STATE PUBLIC INTEGRITY COMMISSION
Annual Report - March 1, 2001
TABLE OF CONTENTS
I. Laws Administered by the Public Integrity Commission
History and Background . . . . . . . . . . . . . . . . . . 1
A. State Employees', Officers' and Officials' Code of Conduct...2
B. Financial Disclosure. . . . . . . . . . . . . . 3
C. Registration of Lobbyists. . . . . . . . . . . . 4
II. Public Integrity Commission - Structure & Members . . 5
III. Commission Accomplishments in 2000 . . . . . . . . .12
A. Advisory Opinions, Complaints, and Referrals. . .13
B. Training Sessions . . . . . . . . . . . . . . . .18
C. Publications and Guides. . . . . . . . . . . . .19
D. Review of Local Government Codes of Conduct. . .20
E. Legislative Matters. . . . . . . . . . . . . . .21
(1) Legislation Pertaining to the State Code of Conduct21
(2) Legislation Pertaining to the Financial Disclosure Law22
(3) Legislation Pertaining to the Lobbying Law .23
(4) Other Legislation Monitored by the Commission23
F. Administrative Issues. . . . . . . . . . . . . .24
(1) Financial Disclosure Reporting. . . . . .24
(2) Lobbyists' Expenditure Reports . . . . . .25
(3) Personnel Issues. . . . . . . . . . . . . .26
(4) Relocation of Public Integrity Commission .26
(5) Computer Upgrades . . . . . . . . . . . . .27
IV. Funding . . . . . . . . . . . . . . . . . . . . . . .27
V. Future Goals . . . . . . . . . . . . . . . . . . . . .28
VI. Appendices
Appendix A - Opinions on Waivers Granted
Appendix B - Opinion On Complaint/Advisory Request
Appendix C - Financial Disclosure Opinion Synopses for 2000
Appendix D - Legislation Monitored by Commission
STATE PUBLIC INTEGRITY COMMISSION
HISTORY AND BACKGROUND
I. Laws Administered by the Public Integrity Commission
The State Public Integrity Commission implements and administers the "Laws
Regulating the Conduct of Officers and Employees of the State." Those laws govern the
ethical conduct of government officials and employees, require financial disclosure reports
from public officers, and establish the registration and expenditure reporting criteria for
lobbyists.
To assist those who are subject to the law in complying, the Commission is charged
with offering training classes; preparing and publishing manuals and guides, and prescribing
forms for reports, statements, notices and other documents required by law. Further, the law
provides a mechanism for State employees, officers, officials and agencies to obtain an
interpretation of the law based on the particular facts of their situation through the issuance
of advisory opinions from the Public Integrity Commission. The Commission also may grant
waivers when the conduct violates the Code if the literal application of the law is not
necessary to serve the public purpose or there is an undue hardship on the agency or the
employee.
When there is a suspected violation of the law, the Commission may conduct a
hearing, and where a violation is found, take administrative disciplinary action, or the
Commission may refer certain matters to the Attorney General for investigation and
prosecution, if found to be appropriate by the Attorney General.
A general description of the laws, and the purposes of the legislation, are given below.
A. State Employees', Officers' and Officials' Code of Conduct
Since its inception as the State Ethics Commission in 1991, the Commission has
administered the State Code of Conduct. The Code regulates the ethical conduct of State
employees, officers and honorary officials in the Executive Branch. It also regulates the
conduct of local government officials, unless the local government adopts a code of conduct
at least as stringent as the State statute. The legislative purpose of the code is to insure that
the conduct of State employees, officers and officials holds the public's respect and
confidence. It sets standards to guide the conduct of employees, officers and honorary
officials, and sets forth disciplinary mechanisms to insure uniform ethical standards.
The standards guiding the conduct of employees, officers and officials, include
restrictions on participating in matters where there are personal or private interests which
would impair judgment; representing or assisting a private enterprise before the State;
contracting with the State; and activities of former employees for two-years after leaving state
employment. Further, the Code places some limits on accepting gifts, other employment,
compensation, or anything of monetary value. It specifically prohibits using personal office
for private gain or unwarranted privileges, and the improper use or disclosure of confidential
information.
Disciplinary mechanisms may be imposed by the Commission administratively, or the
Commission may refer, by majority vote, certain suspected violations to the Attorney General.
Administratively, the Commission may: (1) issue a letter of reprimand or censure to any
person who violates the Code of Conduct; (2) remove, suspend, demote, or take other
appropriate disciplinary action against a State employee or officer (other than elected
officials); or (3) recommend removal from office of an honorary State official. Criminal
violations of the Code may result in imprisonment of not more than one year and by a fine not
to exceed $10,000.
B. Financial Disclosure
In 1994, the Commission's name was changed from the State Ethics Commission to
the State Public Integrity Commission and it was given the additional responsibility of
administering and implementing the Financial Disclosure Law, beginning in 1995.
The Financial Disclosure Law requires public officers in the Executive, Legislative,
and Judicial branches, to file a financial disclosure statement within 14 days of becoming a
public officer and on February 15 each year thereafter. Specifically, those required to file
include: candidates for State office, State elected officials, cabinet secretaries, division
directors, and members of the judiciary.
Public officers must disclose information regarding their own assets, debts, income,
capital gains, reimbursement of expenses, honoraria and gifts. They also must disclose
information regarding assets which they hold with another person if they receive a direct
benefit, as well as information on the financial affairs of their spouses and minor children.
Approximately 300 people file a disclosure form each year.
The legislative purpose of such disclosure is to guard against public officials acting
in their official capacity on matters where there is a direct or indirect personal financial
interest.
Besides administering the State Financial Disclosure Law, the Commission administers
Executive Orders No. 5 and 19, which impose additional disclosure requirements on Senior
Level Executive Branch officials. Specifically, they must add an addendum to their annual
report, disclosing any gifts valued at more than $100 from a single source in the preceding
calendar year and must notify the Commission within thirty (30) days of receipt of any gift
valued at more than $250. Upon receipt of such notification, the Commission is charged with
not only interpreting any financial disclosure issues relative to the gift, but with determining
if any ethical issues arise as a result of accepting the gift.
Willful failure to file such reports is a Class B misdemeanor, and knowingly filing false
information is a Class A misdemeanor.
C. Registration of Lobbyists
The 1994 legislation which added the responsibility for interpreting the Financial
Disclosure Law, also provided that the Commission would administer and implement the
State Lobbying Law, beginning in 1996. That law requires lobbyists to submit registration
and authorization forms, and quarterly reports disclosing expenditures on General Assembly
members and employees and/or members of any State agency. Registration is required if an
individual will be acting to promote, advocate, influence or oppose any matter pending before
the General Assembly or a State agency by direct communication. Approximately 200
lobbyists have registered with the Commission, filing both the registration form and employers
authorization (approximately 400 filings). Each lobbyist must file a quarterly expense report,
resulting in approximately 800 filings each year.
Registration by lobbyists informs the public and government officials of the identity
of persons seeking access to government officials and the interests the lobbyist represents.
Expenditure 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.
Any person who knowingly fails to register or knowingly furnishes false information
may be found guilty of a misdemeanor. Failure to file an authorization or report results in a
cancellation of the lobbyist's registration, and such persons are prohibited from re-registering
or acting as a lobbyist until all delinquent authorizations and/or reports are filed with the
Commission.
II. State Public Integrity Commission - Structure
The seven positions on the State Public Integrity Commission are filled by
appointment by the Governor, with the Senate's concurrence. At present, there are no
vacancies on the Commission.
Members may not hold any elected or appointed office, and may not be a candidate
for either federal or State office. They also cannot hold any political party office or be an
officer in any political campaign. No more than four members of the Commission may be
registered with the same political party.
While the Code of Conduct does not require that each county be represented on the
Commission, the appointments that have been made to the Commission have resulted in
appointees from each of the three counties.
Commission members are authorized to receive compensation of $100 for each day
devoted to performing official duties and may be reimbursed for reasonable and necessary
expenses incurred in performing official duties.
The Commission meets on an "as required" basis, depending upon the number of
issues submitted or pending before it. During 2000, the Commission met twelve (12) times
to consider 57 requests for advisory opinions, waivers, and complaints. Two of those
meetings were held at the Tatnall Building, Dover, Delaware, where the Commission was
located until February 2000. Subsequent meetings were conducted at the Margaret O'Neill
Building, Dover, Delaware, which is where the Commission's office was relocated in 2000.
When necessary, some meetings were conducted by teleconference. Notice of meetings
was posted at the Commission's office.
During 2000, the following seven (7) citizens served on the Commission:
John E. Burris, Chair
Commissioner John E. Burris was initially appointed to the Commission on April 2,
1991, for a three-year term, which expired on April 2, 1994. He was reappointed on July 5,
1994, for a seven-year term, which expires on July 5, 2001. He is not eligible for
reappointment. He has been selected by Commission members to chair the Commission since
its inception as the State Ethics Commission in 1991. In private life, Mr. Burris is the
Chairman of Burris Foods, Inc. The corporation, located in Milford, Delaware, distributes
and warehouses frozen foods and ice cream for supermarkets and warehouses. He also has
been active as a trustee of the University of Delaware.
Arthur G. Connolly, Jr., Vice-Chair
Commissioner Arthur G. Connolly, Jr., was elected as the Commission's Vice Chair
in 1998. His initial appointment to the Commission was made on April 2, 1991, and his five-
year term expired on April 2, 1996. He was re-appointed by Governor Thomas R. Carper
on June 11, 1996, for a seven-year term which will expire on June 11, 2003.
Mr. Connolly is a partner in the law firm of Connolly, Bove, Lodge and Hutz, in
Wilmington, Delaware. He has actively participated in the legal community, serving in such
positions 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 also has served as a member of the
Delaware Code of Judicial Conduct Committee of the Delaware Supreme Court and was a
member of the Board of Professional Responsibility of the Delaware Supreme Court. His
activities in non-legal areas include serving 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.
Zenaida Otero Gephardt, Ph. D.
Commissioner Zenaida Otero Gephardt was appointed to the Commission on
September 19, 1994. Her seven-year term expires on September 19, 2001. She is not
eligible for reappointment. Dr. Gephardt, who is a Wilmington resident and a registered
engineer in Delaware, earned her Ph.D and Master of Science Degrees in Chemical
Engineering from the University of Delaware and is an active member in many technical
societies. She is a Professor of Engineering at Rowan University of New Jersey. She was
selected to the 1993 Hispanic Women Leadership Institute at Rutgers University and received
the 1992 Excellence in Scholarship Award from the Hispanic Association for Higher
Education in New Jersey. She is active in community service, serving on the Advisory Board
of the Partners with Students Program and Camden County Community College, and is on
the Board of Directors of the YWCA of New Castle County. She also has served on the
Board of Girls, Inc. of Delaware (formerly Girls Club). She received the 1989 Girls, Inc. of
Delaware award honoring Delaware women of achievement and has worked with the Forum
for the Advancement of Minorities in Engineering.
Mary Jane Willis
Commissioner Mary Jane Willis was appointed to the Commission on June 30, 1996
to complete the term of C. Ann Nellius. That term expired on April 2, 1997. Ms. Willis is
eligible to be reappointed to a seven-year term and may continue to serve until such time as
she is reappointed or another individual is appointed to the position.
In 1999, the Delaware Supreme Court asked Ms. Willis to serve as a non-lawyer
member of the Court on the Judiciary's Preliminary Investigatory Committee. As a such, she
can be appointed to serve as a panel member to investigative and report on allegations of
misconduct or disability involving any judicial officer within the Court's jurisdiction.
Having earned her Master's Degree in counseling and guidance from West Virginia
University, Ms. Willis has more than 60 post-graduate hours toward her doctorate degree.
She was a counselor in the West Virginia School System, taught in the Smyrna School
District, and is active on various boards connected with education, such as the University of
Delaware Parents Association Board, and Dartmouth College Parents Board. She has served
on the Boards of such organizations as the American Cancer Society, Kent General Hospital,
Kent General Foundation, and the Easter Seal Society. She is the Delaware Chair of the
United States Olympic Committee (USOC), and serves on the Board of the Children's Beach
House and Delaware Children's Fire Safety Foundation. She has served as President of the
Delta Kappa Gamma International Honorary Society, the American Association of University
Women, and the Alpha Delta Pi Sorority of West Virginia Wesleyan College. She is a
member of the Daughters of American Revolution, the Federation Woman's Club in West
Virginia and Holly's Women Club in Smyrna, Delaware.
Paul E. Ellis
In 1998, Commissioner Paul E. Ellis was appointed to serve a seven-year term which
expires on July 8, 2005. Before his appointment to the Commission, he had already 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.
Arthur V. Episcopo
Commissioner Arthur V. Episcopo was appointed, in 1998, to a seven-year term
which will expire on July 8, 2005. He previously had served as an appointee to the Industrial
Accident Board.
Commissioner Episcopo has had dual careers in the private sector and in the military.
For thirty-two 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 was pursuing a career in the Army National Guard. He served in the Army
National Guard for more than 42 years where he rose 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.
Clifton H. Hubbard
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. Commission Hubbard's appointment to complete Reverend Bullock's term
will expire on August 29, 2002.
Mr. Hubbard resides in Dover, Delaware, and previously served on the Environmental
Appeals Board (EAP) as its Chair. 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 on the Metropolitan Planning Organization (MPO), which is involved in
approving certain Department of Transportation demonstration projects. He served on the
MPO for approximately six years.
After receiving his Bachelor of Science in both Chemistry and Biology, he briefly
served as 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 the trustee for Mt. Zion African
Methodist Episcopal Church in Dover. Other interests include computer programming,
numismatics, model railroading, and karaoke.
Commission Staff
Commission Counsel
As an independent agency, the Commission is charged with appointing its own legal
counsel. 29 Del. C. 5809(12). Janet A. Wright was appointed in 1995 as legal counsel to
the Commission. Ms. Wright graduated from Widener University School of Law (cum laude)
in 1989, and 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.
After her clerkship, she was an Assistant City Solicitor for the City of Wilmington. Her duties
initially included prosecuting Building and Housing Code, Fire Code violations, and animal
protection laws. She also periodically prosecuted criminal matters in the Municipal Court for
the City. She subsequently became a civil litigator, defending the City and its employees
against civil rights actions and personal injury actions. Ms. Wright is admitted to practice in
the Delaware Courts, the U.S. District Court in Delaware, and the U.S. Third Circuit Court
of Appeals. She received the American Jurisprudence Award for her studies in Professional
Responsibility. She is a member, and has served as the Chair, of the Northeastern Regional
Conference on Lobbying (NORCOL), which is comprised of state and local government
agencies from Washington, D.C. to New England that regulate lobbying activities. In 1998,
as Chair, she hosted NORCOL's annual meeting in Wilmington, Delaware. That same year,
she served on the Site Selection Committee for the Council on Government Ethics Laws
(COGEL), which consists of representatives from all fifty (50) states, the federal government
and the Canadian government who work in the field of law pertaining to ethics, lobbying,
financial disclosure, and campaign finance. Her book review of Alan Rosenthal's Drawing
the Line: Legislative Ethics in the States, was published in the "COGEL Guardian." In 2000,
at COGEL's annual conference, she hosted a session dealing with how small State agencies
can obtain resources necessary to administer and implement ethics laws.
Administrative Assistant
Lisa H. Anderson has been the Commission's administrative assistant since April
2000. Prior to working for the Commission, Ms. Anderson was a secretary in the Division
of Public Health, Community Health Care Access Section. As part of her responsibilities, she
was responsible for compiling the Weekly Report, preparing minutes, arranging meetings,
providing support for the J-1 Visa Waiver Program, and composing and preparing
correspondence. She performs similar duties for this Commission. In addition to this
experience, she was a typist in the Agent's Licensing Section at the Delaware Insurance
Department. Prior to her employment with the State, Ms. Anderson worked for Sussex
Printing Corporation/The Guide in Seaford. She attends Delaware Technical and Community
College, working on her Associate's Degree in Early Childhood Development.
III. Commission Accomplishments in 2000
In 2000, the Commission continued to emphasize its statutory responsibility to
educate and provide guidelines to those subject to the Code of Conduct, Financial Disclosure
and Lobbying provisions. The Commission conducted courses on the Code of Conduct and
the Financial Disclosure statute. Its education program was supplemented by distributing its
synopses of opinions and Ethics Bulletins on key issues. The details of its training classes
and its publications used to achieve this goal are detailed below.
In last year's annual report, the Commission also set forth a goal to establish a Web
site as part of its on-going efforts to insure that those subject to the law, and members of the
public, have the information which the Commission publishes. In 1999, it designed a Web site
and converted its publications for access on the Internet. The Web site became operational
in March 2000. The Commission's web address is: www.state.de.us/pic.
During 2000, the Commission completed the review and decision on one complaint
and seven requests for advisory opinions which were submitted in 1999. Aside from that
carry-over of eight (8) matters from 1999, the Commission rendered decisions on an
additional 49 matters which were submitted for action in 2000. In six instances, the
Commission referred suspected violations of the Financial Disclosure law to the Attorney
General's office to consider for prosecution.
The total of 57 submissions decided in 2000 was a slight increase over the matters
considered by the Commission in 1999, when it handled 54 matters. Three additional matters
were received in December 2000, but as they were submitted after the Commission's last
meeting of the year, they were carried forward for action in January 2001.
Specific activities in the Commission's areas of responsibility are discussed below.
A. Requests for Advisory Opinions, Actions on Complaints, and Referrals
The Commission is
charged with issuing advisory
opinions and waivers, and with
investigating and ruling on
complaints alleging violations of
the Code. 29 Del. C. 5807
and 5810. Almost all of the
Commission's rulings are
rendered after a hearing, even though hearings are not mandated for advisory opinions and
waivers.
In 2000, the Commission completed 10 years of acting on requests for advisory
opinions, waivers and complaints requiring interpretation of the Code of Conduct, Financial
Disclosure, and Lobbying Laws. During that time it responded to 415 individual requests.
While the initial years (1991-1994) showed an average of approximately 20 individual
requests per year, there was an upsurge in the requests in 1995-1997 when the Commission
gained a staff and could offer much more training, and when it acquired the additional
responsibilities of interpreting the Financial Disclosure and Lobbying Laws. More recent
years (1998-2000) reflect a steady average of approximately 50-60 individual submissions
each year. An overview of that data appears in the above.
One complaint and seven requests for advisory opinions which were submitted in
1999, were decided in 2000. The complaint was carried over into 2000 for further
investigation. In the advisory opinion cases, the requests were submitted after the
Commission held its last meeting in 1999, and thus carried over to the first meeting in 2000.
Added to those 8 matters carried over from 1999 were 52 individual requests for
advisory opinions, waivers, or complaints, for a total of 60 submitted in 2000. The 60
matters break down as follows: (a) 41 requests for advisory opinions; (b) six requests for
waivers; (c) six referrals for prosecution; and seven complaints.
(1) Advisory Opinions
Upon the written request of any State employee, State officer, Honorary State official,
or State agency, the Commission may issue an advisory opinion as to the applicability of the
law to any particular fact situation. 29 Del. C. 5807(c).
In interpreting the 41 requests for advisory opinions, the Commission frequently found
that the interpretation required a decision on the applicability of more than one provision to
produce an opinion that complete covered a particular fact situation. For example, while the
Commission received three individual requests asking if each individual may accept a
particular gift, the Commission, in two instances, had to also determine if the gift fell within
the reporting parameters of the Financial Disclosure Law. Similarly, where individuals
reported that they had a financial interest in a private enterprise which does business with a
State agency, the Commission had to determine whether that business arrangement complied
with the restrictions on contracting with the government; whether the individual violated the
restriction against reviewing or disposing of matters in which there was a personal or private
interest; whether the individual had represented or otherwise assisted the private enterprise
before his own agency; etc.
Aside from interpreting a number of provisions as the result of one request, the
Commission also deals with situations in which a single request poses a question regarding
several different people whose particular fact situation may be similar or where the particular
facts may vary from individual to individual. For example, one request for an advisory
opinion was submitted by a government attorney seeking a decision dealing with seven (7)
different individuals who were similarly situated. In another instance, a local government
official submitted a request for three (3) different officials who had contracted with their local
government, but all had different fact situations. Thus, the total number of 41 requests
submitted for advisory opinions resulted in interpretations affecting more than 41 individuals.
The majority of requests for advisory opinions were concentrated in two areas: (1)
post-employment; and (2) accepting other employment, payment of expenses, gifts, or
anything of monetary value. There were fourteen (14) requests in each of those two areas.
Seven (7) requests raised issues of whether an individual had a "personal or private interest"
which would tend to impair independent judgment in performing official duties; six (6)
requests posed questions of whether the individual represented or otherwise assisted a private
enterprise before their own agency; five (5) also dealt with appearances of impropriety; four
(4) required an interpretation of the Financial Disclosure Law; and three (3) requests dealt
with: (a) public notice and bidding requirements; and (b) full disclosure where the individual
was doing business with or was regulated by the State.
(2) Waivers
The Commission may grant a waiver 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). Six (6) requests for waivers were heard by the
Commission in 2000.
In all six (6) instances, the Commission was asked to grant waivers under the "undue
hardship" provisions. Waivers were denied in four (4) instances because the objective of the
State employee and State agency could be achieved without violating the Code of Conduct.
In two (2) instances, waivers were granted.
Where waivers are granted, the proceedings become a matter of public record.
Accordingly, the Commission's opinions issued in granting the two waivers are attached at
Appendix A. A summary of the two waivers granted is as follows.
In one instance, a State employee sought to contract with his own agency, which is
prohibited. However, the agency sought to contract with him to rewrite a history on a
Delaware Governor that he wrote years before becoming part of that State agency. As he
was the original author, he would be best suited to revise the work based on his having
conducted the interviews and having obtained documentation from the former Governor's
family which was information used in the initial publication, etc. (Advisory Op. No. 00-32).
The other waiver was granted to permit a State employee to participate as a hearing
officer in a matter where he had recently interviewed for a job with one of the parties. The
decision on whether he would be hired was pending at the time he was to serve as the hearing
officer. Based on a multitude of facts, e.g., the critical timing of the hearing, finding another
hearing officer would result in missing that hearing date, the parties did not object to having
him as the hearing officer, etc., the Commission granted a waiver. [Advisory Op. No. 99-51].
(3) Referrals For Prosecution
Under the Financial Disclosure Law, any public officer who willfully fails to file shall
be guilty of a class B misdemeanor. 29 Del. C. 5815(a). "Public officer" is defined to
include any candidate who has filed for any state office. 29 Del. C. 5812(a)(3). Six (6)
candidates for State office did not file Financial Disclosure reports, even after being sent
notice of the requirement by both regular and certified mail. The Commission referred those
suspected violations of the Financial Disclosure Law to the Attorney General, pursuant to 29
Del. C. 5815(c).
(4) Complaints
Seven (7) Complaints were disposed of in 2000, as follows:
Two (2) Complaints were dismissed because the State Code of Conduct did not apply
to the persons named in the Complaints. One alleged unethical conduct by a School Board
member, and the other alleged a conflict of interest of a General Assembly member.
Complainants were advised that the Commission had no jurisdiction. In the matter related
to the General Assembly member, the Complainant was referred to the statute dealing with
conflicts of interest for General Assembly members, Title 29, Chapter 10, and advised that
the General Assembly has House and Senate Ethics Committees which interpret that law.
Three (3) Complaints were dismissed on the basis that the Commission had no
jurisdiction over the subject matter. One Complaint alleged violations of numerous laws in
Title 11, the Criminal Code, over which the Attorney General has exclusive jurisdiction.
Another appeared to allege civil rights violations, (e.g., false arrest, etc.). The third alleged
"gross negligence" by a public defender in representing the individual. The Public Defender
was subject to the jurisdiction of the Delaware Supreme Court, not the Commission. The
Complainant had already submitted his complaint to such entities as the Delaware Bar
Association, Legal Services, Corp., and the Lawyers' Disciplinary Board.
Two (2) Complaints were investigated by Commission Counsel and the Commission
found that, as a matter of law, they failed to state a claim under the State Code of Conduct.
One of those Complaints was filed against an elected official of the Sussex County
Council alleging that he might have a business interest in a private enterprise which would
benefit from a government decision in which he was expected to participate. The other
Council officials sought an advisory opinion on whether they would have a conflict of interest
because they were similarly situated. However, after investigation and the taking of sworn
statements, the Commission found the allegation regarding the business interest was too
speculative and remote to constitute a violation of the State Code of Conduct.
Normally, where no violation of the law is found, such matters are confidential, unless
the person charged, or person seeking the advisory opinion, authorizes the Commission in
writing to release the opinion. 29 Del. C. 5807 (d)(1) and 5810 (h)(1). As written
authorization was permitted, a copy of the Commission's opinion is attached as Appendix B.
The final Complaint which was dismissed for failure to state a claim, was investigated,
and the Complainant and her legal counsel were notified on a number of occasions that to
state a claim additional information would be needed. After no additional information was
submitted, based on the investigation--including interviews of State employees and review of
certain State documents--the Commission found that there was no evidence that the
respondent had not comported with the Code of Conduct. For example, the evidence showed
that in contracting with the State, the local government official had not used his public office
to obtain a State contract, and the official and State employees had complied with the
requisite laws dictating how this particular contract would be issued, administered and paid.
B. Training Sessions
Seminars and workshops to educate individuals covered by the laws regulating the
conduct of State employees, officers and officials are part of the Commission's mandate. See,
29 Del. C. 5808A(a)(1).
During 2000, the Commission held fifteen (15) training sessions. Fourteen (14) of
these were training on the State Code of Conduct and one (1) was on Financial Disclosure
Reporting. The Financial Disclosure session was part of the "Orientation Program for New
Legislators," and was given to two new members of the General Assembly.
Regarding State Code of Conduct training, the Commission continued to work with
the Department of Health and Social Services (DHSS) to provide ethics training as
recommended by the State Legislative and Citizens Investigative Panel of Nursing Homes in
the 1998 "Marshall Report." DHSS coordinates with the Commission to provide training at
various DHSS locations each quarter in an effort to insure that all of its employees will
receive training. In 2000, the Commission gave four (4) training sessions to DHSS.
The Commission also coordinated training for three (3) sessions with the Office of the
Secretary of State and three (3) sessions with the Department of Corrections. In addition,
the Commission coordinated with the State Personnel Office's (SPO) Training Unit to offer
two (2) classes as part of SPO's Career Enrichment Program (CEP) and two (2) classes as
part of SPO's Management Development Institute (MDI) course, providing training on the
Code of Conduct to State employees from any agency who registered for those courses.
To upgrade the quality of its training, the Commission purchased a laptop computer
and the Commission's staff created a color slide show on the computer to replace the black
and white overheads that had been used in past years.
A total of 206 State employees, officers and officials received Code of Conduct
and/or Financial Disclosure training. This was an increase from the 171 persons who attended
training in 1999. At all of the classes, attendees were provided with copies of the pertinent
statute, synopses of opinions concerning the particular class subject matter, and copies of
forms for financial disclosure reporting.
C. Publications and Guides
The Commission is to publish synopses of its advisory opinions without disclosing the
identify 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).
As previously noted, the Commission indicated in its prior annual reports that one of
its goals was to make its publications available on a Web site. In March 2000, the
Commission's Web site became operational. It contains the statutes administered by the
Commission; the Commission's synopses of opinions since its inception in 1991; forms for
financial disclosure and lobbying registration; a list of all lobbyists registered with the
Commission; the Commission's annual reports for 1998 and 1999; and the Commission's
Rules of Procedures. The Commission's Web site averages approximately 4,000 hits per
months.
At the end of 2000, the Commission published the synopses of its 2000 Financial
Disclosure advisory opinions. Appendix C. The synopses, the instruction sheet, and
requisite forms are annually sent to more than 300 people who are required to file an annual
Financial Disclosure report, and they are distributed at the Financial Disclosure training
sessions. In the cover letter to the public officers who received the materials, the Commission
noted that they could obtain additional forms, etc., from the Commission's Web site. The
Commission also has its Financial Disclosure report on the Board of Election's Web site to
aid in insuring that candidates for State office have easy access to the forms.
The Commission's synopses of its Code of Conduct opinions issue in 2000 are being
drafted and will be sent to Graphics and Printing in early 2001. The Commission distributes
more than 500 copies of its ethics synopses each year at its various training sessions, and
upon requests by individuals. It also distributes the entire advisory opinion when permitted
by the Code's confidentiality provisions. Comments on the evaluation forms from the
Commission's training classes consistently indicate that these publications are one of the most
valuable parts of the training.
D. Review of Local Government Codes of Conduct
Local governments are subject to the State Code of Conduct unless they adopt their
own Code which must be approved by the Commission as being as stringent as the State
Code. 68 Del. Laws, c. 433 1.
The Commission has approved local Codes of Conduct for New Castle County,
Dover, Lewes, Millsboro, Newark, and Wilmington.
In 1999, the Commission notified New Castle County of some deficiencies in its Code,
which were noted during the review of an amendment. Specifically, New Castle County's
Code did not apply to all County employees; did not have a post-employment provision; and
lacked some clarity in the provision dealing with confidentially.
In 2000, New Castle County's Ethics Commission notified the Commission of a
rewrite of its Code of Conduct so that it basically reflects the same language as the State
Code of Conduct. The Commission approved the rewrite as being as stringent as the State
Code.
E. Legislative Matters
A number of pieces of legislation which were of interest to the Commission were
introduced during the second session of the 140th General Assembly, which ended on June
30, 2000. A chart showing legislation introduced and followed by the Commission in 2000,
and the status of the various bills at the end of the legislative session can be found at
Appendix D. Legislation introduced in 1999, which was carried over into the 2nd session of
the 140th General Assembly, is included on the chart. Key legislation affecting the Commission
is discussed in more detail below.
(1) Legislation Pertaining to the State Code of Conduct
Just at the close of the 140th legislative session, a bill passed the House, and was under
consideration by the Senate Education Committee, which would create a separate Code of
Conduct for persons who are elected as local School Board members. H.B. 634. At present,
local School Board members are exempt from the State Code of Conduct, even though all
other local, elected officials are subject to the Code unless the local government passes its
own Code of Conduct which is approved by the Commission to be as stringent as the State
Code. 68 Del. Laws, c. 433 1. Because the legislation which would apply to local, elected
School Board members was not as stringent as the State law or the local codes which apply
to other local, elected officials, and because some of the bill's provisions permitted the School
Board members to exempt themselves from their own Code of Conduct, the Commission
wrote a letter/memorandum to the House and Senate Education Committees regarding its
concerns about a separate Code of Conduct for School Board members. This
letter/memorandum was sent pursuant to the Commission's statutory mandate to recommend
to the General Assembly such rules of conduct for public employees and officials as it shall
deem appropriate. 29 Del. C. 5809(1).
In response to the Commission's communications, an amendment to the bill was
introduced by Senator John C. Still, which would have replaced the proposed legislation with
a provision that amended the definitions in the State Code of Conduct to make School Board
Members subject to the State Code. S.A. 1 to H.B. 634. No further action was taken
during the 2nd Session, 140th General Assembly as the legislative session ended. In January
2000, the 1st Session of the 141st General Assembly, legislation was introduced to amend the
State Code of Conduct so that it would apply to local, elected school board members. H.B.
54.
(2) Legislation Pertaining to the Financial Disclosure Law
The Financial Disclosure Law was amended by legislation signed into law on June 23,
2000, changing the title of the head of the Foster Care Review Board from Administrative
Coordinator of the Foster Care Review Board to Executive Director of the Child Placement
Review Board. As the head of the Board already was required to file a financial disclosure
report, no substantive change was affected. H.B. 540.
Title 4, Chapter 3, of the Delaware Code was amended to restructure the Alcoholic
Beverage Control (ABC) Commission, replacing the Commission with an ABC
Commissioner, and an ABC Appeals Board. The legislation, signed into law on August 4,
2000, contained a provision requiring the ABC Commissioner and the three ABC Appeals
Board members to file a financial disclosure report with this Commission. H.B. 660. The
Commission modified its instruction sheet for financial disclosure reporting to reflect those
additions to the State officers who must file; updated its Web site; and prepared notice of
the requirement to file to those persons once they were appointed.
(3) Legislation Pertaining to the Lobbying Law
Several pieces of legislation were introduced in 1999, 140th General Assembly, 1st
Session, and carried over to the 2nd Session, which if passed would affect lobbyists. None of
the bills were passed in 2000. One bill prohibited State entities which are "bodies corporate
and politic" created by the State, or a political subdivision, from hiring or contracting with
lobbyists. S.B. 15. Another bill would have required that lobbyists report the amount and
names of members of the General Assembly or State agencies upon whom more than $15 was
expended. S.B. 205. Existing law sets the threshold at $50.
Also, reapportionment legislation was introduced in both the House and Senate to
establish a commission to accomplish the task of reapportionment following the 2000 and
future censuses. S.B. No. 79 and H.B. 154. Both bills provided that persons who are or
have been registered as a lobbyists within two years prior to selection cannot qualify as
members. Individuals would also be prohibited from registering as a lobbyist while a member
or employee of the commission or within two years of the effective date of the plan.
Essentially identical legislation was introduced on January 24, 2001. S.B. 36. As the results
of the 2000 census are expected to be provided to the States in March 2001, the Commission
will monitor the bill so that if it passes, the Commission can provide information to the
appointing authority on whether the reapportionment nominees are or have been lobbyists
within the past two years, and insure that the 2-year post-committee restriction on registering
as lobbyists is observed.
(4) Other Legislation Monitored by the Commission
Legislation was signed into law on April 11, 2000, requiring that telephone calls to
publicly listed State agency phone numbers are to be answered by a person during State work
hours, with a few limited exceptions. S.B. 64. Because the Commission has a two person
staff, compliance with the law required the Commission to purchase a cell phone so that when
one staff member is away from the office (e.g., to give training) and the other staff member
must leave (e.g., to go to lunch), the calls can be transferred to the cell phone so that a person
will answer. The anticipated annual costs for the cell phone to insure compliance is $240.
Legislation was introduced that would add a new subchapter to the chapter of the
Delaware Code which is administered by the Public Integrity Commission (Title 29, Chapter
58). It would have created a Campaign Integrity Commission to be responsible for reviewing
campaign statements which are believed to be misleading and/or inaccurate and can publicly
censure those making such statements. Any resident will be able to submit a record of a
candidate's statement to the State Election Commissioner, who will be responsible for
contacting CIC members and disseminating the submission to them. There is no statutory
language reflecting any role by the Public Integrity Commission in administering this law. It
is unclear why the legislation would be part of the Commission's chapter instead of Title 15,
which deals with election laws, the responsibilities of the State Election Commissioner, and
election campaigns.
F. Administrative Issues
(1) Financial Disclosure Reports
Public officers are to file annual Financial Disclosure reports by February 15 of each
year. In 2000, the Commission sent copies of its Financial Disclosure synopses, the requisite
form and instructions to more than 300 public officers notifying them of the requirement to
file by February 15, 2000. After that initial notice, fourteen (14) public officers did not
respond. After the second notice, two of the public officers had not responded. They were
again notified by certified e-mail, and the reports were submitted.
As public officers must report gifts valued at more than $250, and as lobbyists must
report by name and amount expenditures on individual public officers exceeding $50 per day,
where the lobbyist report reflected expenditures of more than $250 on a public officer, the
reports were compared. Where there was an inconsistency in the reports, the public officer
and the lobbyist were notified of the discrepancies. In some instances, the public officers had
not received anything of value from the lobbyist; in other instances, the lobbyist had not
affirmed the value with the public officer. Where necessary, the lobbyist and/or the public
officer amended their reports for accuracy.
(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.
The filing for the last quarter of 1999 was due on January 20, 2000. Fifty-five (55)
lobbyists did not file by the due date and were notified that, by statute, failure to file would
result in a cancellation of their registration until the reports were filed. After the first notice,
all but ten (10) of those lobbyists submitted reports. A second notice was sent to those ten
(10) lobbyists by certified mail. In some instances the individuals indicated they were no
longer lobbying, and in other instances some registrations were canceled. The total number
of registrations canceled was five (5).
The filing for the first quarter of 2000 was due on April 20, 2000. Notification was
made to forty-nine (49) lobbyists that their reports were not received by the due date, and
that, by law, failure to file could result in a cancellation of their registration. Following that
notice, all but fifteen (15) of the lobbyists filed reports. Certified mail was sent to each of
them as a second notice. In some instances the individuals indicated they were no longer
lobbying, and in other instances some registrations were canceled. After the period to
respond passed, six (6) lobbyists were deleted from the registration list.
The filing for the second quarter of 2000 was due on July 20, 2000. Fifty-one (51)
lobbyists were sent a first notice of failure to file, with a second notice by certified mail sent
to eleven (11) lobbyists. Six (6) lobbyists were deleted from the registration files, either by
request or due to failure to respond.
The filing for the third quarter of 2000 was due on October 20, 2000. A first notice
of failure to file was sent to forty-two (42) lobbyists. Eleven (11) lobbyists received a second,
certified mail, notice. Out of those eleven, two asked to be deleted, one was deleted at the
request of the organization which was represented, and one was "voluntarily canceled" for
failure to respond.
The filing for the last quarter of 2000 was due on January 20, 2001. As the annual
report went to press shortly after the filing date, the data for that quarter will be included in
next year's annual report.
(3) Personnel Issues
The Commission's administrative assistant, Marguerite Rothermel, retired from State
service in March 30, 2000. The Commission's new administrative assistant, Lisa Anderson,
began working for the Commission on April 3, 2000, after interviews with eleven (11)
qualified applicants who were on the State certification list
(4) Relocation of Public Integrity Commission
In February 2000, the Commission moved to the Margaret O'Neill Building. The
Commission was advised that it would have 507 square feet at its new location, but the actual
size is approximately 480 square feet. The Commission coordinated its move with the Merit
Employee Relations Board, and the moving costs were to be shared. Total costs charged by
the moving company was $2117.04. Costs charged to the Commission were $1,377.00, and
costs charged to MERB were $708.75. As the actual costs for MERB were higher because
the mover packed for it, while the Commission packed its own office, the Commission
requested that the charges be adjusted, with MERB paying a portion of its actual costs. An
Intergovernmental Voucher (IV) was issued, reimbursing the Commission's budget for the
difference.
The Commission's new mailing address is: Margaret O'Neill Building
410 Federal Street, Suite 3
Dover, DE 19901
(5) Computer Upgrades
The Commission experienced no difficulties with Y2K problems at the beginning of
the year 2000, as it had upgraded the needed programs in its computer system. As noted
under the training section, the Commission purchased a laptop computer, primarily for use
in its training classes. The Commission has been advised that Administrative Services
Operating Plan for Fiscal Year 2002 reflects a need to upgrade existing computers because
of the State's decision to migrate all Banyan VINES networks to Windows 2000. The
estimated costs to the Commission for its share of the costs of an upgrade is $1,096.30.
IV. Funding
For Fiscal Year 2001, the Commission requested $158, 200, which was the same
amount appropriated for Fiscal Year 2000. The General Assembly appropriated a total of
$162, 500 for the Commission's FY 2001 budget. The increase in the appropriation over the
requested amount was to add to the salary line to adjust for pay raises for State employees.
In December 2000, the Commission was notified that the Governor had directed all
departments to cut 2.5% from their operating lines for Fiscal Year 2001. The Commission's
operating line is $40,100, which would mean a reduction of $1,250, bringing it to $38,850.
For Fiscal Year 2002, the Commission's Strategic Plan requested a total of $155,000.
Of that request, $115, 000 is for the salary line. The requested decrease reflected a decrease
in the salary line as a result of the retirement of the Administrative Assistant and the hiring of
a new Administrative Assistant who has fewer years of State service. It also reflected a
decrease because the new Administrative Assistant's health care is through her spouse's
federal health plan, which means the State should not occur the Other Employment Costs
(OEC) for her health care. Excluding that OEC, the $115,000 covers salaries and Other
Employment Costs (OECs) for the Commission's Counsel, the Commission's Administrative
Assistant, and for the Commission members who are entitled to receive $100 per meeting
day. The remaining $40,000 was for operating costs. A reduction of $100 from the past six
(6) fiscal years.
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 for a number
of agencies. Additionally, it has scheduled training with various School Boards, even though
at present they are not subject to the State Code of Conduct. It will continue to make its
publications available on the Internet. In 2001, it will explore whether it would benefit State
employees to also have the materials on the State's Intranet.
To provide additional services to the public officers and lobbyists who must file
reports with the Commission, it will investigate the costs associated with making electronic
filing available.