2003 Annual Report
Paul E. Ellis Clifton H. Hubbard
Barbara A. RemusFoster (Terry) J. Massie
Marla L. Tocker
I. Laws Administered by the Public Integrity Commission 1
A. Code of Conduct 2
B. Financial Disclosure 3
C. Compensation Policy 5
D. Registration of Lobbyists 6
II. State Public Integrity Commission - Structure 7
III. Commission Accomplishments in 2004 16
A. Training 16
B. Advisory Opinions, Waivers, Complaints, and Referrals 19
C. Publications 24
D. Local Government Codes of Conduct 26
E. Legislative Matters 27
F. Administrative Issues 28
(1) Financial Disclosure Reports 28
(2) Lobbyists' Expenditure Reports 29
IV. Funding 30
V. Future Goals 31
VI. Appendices
Appendix A - State Contracts and the Code of Conduct A-1
Appendix B - Opinions on Waivers Granted B-1
Appendix C - Violation of Post-Employment Opinion C-1
Appendix D - Delaware Gift Laws D-1
Appendix E - Legislation Monitored by Commission E-1
I. Laws Administered by the Public Integrity Commission
The State Public Integrity Commission, an independent agency, administers the "Laws Regulating the Conduct of Officers and Employees of the State."(1) Those laws set the ethical standards of Executive Branch officials and employees; require public officers in the Executive, Legislative and Judicial Branches to disclose personal financial interests; create procedures to prevent "double-dipping" when State employees and officials hold dual State and/or local government jobs; and mandate lobbying registration and expenditure reports requirements.
A substantial part of the Commission's work, and the key to instilling the public's confidence in its government, is the issuing of advisory opinions interpreting the ethics law for the Executive Branch. 29 Del. C. § 5807(c). Aside from the advisory guidance so State employees and officials can avoid violating the Code, the Commission may grant a waiver if: (1) the literal application of the law is not necessary to serve the public purpose; or (2) there is an undue hardship on the agency or the employee. 29 Del. C. § 5807(a). By law, if the agency or individual who seeks an opinion or waiver fully discloses the facts and, in good faith, relies on the Commission's advice, they are statutorily protected from disciplinary action. 29 Del. C. § 5807(a) and (c).
Further assistance to aid those subject to the law in complying with the requirements is given through training classes; publication of opinion synopses opinions; Ethics Bulletins, and other materials. 29 Del. C. § 5808(A)(a)(1). As the Commission normally meets once a month, the day-to-day work of providing instruction and facilitating compliance with the laws, conducting seminars and workshops, publishing materials, training etc., are the statutory duties of its Commission Counsel. Id. As part of this statutory requirement to provide such materials, the Commission's legal representative, has also established and maintains a web site with information for those subject to the law and for the public. The web site is: http://www.state.de.us/pic.
Aside from issuing advice, waivers, training, etc., the Commission may act on sworn complaints or act on its own initiative on allegations of a violation. 29 Del. C. § 5810(a). A majority (4 members) must find "reasonable grounds to believe"(2) a violation has occurred. 29 Del. C. § 5808(A)(a)(4). If a complaint is sufficient to establish probable cause, the Commission may conduct a hearing. 29 Del. C. § 5810(a). Violations must be proven by clear and convincing evidence. Commission Rules, "Hearings and Decisions," ¶ 11. If a violation is found, the Commission may impose administrative disciplinary action. 29 Del. C. § 5810(d). Further, it may refer substantial evidence of any criminal law to the appropriate federal or State authorities. 29 Del. C. § 5810(h)(2). Complaints that are frivolous or fail to state a violation may be dismissed. 29 Del. C. § 5809(3).
More details of the laws and the purposes of the legislation, are discussed below.
A. Code of Conduct
The Code of Conduct establishes the ethical limits of conduct of State employees, officers and honorary officials in the Executive Branch and local government officials, unless the local government adopts a code at least as stringent as the State law.(3) The Code is meant to insure conduct by these employees and officials that will instill the public's respect and confidence. 29 Del. C. § 5802(1). When the conduct exceeds the limits of the ethical rules, the Code sets forth disciplinary measures to insure uniform compliance standards. 29 Del. C. § 5802(2).
(1) Conduct That May Be Prosecuted as a Criminal Violation
The rules restrict employees and officials from: (1) participating in State matters if a personal or private interest would tend to impair judgment in performing official duties; (2) representing or assisting a private enterprise before the State; (3) contracting with the State; and (4) representing or assisting a private enterprise before the State on certain matters for two years after leaving State employment. 29 Del. C. § 5805. Violating those rules may result in administrative disciplinary action or criminal prosecution. 29 Del. C. § 5805(f) and § 5810. The criminal penalty is up to a year in prison and/or a $10,000 fine. 29 Del. C. § 5805(f).
(2) Conduct That May Result In Administrative Discipline
The Code places limits on accepting gifts, other employment, compensation, or anything of monetary value. 29 Del. C. § 5806(b). It specifically bans the use of public office for private gain or unwarranted privileges, and improper use or improper disclosure of confidential information. 29 Del. C. § 5806(e) thru § 5806(g).
Administrative discipline for violating those provisions may be: (1) a letter of reprimand or censure; (2) removal, suspension, demotion, or other appropriate disciplinary action for persons other than elected officials; or (3) a recommendation of removal from office of an honorary State official. 29 Del. C. § 5810(h).
B. Financial Disclosure
(1) Annual Requirements for Senior Level Officials
Legislation passed in 1994, and effective in 1995, made the Commission responsible for administering the Financial Disclosure Subchapter beginning with the 1995 filings of disclosure reports. More than 300 State officers file disclosure forms each year.
Reports must be filed by public officers in the Executive, Legislative, and Judicial branches within 14 days of becoming a public officer and on February 15 each year thereafter. Those who must file include: candidates for State office; State elected officials; cabinet secretaries, division directors, and members of the judiciary. 29 Del. C. § 5812.
Personal financial information to be reported consists of assets, debts, income, capital gains, reimbursements, honoraria and gifts. 29 Del. C. § 5813. Aside from the public officer's own financial interests, they must disclose assets held with another person if they receive a direct benefit, and assets held by spouses and minor children, even if there is no direct benefit. Id.
Such disclosure is to guard against public officials acting in their official capacity on matters where they have a direct or indirect financial interest. 29 Del. C. § 5811. Whether the financial interests they report raise any ethical issues is decided under the ethics laws applicable to the particular officer.(4)
(2) Criminal Penalties for Non-Compliance
Willful failure to file a report is a Class B misdemeanor. Knowingly filing false information is a Class A misdemeanor. 29 Del. C. § 5815. The Commission may refer suspected violations to the Commission Counsel for investigation and Attorney General for investigation and prosecution. Id. The penalties are: up to six months incarceration and a fine of up to $1,150 for a Class B misdemeanor, 11 Del. C. § 4206(b); and up to one year and a fine of up to $2,300 for a Class A misdemeanor, 11 Del. C. § 4206(a). The Court may also require restitution or set other conditions as it deems appropriate. 11 Del. C. § 4206(a) and (b).
(3) Other Disclosure Requirements
(a) Executive Order Disclosure Requirements
Executive Branch officers who must comply with the Financial Disclosure Law, also must notify the Governor's office of any gift received valued at more than $250. E. O. No. 8. Pursuant to the Executive Order, information on those gifts will be posted on the Governor's website.
(b) Code of Conduct Disclosure Requirements
In the executive branch, all State employees and officers must, as a condition of commencing and continuing employment with the State, file a "full disclosure" if they have a financial interest in a private enterprise that does business with, or is regulated by, the State. 29 Del. C. § 5805(d). "Honorary State officials," appointees to certain State Boards and Commissions, must file a "full disclosure" if they have a financial interest in a private enterprise that does business with, or is regulated by, the agency to which they are appointed. 29 Del. C. § 5805(d).
In the context of these filings, "financial interest" includes: (1) ownership or investment interests; (2) receiving $5,000 or more as an employee, officer, director, trustee or independent contractor; or (3) creditor of a private enterprise. 29 Del. C. § 5804(5). "Full disclosure" requires more details than the annual reports filed pursuant to the Financial Disclosure law by Senior Level officials. "Full disclosure" means sufficient information for the Commission to decide if there is any conflict of interest. Commission Op. No. 98-23.
C. Compensation Policy - Dual Government Jobs
Some elected State officials and other paid appointed officials are concurrently employed by State agencies or other jurisdictions of government. 29 Del. C. § 5821(a). The General Assembly believed taxpayers should not pay an individual more than once for coinciding hours of the workday. 29 Del. C. § 5821(b). To ensure taxpayers do not pay such employees and officials from more than one tax-funded source during overlapping hours-that is, they do not "double-dip," those holding dual government positions must keep certain time records to verify the hours worked at the full-time job on any day they miss work due to the elected or paid appointed position. 29 Del. C. § 5821(c) and § 5822(a). The supervisor must verify the time records and, where appropriate, the full-time salary will be prorated. Id.
The restrictions against "double-dipping" are further reinforced by the State Code of Conduct restrictions on holding "other employment." See, 29 Del. C. § 5806(b). Compliance with that ethics provision is meant to insure that not only is there no "double-dipping," but also insures that the "other employment" does not raise other ethical issues.
As another means of insuring compliance, the State Auditor audits the time records. 29 Del. C. § 5823. Discrepancies are reported to the Commission for investigation under its complaint procedures, and/or to the Attorney General for possible prosecution under any appropriate criminal provision. 29 Del. C. § 5823.
D. Registration of Lobbyists
The Commission began administering the Lobbying Law in 1996. Individuals authorized to act on behalf of another must register with the Commission if they will be acting to promote, advocate, influence or oppose any matter pending before the General Assembly or a State agency by direct communication. 29 Del. C. § 5831.
As of the end of 2003, 230 lobbyists, representing 370 organizations, were registered with the Commission. As compared to 2002, those numbers show a decrease of four (4) registered lobbyists, but an increase of 43 organizations represented by lobbyists. Those numbers also reflect 600 filings of lobbyists' registration forms and employers' authorization forms, as compared to 561 filings at the end of 2002. Each lobbyist must also file a quarterly report on behalf of the organization they represent, disclosing all direct expenditures on General Assembly members and employees and/or members of any State agency. 29 Del. C. § 5835. During 2002, there were 936 expenditure reports for the organizations represented. That number increased to 1,480 in 2003.
Lobbyist registration informs the public and government officials of the identity of persons seeking access to officials and the interests the lobbyist represents. Commission Op. No. 96-14 (citing United States v. Harriss, 347 U.S. 612 (1954). The expense reports identify what, if any, funds were spent on food, refreshments, entertainment, travel, lodging and gifts given to members of the General Assembly and/or employees or officials of State agencies in the process of their lobbying efforts. 29 Del. C. § 5835. Penalties for Non-Compliance
Any person who knowingly fails to register or knowingly furnishes false information may be found guilty of a misdemeanor. 29 Del. C. § 5837. An unclassified misdemeanor carries a penalty of up to 30 days incarceration and a fine up to $575, restitution or other conditions as the Court deems appropriate. 11 Del. C. § 4206(c). Failure to file an authorization or report serves as a cancellation of the lobbyist's registration. Id. They may not re-register or act as a lobbyist until all delinquent authorizations and/or reports are filed. Id.
II. State Public Integrity Commission - Structure
The Governor appoints the seven members of the State Public Integrity Commission. The Senate must then confirm their nomination. 29 Del. C. § 5808. The Commission members elect the Chair. Id.
Members may not hold any elected or appointed office, or be a candidate for federal or State office. Id. They also cannot hold any political party office or be an officer in any political campaign. Id. No more than four members of the Commission may be registered with the same political party. Id. While the statute does not require that each county be represented on the Commission, the appointments to the Commission have resulted in appointees from each of the three counties.
When their term expires, they may continue to serve until their successor has been appointed and qualified. Id.
Commission members are authorized compensation of $100 for each day devoted to performing official duties and reimbursement for reasonable and necessary expenses incurred in performing official duties. 29 Del. C. § 5808.
During 2003, the Commission met eleven (11) times to consider requests for advisory opinions, waivers, and complaints. The meetings were held at the Margaret O'Neill Building, Dover, Delaware, which is where the Commission's office is located. Notice of meetings was posted as required by the Freedom of Information Act.
During 2003, the following citizens served on the Commission:
Commissioner Arthur G. Connolly, Jr., served the last year of his term in 2003. Commissioner Connolly was the last remaining member who was appointed to the Commission when it was initially created in 1991 as the State Ethics Commissioner. That initial appointment was made by then-Govenor Michael Castle on April 2, 1991. Commissioner Connolly's five-year term expired on April 2, 1996.
As the result of legislation passed in 1994, he, like other initial members, was permitted to be reappointed for a seven-year term. His reappointment by then-Governor Thomas Carper, occurred on June 11, 1996. Subsequently, the Commission members elected his as Vice-Chair in 1998, and he served in that position until July 22, 2002. Commissioner Connolly completed his final term of office on June 11, 2003.
Mr. Connolly, a partner in the law firm of Connolly, Bove, Lodge and Hutz, in Wilmington, Delaware, has always been an active participant in the legal community. Among his activities, he has served as President of the Delaware State Bar Association; Chairman of the Board of Bar Examiners, and as an Adjunct Professor of Trial Practice at Delaware Law School, now known as Widener University School of Law. He currently serves on the Delaware Law Review's Editorial Board, as its copyright editor. His particular experience in the area of Ethics was particularly critical to the Commission in its beginning phases. While there was an ethics statute for the Executive Branch since 1974, there were few interpretations of that law by the Courts and/or the Attorney General's office. Commissioner Connolly's service as a member of the Delaware Code of Judicial Conduct Committee of the Delaware Supreme Court and as a member of the Board of Professional Responsibility of the Delaware Supreme Court, gave him an invaluable understanding and insight that was of tremendous assistance to the entire Commission. Aided by fellow Commissioner and lawyer, Kimber E. Vought, Commissioners Connolly and Vought ensured that the early interpretations of the law created the bedrock needed for fair and balanced decisions that were the basis of consistency in subsequent Commission opinions, as required by statute. 29 Del. C. § 5809(5). Not only did Commissioner Connolly give of his time and legal expertise, he insured a timely responsiveness in the Commission's opinions through the use of his lawyer office's administrative staff during the first four years of the Commission when it had no dedicated staff. Once the Commission was permitted to hire staff, his corporate memory of prior opinions contributed greatly to the continuing consistency in Commission opinions.
His activities in non-legal areas include having served on the Board of Trustees for Friends' School and Archmere Academy. In the past, he was active as a basketball coach for the Catholic Youth Organization, the American Junior League, and summer high school teams. He currently is a Fellow of the American College of Trial Lawyers.
Mary Jane Willis
The Commission members elected Commissioner Mary Jane Willis as the new Chair after the departure of Commissioner Connolly. She had been serving as Vice-Chair since July 22, 2002.
Ms. Willis was initially appointed to the Commission on June 30, 1996 to complete the term of C. Ann Nellius, which expired on April 2, 1997. Ms. Willis then began to serve her own term, which expires on April 2, 2004.
At present, Ms. Willis holds a number of other public service positions, including: United Way, Board of Directors; Delaware State Chair, United States Olympic Committee; Trustee, University of Delaware, Children's Beach House; and the Delaware Children's Fire Safety Foundation; Director, Schwartz Center for the Arts and KidsPeace National Council for Kids; Board Member, Washington College Parents' Council; and member of Delaware Court on the Judiciary's Preliminary Investigatory Committee, West Virginia Wesleyan College National President's Advisory Council, and Smyrna High School Wellness Advisory Board.
Other community and public service activities included: Delaware Community Foundation Board; University of Delaware Parent's Association Board; Dartmouth College Parent Board; Delaware Environmental Appeals Board; Kent General Hospital Board; Kent General Hospital Foundation Board; American Cancer Society-Delaware Division Board; Kent County Unit Board; the Mayor's Blue Ribbon Panel for Strategic Library Planning; and many others.
Her wide range of interests also are reflected by her completion of a National Security Seminar at the U.S. Army War College, Carlisle Barracks, PA, in 2002. The seminar gives attendees a "civilian viewpoint" on defense matters.
She obtained her Bachelor of Science Degree from West Virginia Wesleyan College, and her Master's Degree in counseling and guidance from West Virginia University. She has more than 60 post-graduate hours toward her doctorate. As an educator, she has 14 years experience in public education, serving as a guidance counselor for 11 years, a Diversified Cooperative Coordinator for two years, and a teacher of the gifted and talented for one year.
Arthur V. Episcopo
Commissioner Arthur V. Episcopo was appointed, in 1998, to a seven-year term which expires on July 8, 2005. In July 2002, he was elected by the Commission members to be the new Vice-Chair of the Commission.
Mr. Episcopo has had dual careers in the private sector and the military. For 32 years, he worked for E.I. Du Pont De NeMours and Company, Inc., with varied assignments, principally in line management and subsequently in staff positions. His responsibilities included supervisory positions in Personnel, Employee Relations, Site Safety Occupational Health and Fire Protection, Site Engineering Maintenance, Laboratory Maintenance, Site Electrical, and Planning and Scheduling. While pursuing a career at Du Pont, he also pursued a career in the Army National Guard. He served in the Army National Guard for more than 42 years, rising through the enlisted ranks to become the Adjutant General of the State of Delaware. He served in that Cabinet position from February 1989 to April 1993.
After completion of that service, he was appointed to serve on the Industrial Accident Board, which deals with such matters as Workers' Compensation issues. He left that Board when he accepted his appointment to the Public Integrity Commission.
In line with his new duties as Vice-Chair, which include writing performance evaluations for the Commission Counsel, and reviewing the performance evaluations of the Commission's Administrative Specialist, he completed a State offered course on performance review and evaluation in November 2003. Other educational endeavors included the completion of an accredited course of three hours on Research Protection for Human Services through the University of Medicine and Dentistry of New Jersey, in 2002.
In 1998, Commissioner Paul E. Ellis was appointed to a seven-year term which expires on July 8, 2005. Before his appointment to the Commission, he had dedicated many years of service to the public sector by serving as Attorney for the State Senate, Assistant Solicitor of Sussex County, Deputy Attorney General, and in 1973 was appointed as a Judge in the Sussex County Court of Common Pleas until his retirement in 1996.
Mr. Ellis, a resident of Seaford, Delaware, has been actively involved in the community, where he has served as President of the Seaford Lions Club, the Seaford Democratic Club, and the Seaford District Library. He also has been an active member of the English-Speaking Union (Delaware Branch); St. Luke's Episcopal Church (Senior Warden of Vestry); and various Masonic organizations. His interest in the Masons resulted in his service as a Grand Master of Masons in Delaware and First Vice President of the George Washington Masonic National Memorial in Alexandria, Virginia. He also has served as a member, Past Master and Secretary of Gethsemane Lodge No. 28 A.F. & A.M. For 20 years, he has been a trustee of the Episcopal Diocese of Delaware.
Commissioner Hubbard was appointed to complete the term of Christopher E. Bullock, who resigned from the Commission after accepting the pastorate of a church in Chicago, Illinois. Commissioner Hubbard's appointment to complete Reverend Bullock's term expired on August 29, 2002. The statute provides that he could continue to serve until a successor is appointed. Governor Ruth Ann Minner appointed Commissioner Hubbard to serve his own seven-year term, beginning in January 2003.
Mr. Hubbard, a resident of Dover, Delaware, previously chaired the Environmental Appeals Board (EAP). The EAP hears appeals of decisions of the Secretary of the Department of Natural Resources and Environmental Control (DNREC) pertaining to enforcement of pollution standards. He served on that Board for approximately 20 years. He also served, for six years, on the Metropolitan Planning Organization (MPO), which approves certain Department of Transportation projects.
After receiving his Bachelor of Science in both Chemistry and Biology, he was a Chemistry Instructor at his Alma Mater, Claflin College, Orangeburg, South Carolina, before accepting a position as a chemical analyst at Rohm-Haas Chemical Company. Subsequently, he accepted employment with International Playtex, Inc., as a chemical analyst. That position resulted in his move to Delaware, where he also attended the University of Delaware for advanced chemistry studies. In 1971, he had a patent approved on the "Method of Making Foraminous Forming Conveyors." He was Manager of the Elastomers Department when he retired from Playtex.
Mr. Hubbard is a member of Gideons' International, Alpha Phi Alpha Fraternity, Kent-Sussex Afro-American Committee on Education, and is a trustee for Mt. Zion African Methodist Episcopal Church in Dover. Other interests include computer programming, numismatics, model railroading, and karaoke.
Foster J. (Terry) Massie was appointed for a seven-year term on June 25, 2002. He lives with his family in Hockessin, Delaware. He works in Pennsylvania at Wells Fargo as a credit analyst. Mr. Massie has worked in management positions dealing with such things as customer complaints, credit information, training and counseling associates in performance or conduct problems, etc., in Delaware. He also worked as Operations Manager for Eastern Waste Industries in Maryland, where he dealt with such issues as dealing with government, commercial and residential clients regarding service.
Mr. Massie graduated from Henry C. Conrad High School and completed his Associates Degree in Accounting at Goldey Beacom College, Wilmington, Delaware. He attended Neumann College, Aston, Pennsylvania and a Management Training Institute course. His community service includes such positions as President, Mendenhall Village Homeowners Association; Board Member, and First Vice President, Greater Hockessin Area Development Association; and Chair, Upper Limestone Road Focus Group.
Barbara Remus is a resident of Camden, Delaware in Kent County. She was appointed to the Commission on June 25, 2002 for a seven-year term.
She is a Senior Consultant in the Dover office of Brokerage Concepts, Inc. (BCI) of Delaware. BCI is part of the largest privately held group and individual insurance brokerage company in the United States. Her employment requires continuing education and ethics classes to maintain insurance licenses. Her professional associations are in the Delaware and National Association of Insurance and Financial Advisors, and the International Foundation of Certified Employee Benefit Specialists.
A graduate of Dover High School, she obtained her Bachelor of Science Degree in Business Administration from Wilmington College.
Her community service includes: Board member and Vice President, Camden Wyoming Sewer and Water Authority; former appointee to the State Small Employers Reinsurance Board; and member, Delaware State and Central Delaware Chambers of Commerce. She served as Secretary, Dover Century Club; Vice President, Kent County Democrat Committee; and member, 34th District Democrat Committee. She is a member of the Dover Art League and the Dover Century Club.
Upon the vacancy created by the departure of Commissioner Connolly, Governor Ruth Ann Minner appointed Marla L. Tocker to a seven-year term, beginning on June 18, 2003.
Commissioner Tocker, who resides in Wilmington, is a graduate of Temple University School of Law. Her legal experience includes litigating a full range of personal injury cases in both State and Federal Courts. She also has handled medical malpractice cases in the Delaware Superior Court, as well as numerous arbitration headings. Her work in those areas was with both Delaware and Pennsylvania law firms. Specifically, she worked as a Senior Associate in the Wilmington, Delaware firms of Marshall, Dennehey, Warner, Coleman & Goggin, P.C., and Elzufon & Austin, P.A. She also worked for the firm of Comeau & Casey, which has offices in both Wilmington, DE and Conshohocken, P.A. More recently, her legal work focused on assisting with patent prosecutions in biotechnology and chemical inventions. She also was involved in intellectual property litigation in Federal Courts. That work was as an Associate in the Philadelphia firm of Volpe & Koenig, P.C.
Her legal experience in biotechnology triggered a desire to acquire an advanced degree from Johns Hopkins University, Baltimore, MD. In 2003, she completed her Master of Science Degree in Biotechnology. The course work included advanced biochemistry, advanced cell molecular biology, molecular pharmacology, biology, virology, and legal aspects of biotechnology. That same year, she passed the examination for admission to practice before the United States Patent and Trademark Office.
She presently consults for a pharmaceutical company dealing with issues of federal laws, administrative agency laws, and public policies that effect research, development, marketing and distribution of biotechnology and pharmaceutical products.
As an independent agency, the Commission appoints its own legal counsel. 29 Del. C. § 5809(12). The Commission appointed Janet A. Wright in 1995. A 1989 graduate of Widener University School of Law (cum laude), she was admitted to practice in Delaware that same year. After graduation, Ms. Wright was a judicial clerk for the Honorable Richard S. Gebelein, Delaware Superior Court. She also is admitted to practice in the U.S. District Court in Delaware, and the U.S. Third Circuit Court of Appeals. After her clerkship, she was an Assistant City Solicitor for the City of Wilmington. Initially, she prosecuted violators of the Building, Housing and Fire Codes, animal protection laws, and periodically prosecuted criminal matters in Municipal Court. She later was a civil litigator, defending the City and its employees in civil rights and personal injury actions. She holds an American Jurisprudence Award in Professional Responsibility, and completed the National Institute for Trial Advocacy's skills course. She was the Chair, and is still a member of, the Northeastern Regional Conference on Lobbying (NORCOL). Its members are government representatives who regulate lobbying from Washington, D.C. to New England. She is a member of the Council on Government Ethics Laws (COGEL). Members are government employees and appointees in ethics, lobbying, financial disclosure, and campaign finance offices from all fifty (50) states, the U.S. government and the Canadian government. Ms. Wright has served on COGEL's Site Selection Committee. She also was selected to serve as a moderation on a COGEL Session on lobbying, and in 2003, was asked to conduct a breakfast session on Dual Government employment. Her review of Alan Rosenthal's Drawing the Line: Legislative Ethics in the States, was published in the "COGEL Guardian." She has presented several Government Ethics sessions as part of the Delaware Bar Association's Continuing Legal Education Classes. In 2003, she was asked by the National Business Institute to serve as a faculty member and present a session on Delaware ethics laws to members of the Delaware Bar.
Aimee Baysinger has been the Commission's Administrative Assistant since October 15, 2001. Prior to working for the Commission, she worked for CorpAmerica, Inc., as a Specialist, preparing and filing incorporation documents with the office of the Secretary of State. Ms. Baysinger moved to Delaware from Dallas, Texas in 2000. While in Texas, she worked for Rockwell International as an Administrative Assistant and as a Meeting Planner and Customer Service representative. Following her Rockwell employment, she was a paralegal for Locke Liddell & Sapp, LLP and Martin, Farr, Miller & Grau, LLP, in the areas of civil and commercial litigation. She received her paralegal certificate from the Professional Development Institute at North Texas University, Denton, Texas.
III. Commission Accomplishments in 2004
The Commission's goals for 2004 were to continue emphasizing training in all areas of the law. Additionally, it sought to increase access to services to lobbyists and public officers through its Internet site. Beyond those goals, the Commission worked to continue meeting the performance measures identified in its budget request, which was to increase the number of participants and resolve requests for advisory opinions in 45 days or less. The details of the accomplishments in those areas and others are given below. A. Training
Statutory Mandate: The Commission's Counsel is to "assist the Commission in" [its] activities, such as seminars and workshops, educating individuals covered by the law about its requirements and purposes." 29 Del. C. § 5808A(a)(1).
While the statute obligates the Commission to provide training, there is no statutory requirement for State employees, officials or lobbyists to attend the sessions. Thus, the number of training sessions and number of attendees is based on the Commission's staff ability to generate interest in the courses.
In 2003, the Commission's Counsel conducted fifteen (15) training seminars. While this was seven (7) seminars less than in 2002, the number of attendees was 377, which exceeded the Commission's projected budget goal of 350 attendees. Thirteen (13) classes were on the State Code of Conduct; one was on Financial Disclosure Reporting; and one was on the Lobbying Law. Two (2) seminars were canceled due to weather.
To publicize and generate interest in the seminars and workshops, Commission Counsel has developed an on-going working relationship with a number of State agencies to aid State employees, officers and officials in compliance with the laws.
(1) Coordination of Training Efforts with the State Personnel Office
Since 1995, the Commission's Counsel has coordinated its training efforts on both the Code of Conduct training and Financial Disclosure Training through the State Personnel Office's (SPO) Training Unit. The Code of Conduct training has been, and continues to be, an annual part of the course curricula in SPO's Career Enrichment Program (CEP), for rank-and-file State employees. Training on the Code of Conduct and Financial Disclosure are annually offered to senior level employees and officials through SPO Management Development Institute (MDI).
As noted in the 2002 Annual Report, SPO Director Lisa Blunt-Bradley asked Commission Counsel to provide an "Ethics in Government" breakout session at the annual State Personnel conference. As a result of a favorable response to the program, Commission Counsel and the SPO Director met to see if there were additional ways that the two agencies could work together. The result of that meeting resulted in substantial dividends in 2003.
The meeting with SPO's Director resulted in a presentation to Human Resources (HR) Representatives for all State agencies. In discussing the State Code of Conduct, the HR representatives were information about the overlap between some State Personnel laws and rules with some provisions of the Code of Conduct. The group discussed approaches that could lead to a coordinated education effort, with the result that Commission Counsel designed and published a brochure that covered the Code of Conduct, and reference to the overlapping Merit Rules on outside employment, dual government employment, gift acceptance, etc.
In 2003, SPO set up a distribution system to insure Statewide distribution of the brochure. The brochures were sent to the HR Representatives of each State agency. Through the HRs, and by distribution at other training classes, almost 10,000 brochures were distributed Statewide. Response to the brochure was very favorable. For example, one agency requested an additional 200 brochures for its employees so that it could insert a brochure in the payroll envelop of each of its employees.
Later in 2003, it decided that the Merit Rules would be revised. In another coordinated effort, Commission's Counsel assisted SPO by not only covering the overlap in some of the Code of Conduct and Merit Rules during training session. but also by alerting attendees that the Merit Rules were being revised. At public hearings on the proposed Merit Rules on November 6, 2003, Commission Counsel asked the members of the Merit Employee Relations Board ( MERB) to consider annotating the revised Merit Rules with references to the overlapping Code of Conduct laws. This proposal was consistent with SPO Director Lisa Blunt-Bradley's remarks on SPO's on-going efforts to design a manual containing various interpretations and policies concerning the Merit Rules. The MERB, in its findings and conclusions, decided that the manual should be published as reference to the Rule and to relevant related statutes, such as those in the State Code of Conduct. See, Delaware Register of Regulations, Vol. 7, Issue 6, pp. 799-803 (December 1, 2003). The manual is presently a "work in progress." Id. at p. 800. The Commission will continue to coordinate with SPO on such issues.
Also in 2003, SPO started a new mandatory class for all new supervisors. The course, "Supervisory Development Certificate," has a short session on ethics. SPO's trainers do not try to teach the ethics course, as such training is the statutory duty of the Commission; however, SPO's trainers distribute the Commission's brochure; advise attendees that the Commission issues advisory opinions and offers a separate course on ethics. SPO's trainers also advise the attendees how to contact the Commission. In 2003, three classes were given to new supervisors, with approximately 30-50 people at each session. This coordinated effort with SPO serves as an additional means to alert State employees to the Code of Conduct.
The coordination with SPO fills a critical gap for the Commission. While its Counsel is charged with providing training to all persons subject to the law, there are more than 46,600 employees on the State payroll who are subject to the Code of Conduct. Further, appointees to State Boards and Commissions are also subject to the State Code. There are more than 200 State Boards and Commissions, with an average of 5-7 members for an estimated total of 1,000 to 1,400 people. That means that within the State there are at least 48,000 people who are subject to the State Code. Additionally, all local government employees and officials are subject to the State Code unless they adopt their own Code, which must be found by the Commission to be at least as stringent as the State Code. As only six (6) local governments have done so, all other local governments fall within the Commission's jurisdiction for training. The numbers of employees and officials of local governments are unknown. It would be impossible for the Commission's lone trainer to provide training to all of those who are subject to the Code, especially when the turnover rates must also be considered. SPO's coordination with the Commission greatly broadens the number of State employees and officials who are exposed to the Code.
(2) Training for DHSS Employees Continued
Since 1995, Commission Counsel has coordinated training with the Department of Health and Social Services (DHSS). For the convenience of as many DHSS employees as possible, Commission Counsel travels to various DHSS locations throughout the State to give the training. This continuous DHSS training was re-emphasized in 1998 by the recommendation in the State Legislative and Citizens Investigative Panel of Nursing Homes in the "Marshall Report." The report recommended that ethics training be given to DHSS employees that worked in areas related to long-term care. The training is coordinated with DHSS's Training Staff and Commission Counsel, and usually is given at least once each quarter. In 2003, four (4) classes were given to DHSS agencies, not only to the employees who work in long-term care programs, but other programs under DHSS. The continuing training given to DHSS employees benefits both the Commission and DHSS employees in at least two ways: (1) it gives visibility to the program within the agency, even for those who have not yet had a chance to attend; and (2) those who have attended the training have alerted fellow employees to some of the Code requirements. On many occasions
(3) Annual Training for Professional Regulations Boards and Commissions
Like State employees and officers, appointees to State Boards and Commissions are also subject to the Code of Conduct. 29 Del. C. § 5804(6) and § 5804(12). There are more than 200 State Boards, Commissions, Councils and Committees. See, State Telephone Directory, "Boards, Councils, Committees and Commissions." On average, there are between 5 and 7 appointees to each of these entities. Many Boards and Commissions are established by statute under Delaware Code, Titles 23 and 24. They administer the laws and regulations associated with various occupations and professions. Those Boards fall under the Division of Professional Regulation. For the past several years, the Division's Director, Valerie Watson, has coordinated with Commission Counsel to insure the annual orientation includes a presentation on the State Code of Conduct. In 2003, sixty (60) people attended.
(4) Development of DelDOT Training Courses
In 2003, at the request of the Delaware Department of Transportation (DelDOT), Commission Counsel presented an overview of the Code of Conduct to DelDOT's Secretary, Nathan Hayward III, and approximately 60 members of his senior staff. Following up on a recommendation of the Federal Highway Authority, DelDOT has decided to make ethics training mandatory for all of its employees and officials. A coordinated effort is being made between DelDOT's Training Section and the Commission's Counsel to tailor a training program geared to the types of issues that are likely to arise within the Department. In November 2003, a training schedule was created for DelDOT employees for 2004. Ten (10) sessions are scheduled, with more expected to be included during the year.
(5) Training for State and Local Government Accountants
By law, the State Auditor's Office is charged with auditing the time-records of State employees or officials who hold dual government positions, and report any discrepancies to the Commission to be handled as a complaint. 29 Del. C. § 5823. For the past two years, the Auditor has provided the Commission with a report on discrepancies regarding complying with anti-"double-dipping law."
As a result of the discrepancies, Commission Counsel has been placing additional emphases on the double-dipping restrictions in the training sessions. Additionally, in 2003, a separate booklet on Dual Compensation opinions, the statute, etc., was added to the published training materials. The booklet was distributed to all members of the General Assembly, all elected State official in the Executive Branch, and all Cabinet Secretaries and other agency heads. Further, the booklet was provided to the Governor's legal counsel and the topic of Dual Compensation was covered in a Cabinet meeting.
Aside from the working relationship with the Auditor's office to better educate auditors and State officials about the Dual Compensation law, the Auditor's office also reports to the Commission instances where State employees are also privately contracting with the State. A number of Code of Conduct provisions apply to situations where a State employee seeks to contract with the State. See, Appendix A. Among the provisions is the requirement that State employees file a full disclosure with the Commission when they engage in a private contract with the State. 29 Del. C. § 5806(d). Such disclosure is a condition of commencing and continuing employment with the State. Id. The State Auditor's ability to identify situations where a State employee or official is receiving a State check both as a State employee and as a private vendor to the State, helps insure that the State employee complies with the full disclosure requirement. More importantly, the purpose of the full disclosure is to insure that there is no conflict of interest. By alerting the Commission to the double payments in the private contract situation, the Commission can assist State employees in avoiding a violation of restrictions such as the prohibition on contracting with their own agency. 29 Del. C. § 5805(b)(1). Thus, the training for auditors indirectly as a training tool for compliance by State employees on private contracting.
In 2003, the working relationship with the State Auditor's office was expanded by training given to the Association of Government Accountants, which is comprised of both State and local government employees. Commission Counsel served as a speaker at an Association's luncheon. Approximately 40 government accountants attended. As the State Code of Conduct applies not only to State employees, officers and officials, but to employees and officers of local governments, the session extended the reach of training to the local level. After response to the luncheon presentation was favorable, the State Auditor's office began working with the Commission's Counsel to set up more detailed training for the State Auditor's staff and other government accountants. It is expected that the training will occur in the first quarter of 2004.
(6) Training at Other State Agencies
Aside from all of the continuing relations with SPO, DHSS, and the Division of Professional Regulation, in 2003, training was also given to appointees of the Delaware Association of Professional Engineers (DAPE), another Title 24 board, and its assigned Deputy Attorney General (DAG). Training also was given to Developmental Disabilities Council appointees and employees of the. The Council is a federally created State agency, and is governed by both the Federal Ethics Law and the State Code of Conduct. The training includes reference to the Council members' federal obligations.
(7) Financial Disclosure Training
There was limited attendance at the Financial Disclosure Training sessions in 2003. Although the training was offered in both Wilmington and Dover for the convenience of the public officers subject to the laws, only five (5) public officers attended. The low number is not particularly unusual for two reasons. First, there are only approximately 300 public officers in the three branches of government, and many have already attended the training. Second, within the group of 300, there is not a high-level of turnover in the public officer positions (e.g., Judges, General Assembly Members, Cabinet Secretaries, etc.,). Those reasons combined mean that after several years of offering the training, there are fewer people who have not been exposed to the law. However, the Commission continues to offer the training and also assists public officers in complying through mailings to each and every public officer of the Commission's Financial Disclosure synopses of opinions.
(7) Lobbyist Training
The Human Rights Coalition, which is comprised of various entities who have a common interest in lobbying matters, asked for a presentation on the State's Lobbying Law. The Coalition membership includes persons who are already registered with the Commission, such as representatives from the American Civil Liberties Union (ACLU), and Stand up For What Is Right & Just. The training sought to reinforce existing knowledge of the lobbying law for those who already lobby, to impart that information to Coalition members who will be lobbying, and to discuss whether the Coalition should have its own registered lobbyists or whether the registration of lobbyists from each entity creating the Coalition would be more consistent with the law. This led to a discussion of possible conflicts if the lobbyist for a particular entity was not in agreement with the other entities that comprise the Coalition.
At all classes, attendees were given copies of the pertinent statute, synopses of opinions interpreting the particular law, pertinent forms (e.g., financial disclosure form; lobbyist forms, etc.).
(8) Government Lawyer Training
During the past few years, the Commission's Counsel has developed a relationship with the Delaware State Bar Association (DSBA) , participating in Continuing Legal Education seminars for attorneys. In 2003, Dennis Schrader, former president of the DSBA recommended to the National Business Institute (NBI) that it ask Commission Counsel to be part of its "faculty" for a continuing legal education seminar on December 5, 2003, covering "Legal Issues Involving Delaware Local Government." This would be an opportunity to talk with local government attorneys about Code of Conduct issues that arise on the local level. However, the session was canceled due to bad weather. It is anticipated that it will be rescheduled in 2004. B. Advisory Opinions, Waivers, Complaints, and Referrals
(1) Advisory Opinions and Waivers Statutory Mandate: Powers and duties of the Commission: "To issue written advisory opinions upon the request of any State employee, officer, honorary official, or State agency, as to the applicability of this chapter to any particular fact situation." 29 Del. C. § 5809(2). The Commission "may grant a waiver to the specific [Code] prohibitions if the Commission determines that the literal application of the law is not necessary to achieve the public purposes of the chapter or would result in an undue hardship on any employee, officer, official or State agency." 29 Del. C. § 5807(a). Powers and duties of Commission Counsel: "To provide legal counsel to the Commission concerning any matter arising in connection with the exercise of its official powers or duties, 29 Del. C. § 5808A(a)(2), and "assist the Commission in drafting waiver decisions and advisory opinions. 29 Del. C. § 5808A(a)(5).
In 2003, forty-nine (49) matters were submitted to the Commission. Of these, thirty-four (34) requests were for advisory opinions and four (4) were requests for waivers.
(1) Advisory Opinions
Any State employee, officer, honorary official or State agency may, in writing, seek an advisory opinion on any particular fact situation. 29 Del. C. § 5807(c). In 2003, most requests (12) sought an interpretation of the restriction on holding "other employment" under 29 Del. C. § 5806(b). Where the "other employment" was in the private sector, and the private enterprise for which the individual would work also did business with or was regulated by the State, the Commission also had to decide if the individual had complied with the requirement to file a "full disclosure," as required by 29 Del. C. § 5806(d). Such disclosures are a condition of commencing and continuing employment with the State. Id. Where the "other employment" was in the public sector, the Commission had to decide if the individual was also complying with the anti-double dipping provisions of 29 Del. C. § 5822. In addition to those decisions dealing with concurrent employment issues, the Commission also was asked for four (4) interpretations of the restrictions on post-employment issues. Those questions dealt with the two-year restriction on certain private employment activities after terminating State employment. 29 Del. C. § 5805(d). The other requests sought advice on situations where the State employee or official had a "personal or private interest" in an official decision. Those interests included familial relationships, financial investments, and serving as Board members of private organizations. Two requests were for interpretations of the gift restrictions
In situations, where the Commission found that the proposed conduct would violate the Code, the conflict was generally avoided by having the individual recuse themselves from participating in the State decision where they had a personal or private interest, and by having them limit their employment activities, whether concurrent or post employment, to insure compliance with the Code.
(2) Waivers
Waivers are given if the literal application of the law is not necessary to serve the public purpose, or there is an undue hardship on the State employee or State agency. 29 Del. C. § 5807(a). Such waivers permit the individual to act in violation of the statute, but the proceedings become a matter of public record so that the public is knowledgeable of why the violation was permitted to occur. 29 Del. C. § 5807(b)(4).
Three persons requested waivers in 2003. The Commission denied a waiver requested by a local government employee who asked if, in his official capacity, he could render decisions about the private company which had offered employment to a close relative, when that company did business with his office. The Commission found that it would violate the Code if he had oversight over the company's projects for the local government if the company employed his relative. See, e.g., Prison Health Services, Inc. v. State, Del. Ch., C.A. No. 13,010, Hartnett III, V.C. (July 2, 1993)(improper for government employee to participate even indirectly and unsubstantially when his close relative worked for firm seeking contract).
The Commission found no "undue hardship" because his close relative was being offered jobs by other companies that did not do business with the local government. Moreover, even if his close relative accepted employment with the firm that did business with the local government, the local government employee's decisions making authority could be delegated to an individual who was not within the local government employee's chain of command. As the conflict could be avoided by one of those two means, there was no reason to violate the restriction on reviewing or disposing of matters where there is a "personal or private interest." Commission Op. No. 03-06.
In another instance, a State employee asked for a waiver concerning a private contract with the State. However, at the point of the request, his conduct relative to that employment was not in violation of the Code so no waiver was required at the time. Commission Op. No. 03-45.
In the third instance, the Commission granted a waiver so that a State employee could contract with her former agency as a private vendor to perform work for which she had been directly and materially responsible for while employed by that agency. As such conduct would violate the post-employment provision, the Commission, upon reviewing the facts, concluded that there was an "undue hardship" on the State agency. It had tried different approaches to handle the problem without violating the Code without success; had made efforts to reduce any appearance that the former State employee would experience a financial windfall as a private contractor as compared to her State position; and limited the number of hours she would work as a contractor. See, Commission Op. No. 03-08. Appendix B.
(3) Complaints
Statutory Mandate: Commission Counsel's Duties: To investigate information coming to the attention of the Commission that, if true, would constitute a violation of any provision of the Code of Conduct; to provide legal counsel to the Commission concerning matters arising in connection with its official duties; to make recommendations regarding referral for prosecution; and to prosecute disciplinary proceedings, if a Commission majority finds probable cause to believe a violation may have occurred. 29 Del. C. § 5808(A)(a)(2), (3) and (4). Commission Duties: To recommend such disciplinary action as it may deem appropriate that is authorized by 29 Del. C. § 5810(d) (administrative sanctions) or other provisions of the Code, or to dismiss any complaint that it determines is frivolous or fails to state a violation. 29 Del. C. § 5809 (3).
(a) Failure to State A Violation of the Code of Conduct
Two (2) complaints were filed, but dismissed because the Commission ruled that it no jurisdiction. One complaint was against a local government official, but that local government had adopted its own Code of Conduct. Therefore, the Commission had no personal jurisdiction over the local government official. Commission Op. No. 03-16. The other complaint was filed by a Pennsylvania prisoner against an unidentified State employee in the Court system. It was unclear if the State employee was an employee of the Courts of Delaware or the Courts of Pennsylvania. The complaint alleged: bribery; alternating of documents; filing false information; kidnapping, etc. The Commission had previously held that it had no subject matter jurisdiction over such issues. Thus, even assuming that the complaint was against an employee of the Delaware Courts, the complaint had to be dismissed for failure to state a violation of the State Code of Conduct pursuant to 29 Del. C. § 5809(3).
A third complaint alleged that a former Department of Transportation employee was engaging in conduct in violation of the post-employment law. The former State employee cooperated with the Commission's investigation and appeared before the Commission waiving his statutory rights to counsel, right to cross examine witnesses, etc., as provided by 29 Del. C. § 5810(a). Based on the totality of the circumstances, the Commission concluded that his conduct, at a minimum, created the appearance of a violation. The former State employee cooperated in the Commission's investigation and waived his statutory rights to legal counsel, right to cross-examine, etc. Where a violation is found, the proceedings become a public record. 29 Del. C. § 5810(h)(1). The Commission's decision, Commission Op. No. 03-41 is attached as Appendix C. In addition to the conduct becoming a matter of public record, the former employee was required to cease all work on the project that raised the appearance of a violation. The complainant and his former agency were notified of the Commission's finding and the action taken.
A fourth complaint was filed with the Commission in December 2003. That matter has been carried over to be resolved in 2004.
(4) Referrals to the Attorney General
Statutory Mandate: Commission Counsel Duties: Commission Counsel is to investigate information coming to the attention of the Commission that, if true, would constitute a violation of any provision of the statute, and may recommend that possible violations be referred to the Attorney General, if appropriate. 29 Del. C. § 5808A. Commission Duties: The Commission may refer any suspected violation of the Financial Disclosure law to the Attorney General for investigation and prosecution. 29 Del. C. § 5815(c).
Under the Financial Disclosure Law, any public officer who willfully fails to file a disclosure report shall be guilty of a class B misdemeanor. 29 Del. C. § 5815(a). In 2003, three (3) public officers failed to file a disclosure report after being sent notice by Commission Counsel by both regular mail and certified mail. The notice informed them of the requirement to file and that failure to file may constitute a violation of 29 Del. C. § 5815(a). When no response was received from the three public officers, Commission Counsel brought the matters to the Commission's attention. Pursuant to statute, a determination was made by at least a majority of the Commission that there were reasonable grounds to suspect that a violation may have occurred. 29 Del. C. § 5808(a)(4). The suspected violations of the Financial Disclosure law were then referred to the Attorney General for investigation and prosecution. One individual, for health reasons, had relocated out of state, and upon notice from the Attorney General's office, resigned her appointment. A second individual filed his report after notice from the Attorney General. The third individual, who was a candidate for State office, was not elected and her spouse requested that the Attorney General not prosecute and that she not be required to file.
(4) Referrals from the State Auditor's Office
Statutory Mandate: State Auditor's Duties: The State Auditor is to conduct annual audits of the time records of State employees who hold dual government positions to determine if an employee was paid from more than one tax-funded source for working coincident hours of the day. 29 Del. C. § 5823(a). Any discrepancy found by the Auditor is to be reported to the Commission for investigation as a complaint. 29 Del. C. § 5823(b). If there is evidence that a false statement or false information was filed, with intent to defraud the State, the State Auditor may refer the matter to the Attorney General for possible prosecution under Title 11, Section 876 (tampering with public records) and any other appropriate section of Title 11. Commission Counsel's Duties: To review and investigate information coming to the attention of the Commission relating to potential violations of the Code, and make recommendations. 29 Del. C. § 5808(A)(3) and (4). Commission Duties: To determine if the complaint states a violation and determine any appropriate disciplinary action as authorized by the Code, or dismiss frivolous claims or complaints that fail to state a violation. 29 Del. C. § 5809(3).
In 2003, the Auditor's reported discrepancies in the following areas to the Commission: (1) in some instances the State employee who held the dual positions had not properly submitted their time card; (2) in other instances the supervisor had not verified the time card; and (3) in some cases the agency had not prorated the State employee's salary. The Auditor's report also stated that the individuals and agencies who had not complied were to insure that any double payments to the individual were recouped by the State. Further, the Auditor's report noted the absence of agency policies regarding the double-dipping law. Pursuant to the Commission's authority to "provide assistance to State agencies, employees and officials in administering the law," 29 Del. C. § 5809(10), it published a booklet addressing dual compensation issues. The booklet included the statute, last year's Ethics Bulletin on the law, synopses of opinions, sample time cards, sample agency policies, etc. The booklet was distributed to all State elected officials and the heads of all State Executive Branch agencies. Further, the requirements to comply with the dual compensation law continued to receive emphasis during the Commission's training sessions, and the requirements were addressed by the Governor's legal counsel at one of her Cabinet meetings. A separate section pertaining solely to this area of the law was established on the Commission's web site.
Aside from auditing for discrepancies where a State employee holds dual government positions, the State auditor also looks for dual payments to a State employee as both a State employee and as a private vendor.
In 2003, the State Auditor noted, during routine agency audits, some situations where State employees may have a financial interest in a private enterprise that may be doing business with the State. If a State employee has such interest, they must file a full disclosure with the Commission as a condition of commencing and continuing State employment. 29 Del. C. § 5805(d). The records of the transactions were submitted to the Commission. An initial review of one matter revealed that there were a number of State employees similarly situated, not just the individual whose name had appeared in a random audit. The Commission advised the agency that the agency contracts with those individuals was contrary to the Code. The agency is reviewing those matters to determine if it will request waivers.
The Commission's records, like those of any State agency, are also subject to audit. In 2003, the State Auditor's Office, though a contracted auditing firm, KMPG, audited the financial disclosure reports submitted by public officers. The reports are filed annually by approximately 300 public officers to assist in insuring that there is no direct or indirect financial interest that may create a conflict of interest. As of this annual report, KMPG has not reported any discrepancies in the annual reports to the Commission.
C. Publications
Statutory Mandate: Commission Duties: The Commission is to publish synopses of its advisory opinions without disclosing the identity of the applicant, and is to prescribe forms, and publish manuals and guides explaining the duties of individuals covered by the laws the Commission administers. See, 29 Del. C. § 5807(d)(4); § 5809(8) and (9). Commission Counsel Duties: Assist the Commission in preparing and publishing manuals and guides explaining the duties of individuals covered by the law; give instructions and public information materials to facilitate compliance with, and enforcement of the law. 29 Del. C. § 5808(A)(1).
In 2003, the Delaware State Bar Association's Government Law Section sponsored a continuing legal education seminar which included a segment on the "Role of the Lobbyists and Overview of the Current Legislative Session," by attorney/lobbyist W. Laird Stabler. Commission's Counsel attended and coordinated with Mr. Stable and Mike McTaggart, Government Law Section's Chair, to distribute the Commission's lobbying synopses and its recent ethics bulletin on gift reporting by lobbyists.
As noted under the training section, above, publications of the Commission's opinions, Ethics Bulletins, brochure and other materials are distributed to each attendee at the training sessions offered by the Commission. The evaluation's completed by the attendees continue to reflect that the most valuable part of the training are the handouts. Accordingly, these are still distributed in hard copy to the attendees.
The Commission's publications are also on its web site. As noted above, a separate section was added to the web site on the Dual Compensation law. This was done to highlight this particular area of the law as a result of the discrepancies in compliance found by the State Auditor.
The web site also was updated to include a new pamphlet on various State gift laws, so of which are administered by the Commission and some which are administered by other agencies, such as the provisions in the criminal law, Delaware Code, Title 11, which prohibit acceptance of illegal gratuities. Appendix D. This provides State employees and officials with a consolidated source of those laws.
To better serve the lobbyists who are registered with the Commission, the Commission added information of interest to lobbyists which are administered by other entities. Specifically, the site now has the House of Representatives' Resolution No. 3, Rules 54 and 56 which apply to lobbyists; House Bill 302, which prohibits those who are given grants-in-aid from using grant funds to hire lobbyists; the Delaware Lawyers' Rules of Professional Conduct, with reference to Rule 7.6 (DLRPC) which restricts lawyer's campaign contributions under certain circumstances; and a link to the Department of Elections' web site, to provide easy access to the Department's campaign finance reports. This latter link is provided because many inquiries are made by lobbyists to the Public Integrity Commission regarding campaign finance reporting. Unlike many States where both the campaign finance and lobbying laws are administered by the same agency, Delaware's lobbying statute specifically excludes campaign contributions from the lobbying report. 29 Del. C. § 5835(b)(6).
The use of the web site to access Commission publications and for lobbyists to complete their registration, authorization and expense reporting forms continued to increase in 2003. A record monthly high of 18,690 hits was made on the Commission's original web site in July 2003. On the new portion of the site, which has the list of lobbyists, and the lobbying registration and reporting system, there were a record number of 9,059 hits in July 2003.
D. Local Government Codes of Conduct
Statutory Mandate: Local Government Duties: Employees and officials of local governments are subject to the State Code of Conduct unless they adopt their own Code of Conduct. 68 Del. Laws, c. 433 § 1. Commission Duties: Any local government Code and subsequent amendments must be approved by the Commission as being as stringent as the State Code. Id. The Commission has approved Codes of Conduct for six local governments-Dover, Lewes, Millsboro, New Castle County, Newark, and Wilmington.
During 2003, the Town of South Bethany Code of Conduct submitted its draft Code of Conduct to the Commission. The Commission found that it was not as stringent as the State Code because it lacked: (1) a provision requiring local employees and officials who have a financial interest in a business that is doing business with, or regulated by, the Town, to file a full disclosure of such dealings; and (2) the Town Code lacked procedural provisions for obtaining advisory opinions, due process procedures relative to complaints, etc. The Town was referred to the pertinent State Code sections on these matters. Wayne Stacey, the Town Manager, contacted the Commission's Counsel on what was need and he said he would look at approved Codes for other towns like Lewes and Millsboro, and work on the matter with the Town's attorney, Terry Jaywork, so they can submit a final version.
E. Legislative Matters
Statutory mandate: Commission Duties: The Commission is to recommend to the General Assembly from time to time such rules of conduct for public employees and officials as it shall deem appropriate. 29 Del. C. § 5809(1).
A number of pieces of legislation of interest to the Commission were introduced during the first session of the 142th General Assembly, which began in January 2003. Where appropriate the Commission provided the General Assembly with its recommendations regarding the legislation, or determined what other action it should take.
(A) Senate Bill 79 - Permits State Service Centers, Department of Health and Social Services (DHSS) to solicit and accept contributions, grants, gifts and bequests from organizations, agencies, institutions and businesses. The legislation was basically in response to three Commission opinions that held that DHSS had no statutory authority to solicit gifts, as the Delaware Code gives only certain agencies that authority; even if DHSS had authority, the particular conduct would still violate the Code. Commission Op. Nos. 00-37, 98-31; & 01-31. This Bill was introduced in 2002 as H.B. 423. It passed the House, but did not get out of the Senate. In 2002 and 2003, the Commission notified the General Assembly of the substance of its prior rulings so that the General Assembly would have that information in making its decision about the legislation. Subsequently, the legislation was amended to provide that DHSS could solicit, but that even with that authority, its conduct would have to comply with the Code of Conduct. The amended legislation was signed into law on June 30, 2003.
(B) Senate Bill 27 - Amends the Town of South Bethany Beach's Charter. Among other things, it permits the Town to adopt an ethics code. The Commission notified the Bill's sponsors and Town officials that existing law permits local governments to adopt their own Code of Conduct, and requires that the Commission approve local government codes as being as stringent as State law. The Town subsequently submitted its Code for review. The Commission determined that the proposed ordinance lacked to provisions that were necessary to make it as stringent as State law. The Town is reviewing the Commission's advice. See, Commission Op. No. 03-14. Senate Bill 27 passed the House on June 26, 2003, with several amendments. As the law currently permits the Town to adopt a Code, the outcome of Senate Bill 27 will not impact on any further review of the Town's ordinance if it is revised.
(C) House Resolution 3 - House Rules - Each legislative session, the House adopts rules for its members. On January 14, 2003, the House adopted its rules for the 142d Session. Rule 54 requires lobbyists to register with PIC, and gives the correct citation--Title 29, Chapter 58. Rule 57 refers to registered lobbyists taking the House floor, but cites to the old law, Chapter 16. Sponsors of H.R. 3 were notified of the discrepancy in the citation.
(D) House Bill 88 - Excludes Professional Standards Board members from the "anti-double dipping" law, administered by PIC. The bill was introduced March 27; passed the House and Senate within 15 minutes of each other; and signed into law the next business day. Although specifically excluded from the anti-double dipping law administered by the Commission, the bill also provides that any Standards Board member employed by a public school district will receive their normal salary, and does not reflect that they also would be paid by the Standards Board. The legislation was signed into law on April 1, 2003.
(E) Senate Bill 97 - Privacy Disclosure Policy - Requires State agencies web sites to have a policy on how personal information is obtained on users; what is done with the info; etc. "Personal information" includes names or other identifying information. By law, the Commission must collect data on lobbyists. See, 29 Del. C. § § 5832, 5833 and 5835. The bill does not prohibit disclosing the information if it is needed to perform the agency's statutory functions, rather, a disclosure policy must be on the web site. The bill also directs the Department of Technology and Information to develop a model policy for State agencies. The bill was signed into law on June 7, 2003.
House Bill 165 - In 2002, the Commission, after finding a violation of the Code, granted a waiver to two Senior Level officials that allowed that to finish out the school year as Board members of Charter Schools. H.B. 165 was introduced in May 2003, with a hearing by the House Administrative Committee on June 4, 2003. The Commission provide the House Committee members with copies of its 2002 opinions, and the case law on which it based its opinions. The legislation was reported out of the Committee that same. However, according to news media reports, Governor Ruth Ann Minner said she would veto the bill if it should pass. No further action was taken by the General Assembly.
Senate
Bill 129 - The Commission continued
to work with the Department of Technology and Information (DTI)
regarding whether the legislation passed in 2001 that eliminated
application of the post-employment law for employees of the
Office of Information Services (OIS), and the Department of
Technology and Information (DTI) should be revised. See, S.B.
215. The reason for eliminating the post-employment law for
those State employees was because the restructure of OIS could
result in those employees taking jobs in the private sector if
the State cannot place them in State jobs with either DTI or
another State agency. The legislation was apparently intended to
cover those employees during the transition period from OIS to
DTI. However, as written, it eliminates application of the
post-employment law for all time for all OIS and DIT employees.
The Commission worked with the drafters of the legislation to see
if a time limit to cover the transition period would be feasible.
After that point, the post-employment law would then apply to DTI
employees, just as it applies to all other State employees. In
2003, the exemption from post-employment restrictions for OIS and
DTI employees was eliminated when S.B. 129 was signed into law on
June 11, 2003.
The Commission will continue to monitor the legislation through
the end of the second session which ends on June 30, 2004. A
chart of the legislation introduced and followed by the
Commission in 2003, is at Appendix E.
F. Administrative Issues
(1) Financial Disclosure Reports
Public officers are to file annual Financial Disclosure reports by February 15 of each year. Annually, the Commission sends its Financial Disclosure synopses, the disclosure form and instructions to more than 300 public officers notifying them of the annual requirement. In 2003, eight (8) public officers did not file their annual report by the February 15. After a second notice, all but two of public officers filed their reports. After those two matters were referred to the Attorney General for suspected violations, further notice was sent to the individuals. One subsequently filed, the other, due to illness and moving out of State resigned her appointment.
During the year, one candidate for State office failed to file a disclosure report after several notices. The matter was referred to the Attorney General. Subsequently, the candidate did not win the elected position. The Attorney General's office worked with the candidates spouse and reached an agreement that the former candidate would not be prosecuted and would not be required to file.
In 2003, the Commission's staff was able to use its new computerized system to compare lobbyists' reports of gifts to public officers if the gift exceeded $50 per day. Previously, the Commission's staff compared, by hand, more than 900 lobbying expenditure reports to the more than 300 financial disclosure reports to insure that any gift of more than $250 to a public officer from a lobbyist was reported. Then new computer system now generates a report of the gifts from lobbyists and automatically notifies public officers of the gifts reported by lobbyists. That way, if there are discrepancies, the matter can be quickly resolved. Where necessary, the public officers amended their financial disclosure reports for accuracy. The new computerized system not only insures proper reporting, but reduces staff time and costs normally associated with sending out regular mail.
(2) Lobbyists' Expenditure Reports
Registered lobbyists are required to file expenditure reports on a quarterly basis, identifying the total amount of expenditures made on members of the General Assembly or State employees for such items as food, entertainment, travel, gifts, etc. As of the end of 2003, 232 lobbyists, representing 378 companies or organizations, were registered with the Commission.
The filing for the last quarter of 2002 was due on January 20, 2003. Fifty-seven (57) lobbyists did not submit their report by the deadline. Letters notifying them that failure to file serves as a voluntary cancellation of their registration were sent. Twelve (12) responded. A second notice, by certified mail, was sent to the remaining 45 non-filers. Seven (7) lobbyists failed to respond. Pursuant to 29 Del. C. § 5837(c), their failure to file served as a cancellation. They are not permitted to act as lobbyists until all delinquent reports are filed.
Reports for the 1st Quarter of 2003 were due by April 20, 2003. As of April 30, 2003, forty-nine (49) lobbyists had not filed their report. A reminder notice was sent to each, giving them 10 days to respond. Thirty-six (36) lobbyists were e-mailed through PIC's new computerized reporting system. The remaining 13 were sent regular mail as they did not have e-mail. By e-mailing 36, PIC saved $13.32 in postage, plus the costs associated with envelopes, paper, etc. As of May 6, 2003, eighteen (18) had filed. Twelve (12) of the 13 who have no e-mail address had not responded. This indicates that those with e-mail addresses are responding better than those who are sent U.S. mail. Subsequently, all lobbyists filed their reports.
The filing date for the second quarter was July 20, 2003. Forty-four (44) failed to file their quarterly expense report by that date. Thirty-one (31) filed after the first notice. After a second notice was sent, eight (8) lobbyists did not respond. After a final notice to the lobbyists, all responded.
On October 20, 2003, reports for the third quarter were due. A first notice of failure to file was sent to forty-one (41) lobbyists. All but 18 responded. They were sent a second, certified mail, notice. A third notice was sent to the lobbyists and the organizations they represent.
The filing for the last quarter of 2003 was due on January 20, 2004. On January 29, 2004, notice was sent to forty-four lobbyists who had not filed. As of February 6, 2004, twenty-five had not responded, and were sent a second notice. The annual report went to press shortly after that date, so the final data is available from the Commission's office, and will be in next year's annual report.
(3) Lobbying Badges & Homeland Security
To aid in the homeland security measures, badges are being issued by the Division of Motor Vehicles in conjunction with the Capitol Police, once the individuals have registered with the Commission. The Commission's web site is continuously updated so the agencies can verify that the lobbyists have registered. Further, the Commission's staff notifies the Capitol Police when a lobbyist's registration is canceled, so that the cancellations are current.
IV. Funding
For Fiscal Year 2004, the General Assembly appropriated a total of $164,400 for the Commission's budget. This was the same as for FY 2003. Like all State agencies, the Commission was asked to cut 2.5% from its operating budget for FY 2004. For FY 2005, the Commission requested the same appropriations as in FY 2004. As of early January 2003, Governor Ruth Ann Minner's proposed budget to the General Assembly, included the Commission's proposed budget of $164, 400.
The Commission's staff continues to work to effect cost savings. As noted last year, a savings of approximately $800 was made when overcharges for the copier were discovered. In 2003, an overcharge of $219 on a publication was founded and recovered. Additional savings resulted from the Commission's use of a new computerized system for lobbyist registration and reporting. Those savings were in the area of paper, envelopes, and postage.
V. Future Goals
In the coming year, the Commission intends to continue emphasizing its responsibility to educate State employees, officers, officials and local officials covered by the State Code of Conduct and Financial Disclosure Laws. It has already scheduled training with a number of agencies.
To provide additional services to the public officers and lobbyists who must file reports with the Commission, it will look into the feasibility of making electronic filing available. This will require a cost analysis, and possibly a change in legislation to provide for electronic signatures, rather than original signatures.
The Procurement law states: "in addition to any other procedures" the remedies and penalties in the procurement law are not exclusive and shall be in addition to, among other things, "the provisions and penalties defined in Chapter 58 of this title [Title 29]." 29 Del. C. § 6903(g). Title 29, Chapter 58, is the State Code of Conduct. The following overview of some Code of Conduct provisions, as they relate to State contracts, is to help those involved with State contracts to familiarize themselves with the Code of Conduct.
I. To Whom does the Code of Conduct Apply?
(A) State employees (includes all rank & file employees, including temporary, casual, seasonal, part-time, etc.), and appointees to Boards and Commissions who make more than $5,000 per year;
(B) State officers (elected Executive Branch officials, Cabinet Secretaries, Division Directors and their equivalents); and
(C) Honorary State officials (appointees to Boards and Commissions who make less than $5,000 per year). 29 Del. C. § 5804(11), (12) and (13).
II. Restrictions on Conduct when Acting in an Official Capacity
State employees, officers, and honorary officials may not review or dispose of matters involving the State if they have a personal or private interest. 29 Del. C. § 5805(a)(1). For State contracts, a public servant could not, for example, write, review, draft, award, etc., an RFP if they have a "personal or private interest" in the contract. A personal or private interest would be, among other things, if the public servant, a relative or friend, or a private business which the public servant, a relative, or friend owns, operates, or is an employee of, seeks the contract.
Examples:
(1) A State honorary official was on a State Board that gave a Division Director advice on whether private companies would receive certain certificates. One company seeking a certificate was in the process of entering a business alliance with the company that the honorary official worked for in his private capacity. The official said at the beginning that he "might" have a conflict, but participated in the discussions. When it was time to vote, he recused himself. After the Board issued the certificate, another company which was denied a certificate took the matter to court saying that the State official's business relationship with the other applicant violated the Code of Conduct, and he should not have participated. The Court noted that the official's comments were "neutral and unbiased," and the official recused himself just before the vote. However, it said that because of the conflict, he should have recused himself "from the outset." 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). In Beebe, the applicant sought a certificate. However, the same law applies to a contract situation.
(2) Administrative Services asked a Department of Corrections (DOC) employee to give a list of DOC's employees to a contract selection Committee so it could select a DOC employee to serve on the Committee to award the contract. He provided the list. Later, the Committee met and the State employee participated. He was not on the Committee, so he could not, and did not vote on who would get the contract. The Committee awarded ARA the contract. When Prison Health Services did not get the contract, it asked for a court injunction against the contract on the basis that the State employee violated the Code of Conduct because his wife worked for ARA. The Court said that while the State employee's participation was "indirect" and "unsubstantial" and his wife was a "low-level employee" at ARA, his participation was "undoubtedly improper." Prison Health Services, Inc. v. State, Del. Ch., C.A. No. 13,010, Hartnett III, V.C. (July 2, 1993).
(3) A Department of Public Instruction (now Department of Education) employee issued agency contracts. She issued some contracts to her boyfriend, whom she later married. As a result of the conflict of interest, she lost her job after 18 years. The State could have prosecuted her under the Code of Conduct, but it prosecuted her under the "Misconduct in Office" criminal law. She received a seven-year sentence. Ford v. Dep't. of Public Instruction, Del. Super., C.A.# 96A-01-009-RSG, Gebelein, J. (November 24, 1997); Ford v. Dep't. of Pub. Instruction, 720 A.2d 559 (S. Ct. 1998).
(4) Where local government officials participated in a decision, it was alleged they had a conflict because their relatives had an interest in their decision. The Court found no actual conflict, but said it would "be prudent" to recuse themselves. Harvey v. Zoning Board of Adjustment of Odessa, Del. Super., C. A. No. 00A-04-007 CG, Goldstein, J. (Nov. 27, 2000).(5)
Lessons from these situations:
(1) public servants need to stay as far away from any official participation (even neutral, unbiased, indirect and insubstantial) as they can when they, their employer, a close relative, friend, etc., have an interest in the contract; and
(2) generally, public servants need to recuse themselves from the outset if they think they have a conflict because if they think it themselves, it is likely their conduct will, at a minimum, appear improper, even if there is no actual violation; and
(3) public servants need not be the final decision makers. As seen in Beebe and Prison Health, if they "review" the matter when they have a conflict it can be improper; and
(4) if there is any question on whether they should be involved, the individual or the State agency can asked the Public Integrity Commission for an advisory opinion. If they follow the Commission's advice, they are protected against disciplinary action. 29 Del. C. § 5807(a) and (c). If an issue arises at the last minute, with no time to come to the Commission, the public servant should consider following the general rule in (2).
III. Restrictions on Conduct when acting in a Private Capacity
State employees, officers and honorary officials may not represent or otherwise assist a private enterprise before the agency with which they are associated by employment or appointment. 29 Del. C. § 5805(b)(1). State officers are not only prohibited from representing or otherwise assisting a private enterprise before their own agency, they may not represent or otherwise assist a private enterprise before any State agency. 29 Del. C. § 5805(b)(2).
Example:
A State employee was reprimanded because his private enterprise contracted with the agency that employed him. He could have been prosecuted for violating that provision, but the Commission recommended a reprimand because, among other things, it was his first offense, and the agency also contributed to the problem. Commission Op. No. 00-40. Besides the reprimand, he was precluded from being paid from his agency, so he did not profit from violating the provision against business dealings with his own agency. The opinion addresses a number of mistakes by the State employee and the agency. First, the agency's policy on contracting with its own employees was not as stringent as the Code of Conduct. A State policy cannot be less stringent than State Law. Second, the procurement procedure required a purchase order; but none was issued. Third, there was a mandatory State contract for the particular services he offered, but the agency apparently did not even consider using the mandatory State contract. Fourth, under the Code of Conduct if a State employee or officer has a financial interest in a private enterprise that does business with, or is regulated by the State, they must file a full disclosure with the Public Integrity Commission. 29 Del. C. § 5806(d). That is a condition of commencing and continuing employment or appointment with the State. Id. He did not file. Fifth, his company did business with other State agencies. Again, he did not file a full disclosure. Sixth, if a State employee or officer, or a private enterprise in which they have a financial interest, seeks to contract with the State, under the Code of Conduct if the contract is for more than $2,000 it must be publicly noticed and bid. 29 Del. C. § 5805(c). His company had some State contracts for more than $2,000. They were not publicly noticed and bid. If the contract is for less than $2,000, the contract must reflect "arms' length negotiations." Id. Public notice and bidding and/or arms' length negotiations are to insure contracts are not awarded out of favoritism, undue influence, preferential treatment, and the like. To help prevent such favoritism, etc., the Code of Conduct, among other things, prevent: (1) self-dealing (e.g., cannot award the contract to yourself or your own business); (2) using public office to obtain the contract for yourself, relatives, friends, etc., (3) representing or assisting before one's own agency (co-workers, colleagues, etc., who make decisions will not be unduly influenced); and (4) State officers from representing or assisting before any State agency as there is a legal presumption that they have influence throughout all State agencies. There must also be a fair market price either through public notice and bidding or arms' length negotiations. Agencies can help insure fair market prices by getting quotes from sources other than the public servant's business, when the contract is for less than $2,000.
If public servants seek contracts with a public school district and/or the State Board of Education for transporting school children, they must comply with the Procurement law in 29 Del. C. § 6923, except transportation supervisors may not seek such contracts. 29 Del. C. § 5805(c).
Lessons from this situation:
(1) Multiple Code of Conduct provisions restrict public servants in seeking State contracts. Because many provisions may apply, there must be "full disclosure" to the Commission when the State employee, officer or honorary official has a financial interest in doing business with the State. That enables the Commission to decide if the conduct violates any Code of Conduct provisions, including any appearance of impropriety. By filing the full disclosure, required by law, the public servant receives advice on how to proceed without violating the Code of Conduct. Again, if the advice is followed, they a