"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.

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).

Boise's ethics code 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:

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.

The EC provisions 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.

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."

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.

The de minimis definition becomes more problematic when the New Castle ethics code 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.

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 the one for Allegheny County (Pittsburgh).

The Ohio Model Ethics Code for Local Agencies 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.

Here is an example of what arises when "de minimis" is not defined in an ethics code. It is from the minutes of a November 2008 meeting of the Seattle Ethics and Elections Commission.

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.

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.

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 §213.1 on early dismissal of complaints on account of minor violations and §213.5 on settlement agreements, where one of the considerations is "the severity of the alleged conduct."

Robert Wechsler
Director of Research-Retired, City Ethics

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