by the State, must file a full disclosure with this Commission. 29 Del. C.  5806(d). The filing of such statement is a condition of commencing and continuing State employment. Id. (2) May not review or dispose of matters if they have a personal or private interest which tends to impair independence of judgment in performing official duties. 29 Del. C.  5805(a)(1); (3) May not represent or assist a private enterprise on matters before the agency by which they are employed. 29 Del. C.  5805(b)(2); (4) May not have any interest in any private enterprise or 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, 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: (a) Impaired independent judgment in exercising official duties; (b) An undertaking to give preferential treatment to any person; (c) Making governmental decisions outside official channels; or (d) Any adverse effect on the confidence of the public in the integrity of the government of the State. 29 Del. C.  5806(b). (5) May not engage in a course of conduct which may raise suspicion among the public that they are violating the public trust and which will not reflect favorably upon the State and its government. 29 Del. C.  5806(a). (B) Application of Law to Facts (1) Limits of Jurisdiction This Commission's jurisdiction is limited to interpreting the Code of Conduct. Commission Op. No. 95-20. Thus, as to some issues discussed at the Commission's meeting, to the extent they require interpreting other laws, we have no authority to rule on such matters. For example, the State employee discussed a grievance filed over an agency policy on other employment. He said the matter was "settled" by an agreement that resulted in a different policy. Under separate law, his Department could "develop and implement rules, regulations, standards and policies governing the internal operation and administration of the Department and provision of services." (citation omitted). Delaware Courts have upheld an agency's policy that was more stringent than a statute when the policy was justified because of the potential for favoritism, undue influence and conflicts of interest if a State official participated in a contract with his agency. W. Paynter Sharp & Son v. Heller, Del. Ch., 280 A.2d 748, 752 (1971). However, we have no authority to interpret either: (1) the scope of his Department's legal authority to issue policies; or (2) any agency policy that it may issue pursuant to such laws. Similarly, to the extent that other employment is governed by other rules, i.e., Merit Rule 18.0200, or any collective bargaining agreement, we have no authority to interpret the Merit Rules or contract terms. Commission Op. Nos. 97-17; 95-5. He also said other employees in his agency hold other employment with contractors. Our decisions must be based on "particular facts." 29 Del. C.  5807(a). As he did not give any "particular facts" regarding their situations, this opinion interprets only the State Code of Conduct as it applies to his particular situation. His particular situation was that the private enterprise contracts with his division. He did not participate in awarding the contract; did not administer the contract; and did not supervise the person who does administer it. However, his present position exposes him to what he referred to as "indirect" decision making on the company's contract obligations. We discuss those activities in more detail below. He wanted to contract with the company to work on its contract requirements for a program in Florida. He gained his experience in the work the company wanted him to do, not in his present position, but in a position he held a dozen years ago. He would perform the work during hours when he is not working for the State, e.g., annual leave. First, as to the requirement for full disclosure when there is a financial interest in a private enterprise which does business with the State, we have held that "full disclosure" requires sufficient information for us to decide if the conduct complies with the Code. Commission Op. No. 97-17. We find that his written submission and statements at the Commission's meeting, with the relevant information identified in this opinion, constitute the required disclosure. Second, as to representing or assisting a private enterprise on matters before the agency which employs him, 29 Del. C.  5805(b)(2), he will not represent or assist the company before his agency because he will not work with or for the company on any contract they have or may seek with his agency. Rather, he will represent and assist it on its Florida contract. Thus, we find no violation of that provision. However, under two provisions, we find that to comply with the Code of Conduct, he should recuse himself from participating in matters regarding the company for the reasons stated below. The first provision is the one prohibiting State employees from reviewing or disposing of matters if they have a personal or private interest which tends to impair independent judgment in performing State duties. 29 Del. C.  5805(a)(1). Delaware Courts have held that this provision requires State officials to recuse themselves from participating in State decisions when they have the requisite personal or private 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, C. J. (January 29, 1996); Prison Health Services v. State, Del. Ch., C.A. No. 13,010, Hartnett, V.C. (June 29, 1993). In Beebe, the Court held that while the State official did not vote on the decision and his only remarks were neutral, he should not have participated even to that extent because the private enterprise for which he worked had a business agreement with the company over which the State Board on which he served was making a decision. In Prison Health, the State official was not on the contract selection committee and did not vote on the contract. However, he went to a meeting and asked three questions when a Departmental employee made a recommendation to some committee members and the head of the Department. The Court said that his participation "was inappropriate and he should have abstained from even this limited role in the procurement process because his wife was an employee (albeit a fairly low-level employee) of one of the bidders." Id. Here, the personal and private interest which he has in the company is more direct than in Prison Health. He privately contracted with the company. Further, he is involved in his agency's committee which makes contract decisions. Although he has no vote, he said the committee may ask him to give a "thumbs up" or "thumbs down" on a program. For that and other reasons discussed below, and based on the Beebe and Prison Health rulings, we find that he should not participate in matters regarding the company because of his private contract. The other provision, 29 Del. C.  5806(b), restricts other employment if it may result in: (A) Impaired independence of judgment in performing official duties-- This incorporates the same concerns raised under 29 Del. C.  5805(a), but sets it explicitly in the context of having other employment. Thus, we discuss his past and present dealings with the company under this provision. As contract administrator, a number of years ago, he participated in awarding the company a contract. After three years, he transferred the oversight responsibility to a State employee in another county, whom he does not supervise. Subsequently, the contract was not renewed. Thus, as to official duties regarding that contract, he had not made any decisions for a number of years. We have held that the passage of time can be given "some weight" in deciding if an activity violates the Code. Commission Op. No. 99-16 (citing CACI, Inc.-Federal v. United States, Fed. Cir., F.2d 1567 (1983)). Here, a number of years passed between his dealings with the company on its Delaware contract and the company's subsequent offer to contract with him on its Florida program. This passage of time aids in reducing the appearance that his personal interest affected his State decisions regarding that contract, as nothing indicates that he anticipated privately contracting with the company at the time of his contract decisions. As the contract was not renewed that also serves to diminish the appearance that he may have used public office for private gain or undue influence. The non-renewal also means that in performing official duties for his division no more decisions will be made on that matter. The company's present contract with his division is not the type of work the company wants him to perform under the Florida contract. He has no direct involvement with the existing contract, which is managed by a State employee in another county, whom he does not supervise. However, he said he has some indirect involvement on that matter. In his official capacity, he gives his opinion on which program is best suited for certain clients, and one company to which he could refer a client would be the company he is contracting with. That could only occur about once in every 40 situations. He said that he constantly reviews case files and "makes a lot of decisions" and can "redirect them" [other State employees] if their plan is "out of whack." He also said these employees are "constantly giving feed back to their regional director, supervisors, and contract administrators" on the contracts. However, his immediate supervisors have approved the forwarding of questions on the company's program to the administrator who presently handles the company's Delaware contract. That would remove him from any indirect involvement with the contract in that respect. He also said he is a consultant to the committee which authorizes all contracted spending. He is not a voting member. He said he would not participate in any decision regarding spending State funds on the company. However, he said as a consultant to the committee,"they might look at me for thumbs up or thumbs down," or might ask him to comment on a case. Thus, he has significant indirect decision making authority as a consultant to the committee. The statute does not limit its application to direct and final decision making. Beebe; Prison Health; and Commission Op. Nos. 98-12 and 96-78. Rather, if a State employee has significant indirect decision making authority where they have a personal or private interest which tends to impair judgment, there may be a conflict. Here, he expressed his personal and financial interest in the company by saying that the compensation from it is "very lucrative" and that "just to go down there for 2 or 3 days of training, which is all they're asking for this time, I can make a payment, a monthly payment to [referring to college tuition for his child]. That's really what this is about." While we may sympathize with his situation, the purpose of not participating in matters where there is a personal or private interest, is to insure that "the line between public duty and private interest [is not] blurred." In re Ridgely, Del. Supr., 106 A.2d 527 (1954)(holding that State employee's private interest in other employment must yield to his public duties). Accordingly, we hold that also under this provision, it is improper for him to consult with the committee or his agency on matters related to the company. (B) Preferential Treatment to Any Person--The passage of time since his involvement with the company's contract with his division, and the fact that it was not renewed aids in diminishing the possibility that he gave preferential treatment to PSI regarding that contract. Regarding the existing contract, he said that because it is a cost reimbursable contract, rather than a per diem contract, that it "is not as easy to influence." He said that is because a cost reimbursable contract is "a fully funded contract where negotiations take place at the award of the initial contract and then yearly thereafter for the budget they will have for that year." While it may not be as easy to influence, decisions still must be made regarding the initial award, contract renewals, new contracts, contract compliance, etc. As noted above, the State employees referred to above work hand in hand with contract administrators, such as him. Further, the committee could look to him for a "thumbs up" or "thumbs down" on a program. Thus, if he consulted with the State employees, the committee members, etc., on matters regarding the company, it not only could place him in a situation where his decision making ability might be questioned, but also could raise the specter that because of his personal, financial interest in the company, he would be in a position to show preferential treatment to it in giving a "thumbs up" to its program. However, as the calls regarding the existing contract will be delegated to another individual who works in a different county and is not supervised by him, and if he does not consult with the contract committee members or his agency on company issues, those restrictions would serve to diminish the possibility that he could give the company preferential treatment. (C) Official Decisions Outside Official Channels--With the above restrictions in place, no facts indicate that he would be in a position to make official decisions outside official channels regarding the company. (D) Any adverse effect on the public's confidence in the integrity of the government. --We emphasize that 29 Del. C.  5806(a) and  5806(b) do not require an actual violation, only that the conduct "may result in" or "raise suspicion" that a State employee is violating the Code. Actual misconduct is not required; only a showing that a course of conduct "may result in" or could "raise suspicion" that the conduct violates Code provisions. Commission Op. No. 92-11. Similarly, this provision does not require actual misconduct; only an "adverse effect" on the public's confidence in its government. At the Commission's meeting, in discussing how the public might perceive his employment with the company which contracts with his agency, he first noted that there are "a lot of people who work for both the department and the contractors that we have." As previously noted, we do not have the "particular facts" required to rule on those situations. 29 Del. C.  5807(a). He also said that if he made a competitive salary with his peers in other States, he would not have to do this. We have no authority to engage in State salary matters. However, we do note that the General Assembly, perhaps in recognition that State employees may want or need to supplement their State salary, has not placed a complete ban on other employment with private enterprises which contract with the State as some government entities have done. See, e.g., Refine Construction Company, Inc. v. United States, U.S. Claims Ct., 12 Cl. Ct. 56 (1987)(federal agency issued order prohibiting its employees from performing service for a contractor or other person who contracted or did business with the agency). In Delaware, the General Assembly directed that "citizens be encouraged to assume public office and employment, and therefore, the activities of officers and employees of the State should not be unduly circumscribed." 29 Del. C.  5802(3). That concern is to be balanced against the General Assembly's directive that State officers and employees are to "avoid conduct which is in violation of their public trust or which creates a justifiable impression among the public that such trust is being violated." 29 Del. C.  5802(a); 29 Del. C.  5806(a)(emphasis added). We emphasize that language because he said that in his agency "nobody questioned anything that I would do with these people that would be out of line--that would violate any integrity." Courts have held that even where an agency acquiesces in the other employment, an employee's superior may not appreciate the nature of the conflict, and employees cannot claim an exemption from a conflict of interest simply because his superiors did not discern the conflict. Refine at 63. In Refine, the Court discussed the provision which prohibited any activity "affecting adversely the confidence of the public in the integrity of the Government," which is like Delaware's. Id. at 61. It said that "even perceived transgressions...can and do have an effect on the trust that the American people put into their government." Id. Thus, to ascertain if conduct would have an "adverse effect" we look at the totality of the circumstances from the point of view of the public. If he participated in decisions regarding the company when he has a personal and "lucrative" financial interest, the public's confidence in its government could be adversely affected because the "perceived transgression" could be that: his judgment could be impaired; he could provide preferential treatment to the company; or he was using public office for private gain, which is prohibited by 29 Del. C.  5806(e). Accordingly, to interpret the provision without "unduly circumscribing" his activities and at the same time insure that the public trust is not perceived as being violated, he must recuse himself from decisions pertaining to the company. (C) Conclusion Based on the above law and facts, we conclude that his employment with the company which contracts with his division will not violate the Code of Conduct as long as he recuses himself from participating in matters before his agency involving the company. (Commission Op. No. 99-34). Having an Occupation Regulated by the State While attending an ethics class, a State employee became aware that the Code of Conduct requires State employees who have a financial interest in a private enterprise which is regulated by any State agency to file a full disclosure with the Commission. 29 Del. C.  5806(d). "Full disclosure" requires sufficient information for the Commission to decide if a conflict of interest exists. Commission Op. No. 98-23. As she had a private business which was regulated by the State, she submitted a disclosure to the Commission. Based on the following law and facts, her submission constituted full disclosure and there was no conflict of interest. (A) Applicable Law State employees may not: (1) review or dispose of State matters if they have a personal or private interest which would tend to impair judgment. 29 Del. C.  5805(a); (2) represent or otherwise assist a private enterprise before their own agency. 29 Del. C.  5805(b); contract with the State unless public notice and bidding requirements or arms' length negotiations requirements are met. 29 Del. C.  5805(c); use public office to secure business for their private enterprise. 29 Del. C.  5806(f); improperly use or disclose confidential information. 29 Del. C.  5806(f) and (g); hold other employment if it may result in impaired judgment in performing official duties; preferential treatment to any person; official decisions outside official channels; or any adverse effect on the public's confidence in its government. 29 Del. C.  5806(b). (B) Application of Facts to Law In addition to her State employment, she had a private business that was regulated by the Department of Administrative Services, Division of Professional Regulations. See, Title 24, Delaware Code for various businesses and occupations regulated by the State. Her private business was in no manner similar to her State position, and her private business was not regulated by her own agency, nor did her private business contract with any State agency. She performed the regulated occupation on her own time; not State time. Her disclosure worksheet indicated that she: does not review or dispose of matters regarding her private business; has no reason to believe her private enterprise would be involved in decisions she makes in her official capacity; has not represented or assisted the private enterprise before her own agency; has no contracts with the State; and uses no confidential information obtained as a result of her State position to benefit her private business. As she had no decision making authority on the regulated occupation in her State job, it did not appear that her judgment would be impaired. As her private enterprise does not do business with the State, but is merely subject to licensing regulation by a State board, which is under a totally separate State agency, it does not appear that she would be in a position to obtain any preferential treatment for her company. Nor does it appear that she would be in a position to make official decisions outside official channels that would benefit her private enterprise. Based on the above, her submission constituted "full disclosure" and there was no conflict of interest. (Commission Op. No. 99-37). Disclosure of Contracts of Local Officials Correspondence and the financial disclosure worksheets were filed by certain local government officials who had contracts with their local government. The submissions must constitute "full disclosure." "Full disclosure" requires sufficient information for the Commission to decide if a conflict of interest exists. Commission Op. No. 98-23. Having reviewed the submissions, based on the following law and facts, we find that the filings constitute "full disclosure" and no conflicts of interest are present. (A) Applicable Law Under the Code of Conduct, these officials may not: (1) review or dispose of matters if they have a personal or private interest which would tend to impair judgment. 29 Del. C.  5805(a); (2) represent or assist a private enterprise before their own agency. 29 Del. C.  5805(b); (3) contract with their government unless public notice and bidding requirements or arms' length negotiations requirements are met. 29 Del. C.  5805(c); (4) use public office to secure business for their private enterprise. 29 Del. C.  5806(f); (5) improperly use or disclose confidential information; 29 Del. C.  5806(f) and (g); or (6) hold other employment if it may result in impaired judgment in performing official duties; preferential treatment to any person; official decisions outside official channels; or any adverse effect on the public's confidence in its government. 29 Del. C.  5806(b). (B) Application of Facts to Law None of the contracts were for more than $2,000. Thus, public notice and bidding were not required. However, arms' length negotiations are required. 29 Del. C.  5806(c). Arms' length negotiations means "transactions negotiated by unrelated parties, each acting in his or her own self-interest; which form the basis for a fair market value determination." Commission Op. Nos. 97-17;98-23. Delaware Courts have held that in judging arms' length negotiations, "the most economically meaningful way to judge fairness is to compare the price paid with the price likely to be available in alternative transactions." Commission Op. No. 98-23 (citing Oberly v. Kirby, Del. Supr., 592 A.2d 445 (1991)). The local government obtained prices from several sources, other than from the public officials, for small purchases. Additionally, the purchase decisions were reviewed not only by the agency head, but also by the local government's employees who deal with financing. The information was also submitted at open meetings of the local government's council. Delaware Courts have held that in judging the fairness of a government contract when a government official seeks the contract, that the price "is not the exclusive test by which a vendor is chosen" because when government officials seek contracts with their governmental entity, the concern is that the award of such contracts "has been suspect, often because of alleged favoritism, undue influence, conflict and the like." Commission Op. No. 98-23 (citing W. Paynter Sharp & Son v. Heller, Del. Ch. 280 A.2d 748, 752 (1971)). Thus, aside from the procedural precautions, the officials have verified that they: (1) did not review or dispose of the matters; (2) did not represent or assist their private enterprise before their own agency; (3) did not use their public office to secure any business dealings for their private enterprise; and (4) did not improperly use or disclose confidential information for private gain, etc. Delaware Courts have also held that in interpreting the Code of Conduct, there is a presumption of honesty by government officials. 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). Also, the individual contracts were for de minimis amounts, which reduces the possibility of the appearance that they are using public office for private gain. Commission Op. No. 98-23. Additionally, in the case of the contracts with one official, the availability of another reliable contractor that could meet the local government's needs did not exist locally from any other source. Based on the above law and facts, the submissions constitute full disclosure and no conflicts of interest are present. (Commission Op. No. 99-36). Part-time Contract with Another State Agency A State employee wanted to privately contract with a State agency, other than her own. The Code of Conduct requires that a State employee who has a financial interest in a "private enterprise" which does business with any State agency must file a "full disclosure" with this Commission. 29 Del. C.  5806(d). "Private enterprise" includes private contracts entered into by State employees with a State agency. Commission Op. No. 94-10. "Full disclosure" requires sufficient information for the Commission to decide if the State employee's business interest raises a conflict of interest. In deciding that a conflict of interest did not exist in her situation, we based our opinion on the following law and facts: (A) State employees may not review or dispose of matters in which they have a personal or private interest which tends to impair independent judgment in performing official duties. 29 Del. C.  5806(a). Here, the personal or private interest is the financial interest in a private contract with the State agency. She said that in her official capacity she did not review or dispose of the contract decision. In fact, the contract was not issued by her division or agency, as it was issued by another agency. The substance of the contract is for her to conduct medical chart audits as required for: (1) clients of the agency who file grievances about medical care and (2) departmental concerns. These are not matters that arise in her full-time State employment. (B) State employees may not represent or assist a private enterprise before the agency by which they are employed. 29 Del. C.  5806(b). Here, she is contracting with another agency, and therefore will not be representing or assisting her private enterprise before her own agency. (C) If a State employee contracts with a State agency, the contract must be publicly noticed and bid if it is for more than $2,000; if for less than $2,000, "arms' length negotiations" are required. 29 Del. C.  5805(c). The agency said it would pay her on an "as needed" basis, with $1,800 being the maximum amount she could earn during a year. Thus, arms' length negotiations are required. Arms' length transactions are those negotiated by unrelated parties, each acting in his or her own self-interest; which form the basis for a fair market value determination. Commission Op. No. 97-17. To test for "arms' length" negotiation, it must be ascertained how much the agency would have spent to contract with a disinterested third party in a bargained-for transaction. Id. (citing e.g., Oberly v. Kirby, Del. Supr., 592 A.2d 445 (1991)(in finding arms' length negotiations, court noted that "the most economically meaningful way to judge fairness is to compare the price paid with the price likely to be available in alternative transactions")). She would be paid $50 per hour, and said the average rate for such services are $75-$150 per hour. (D) The Code restricts State employees from having any interest which may be in substantial conflict with the State employment. 29 Del. C.  5806(b). Moreover, their other employment is restricted if it may result in: (1) impaired independence of judgment in performing official duties; (2) preferential treatment to any person; (3) official decisions outside official channels; or (4) any adverse effect on the public's confidence in its government. Id. She will audit medical charts and anticipates that her audits could result in her being called as a witness in a grievance proceeding or litigation. The Commission has held that to insure there is no "substantial conflict" with performing official duties, the individual should not perform functions related to the outside employment during the hours when the individual is obligated to be performing State duties. See, e.g., Commission Op. Nos. 95-13, 95-30, 95-39, 96-48. As litigation most likely would occur during a normal workday, and the time to prepare as a witness to testify about government records can be time-consuming, we asked when she would be able to perform the work. Both she and the contracting agency's representative said that the total number of audits that would be conducted was not substantial. Accordingly, she will perform the work during hours when she is not working for the State, e.g., after normal duty hours; while on leave status, etc. The issue of whether her judgment would be impaired in performing official duties has been addressed by our earlier comments that her official duties do not require making judgment decisions about medical chart audits for another agency. Thus, it does not appear that her judgment would be impaired. Nor does it appear that in her State position she would be able to give preferential treatment or make official decisions outside official channels to persons such as the clients whose charts she will audit as her official position does not entail any work with the population which constitutes those clients. Finally, the issue of whether her private contract would result in "any adverse effect on the public's confidence in the integrity of its government," requires that we consider the total circumstances. Commission Op. No. 98-31. We have already concluded that her other employment is not in technical violation of any of the above provisions, regarding reviewing or disposing of matters; contracting with her own agency; etc. Additionally, we discussed with her and the other agency's representative if testifying at grievance hearings or in litigation could place her in direct opposition to the agency because we have held that where a State employee wanted to have outside employment as an expert witness, and that role could result in his testifying against the State, that it would be improper for him to engage in that other employment. Commission Op. No. 91-19. Her role as a contractor with the agency would be to review the medical charts and give her opinion on whether certain medical care should be provided. The medical care is provided by another contractor. There could be a difference in opinions between her and the medical care contractor. The agency might be asked to resolve the matter at a grievance hearing or the Court may have to resolve the matter in litigation. Based on those facts, we concluded that, unlike the individual in 91-19, she would not be testifying in direct opposition to the agency. (Commission Op. No. 99-53). Personal or Private Interests Personal or Private Interests of General Assembly Members A situation arose where an issue was whether a General Assembly member had a "personal or private interest" which tended to impair independent judgment. 29 Del. C.  5805(a)(1). Our jurisdiction is limited to interpreting Title 29, Chapter 58; not other statutes or the constitution. Commission Op. No. 95-5. We have no jurisdiction over conflict of interest issues of General Assembly members. Commission Op. No. 94-14; 96- 11; 97-14. Thus, we cannot interpret the Legislative Conflicts of Interest Law or the State Constitutional provision which restrict legislators from participating in matters if they have a "personal or private interest." See, 29 Del. C. 1002(a) and Del. Const. Art II  20. (Commission Op. No. 99-35). Wife's Employment by Subsidiary when Another Subsidiary is Regulated by Agency Hiring Her Husband A State agency asked if there would be a conflict of interest if it hired an individual when his wife is employed by a wholly-owned subsidiary of a corporation which has another wholly-owned subsidiary regulated by the State agency. The Commission concluded that based on existing facts, if the individual were hired it would not violate the Code of Conduct; but he should be alert for possible conflicts. For nearly a year, the agency had tried to hire someone for a position as a regulator of certain industries. Filling the position was a problem because of the tight market arising from certain industry restructuring laws, which resulted in, among other things, more private industries which are regulated coming into the market and hiring people with backgrounds which the agency also needs. Also, according to the agency, pay differences between government and private enterprises limit the field of candidates. The agency identified the best qualified candidate, who had many years of experience in the industry in both the public and private sectors. At the agency, he would deal with regulating suppliers. He would work to resolve regulatory matters. If he could not, the matter would be brought before the agency's quasi-judicial board. He would be involved in those proceedings and the board would rely on him in making decisions. Among the regulated entities was a wholly-owned subsidiary for a parent company. The candidate's wife works for another wholly-owned subsidiary of the same company. She did not work for the regulated subsidiary or the parent company, and the agency did not regulate the subsidiary where she was employed. She held stock in the parent company. State employees are restricted from reviewing or disposing of matters where they have a personal or private interest which tends to impair independence of judgment in performing official duties. 29 Del. C.  5805(a). Two interests which, by operation of law, tend to impair judgment are where: (1) Any action or inaction on the matter would result in a financial benefit or detriment to accrue to the person or a close relative to a greater extent than such benefit or detriment would accrue to others who are members of the same class or group of persons; or (2) The person or close relative has a financial interest in a private enterprise which enterprise or interest would be affected by any action or inaction on a matter to a lesser or greater extent than like enterprises or other interests in the same enterprise. 29 Del. C.  5805(a)(2). The Code also restricts State employees from engaging in conduct which may raise suspicion that the State employee is violating the public trust. 29 Del. C.  5806(a). Additionally, it restricts State employees from improperly using or disclosing confidential information. 29 Del. C.  5806(f) and(g). While the Code of Conduct requires recusal if a State employee or a close relative has a financial interest which would benefit to a greater extent than others of the same class or group of persons, the agency's statute provided, in essence, that no one was eligible to hold the job if they directly or indirectly controlled any stock of an entity regulated by the agency. Based on that provision, the spouse's stock would be sold if the individual were hired. While the Commission has no authority to interpret another agency's statute, the effect of her disposing of her stock means that, under the Code of Conduct, his "action or inaction" on matters related to the regulated subsidiary would not affect that financial interest. Having disposed of the possibility of a conflict arising from the financial holdings, the Commission turned to whether the marital relationship was sufficient to create an interest which tends to impair independent judgment. The clear language of the statute requires more than just a relationship between the State employee and the close relative. It requires action or inaction by the State employee resulting in the close relative benefitting to a lesser or greater extent than other persons in the same group or class. 29 Del. C.  5805(a)(2)(a). This restriction insures that close relatives do not capitalize on decisions made by their relative, and insures that the State employee is unbiased in making decisions. The Delaware Superior Court has held that marital status, by itself, is not sufficient to create bias such that a State official on a regulatory board must recuse herself from a State decision, not impacting on her spouse, without facts to substantiate bias. Camas v. Delaware Board of Medical Practice, Del. Super., C.A. No. 95A-05-008, J. Graves (November 21, 1995). In Camas, the Court noted that the State official had a statutory obligation not to discuss cases with any person or party and no facts suggested that had occurred. Similarly, the Code of Conduct prohibits improper disclosure of confidential information. Thus, to the extent his agency work would entail confidential information, the individual was advised not to discuss such matters with his spouse. The Code also restricts conduct if it may raise suspicion that the public trust is being violated. 29 Del. C.  5806(a). This is basically an appearance of impropriety restriction. However, Delaware Courts have held that "an unarticulated concern of an appearance of impropriety" is insufficient to establish a conflict of interest. Seth v. State, Del. Supr., 592 A.2d 436 (1991). First, under the Code of Conduct, State officials are entitled to a presumption of honesty and integrity. 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 (January 29, 1996). Second, the individual's spouse is employed by a totally different subsidiary which is not regulated by the agency. Moreover, her subsidiary is not co- located with the regulated subsidiary, which limits the possibility that she will hear any company employees discuss regulatory issues that may come before her husband's agency. Additionally, her employment is not related to the regulated matters: her subsidiary offers totally different services; she does not evaluate customer needs for the regulated services; she does not solicit the work or make decisions on company proposals relative to the regulated matters. Rather, she coordinates the schedules of sales representatives and marketers, and if a customer selects her subsidiary to perform the work, she coordinates that schedule. Nothing in those facts indicates that she or her employer would benefit from her husband's regulatory decisions on a totally different wholly-owned subsidiary. The agency said that the regulated industry has its finances audited so that there is no cost-shifting to other companies, including subsidiaries. However, an independent auditor, not the individual who was offered the State job, or the agency, audits the company or any of its wholly-owned subsidiaries. Thus, he would not be in a position to confer favors on the company regarding these matters. The Commission must base its decisions on a "particular fact" situation. 29 Del. C.  5807(c). Accordingly, it could not speculate on what issues may later arise if the individual accepts the position. Thus, because of the martial relationship, he should exercise caution in his activities, being sensitive to the Code restrictions. Additionally, he can seek guidance through the Commission's prior decisions on close relatives. For example, as her company might have functions to which spouses are invited, he was advised to review the Op. No. 97-11, dealing with attendance by State officials at corporate functions of a regulated entity when matters are pending before the agency. (Commission Op. No. 99-24). Soliciting for Private Enterprise A State employee was a member of a private organization which asked her to solicit funding from private companies to pay for the organization's annual conference. She was worried that such soliciting might violate the Code; declined to solicit for the organization; and sought an advisory opinion for future guidance. Based on the following facts and law, the Commission held that it would be improper for her to solicit for the private organization during State hours, using State resources. Her State job dealt with issues that also concerned the private organization. As part of the organization's activities, it hosts conferences on those issues. Persons invited to the conference include government administrators, policy makers, teachers and people in direct service for these issues. Because of the common dominator between her State job and the interests of the organization, she had joined it. The organization to which she belonged was not the only private enterprise which provides services, such as conferences on the issues. She had attended its conferences in the past, and this year was asked to serve on its conference planning committee. Planning committee members were to solicit funds to help pay for the conference. Funding opportunities ranged from an ad in the conference program to sponsoring the awards dinner. The organization asked her to solicit a specific company, and to identify herself as associated with the private organization, not as a State employee. To the extent that she wanted to act for the private enterprise on her own time as a member of that private organization, this Commission has ruled that where an individual was associated with an organization and the activities engaged in were not related to his public duties, it had no jurisdiction over the matter because the statute refers repeatedly to "public trust," "public interest," "official duties," "government decisions," "official capacity," etc. Commission Op. No. 91-20. However, acting for the private enterprise during State hours or using State resources raises a different issue. State employees are restricted from incurring any obligation of any nature which is in substantial conflict with the proper performance of State duties in the public interest, 29 Del. C.  5806(b); using public office to obtain unwarranted privileges, private advancement or gain, 29 Del. C.  5806(e); or engaging in conduct which may raise suspicion among the public that the public trust is being violated, 29 Del. C.  5806(a). While the private enterprise was having a conference which apparently some government employees attend, nothing indicates that the State had sanctioned the private enterprise's effort to raise money for its private venture. Thus, she had no State obligation to solicit for the private enterprise. Therefore, to use State time or resources (e.g., telephone) to solicit for a private organization in which she had a personal interest as a member could raise the public's suspicion that she was using public office to secure unwarranted privileges and that she had placed her personal interests in the private enterprise before her State duties. Further, if she solicited for one private company which offers this service, then its competitors, and the public, could view her solicitation during State hours as preferential treatment to the private enterprise. (Commission Op. No. 99-18). Waiver Granted - Personal Interest in Private Employment Under the Code of Delaware Regulations (CDR), the Delaware State Secondary Athletic Association (DSSAA) is the Secretary of Education's official designee to implement the Department of Education's (DOE's) rules and regulations on interscholastic athletics, including a student's eligibility to participate in such sports. Disputes over interscholastic athletics rules and regulations are subject to final review by the State Board of Education (the Board). CDR 72-000-003 (1999), Chapter 3  6. The Board, pursuant to its statutory authority, 14 Del. C.  122, and the Administrative Procedures Act, has established procedures for such proceedings. The procedures include time-lines, such as 20 days to respond to notice of hearings, etc. CDR 72-000-003 (1999). The New Castle County Technical School District (hereinafter "District") submitted an application to DSSAA's Director, seeking a waiver of DSSAA's eligibility requirements so one of its students could participate in interscholastic athletics. DSSAA twice denied the waiver, and an appeal was filed with the Board. The named parties to the appeal are the student and DSSAA. The District is not a named party. Basketball, one of the sports the student wants to play, is already underway. If the normal procedural time-line for Board proceedings were adhered to, the final decision might not be obtained until after the season is over. The parties asked the Board to expedite the hearing, and they waived their rights to the time-lines established in the Board's procedures. The Board appointed David Blowman, Executive Assistant to the Secretary of Education, as the hearing officer. After the hearing, he was to decide if a waiver should be granted and issue an order with his findings of facts and ruling, which would be a recommendation to the Board. Ten days before he was appointed as the hearing officer, he applied for a job with the District. Two days before the hearing, he interviewed for the job with the District's Board of Education, its Superintendent, and its Deputy Superintendent. According to Blowman, they did not discuss the pending hearing at the interview. The hearing was held as scheduled and "during the course of the hearing," Blowman "realized for the first time the potential conflict between my role as hearing officer and my application to the school district attended by the student in the appeal..." While recognizing a "potential conflict," he proceeded with the hearing. Immediately afterwards, he spoke with Deputy Attorney General (DAG), Louann Vari, expressing his concern about a possible conflict. At that time, he also said he intended to rule in the student's favor. Within an hour after the hearing, he learned that he did not get the District job. This Commission's office was contacted and it was decided that he would seek an advisory opinion. That same day, he notified the parties of the employment situation; asked if they would object if he continued as the hearing officer; and advised that he was requesting an advisory opinion from this Commission. Subsequently, the parties notified him that they did not object. At the time of this Commission's meeting, January 12, 2000, he had not issued his order to the parties or the Board. He did not believe his job application impaired his neutrality, and did not believe that the denial of the job would impair his judgment. He asks if his conduct violated the Code of Conduct, and if so sought a waiver. The basis for a waiver is that the parties specifically asked the Board for expedited proceedings. The next Board meeting was set for January 20, 1999. If a new hearing officer must be appointed to re-hear the appeal, it could preclude a Board ruling in January. A delay would mean additional time and costs to reargue the appeal, and could negate the decision to expedite the hearing. Applicable Law The State Code of Conduct restricts State employees from reviewing or disposing of matters if they have a personal or private interest which tends to impair their independent judgment in performing official duties. 29 Del. C.  5805(a). Delaware Courts, in interpreting 29 Del. C.  5805(a), have held that whether the personal or private interest is sufficient to require a State employee to recuse himself from participating in a matter is an issue of fact. Prison Health Services, Inc. v. State of Delaware, Del. Ch., C.A. No. 13,010, V.C. Hartnett, III (June 29, 1993). ISSUE 1: Is Blowman's "interest" sufficient to require him to recuse himself? The "personal or private interest" was his pending employment in the same District which requested a waiver for its student. He interviewed with the District two days before the hearing. Government decisions are to be based on a "fair and unadulterated examination of the merits" and "any conduct giving the appearance that impropriety is involved therein should be studiously avoided." See, Kulesza v. Star Services Inc., Del. Super., C.A. No. 93A-01-002, n. 8, J. Toliver (December 20, 1993)(Court expressed concern for any deviation from the administrative process as provided by law or participating in ex parte communications between one party and those charged with reviewing the merits for the State agency). In the specific context of restrictions against public officers or employees participating in decisions when employment is being negotiated, ethics laws have noted that the rationale is to avoid putting the official in a position where his public office could be exploited for private gain; and preferential treatment or an unfair advantage for a prospective employer. See, e.g., Comment, Delaware Lawyers' Rules of Professional Conduct, Rule 1.11(c)(2). There is no Delaware case, interpreting 29 Del. C.  5805(a)(1), directly on point where employment was pending. However, there are Delaware cases interpreting that provision where State officials, who participated in administrative proceedings, had an indirect interest as a result of existing outside employment. In both cases, it was held that they should not have participated, even though their participation was limited; they did not vote on the matter; and no facts indicated that they personally benefitted from their limited participation. In the first case, a State official, Glen Davis, was one of five appointees to a State Council which reviewed applications submitted by hospitals regarding their facilities. 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 Council did not make the final decision, but made recommendations to the State agency on whether applications should be granted. Davis' outside employment was as a Milford Hospital administrator. The named parties to the administrative proceeding were Beebe Medical Center and Nanticoke Hospital. Milford Hospital was not a named party. At the hearing, Davis said he might have a conflict, but reserved declaring a conflict until later. When the applications were discussed, Davis made what the Court called "neutral comments." At the end of the meeting, Davis said he had a conflict, and did not vote. Beebe's application was denied and Nanticoke's was granted. Fourteen days after a final decision was made, Milford and Nanticoke Hospitals announced an alliance. Beebe appealed, alleging that Davis had a personal or private interest which tended to impair his judgment, and should have recused himself under 29 Del. C.  5805(a)(1). Beebe alleged that Davis' conflict, among other things, resulted in an unfair hearing and violated Beebe's due process rights. One fact looked at by the Beebe Court was the timing of the hearing and when the discussions regarding an alliance occurred. The Court found that the record did not clearly establish bias because the record was not clear on when the concept of the alliance between the two hospitals was first discussed whether before or after the favorable decision. Here, the "concept of the alliance" (Blowman's employment by the District) was discussed in his interview with the District's Board of Education, its superintendent, and deputy superintendent two days before the hearing. At that time, Blowman knew he would be hearing the case. Here, the District was not a party, just as Milford Hospital was not a party in Beebe. However, the District submitted the application to DSSAA for its student. If the student prevailed, the District would have the benefit of her participation in its interscholastic sports. In Beebe, the Court noted that Delaware law holds that bias can be imputed and that since Davis ultimately declared a conflict, the court "would assume" he was biased and therefore had a conflict. It also noted that Davis' comments were "extremely limited and neutral;" he did not vote; and the Council's decision was a recommendation, not the final decision on the application. While it found that his conduct did not rise to the level of a due process violation, it said that "since Davis admittedly had a conflict he should have recused himself from participation in this matter at the outset." Here, Blowman, during the proceedings, like Davis, thought there might be a conflict. He proceeded to participate. Unlike the Beebe situation, where other State officials who were Council members made the decision to recommend approval of the application, Blowman was the sole hearing officer on whether to recommend approval on the eligibility waiver application, and wants to continue participating. Thus, his participation is not as "limited" or "neutral" as in Beebe. In Beebe, no facts indicated that Davis could personally benefit from a favorable decision for Nanticoke. Rather, a favorable decision would benefit Nanticoke, a party to the hearing. Because Davis' company was negotiating with Nanticoke, the indirect implication was that Davis' employer could indirectly benefit, or that a party to the proceedings would receive preferential treatment because of the official's outside employment interest. Similarly, in Blowman's case, a favorable decision for the student would indirectly benefit the District which submitted the application on her behalf, as it would result in her playing sports for the District. Since Blowman's employment was pending at the time of the hearing and when he told the DAG immediately afterwards that he intended to rule for the student, it could appear that a favorable decision for the District's student may be the result of preferential treatment, and/or may result in a personal benefit to Blowman, since at the crucial time he did not know that the District did not select him. In Prison Health, the Court held it was "improper" for a State official, Henry Risley, to be involved in matters related to a contract which was awarded to ARA where his wife was employed. The Court said the record showed that Risley was not a member of the five-member Evaluation Committee that recommended ARA for the contract. It found his activities were limited to: "1) providing a list of Bureau of Prisons employees from which Larry Sussman-- the Department's Administrative Services Division employee who oversaw the award of the contract--could select a Bureau of Prisons' representative, and 2) attending and asking three questions (but not voting) at the Department's Executive Committee's meeting that was comprised of the Department's four division chiefs when Sussman presented the selection committee's recommendation to Commissioner Watson, chief of the Department. The Court found no evidence that any of the members of the Evaluation Committee or the Executive Committee were not disinterested or not fully informed." The Court found "his personal participation was not direct and substantial," but held that: "Undoubtedly Risley's conduct was inappropriate and he should have abstained from even this limited role in the procurement process because his wife is an employee (albeit a fairly low-level employee) of one of the bidders." Thus, Beebe and Prison Health narrowly construe the permissible activities under 29 Del. C.  5805(a)(1). In both cases, although the officials' participation was limited to comments during the proceedings; they did not vote; the decision was made by other officials; and their interest was indirect, the Court still concluded that they should not have participated even to that limited extent. In Beebe, the Court said that officials were entitled to a "strong presumption of honesty and integrity." Thus, Blowman is entitled to that "strong presumption." He states that there was no discussion with the District regarding the case when he interviewed for the job and that his judgment or neutrality were not impaired. However, as noted in Beebe, even neutrality does not preclude the need for the official to recuse himself. Based on Beebe and Prison Health, we conclude that even though Blowman's interest was indirect, and no facts indicate that he benefitted from the decision or gave preferential treatment, etc., he should have recused himself. ISSUE 2: Does disclosure to the Parties permit Blowman's continued participation, if the parties do not object? Blowman wants to continue participating and the parties do not object. The plain language of the Code of Conduct does not have an exemption that permits a State official to proceed in the face of a conflict, even if the parties agree. This Commission is to be consistent in its opinions. 29 Del. C.  5809(5). We have held that where the legislature is silent, additional language will not be grafted onto the statute because such action would be creating law. Commission Op. No. 95-001 (citing Goldstein v. Municipal Court, Del. Super., C.A. No. 89A-AP-13, J. Gebelein (January 7, 1991)). The only exception permitted by the plain language is that if a State official has a statutory responsibility that cannot be delegated, then he may proceed if he files a full disclosure with this Commission explaining why the matter cannot be delegated. 29 Del. C.  5805(a)(3). No facts indicate that Blowman has a statutory responsibility that cannot be delegated. Aside from the plain language, which does not include such an exception if the parties agree, the Delaware Supreme Court addressed a similar situation in In re: Ridgely, Del. Supr., 106 A.2d 527 (1954). A State employee, who was an attorney, also held outside employment. Because of a conflict of interest between his State job and his outside employment, he was alleged to have violated: (1) the Canons of Professional Ethics for lawyers; and (2) his duty as a public officer by placing himself in a position where "his personal interests were opposed to his duty to the public." The Court noted that under the canons of ethics for lawyers, "in civil cases he may ordinarily choose between two clients whose interests conflict, with full disclosure when required." However, the Court said that it need not address his conduct under the lawyers' ethics, which would permit him to continue if the parties agreed, because as a public servant "his private interest must yield to the public one." Thus, Delaware Courts have frowned on merely disclosing the conflict to the parties as a remedy when the conflict arises in the context of a public servant's outside employment. Ridgely was decided before the Code of Conduct was enacted. Thus, it interpreted the common law restriction on public officials having a "personal interest." Again, this Commission is to be consistent in its opinions, and has held that: "The concern under the common law restriction on public officials participating in decisions where they have a personal or private interest is the same as would arise under the State Code prohibition which restricts such officials from "reviewing and disposing of matters in which they have a personal or private interest that tends to impair independence of judgment." See, 29 Del. C.  5805(a)(1). Moreover, conflict of interest statutes generally do not abrogate common law conflict of interest principles. 63C Am. Jur. 2d Public Officers and Employees  253 (1997). Thus, the State Code is basically a codification of the common law restrictions. (Commission Op. Nos. 97-24 and 97-30). Thus, we conclude that merely informing the parties of the conflict, without more, is not a remedy. ISSUE 3: Should a Waiver be Granted? The statutory remedy that is available, is this Commission's authority to grant a waiver if the literal application of the law is not necessary to achieve the public purpose or there is an undue hardship on the State employee or State agency. 29 Del. C.  5807(a). (A) Is the literal application of the law necessary to achieve the public purpose? The public purpose of the Code of Conduct is so that the conduct of officers and employees of the State holds the respect and confidence of the public. 29 Del. C.  5802(1). Thus, "they must, therefore, avoid conduct which is in violation of their public trust or which creates a justifiable impression among the public that such trust is being violated." Id. In the specific context of prospective employment, the concern is that the official may use his public position to obtain a private benefit; or may give preferential treatment that benefits the prospective employer. The law does not require that these events actually happen. Rather, it imposes on State employees that they not engage in conduct which "tends to impair their judgment"; or may result in impaired judgment or preferential treatment to any person; or which may raise suspicion among the public that the public trust is being violated. See, 29 Del. C.  5805(a)(1); 29 Del. C.  5806(a) and 29 Del. C.  5806(b)(1), (2) and (4). Here, as in Beebe, participating in the decision "raised suspicion" in the official's own mind that he should not participate. Thus, it appears that the literal application is necessary to serve the public purpose. (B) Undue Hardship Regarding any "undue hardship," we have held that "undue" means "more than required" or is "excessive." See, e.g., Commission Op. No. 97-18. Here, the Board, pursuant to its statutory authority, has established procedural rights for the parties who seek an appeal. The parties specifically waived those rights so that the Board could expedite the hearing because the student is in her Senior year and wants to play basketball. The basketball season is already underway and will end in February or March. The parties want the Board's final decision at its meeting on January 20, 2000, so that if an eligibility waiver is granted the student can participate in the last part of the basketball season. If Blowman could not participate by issuing his findings of fact, conclusion of law, etc., the Board could take two possible actions: (1) appoint a new hearing officer to re-hear the case and give the Board a recommendation; or (2) the Board, rather than a hearing officer, could re-hear the case and make a final decision. If option (1) were exercised, the parties would have to re-argue their cases, costing additional time and money, and it is not clear if all of that could occur before January 20. If the Board exercises option (2), it is possible that it would not re-hear the case on January 20, 2000; rather, it would just take that occasion to schedule a hearing before the Board. If no waiver were granted, in effect, we would be negating the Board's decision to let the parties expedite the proceedings. The time-lines established by the Board in its rules and regulations are to insure that the parties know of pending actions; have an opportunity to be heard; and know there is a foreseeable finality. The decision to waive the Board's time-lines was so that the "opportunity to be heard" could occur at a meaningful time. If a waiver is not granted, the "meaningful time" will have passed. Further, as we must base our opinions "on the particular facts" we note that the parties waived their rights to the Board's time-lines, and neither party objects to Blowman continuing. Moreover, when we grant a waiver, the proceedings become a matter of public record, so that the public understands the basis for letting the official proceed in the face of a conflict. Based on all those facts, we conclude that to, in effect, negate the Board's statutory authority to make rules and regulations regarding its hearings, including the authority to let the parties expedite the proceedings would be "excessive." Accordingly, we grant a waiver based on an undue hardship. (Commission Op. No. 99-51). Accepting Anything of Monetary Value Private Enterprise as Sponsor of State/Federal Event A State agency asked if an alcoholic beverage company could sponsor a Division's festival that was to be open to the public. The festival would promote certain recreational safety matters, including restrictions on drinking while recreating. The company would advertise the event and provide such things as safety tip cards and door prizes. The only Code provision that may apply is the one restricting State employees or officials from accepting anything of monetary value if it may result in: (1) impaired independence of judgment in performing official duties; (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 its government. 29 Del. C.  5806(b). Here, the things of monetary value would be the costs paid by the company for advertising and door prizes. The agency did not have the funding to launch the type of advertising campaign which the company could launch. It believed if the company advertised the festival, the publicity would draw a larger public attendance, resulting in wider exposure to recreational safety issues. Alcoholic beverages would not be served. (A) Impaired Independence of Judgment - The division was, among other things, responsible for enforcing certain recreational related laws, regulations and rules regarding permits, licenses, and other program requirements for the agency. However, the division had no decision making authority or any dealings with the company. Thus, it did not appear that anyone in the division would have their judgment impaired as they made no decisions regarding the company. (B) Official Decisions Outside Official Channels - As the division had no decision making authority over the company, it did not appear that anyone in the division would be in a position to make any official decisions outside official channels relative to the company. (C) Preferential Treatment to Any Person - No other company had offered to sponsor the event. The agency said that if another company wanted to sponsor the event, the agency would look at their package and see how their offer would benefit the State. Thus, each offer would be treated the same as the offer from this company. (D) Any Adverse Effect on the Public's Confidence in the Integrity of its Government - In deciding this issue, the Commission looks at the totality of the circumstances. Commission Op. No. 96-78. First, it noted that no agency employee had decision making authority over the company; and no facts indicated that acceptance would result in preferential treatment or official decisions outside official channels. Further, no State employee would personally benefit from the sponsorship because although the company said it would offer door prizes, the agency said that division employees would not be eligible for the prizes. Based on these facts, a majority of the Commission's quorum found no violation of the restrictions on accepting anything of monetary value if it may result in: (1) impaired independence of judgment; (2) official decisions outside official channels; or (3) preferential treatment to any person. However, those members concluded that acceptance would have an adverse effect on the public's confidence in the integrity of its government, in violation of 29 Del. C.  5806(b)(4). They concluded that it may result in an adverse effect on the public's confidence in the integrity of its government if an agency, which is responsible for enforcing certain recreational laws, accepted an alcoholic beverage company's offer to: advertise a State event; distribute literature on safety with its logo; and offer door prizes. (Commission Op. No. 99-04). Dissent: I respectfully dissent from the conclusion that 29 Del. C.  5806(b)(4) would be violated. I agree that it might constitute poor judgment to have an alcoholic beverage company sponsor a safety program, but in my opinion, the State Public Integrity Commission does not have jurisdiction to make this determination. Title 29 Del. C.  5806(b)(4) is limited to acts which adversely effect "the public's confidence in the integrity of its government." (Emphasis added). The part of the decision from which I dissent does not deal with integrity or anything else over which the Commission has jurisdiction. See, Commission Op. No. 93-17; Seth v. State of Delaware, Del. Supr., 592 A.2d 436, 442-443 (1991). (Commission Op. No. 99-04). Gifts Gift to State Employees from Former Boss A former State Officer asked if he could give his former employees a personal check to recognize their efforts as a State employee. His new employment is with a company which is regulated by the employees to whom he wanted to give the personal check. For the following reasons, the Commission held that it would violate the Code of Conduct for the State employees to accept a personal check from their former boss when his private employer is now regulated by those same employees. State employees are restricted from accepting any gift, compensation or anything of monetary value if it may result in: (1) impaired independence of judgment in performing official duties; (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 its government. 29 Del. C.  5806(a). The former employee had been the head of a section, and while employed by the State gave personal checks to each employee of the year in the amount of that year's last two digits. Shortly before leaving the State to accept a position with a private firm, which his former section regulates, he told his employees that he planned to continue the practice. Before that announcement, he asked for an opinion from this Commission on whether his post-employment conduct would violate the post-employment law. [He did not mention that he was planning to continue giving money to his former colleagues and employees.] At that time, he told the Commission that controversies had arisen regarding the private company and his section had to advise staff members and the agency's Cabinet Secretary on these matters. Also, there were other matters connected to the private company over which there had been "much controversy involving many parties." Also, he had a direct policy role in certain State matters pertaining to this company. He had been the "point person" on most matters dealing with the controversial issues. Further, the project was "on-going" and could be so for several months. The Commission found that he was directly and materially responsible for those matters while employed by the State and advised him that in accepting employment with the company regulated by his former agency, that he could not work on those matters "to insure undue influence is not exerted on those you leave behind, and to avoid any appearance of impropriety." Commission Op. No. 98-12. Thus, while controversies were still "on-going," he promised the employees who regulate the private firm that he was ensuring that his"Employee Recognition Fund" would continue "in perpetuity," when he knew: (1) he would be accepting employment with a company regulated by those same employees; (2) some matters were controversial and were on-going; and (3) while he could not represent the company on matters for which he had been directly and materially responsible, it was possible he would represent the company before his former agency on new matters. The Commission is required to be consistent in its opinions. 29 Del. C.  5809(5). It has noted that when government employees accept money from private sources it raises at least two ethical concerns: (1) If the private party has an interest in the employee's decisions, it may appear that the employee is beholden to the private enterprise and prone to provide regulatory favors in return; and (2) Even if the private payor does not have an interest in the official decisions, the employee's acceptance of payment from a private source may raise the specter that government employees are "selling" their labor twice--once to the government and once to the private party. This may create the appearance that the employee is using public office for private gain which is prohibited. Commission Op. No. 97-10 (citing Sanjour v. Environmental Protection Agency, U.S. Ct. of Appeals (D.C.) 567 F.3d 85, 94 (1995). The promise of money to employees who regulate his company, when there were "on- going" specific controversies could adversely effect the public's confidence in the integrity of its government because the promise could appear to result in: impaired independence of judgment in performing their official regulatory duties; preferential treatment for his company; or undue influence exerted as a result of his former position as their supervisor. Aside from the appearance raised by the promise of money when specific controversies were pending, his former employees have an on-going responsibility to regulate the company even after those specific controversies are resolved. Thus, the act of now giving the money could raise, at least, the appearance that their decisions on new issues may be influenced by his money and/or his former position or that the company would obtain preferential treatment on new issues. Moreover, the Commission has held that accepting payment from private sources for performing State duties may raise the appearance that the State employees are in contravention of other laws. Commission Op. No. 98-31. Specifically, the Attorney General's office has concluded that State employees are restricted from having their State salary supplemented by other sources because an "employee's services during the hours of employment belong to the employer whether prescribed by statute or by the express or implied terms of an employment contract." Att'y Gen. Op. No. 83-I031. Subsequently, the Attorney General's office concluded that aside from raising appearance issues under the State Code of Conduct, acceptance may also raise issues under other laws. Att'y Gen. Op. No. 87-I024. It noted that the Merit Rules restrict Merit employees from accepting salary supplements from private sources while on State time. See, Merit Rule 5.0500. Thus, if the Employee of the Year is a Merit employee and accepts compensation from a private source for performing State duties, it could appear that they are violating the Merit Rules. Such conduct could clearly have an adverse effect on the public's confidence in its government. Also, the Attorney General's office noted that when a State employee accepts payment from private sources for performing State duties that, "criminal penalties may apply depending on the circumstances." Att'y. Gen. Op. No. 87-I024. Specifically noted were the Bribery statute, the Official Misconduct statute, and the Receiving Unlawful Gratuities provision. The "receiving unlawful gratuities" provision prohibits public servants from soliciting, accepting or agreeing to accept any personal benefit for engaging in official conduct which the public servant is required or authorized to perform, and for which the public servant is not entitled to any special or additional compensation. 11 Del. C.  1206. Here, the agency employees are required to regulate the company. No specific statute entitles them to any additional compensation. In fact, the Merit Rules appear to specifically prohibit any additional compensation. Thus, acceptance may result in the appearance that the employees are violating a criminal provision. Again, such conduct could clearly have an adverse effect on the public's confidence in its government. Where the Commission previously held that compensation by a private source could result in the appearance that the State employee was violating other laws, this Commission noted that its authority to grant waivers applies only to the State Code of Conduct. Commission Op. No. 98-31. Thus, it has no authority to waive other laws, such as those referred to above, which impact on the appearance of impropriety. Id. (Commission Op. No. 99-26). Tickets to the Grand Gala A State officer received two tickets valued at $225 each to the Grand Gala from a private corporation. Pursuant to the Executive Orders, the Commission is to decide if any ethical issue is raised by acceptance. E.O. No. 19. Based on the following law and facts, we concluded that no ethical issue is raised by acceptance. In deciding if any ethical issue is raised, the Commission applies the Code provision which restricts State employees and officials from accepting gifts if it may result in: (1) impaired independence of judgment in performing official duties; (2) preferential treatment to any person; (3) official decisions outside official channels; or (4) any adverse effect on the public's confidence in its government. 29 Del. C.  5806(b). The officer said that in his official duties, he had no issues or matters with the private corporation, nor did he expect any future matters before him involving the private enterprise. As he would not be making decisions regarding the company, it did not appear that his judgment would be impaired in performing official duties. No facts were given that would indicate that he would show preferential treatment to the company or make official decisions outside official channels on its behalf. The question of whether acceptance may result in any adverse effect on the public's confidence in the integrity of its government is essentially an "appearance of impropriety" standard. We have previously noted that when a private source pays the expenses of a public official, it may evoke at least two ethical issues in the minds of the public: (1) It may appear to the public that the official may be beholden to the private interest and prone to provide decisional "favors" in return. Commission Op. No. 97-33 (citing Sanjour v. EPA, U.S. Court of Appeals (D.C.) 56 F.3d 85, 94 (1995)). (2) Even if there is no reason to suspect the private payor is trying to curry favor with the official whose expenses are paid, the official's acceptance of benefits from a private source may create at least the appearance that the official is using public office for private gain. Id. Here, the company was a registered lobbying organization. Thus, it had clearly expressed an interest in the decisions to be made on legislative and administrative actions in the State of Delaware. Certainly, some members of the public may view acceptance by a State officer, who gives input on legislative and administrative matters, of tickets to a rather lavish event from an organization which has expressed interest in legislative or administrative decisions, as creating "an appearance of impropriety" because it could be seen as an attempt to curry favor. However, we must base our opinions on a "particular fact situation." 29 Del. C.  5807(c). Moreover, those particular facts must be placed within the framework of the law. First, we note that the General Assembly chose not to place a total ban on gift acceptance; rather, it requires that we evaluate, on a case-by-case basis, the acceptance of gifts. Second, the law requires that the Code be interpreted giving a legal presumption of "honesty and integrity" to State officials. Beebe Medical Center, Inc. v. Certificate of Need Appeals Board, Del. Super., C.A. No. 94A-01-004, J. Terry (June 30, 1995) aff'd, Del. Supr., No. 304 (January 29, 1996). Thus, while the company had expressed an interest in government decisions, the officer said he presently had no decisions pending regarding the company; nor had he made decisions about it before accepting the tickets. Because the company dealt with matters on which there was recent legislation regarding certain private industries, the Commission asked about his office's involvement on those matters. He said that persons in his office were involved in the legislation. However, the legislation did not apply to this company. This company might enter the market which was affected by the legislation, but such action was purely speculative. We cannot base decisions on speculative facts. Commission Op. No. 97-11. Accordingly, based on the particular facts, it did not appear that the tickets were offered to curry favor in decision making since he had not been and was not making decisions about the company. Regarding whether acceptance may create the appearance that an official is using public office for private advantage or gain, we have previously noted that when a private source pays for State officials to attend events, the public may suspect that the officials are using their public position for social advantage or private gain. See, Commission Op. No. 97-33. We also noted that the differences in appearance of impropriety can vary depending on whether the evening's event consists of a reception of juice and cookies as compared to cocktails, dinner, etc. Id. We note that this was an evening of rather lavish entertainment from a lobbying organization to a person who holds a key position in the administration. Even some of our Commission members struggled with this. However, we must place that fact within the total factual circumstances. Here, as noted, the company was not seeking official action by his office; does not do business with or seek to do business with his office; is not regulated by his office; and has no interests pending that may be substantially affected by the performance or nonperformance of his official duties. Moreover, he was entitled to the presumption of honesty and integrity. No facts indicate that such presumption was overcome. (Commission Op. No. 99-05). Random Drawing for a TV A State employee asked if he could accept a television from a private company after his name was selected at a random drawing during a conference he attended. As a State employee, he attended a safety conference and trade show. The Association sponsoring the conference permitted vendors of safety-related products to have a booth. One vendor, aside from displaying products, gave a 15-20 minute presentation on safety issues. The company issued "invitations" to the presentation, and to encourage attendance, it held a drawing for a television. Attendees who went to the presentation dropped forms in a barrel, and after the presentation a drawing was held to award the television. The Delaware State employee's name was selected. The invitation to participate in this event was open to "eligible" attendees. The vendor called the Commission's office to find out if, under Delaware laws regarding gift acceptance, the Delaware State employee was "eligible." The company advised the Commission that it had contracts with the employee's State agency. The company was sent a copy of the statute and told that the State employee could seek an advisory opinion on whether acceptance would be proper. 29 Del. C.  5807(c)(the Commission may issue advisory opinions based on a written request from a State employee, officer, honorary official or State agency). The company also sent a letter detailing how the selection was made and its contract obligations to the State agency. The Code restricts acceptance of gifts if it may result in: (1) impaired independence of judgment in performing official duties; (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 its government. 29 Del. C.  5806(b). The State employee was "an end user" of some products which his agency obtained through contracts with the company. Specifically, in the computer systems used by the State employee, among other things, was a device from this company which was partially responsible for controlling certain computer operations and the result was monitored by the employee. He was not in a supervisory position and did not have any decision making authority over any company which contracts with his agency. Thus, he was not exercising any judgment over the company, nor did it appear that he was in a position to give the company preferential treatment over any competitors for the contract, or make official decisions outside official channels which favor the company. Based on those facts, the Commission found no violation. (Commission Op. No. 99-10). Payment of Expenses Corporate Aircraft Travel A State Officer was asked to be the guest speaker at an out-of-state annual meeting of a research and manufacturing association. He was asked to speak not only because of his State position but because he also chaired a national organization, which dealt with legislative and policy issues of interest to the group. The Code of Conduct restricts acceptance of payment of expenses if it may result in: (1) impaired independent judgment in performing official duties; (2) preferential treatment to any person; (3) official decisions outside official channels; (4) any adverse effect on the public's confidence in the integrity of its government. 29 Del. C.  5806(b). In his State capacity he had no direct or immediate decision-making authority over the association. No facts were given indicating that in his State capacity he had any significant indirect or anticipated future decision making authority relative to the association. Based on those facts, it did not appear that his judgment would be impaired in performing official duties. He spoke on certain legislative and policy issues, emerging trends in Delaware, and possible changes in federal and State programs. The association is registered as a lobbying organization in Delaware, and therefore clearly has an interest in Delaware laws and administrative actions in areas which may impact on its membership. However, no facts indicated any issues affecting the association were supported by his office, or that the association was seeking to have any legislation or administrative action introduced or drafted by his office. Based on those facts, it did not appear that he would give the association preferential treatment or make official decisions outside official channels. Whether acceptance would have any adverse effect on the public's confidence in the integrity of its government is based on the totality of the circumstances. Commission Op. No. 96-78 and 97-23. When a government official accepts travel expenses from a private party it may evoke at least two ethical concerns: (1) It may appear to the public that the official may be beholden to the private interest and prone to provide decisional "favors" in return. Commission Op. No. 97-33 (citing Sanjour v. EPA, U.S. Court of Appeals (D.C.) 56 F.3d 85, 94 (1995)). (2) Even if there is no reason to suspect the private payor is trying to curry favor with the official whose expenses are paid, the official's acceptance of benefits from a private source may create at least the appearance that the official is using public office for private gain. Id. Here, the association was registered as a lobbying organization in Delaware. Thus, it clearly has expressed an active interest in Delaware's legislative and administrative actions which could impact on its membership. Thus, the public could view the payment of expenses as an attempt to curry favor with an official who could be in a position to help them on either legislative issues or administrative actions. However, against that concern, we must balance the remaining facts. Specifically, as noted above, no legislative or administrative actions were pending which diminishes the possibility that his judgment would be impaired; that he would give preferential treatment; or would make official decisions outside official channels. Moreover, the time spent at the conference was basically limited to the time during which he was speaking, leaving little, if any, possibility for association members to lobby him. Further, he received no personal benefit, such as honoraria, nor did he engage in activities such as golfing, etc. Thus, no facts indicate that he used his public position for private gain. The Commission also noted that the reason for accepting the corporate aircraft was because he had a long- standing commitment to participate in a program back in Delaware. Because of that commitment, he could only accept the speaking engagement if arrangements were made for him to return to Delaware in time to meet his prior commitment. Moreover, he was invited not just because of his State position, but also because of the broader perspective he could bring to the proceedings as chair of the national organization. This also aids in diminishing the possibility that he was sought as a speaker just as a means of currying favor with him because of his State position. (Commission Op. No. 99-17). More Travel on Corporate Aircraft A Senior Executive Branch official notified the Commission that he accepted travel on a corporate aircraft under circumstances essentially identical to those addressed in a 1996 Commission Opinion. Commission Op. No. 96-26. The Commission must strive for consistency in its opinions. 29 Del. C.  5809(5). As there were no distinctive factual differences between the 1996 situation and this situation, the Commission held that for the reasons given in its earlier opinion, the value should be disclosed in the official's annual financial disclosure statement and no ethical issues were raised by acceptance. (Commission Op. No. 99-39). Tickets to an Exhibition A Division Director accepted two tickets valued at $200 each from a private enterprise to attend an exhibition. The official could use the second ticket to bring a guest. Aside from viewing the exhibition, presentations were made by public officials, a meal was served, and there was entertainment. The issues were whether: (1) the tickets were to be reported under the financial disclosure statute; and (2) any ethical issue was raised by acceptance. (1) Was There "Consideration of Equal or Greater Value"? Under the financial disclosure statute the value is reported as a "gift" unless there is "consideration of equal of greater value." 29 Del. C.  5813 (a)(4)(e). The Commission is to be consistent in its opinions. 29 Del. C.  5809(5). "Consideration" generally means that something is given in exchange to the gift giver. Commission Op. No. 99-26(citing Merriam Webster's Collegiate Dictionary, p. 246) (10th ed. 1994)(consideration is a recompense; payment; an act, forbearance or promise given by one party in return for an act or promise of another); and 17A Am. Jur. 2d Contracts  113 and 114). In a prior opinion to this official, addressing similar circumstances, we held that the value of the ticket for a guest was to be reported. Commission Op. No. 97-33. Regarding the official's own ticket, several reasons were given for the offer of the tickets. However, the "motive" behind an offer and acceptance is distinct and different from "consideration." See, e.g., Commission Op. Nos. 96-26 & 97-01 (citing 17A Am. Jur. 2d Contracts  115)(where sponsor gave tickets to an official to attend because of his status as a public official, consideration was not of equal or greater value). While public officials spoke at the event, it was not suggested that this particular official gave a presentation. As "consideration" means that "something is given in exchange," and the facts did not indicate an exchange between the official and the private company for a presentation, there was no "consideration" on that basis. In later correspondence, the official said a Senior Level Executive Branch official, who was involved in matters related to decisions concerning State funds for the organization, asked her to observe and assist the company to insure the success of its projects as the State had invested substantially. Where the benefit accrues to the public officer personally and to some extent to the State, with the gift giver receiving little or no benefit, then the consideration is not "equal to or greater than" as required by the statute. Commission Op. No. 97-01. Here, the benefit passed personally to the official and the guest, who attended an evening's entertainment. The benefit obtained by the State was that it might gain some insight as to the success of the program. As the State may have benefitted from the official's attendance, any "consideration" was to the State, not to the gift giver. Therefore, the ticket value would be reported under the Financial Disclosure Statute. (2) Were any Ethical Issues Raised? As the official was in the Executive Branch, the Commission reviewed the facts to decide if any ethical issue was raised under the Code of Conduct, as required by Executive Orders 5 and 19. Again, we must be consistent in our opinions. In prior opinions, we said that when private sources confer benefits on public employees to perform agency related functions, it may raise, at least, an appearance of impropriety. Commission Op. No. 97-33(citing Sanjour v. Environmental Protection Agency, U.S. Court of Appeals (D.C.), F.3d 85, 94 (1995)(interpreting federal ethics restrictions on accepting payment from private sources for performing official duties). Two ethical concerns noted in Sanjour are: (1) when a public employee accepts benefits from a private party, it may appear to the public that the employee may be beholden to the private interest and prone to provide "favors" in return. Id; and (2) even if there is no reason to suspect that the private party is trying to curry favor with the employee, the acceptance of benefits from a private source may raise the appearance that government employees are using public office for private gain. Id. In that prior opinion, we noted that, by statute, officials from this particular office were entitled to reimbursement for expenses incident to official duties. Id. Thus, to the extent a Senior Level Executive Branch official asked her to attend, attendance may have been incident to official duties for which the State could have paid the official's expenses (but not necessarily those of her guest). Id. When the State pays, the ethical concerns raised when payments are made by private enterprises do not arise because it is presumed that: (1) such payments are in the legitimate conduct of State business and (2) the employees are then under the "watchful eye" of the agency. Commission Ltr to Public Officers, January 21, 1997. At least one Commissioner believed that payment might have been obtained from the State in this situation. We have urged officials to "exercise great caution" if tickets are accepted from a private enterprise if the official makes decisions about the private enterprise, because it could appear that the offer is to curry favor or influence decisions. Commission Op. No. 97-33. We noted that offering additional tickets may also raise the appearance that the offer was to curry favor or influence the decision maker. Id. Moreover, accepting the additional tickets may raise suspicion that the official is using public office to obtain "private perks." Id. We noted that the concerns increase if the event is rather lavish. Id. Here, the official attended because she was asked to observe and assist the company to insure the success of its projects. Logically, if asked to "observe and assist the company," it could be expected that the official would develop and express an opinion on the project. As the State "has invested substantially in this project," the official's opinion could impact on future decisions regarding State funding to the company. Thus, it could appear that the offer was to "curry favor" because of the official's significant, indirect decision making authority. Further, the tickets she received were valued at $200 each, while the tickets for the general public were $13. This indicates that the event the official attended was likely more lavish than what the public receives. However, to decide if acceptance may have an adverse effect on the public's confidence in its government, we first note that there is a legal presumption of honesty and integrity in the conduct of government officials. 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, C. J. (January 29, 1996). We also must place the concerns about currying favor in decision making and using public office to obtain unwarranted privileges, private advancement or gain within the totality of the circumstances. Commission Op. No. 96-78. While the event apparently was more lavish than what is available to the general public and while she had significant, indirect decision making authority which could affect the company's State funding, the official said a higher level official asked her to go; and the evening was not solely directed at entertaining as official presentations were made. Thus, we distinguish this situation from one where we found it improper for a government official to accept tickets and solicit another ticket to a musical concert where there were no official activities, and he had decision making authority over the gift giver. Commission Op. No. 98-35. Moreover, the nature of this official's position was that the matters over which she had authority were ones connected to the particular type of exhibition. Additionally, no facts indicated that any matter concerning the company's funding was under review when she attended, as it was in No. 98-35. Compare also, Commission Op. No. 97-11 (members of a State agency which routinely made decisions regarding private company should not attend company's "gala" when the company had matters pending before the agency). Accordingly, while we still encourage "great caution" in accepting payment of expenses from an organization over which an official has even an indirect, but significant, decision making authority, we find no violation in this instance. (Commission Op. No. 99-20). Panelist at a Conference A Senior Executive Branch Official attended an out-of-state conference for government officials and business organizations. He was a panelist for an evening business session and participated in a morning business session to present the Executive Branch's perspective as part of the discussions. After the morning session, he played a round of golf and then returned to Delaware. A private company which was also a registered lobbying organization, paid his expenses for overnight lodging, meals, and the round of golf, valued at approximately $530. While the conference lasted for 3 days, he went late on Friday and returned on Saturday. His dealings with the private firm in his official capacity, consisted of: regularly participating in meetings and forums sponsored by the private enterprise to discuss public policy issues; working with the private firm on public policy studies; and meeting with this firm, and other businesses and civic groups to present information on certain policy issues. Two issues were raised: (1) whether the value of his expenses should be reported under the financial disclosure law; and (2) whether accepting the payment raised any ethical issue under the Code of Conduct. (A) Financial Disclosure Law Evaluation: State officers must report gifts of more than $250. 29 Del. C.  5813(a)(4)(e). "Gift" includes payment or anything of value unless "consideration of equal or greater value" is given in return. 29 Del. C.  5812(o). If it is a "gift" then it is to be reported; if suf