"De Minimis" Is a Big Term in Government Ethics
One of the biggest little problems in government ethics is the
inability to filter out very minor violations, which can be dealt with
either by dismissing the complaint or by requiring, say, an additional training
course. It is a waste of limited time and resources to investigate and hold hearings on minor
violations. An EC needs to be able to use its judgment to decide when a
violation is not worth investigating.<br>
<br>
Although it is hard to define what is a minor, or de minimis,
violation, it is important to provide for EC discretion where they exist, either in an ordinance
provision or an ethics commission regulation. This discretion should not be
left to advisory opinions; if it does originate there, it should
quickly be added to the EC's regulations or to the ordinance). <br>
<br>
<a href="http://www.cityofboise.org/Departments/City_Clerk/PDF/CityCode/Title1/0…; target="”_blank”">Boise's
ethics
code</a> deals in detail with this issue, but the details include exceptions that are not really de minimis. The definition of de minimis should not be a place to list others sorts of exceptions to conflict rules. Also, its definition of de minimis appears in the disclosure
section rather than the definitions section, even though the definition applies elsewhere. Here's the language:<br>
<ul>
A pecuniary benefit is de minimis if it does not exceed the value of
fifty dollars ($50.00) incidental to personal, professional or business
contacts and involving no substantial risk of undermining official
impartiality as defined in Idaho Code § 18-1359. An officer’s
interest in a nonsalaried officer of a nonprofit organization; that of
an employee of a contracting party where the compensation consists
entirely of fixed wages; that of a landlord or tenant of a contracting
party; or that of a holder of less than one percent (1%) of the shares
of a corporation or cooperative which is a contracting party, all as
defined in Idaho Code § 59-201A. There is no conflict of interest
if the official’s personal interest is so remote that it would be
unreasonable to question his or her ability to impartially serve the
City’s best interests.
</ul>
The <a href="http://www.cityofboise.org/CityGovernment/EthicsCommission/PDF/Handbook…; target="”_blank”">EC
provisions</a> expressly provide that the EC may dismiss a complaint
when "the alleged violation is a minor or de minimis violation"
(§2-24-04(A)(6)) and also allow the EC to issue an advisory
opinion declaring intended conduct a de minimis violation or conflict
(§2-24-02(F)). This is good, but the non-de minimis examples, such as an employee paid in wages, call into question the entire definition, as does the dependence on the inappropriate concept of impartiality, a term that comes from judicial ethics, but is hardly applicable in the rough-and-tumble of politics.<br>
<br>
More commonly, minimum amounts are included in gift provisions, as in
New Castle County (DE), which provides that "any gift of more than de
minimis value accepted by a County official or employee, or by his or
her spouse or dependent child because of the official or employee's
holding public office or employment, must be promptly entered in a
public gift log." And it defines "de minimis" as "an economic
consequence which has a cost or value less than fifty dollars."<br>
<br>
In defiining a de minimis gift, one must be careful to define it in the
aggregate. Otherwise, it allows people to provide tabs for drinks or
meals or flowers up to $50 on each occasion.<br>
<br>
The de minimis definition becomes more problematic when the <a href="http://www.co.new-castle.de.us/ethics/home/fileuploads/images/ethicscod…; target="”_blank”">New
Castle
ethics code</a> applies the same de minimis amount to regular
conflicts of interest (§2.03.103(A)(1)). Fifty dollars may be
appropriate to gifts, but it may seem low in other circumstances. Here
is a case where defining "de minimis" too specifically can lead to
proceedings where the EC may otherwise choose to dismiss. Better to
provide general guidelines, and a specific amount only where appropriate,
as in gift provisions. Simplifying an ethics code by providing one de
minimis amount is not the best approach.<br>
<br>
Another common way of dealing with de minimis interests is to except
them without really defining what "de minimis" means. This is done, for
example, in the Pennsylvania Public Official and Employee Ethics Act
(65 Pa. C. S. § 1101.1 et seq.), which defines "De minimis
economic impact" as "An economic consequence which has an insignificant
effect." This definition shows up in local ethics codes, such as <a href="http://www.alleghenycounty.us/ace/ACECode07.pdf" target="”_blank”">the one for
Allegheny County</a> (Pittsburgh).<br>
<br>
The <a href="http://www.ethics.ohio.gov/ModelEthicsCode_localagencies.html" target="”_blank”">Ohio
Model
Ethics Code for Local Agencies</a> excepts de minimis interests
in its definition of "value": “'Value' means worth greater than de
minimis or nominal." Not very useful, and it only applies to gifts.<br>
<br>
Here is an example of what arises when "de minimis" is not defined in
an <a href="http://www.seattle.gov/ethics/etpub/EthicsCode.pdf" target="”_blank”">ethics code</a>. It is from the
minutes of a November 2008 meeting of the Seattle Ethics and Elections
Commission.<br>
<ul>
The Executive Director ... dismissed the complaint because he concluded
that the supervisor’s use of City resources for personal purposes was
de minimis. Commissioner Kang wanted to clarify in his own mind what a
de minimis violation is. The Executive Director said that under the
Ethics Code, the de minimis standard allows employees to use City
resources for personal use when the use doesn’t take a lot of time and
doesn’t cost the City money, and isn’t related to campaigning or a side
business.
</ul>
ECs should have the ability to make these judgment calls. Some
guidance is helpful to ECs and their staff, but this is one area where
government officials and employees do not need guidance, because allowing an EC discretion to dismiss de minimis violations does not mean that an EC approves of minor
violations, only that they are not worth the bother of enforcing. They
should still be considered violations, and it should be emphasized to
officials and employees that an ethics code provides only the minimum
standard. Minor conflicts should still be avoided, and minor gifts from
those doing business with government should still not be accepted.<br>
<br>
This is why the City Ethics Model Code includes a reference to minor violations only in the administration section, because it is intended only for an EC to distinguish between what is worth investigating and what is not. It is a consideration that government officials and employees should not themselves be applying. See <a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC81…; target="”_blank”">§213.1</a> on early dismissal of complaints on account of minor violations and <a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC81…; target="”_blank”">§213.5</a> on settlement agreements, where one of the considerations is "the severity of the alleged conduct."<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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