Delaware Public Integrity Commission Code of Conduct: Synopsis of 1991-1995 Opinions

Department of State Public Integrity Commission Code of Conduct Index of Opinions


HOME About Agency Jurisdiction Calendar of Events Contact Information Office Location Agency Site Map SERVICES INFORMATION & PUBLICATIONS	Code of Conduct: Synopsis of 1991-1995 Opinions STATE PUBLIC INTEGRITY COMMISSION Synopsis of 1991-1995 Opinions Table of Contents INTRODUCTION SYNOPSES OF 1991 OPINIONS Contracts Post-employment Concurrent Employment Jurisdiction Accepting Things of Monetary Value SYNOPSES OF 1992 OPINIONS Jurisdiction Concurrent Employment Appearance of Impropriety Accepting Things of Monetary Value SYNOPSES OF 1993 OPINIONS Concurrent Employment Concurrent State Positions Post-employment Personal or Private Interests Jurisdiction Procedure Conflict of Interest SYNOPSES OF 1994 OPINIONS Jurisdiction Post-employment Procedure Concurrent Employment SYNOPSES OF 1995 OPINIONS Appearance of Impropriety Jurisdiction Post-employment Procedure Confidential Information Nepotism Accepting Things of Monetary Value Personal or Private Interests INDEX LAWS REGULATING THE CONDUCT OF OFFICERS AND EMPLOYEES OF THE STATE ( Title 29, Chapter 58, Subchapter I). . . . . . . . . . . . . . . . . . 52 STATE PUBLIC INTEGRITY COMMISSION Interpretations of the Code of Conduct Introduction The State Public Integrity Commission was originally established in 1991 as the State Ethics Commission. It was responsible for administering and implementing the State Code of Conduct, Title 29, Chapter 58, which governs the ethical conduct of State employees, officers and honorary officials. In 1994, Title 29, Chapter 58 was amended. The amendment changed the Commission's name, authorized full-time legal counsel and added the additional responsibilities for the Commission to administer and implement the Financial Disclosure statute (effective January 15, 1995) and the Registration of Lobbyists statute (effective January 15, 1996). As part of the Commission's statutory duties, it is to prepare summaries of its advisory opinions for public distribution. This publication summarizes the Commission's opinions on the State Code of Conduct for the years 1991-1995. Synopsis of the Commission's financial disclosure and lobbyists opinions are published separately. For ease of reading, any reference to the Commission is by its present name. Also, for the reader's convenience, all citations to the Code of Conduct use the numbering system that presently exists. Requests for advisory opinions from the Commission may be made by State employees, officers, honorary officials, or any State agency. The Commission may be contacted at the phone number and/or address on the cover of this document. STATE PUBLIC INTEGRITY COMMISSION SYNOPSES OF 1991 OPINIONS CONTRACTS Transportation The Code of Conduct prohibits State employees, officers and private enterprises in which the employee or officer has a legal or equitable ownership of more than 10% from contracting with the State (except employment contracts) unless there is public notice and competitive bidding. The Code, in 1991, permitted two exceptions to public bidding: (1) contracts for not more than $2,000 per year if there were arms' length negotiations; and (2) contracts with a public school district and/or the State Board of Education for transporting school children for the period of July 1, 1990 through June 30, 1991. 29 Del. C. § 5805(c). The Department of Public Instruction (DPI) and two State employees, sought waivers to permit contracts for transporting school children beyond June 30, 1991 without public bidding. Waivers are permitted if the literal application of the statutory provision in a particular case is not necessary to achieve the public purposes of the ethics law or would result in an undue hardship to any State employee, officer or agency. 29 Del. C. § 5807(a). The Commission granted waivers through June 30, 1992 because: (1) under a separate statute, 29 Del. C. § 6916, such contacts were allowed and there were no complaints about the system; (2) DPI did not realize there was a restriction after June 1991; (3) the Commission was not operative until July 1991 and could not grant relief prior to that date; and (4) the 1991-1992 school year contracts were waiting approval by DPI and there would be a hardship on the school districts, the public and the students if a waiver were denied. (Commission Opinions 91-8, 91-8A, 91-8B). NOTE: After this 1991 decision, the legislature amended the Code of Conduct to resolve the apparent contradictions in the two statutes, 29 Del.C. § 5805(c) and 29 Del. C. § 6916. The Code of Conduct now permits transportation contracts with school districts by employees, their spouse or children as provided for by 29 Del. C. § 6916. However, the exception does not apply to school district transportation supervisors. See, 29 Del. C. § 5805(h). Contract with State by Spouse The Commission was notified by a State employee that the employee's spouse occasionally contracted to perform repair work on State equipment. The Code requires disclosure of a financial interest in any private enterprise which does business with a State agency. 29 Del. C. § 5806(d). Such disclosure is a condition of commencing and continuing employment. Id. The employee disclosed that in the previous year, spousal income from State work was less than $1,000 and during the year of the submission the spouse received no income from State work. The Commission acknowledged the disclosure and advised the employee to make an annual disclosure if the spouse's firm did business with the State. (Commission Opinion 91-1). Professional Services A State agency requested a waiver of the Code of Conduct which prohibits State employees from contracting with the State without notice and public bidding on contracts exceeding $2,000 per year. 29 Del. C. § 5805(c). The agency, pursuant to Departmental policy, had contracted for professional services on contracts of less than $5,000 per year, without competitive bids, before learning of the $2,000 limit in the Code of Conduct, enacted in January 1991. It then publicly solicited bids for these professional services and sought a waiver to permit a State employee to fulfil the contract until April 30, 1991, when the public bidding process would culminate in newly contracted services. The Commission rendered no decision on the matter because the contract was entered before the Commission members were appointed in April 1991. The contract with the State employee expired on April 19, 1991. Thus, the matter was moot by the time the Commission held its first meeting. (Commission Opinion 91-7). Contract Bidding by State Employee A State employee intended to propose that a certain aspect of work performed by his State agency be placed in the private domain and be subject to the bidding process. The employee anticipated that if the agency placed this work within the private domain, he would want to leave State employment and bid on the work. The Commission heard testimony that the agency was not contemplating placing the work referred to in the private domain. The Commission may issue advisory opinions as to the applicability of the Code of Conduct based on a "particular fact situation." 29 Del. C. § 5807(c). The Commission concluded that as no specific facts could be given to the Commission it could not make any findings of fact or conclusions of law. The employee was advised to seek an opinion once he had a firm proposal, but before resigning his State position. (Commission Opinion 91-5). POST-EMPLOYMENT RESTRICTIONS Professional Services/Early Retirement Option Post employment restrictions prohibit State employees from representing or otherwise assisting a private enterprise on matters involving the State for two years after leaving State employment if the employee gave an opinion, conducted an investigation, or otherwise was directly and materially responsible for such matter in the course of official State duties. 29 Del. C. § 5805(d). A State employee, who was retiring, requested determination of whether he could offer professional services to firms which contracted with his State agency. At the time of the request, the legislature had passed a one-time early retirement option (ERO) preventing employees from coming back to work for the State for five years, except that in special cases the ERO Committee could allow an individual to contract back to the State for a period of up to one year. 29 Del. C. § 5301(d)(4). The Commission concluded that if the employee or any entity controlled by him intended to contract with the State to provide personal services, then he should apply to the ERO Committee for a determination of whether such contractual arrangement was permissible. Apart from such determination by the ERO Committee, the Commission found that the employee's statutorily imposed duties encompassed a broad range of control over the agency's functions, including supervisory duties, contractual duties, and coordination, development and planning responsibilities for agency programs. Accordingly, the Commission held that any dealings with that agency would violate the Code, unless the former employee submitted information on specific projects to rebut the assumption that he was "directly and materially responsible" for that specific matter while employed by the State. (Commission Opinion 91-10). Representing Private Enterprise A former State employee sought a waiver from the restriction prohibiting State employees from assisting a private enterprise on matters involving the State for two years after leaving State employment, if the individual gave an opinion, conducted an investigation, or otherwise was directly and materially responsible for such matter in the course of official State duties. 29 Del. C. § 5805 (d). While employed by DNREC, an employee received applications submitted to the Air Resources Section. He decided if the applications complied with regulations. His decisions were reviewed by two levels of supervision above him. His employer, after he left State service, was a private enterprise regulated by his agency. He sought a waiver so he could discuss options of emission control equipment with his new employer. He believed it was possible and probable he would represent the private enterprise on matters that he had dealt with while with the agency. The Commission may grant a waiver to specific prohibitions in the Code of Conduct if the Commission determines the literal application of the prohibition in a particular case is not necessary to achieve the public purpose of the Code or would result in an undue hardship on an employee or agency. 29 Del. C. § 5807(a). The Commission found that: the private enterprise had a strong history of compliance before hiring the State employee; there was no discretion by individual business managers regarding obedience to the law; EPA oversees DNREC's actions in issuing major permits; no confidential information gained from employment at DNREC would be compromised as the regulations and any interpretations are public information; and all cases on which the employee worked had been resolved. This reduced the possibility of the former State employee influencing DNREC to bend regulatory requirements. The Commission also found that DNREC encouraged the use of such expertise in the private sector as it could help assure compliance by the private enterprise with public laws and environmental regulations. The employee testified that an undue hardship would result if the private enterprise placed him in an area where his expertise was not used as both he and the company would be at a disadvantage. The Commission distinguished this opinion from Opinion 91-10, (above) where a former State employee sought to contract with the State after retiring. The Commission noted that the former DNREC employee's activities, unlike those proposed by the other former State employee, would not result in compensation from the State. (Commission Opinion 91-11). Professional Services A State employee, who served in a professional capacity, due to personal circumstances moved out of State. The agency requested that it be permitted to contract with the individual for professional services on a part-time basis. The agency anticipated the contract might last from six months to possibly a year. The Code prohibits employees, officers or honorary State officials from representing or assisting a private enterprise on matters involving the State for 2 years after terminating employment if the person gave an opinion, conducted an investigation or otherwise was directly and materially responsible for such matter in the course of official duties. 29 Del. C. § 5805(d). The Commission heard testimony that the employee had played a central role within the agency. The testimony also indicated the employee would work on a part-time basis; the rates would be well below the hourly contractual rates for such professional services; the employee had established trust with the staff and its clients and continuation on a part-time basis would assure continuity that would benefit the clients; the services could not be readily provided by anyone else in the community as there was a shortage of such professionals; and the agency had pursued recruitment for the position, but without success. Based on these facts, the Commission concluded the contract would violate the post-employment restrictions; however, it held that the literal application of the Code was not necessary to achieve the public purposes of the statute and would result in an undue hardship to the agency. It therefore granted a waiver as permitted by 29 Del. C. § 5807(a). (Commission Opinion 91-18). CONCURRENT EMPLOYMENT Representation of Private Enterprise State officers are prohibited from representing or otherwise assisting any private enterprise with respect to matters before the State. 29 Del. C. § 5805(b)(2). A Public Service Commissioner requested a waiver from this restriction so he could represent his full-time employer, an insurance company, in matters before the Delaware Insurance Office. Waivers can be granted if the literal application of the prohibition in a particular case is not necessary to achieve the public purpose of the Code or would result in undue hardship to any State employee, officer or agency. 29 Del. C. § 5807(a). The Commission granted a waiver because the Public Service Commission (PSC) does not regulate insurance companies; has no relationship with the Delaware Insurance Office; and membership on the PSC could not result in undue influence on the Insurance Office. (Commission Opinion 91-13). NOTE: The law provides thatemployees, officers or honorary officials may not represent or assist private enterprises with respect to matters pending before the agency with which the employee, officer or official is associated by employment or appointment. 29 Del. C. § 5805(b)(1). For officers, the statute goes further and states that officers may not represent or assist private enterprises with respect to any matter before the State. 29 Del. C. § 5805 (b)(2). The Code defines "employees" as including persons appointed to a State agency, who receive or expect to receive more than $5,000 per year in compensation. 29 Del. C. § 5804 (11)(a)(2). "Officers" are persons required to file a financial disclosure form, except members of the General Assembly and the Judiciary are not included in the term. 29 Del. C. § 5804 (12). The PSC Commissioner is appointed by the Governor and, by law, receives more than $5,000 per year in compensation. 26 Del. C. § § 103, 105, and 110. Thus, he would be considered a State employee, not an officer, and the Commission could have alternatively ruled that no waiver was required as the PSC Commissioner was not representing a private enterprise before the agency with which he was associated with by appointment. Financial Disclosure Regulatory board members filed disclosures with the Commission that they were involved in the operation of a facility regulated by the board on which they served. The board members were honorary State officials and as such are required by law to disclose financial interests in private enterprises which are subject to the regulatory jurisdiction of, or does business with, the agency on which they serve as an appointee. 29 Del. C. § 5806(d). Such filings are confidential except as may be necessary to enforce the Code of Conduct. Id. The filing is a condition of commencing and continuing appointed status with the State. Id. ( Filing Nos. 91-3, 91-4, 91-6). Consulting Work Prior to establishment of the Commission in 1991, a State employee was part owner of a consulting firm which engaged in work that included some matters reviewed by the employee's State agency. The employee did not participate in the review, but the State employee sitting next to him conducted the review. After the Commission was created, the employee did not engage in outside work that was reviewed by his office. He sought a decision on whether the outside consulting work would violate the requirement that no State employee may represent or otherwise assist any private enterprise with respect to any matter before the State agency with which the employee is associated by employment or appointment. 29 Del. C. § 5805 (b)(1). His agency expressed concern that even with the employee recusing himself from review, there could be an appearance of conflict because of the small size of the office. The agency stated that the small office size also created problems in making assignments to avoid a conflict. It also noted that private enterprises, over the years, had complained of unfair competition when a State employee engaged in this technical work and that from time to time there was a perception that the State employee might receive preferential treatment during the review process by a co-worker. The Code prohibits conduct that raises an appearance of impropriety. 29 Del. C. § 5806(a) and (b)(4). The Commission held that the employee could not participate in the outside consulting business. (Commission Opinion 91-12). Expert Witness A State employee wished to pursue outside employment as an expert witness in an area related to his State employment and his professional training. The Code prohibits State employees, officers or honorary officials from accepting other employment or compensation under circumstances where such acceptance may result in: (1) impairment of independence of judgment in exercising official duties; (2) undertaking to give preferential treatment to any person; (3) making governmental decisions outside official channels; or (4) any adverse effect on the public's confidence in the integrity of the State. 29 Del. C. § 5806(b). Testimony revealed that if the employee became an outside expert, his courtroom appearance could result in testimony on his own work for the State or the work of the agency. The employee stated he agreed with the agency "a hundred percent" that there would be a conflict if he testified as a private consultant on jobs he worked on for the State. He said he would refrain from testifying in such instances. He suggested he could provide the expertise to similar agencies in States surrounding Delaware, rather than in Delaware. However, the agency said it had joint projects with those States and that to have a high level manager from the Delaware agency providing comments and guidance to another state's agency for a fee could "prove difficult" in terms of working relationships with those States. The employee said the reason he wanted to become an expert was so he could get experience before he retired and could then pursue that career after retirement. The agency said it could provide the employee with some experience by having him as a witness for the State on certain matters, which would provide him with experience without going to the private sector. The Commission concluded that if the employee testified in a private capacity, while employed by the State, his State position would be brought out. It was the Commission's opinion that this would reflect unfavorably on the employee's position of holding the public trust, and therefore would violate the Code. (Commission Opinion 91-19). JURISDICTION School Board Member who also is State Employee Two individuals were alleged to have violated the Code of Conduct. One was an elected school board member and was concurrently an employee of a State school of higher education. He applied for a State job with the same school district in which he held a board position. He was cut from consideration before his application reached review by the School Board. The other individual charged was a State employee whose position was supervised by the School Board. Petitioner, who applied for the same position but was not selected, alleged that: (1) he was not selected because of racial discrimination; (2) it was a conflict of interest for the Board member to apply for the position; (3) it was a conflict of interest for the other employee to be "deeply involved" in the hiring process; and (4) there was questionable use of school funds. The Commission determined that the alleged racial discrimination and alleged questionable use of school funds were not issues within its jurisdiction. It recommended the alleged discrimination matter be referred to the Equal Employment Opportunity Commission and the alleged misuse of funds matter be referred to the Educational Finance Overview Committee. Regarding the remaining issue concerning a conflict, the Commission determined it has personal jurisdiction over State employees, State officers and honorary State officials. See, e.g. 29 Del. C. § § 5805-06. A "State employee" is defined as one who receives compensation from a State agency. 29 Del. C. § 5804(11)(a)(1). An honorary State official is "appointed." 29 Del. C. § 5804(13). Board members do not receive compensation from a State agency and are elected, not appointed. Thus, the Commission concluded the Board member was not a "State employee" or an "honorary State official." A "State officer" is a person required to file a financial disclosure statement. 29 Del. C. § § 5804(12) and 5812. The Code excludes, "elected and appointed officials of . . . public school districts" from the definition of State officers. 29 Del. C. § 5812(a). Thus, the Commission concluded that an elected school board member also was not a "State officer." As his status as a Board member did not place him within the category of persons to whom the Code applied, the Commission concluded it lacked jurisdiction over him in that capacity. Regarding his concurrent position as a State employee, the Commission had personal jurisdiction over him, but it found that the alleged conflict did not arise within or have a nexus with the Board member's concurrent State employment. The other individual was found to be a State employee, giving the Commission jurisdiction. However, after hearings on the matter, the Commission found there was no evidence presented to support a conclusion that there was a conflict of interest, as any accrual of financial benefit, required by 29 Del. C. § 5805(a)(2)(a), which prohibits reviewing or disposing of matters where there is a financial interest, was speculative and remote. It further found, after a hearing, that the fundamental facts as developed showed nothing to support a conclusion of an appearance of impropriety under 29 Del. C. § 5806(a). (Commission Opinion 91-16). Non-Government Activities Complainant alleged that a State employee, who was concurrently associated with a non-profit organization had improperly used funds of the organization for his personal benefit. A criminal investigation, conducted by the Attorney General's office, found no criminal violation. An investigation also was conducted by the State Auditor's Office which concluded that the non-profit's books were inadequate to determine if State funds were improperly used. The Commission held its investigation in abeyance while those investigations were conducted. Upon conclusion of those investigations, complainant requested the Commission to dismiss the complaint. By law, the Commission may initiate its own investigation based on facts brought to its attention. 29 Del. C. § 5810(a). The Commission found that as a factual matter, the alleged action was related to his association with the non-profit organization, rather than his public employment. It concluded that the language in the statute seemed to express a clear legislative intent that violations must be related to the public duties of the individual as the statute repeatedly refers to the "public trust," "public interest," "official duties," "governmental decisions," "official capacity," etc. The only statutory references to matters "beyond the scope of public positions," dealt with the release of confidential government information. 29 Del.C. § 5806 (f) and (g). Even those provisions "beyond the scope" are limited to situations where confidential information is obtained as a result of the public position. The Commission concluded that by limiting the Code to matters related only to public office, the Commission had no jurisdiction over the alleged actions which related to his non-government connected activities. (Commission Opinion 91-20); See also, Howell v. State, Del. Supr., 421 A.2d 892 (1988)(in interpreting misconduct in office statute, Court noted that it referred to "official functions," except for one provision). ACCEPTING THINGS OF MONETARY VALUE Client Names Employee in Will Respondent, as part of her public employment, dealt with an individual who was of below-normal intelligence. During many years of interacting, the State employee was required to assist the individual with, among other things, financial matters. A strong relationship developed between the two. Respondent and another State employee, as a result of their employment, were designated as signatories on the individual's bank account. Respondent received and disbursed the individual's paycheck. All monies were accounted for. When the individual wanted to name Respondent as a beneficiary in his will, Respondent told him it would put her in a bad spot. Respondent and another State employee chose an attorney for him from the yellow pages and Respondent drove him to the appointment. The attorney testified that he met privately with the individual; interviewed him extensively; and was of the view that the individual understood what he was doing. The attorney also sought the opinion of a treating doctor, who responded that the individual was competent to make a will. The attorney also testified that he met with the individual four or five other times, and although Respondent accompanied the individual on each trip, the attorney never had the impression Respondent was exerting undue influence over the individual. Respondent was named as a beneficiary in the will and as a beneficiary to the individual's insurance policy. Respondent was later removed as a beneficiary to the will after telling the individual that a proposed stipulation provided that any money Respondent received would be given to charity. The individual said he did not want his hard earned money to go to charity and that if she could not have it, he would change everything. Respondent also was removed as a beneficiary to the life insurance policy. Without Respondent's knowledge, the individual, at his attorney's suggestion, prepared a durable power of attorney naming Respondent and another State employee as attorneys in fact. When Respondent learned of the action, she immediately notified her supervisor and others at the agency. A complaint was filed alleging Respondent was: (1) pursuing a course of conduct which could raise suspicion among the public that she was engaging in acts which violate the public trust, reflecting unfavorably on the State and its government, 29 Del. C. § 5806(a); (2) accepting compensation, gifts or other things of monetary value under circumstances in which acceptance may result in impairment of independence of judgment in the exercise of official duties and may result in an adverse effect on the confidence of the public in the integrity of the government, 29 Del. C. § 5806 (b)(1) and (4); and (3) using public employment to secure unwarranted private advancement or gain, 29 Del. C. § 5806 (e). The Commission found that Respondent had not violated any of these provisions. It specifically found: Respondent endeavored to follow the proper course of action by pleading with the individual not to name her as a beneficiary; the individual removed her as a beneficiary; on learning she was named in the power of attorney, she informed her supervisor and others at the agency; and she did not accept any compensation, gifts or things of monetary value during the course of employment. Although not finding a violation, the Commission recommended Respondent be dropped from the power of attorney and the checking account. It also recommended that the agency develop guidelines for its employees so they would know what action to take if they learned they were named in wills, insurance policies, or powers of attorney by a client. (Commission Opinion 91-15). Lodging, Food and Travel The Commission was asked to grant a waiver to the Director of Company Regulation, Department of Insurance, to permit her to accept an invitation from an insurer regulated by the Department to travel out of the country to help establish a regulatory operation for insurance in former Soviet Union countries. The regulated insurer was selected as the exclusive reinsurer in the Russian Republic and was pursuing similar exclusive contracts with the Baltic Republics. The contracts with a Delaware company made it foreseeable that when Russia established an insurance industry its entry into the American market would probably be through Delaware. The director was invited because of her ten years of experience in insurance regulation and assistance to Latvians in drafting their insurance code. The Commission was advised that the Insurance Department travels regularly at the expense of the insurance industry to examine regulated companies. Costs paid by the regulated insurers covers travel, board, food, and an hourly fee. The employees accept no honoraria. The procedure eliminates costs to the State and is standard procedure in all States and is within federal guidelines. The Commission heard testimony that there are very specific guidelines for regulating insurance companies and there is no area of "judgment calls" which could be slanted toward playing favorites with the paying insurer. For this trip, the Commission was advised that the State would benefit from not paying the costs and from having the opportunity to assist in insuring uniformity of regulation in the insurance industry from this market. It was told the trip would be Spartan and the schedule "backbreaking." Waivers may be granted where the literal application of a prohibition in a particular case is not necessary to achieve the public purpose of the Code or would result in an undue hardship on any employee, officer, official or State agency. 29 Del. C. § 5807 (a). Specific prohibitions considered by the Commission were: (1) pursing a course of conduct which will raise suspicion among the public that the individual is engaging in conduct in violation of the public trust and will not reflect favorably on the State and its government, 29 Del. C. § 5806 (a); (2) incurring obligations in substantial conflict with the proper performance of official duties, 29 Del.C. § 5806 (b); and (3) accepting any compensation, gift, payment of expenses or anything of monetary value under circumstances that would impair judgment, 29 Del. C. § 5806 (b) (1) - (4). Based on the specific facts of this specific trip, the Commission granted a waiver. (Commission Opinion 91-14). STATE PUBLIC INTEGRITY COMMISSION SYNOPSES OF 1992 OPINIONS JURISDICTION Honorary Officials A State agency asked whether members of a Council, established to advise a Departmental Secretary on certain matters, were subject to the State Code of Conduct. Council members were, pursuant to law, appointed by the Governor. They received no compensation but could be reimbursed for actual and necessary expenses incurred in performing official duties. An "honorary State official" is "a person who serves as an appointed member, trustee, director or the like of any State agency and who receives or reasonably expects to receive not more than $5,000 in compensation for such service in a calendar year (not including any reimbursement for expenses)." 29 Del. C. § 5804 (13). The Commission concluded that the statute reflected legislative intent to include within the Code's coverage all Honorary State officials. The Commission viewed the important consideration as the authority and responsibility of the office, not just compensation. (Commission Opinion 92-1). Elected Officials Complainant alleged that an elected official engaged in improper conduct. Some of the alleged conduct occurred prior to January 23, 1991, the effective date of the State Ethics Code. Those allegations were dismissed on the basis that the alleged improper conduct occurred well before enactment of the Code of Conduct and the individual would not have been on notice of the standards to which they were to be held. Bouie v. City of Columbia, 378 U.S. 347, 350-51 (1964)(all are entitled to be informed as to what the State commands or forbids). The Respondent also argued the Commission did not have personal jurisdiction because Respondent was no longer an elected official. The Commission concluded that nothing in the Code suggested that by leaving State employment or office an individual was insulated from responsibility for having violated the Code while in office. It noted that the "post-employment restrictions" show a legislative intent to retain jurisdiction over former employees and officers for conduct occurring during their tenure with the State. See, 29 Del. C. § 5805(d). The Commission also found that as a policy matter, the consequences of violating the Code of Conduct should not be avoided merely by leaving office. The Commission noted that it was not saying former employees and officers should worry indefinitely that charges under the Code might be brought against them long after leaving State service. The Commission noted that the charges were known to the individual before leaving public office and that a preliminary hearing, including discussion of issues raised in the complaint, occurred while Respondent was still in office. After several pretrial conferences, rulings, stipulations, receipt of documentary evidence, and the taking of testimony, the Commission concluded that the remaining count should be dismissed for lack of "clear and convincing evidence," the standard of proof required to find a violation. (Commission Opinion 92-09). Running for Elective Office A State employee requested a determination of whether there would be a conflict of interest if he ran for an elected State office while employed by the State. The Commission found nothing in the Code of Ethics specifically prohibiting such activity. However, it noted that should the employee be elected, he should be aware that the Code would apply in toto. (Commission Opinion 92-2). (Merit Employees, See, 29 Del. C. § 5954 and Att'y Gen. Op. No. 78-016 (Oct. 5, 1978)). NOTE: The Commission's advisory opinions must be based on a particular factual situation. 29 Del. C. § 5807(c). Certain persons covered by the Code of Conduct could be prohibited from maintaining a State position and elective office by other laws, e.g., State Election Commissioner cannot hold or be a candidate for office, 15 Del. C. § 301; Public Integrity Commission members, formerly State Ethics Commission, cannot hold elected or appointed U.S. or State office, or be a candidate for such office, 29 Del. C. § 5808(b). Readers should be alert to other statutes or decisions restricting such actions, e.g., 29 Del. C. § 5954 regarding political activities by State employees; In Re: Request of the Governor for an Advisory Opinion, Del. Supr., 722 A. 2d 307 (1998)(State trooper cannot hold dual positions as trooper and State Representative). CONCURRENT EMPLOYMENT A State employee asked whether his part-time business conflicted with his State duties. The emphasis of his part-time business was to provide certain testing, counseling, consultation and analyses to clients. The clients were not clients of his State agency; they were not State employees; and they were not pursuing litigation against the State in matters on which he tested, counseled, consulted or analyzed. His State duties did not include any involvement with the private sector in similar matters. The Code prohibits employees from accepting employment where it might result in: (1) impairment of judgment in official duties; (2) preferential treatment to any persons; (3) decisions outside official channels; and (4) any adverse effect on the public's confidence in the integrity of the government. 29 Del. C. § 5806(b). Based on the employee's representation, testimony from a representative from his agency, and his agreement not to perform his part-time job during regular State working hours, and with the condition that if a conflict arose in the future he would come back to the Commission, no violation was found. (Commission Opinion 92-3). A State employee wished to engage in part-time employment as a consultant with a firm and anticipated it would have clients from Delaware, New Jersey, Maryland and Pennsylvania. The firm would offer services similar to services performed by the employee in his State position. The employee stated that he realized a potential conflict of interest would arise with Delaware clients. He stated that his activities would be restricted to clients from the other States. The Commission found that, even if the employee were not a party to the actual work, the concurrent employment with a firm that does business in Delaware, would give rise to a perception of a conflict of interest under 29 Del. C. § 5806(a), which prohibits conduct that would raise suspicion that the public trust was being violated. It also would violate 29Del. C. § 5806(b)(4), which prohibits accepting other employment under circumstances in which such acceptance may result in any adverse effect on the confidence of the public in the integrity of the government. (Commission Opinion 92-7). An employee's State position was as a Senior Counselor. He wished to take a part-time job with a company owned and operated by his brother to eliminate some of the inconvenient and late hours for his brother. The part-time position could place the employee in the position of giving counseling services as a State employee to some of the persons he would have as clients in his brother's business. Also, as a counselor, he would learn confidential information about the State client that could be useful to his brother's business if the confidential information were disclosed. He also could be in the position of identifying for the State client the companies that offered the type of service provided by his brother's firm. The Commission found that the significant import of Section 5806(a) is that employees are to pursue a course of conduct which will not "raise suspicion" that their acts will "reflect unfavorably upon the State and its government." 29 Del.C. § 5806(a). Actual misconduct is not required; only a showing that a course of conduct could "raise suspicion" that the conduct reflects unfavorably. While the Commission had no doubt that the employee was honorable and wished to accept part-time employment to help his brother, it concluded that the employee's daily responsibilities could likely be perceived as pursing a course of conduct subject to suspicion by the public and that his brother's competitors, whether justified or not, could perceive the employee as being in a favored position by virtue of his State employment to steer business to his brother. It also concluded that although a mechanism was in place to provide an alternate counselor, it could be perceived by the public that the employee might be influencing the disposition of the matter through his status as Senior Counselor. The Commission noted that the employee's attorney acknowledged that: "It is difficult to argue down the perception." Finally, the Commission concluded that no waiver could be granted as there was no evidence to show that, "The literal application of such prohibition . . . is not necessary to achieve the public purposes" of [the Act] or "would result in an undue hardship on any employee, officer, official or State agency." 29 Del.C. § 5807(a). If any hardship existed, it fell on the employee's brother, who was not a State employee, officer or official. (Commission Opinion 92-11). APPEARANCE OF IMPROPRIETY Financial Interest of Spouse A State employee, who was a computer specialist, was tasked with requesting bids by phone or fax, when small items were needed in an emergency. The sealed bids or telephone responses were to be handled by other office personnel and then a committee of three decided who would be awarded the job. The employee's spouse owned a computer firm. The agency asked if purchase of services from the spouse's company would implicate any provisions of the Code of Conduct. The Commission concluded that any involvement of the employee in purchases from the spouse's company would violate 29 Del. C. § 5806(a), which prohibits conduct that would raise suspicion by the public that the public trust was violated. (Commission Opinion 92-4). Connection with Civic Association Two individuals were members of a regulatory agency which reviewed the licensure status of businesses. The individuals were both members of a civic association which was active in matters pertaining to certain types of businesses which were regulated by the agency. A request was made for a determination of whether it would be a conflict of interest for these two individuals to participate in the review of the licensure status of those particular businesses. The Commission concluded it would violate 29Del. C. § 5805(a), which prohibits the review or disposition of matters pending before the State where there is a personal or private interest that tends to impair independence of judgment in performing duties with respect to that matter. It also concluded that their involvement in the review would violate 29Del. C. § 5806, which prohibits conduct that would have an adverse effect on the public's confidence in the government. The Commission noted that its holding was without prejudice to the possible applicability of 29 Del. C. § 5805(a)(3), which provides that where a person has a statutory responsibility where he has a personal or private interest and the matter cannot be delegated, that the person may exercise responsibility with respect to that matter if they promptly notify the Commission and fully disclose the personal or private interest and explain why the responsibility cannot be delegated. (Commission Opinion 92-5). ACCEPTANCE OF THINGS OF MONETARY VALUE A State agency was charged with implementing a new federal law which pertained to the licensing of a certain profession. The members of the profession, who were required to be licensed by the State agency, were members of three associations related to the profession. The associations wanted to privately fund a barbeque for the agency's employees. The agency stated that the licensing program was a continuing one with new applicants applying on a regular basis. It requested a determination of whether the privately funded barbeque for the employees by the private associations would violate the Code of Conduct. The Commission found that the activity would be contrary to 29 Del. C. § 5806(b)(2), which prohibits acceptance of other employment, any compensation, gift, payment of expenses or any other thing of monetary value where such acceptance may result in an undertaking to give preferential treatment to any person. It also found that the activity would violate 29Del. C. § 5806(b)(4), which prohibits accepting anything of monetary value where such acceptance may result in any adverse effect on the public's confidence in the integrity of the government. (Commission Opinion 92-6). STATE PUBLIC INTEGRITY COMMISSION SYNOPSES OF 1993 OPINIONS CONCURRENT EMPLOYMENT An individual was elected to public office. He also held a part-time job as an auctioneer. He was hired as an auctioneer by the sheriff of the county where the sales occurred. He requested a decision on whether his concurrent employment violated the State Code of Conduct. The Commission was advised that the sales as an auctioneer were "completely divorced" from his public office. The Commission held that such outside employment did not create a conflict of interest. (Commission Opinion 93-1). CONCURRENT POSITIONS An individual served as an honorary State official on a State Board. "Honorary State officials" are persons who serve as appointed members, trustees, directors or the like of any State agency and receive not more than $5,000 per calendar year in compensation. 29 Del. C. § 5804(13). The official was subsequently hired as the director of a State agency. He requested a determination of whether holding these concurrent positions created a conflict of interest. None of his decisions as an Honorary State official would have any effect on the State agency for which he worked. None of his activities for the State agency had any effect on the commission to which he was appointed. He advised the State Ethics Commission that he would decline any payment of expenses or the $75 stipend he would normally receive from the position to which he was appointed. The Commission found no violation of the Code of Conduct. (Commission Opinion 93-5). NOTE: The Code prohibits persons employed by the State who also serve in an elected or paid appointed position from accepting payment from more than one tax-funded source for duties performed during coincident hours of the workday. 29 Del.C. § 5822. A division director in a regulatory agency also served on a board which consisted of appointees from local and State government and other persons who were elected to the board. The board was responsible for overseeing facilities' management of a public facility. Vendors for the facility were licensed and regulated by the division director's State agency, but had no dealings with the board on which he served. He requested a determination of whether serving on the board created a conflict of interest. The Commission held that the director could serve in the dual capacity as long as he recused himself from any action with his agency whenever an application was made by a licensee in connection with the facility which the board managed.(Commission Opinion 93-16). A State officer was asked to represent the State on a consortium of health care providers. The consortium was funded in part by a State commission to which the officer was appointed. He sought a decision of whether serving on the consortium conflicted with either his State position or his State appointment. He stated he would abstain from voting on consortium contracts that dealt with his agency or the commission on which he served. The Commission found no violation as long as he recused himself from matters that could create a conflict of interest or that could create a perception of such conflict. He was advised to bring any specific matters that arose to the Commission for an advisory opinion.(Commission Opinion 93-19). POST-EMPLOYMENT A State employee, who retired under the Early Retirement Option, asked if he could contract as an individual or as a consultant with his State agency. Employees cannot represent a private enterprise on matters before the State where they gave an opinion, conducted an investigation or were directly and materially responsible during State employment for two years after they leave State employment. 29Del. C. § 5805(d). At the time of this request, the General Assembly had passed legislation providing that persons who retired under the Early Retirement Option could not work for the State for five (5) years, except that in special cases the Early Retirement Committee could allow the individual to contract back to the State for a period of up to one year. 29 Del. C. § 5301(d)(4). The Commission held that the employee's situation fell under the ERO Act and should be pursued with the Early Retirement Option Committee. (Commission Opinion 93-2). A State employee submitted an application for a research grant to a national agency. It was prepared on his own time, including a week of annual leave. He subsequently left State employment to work in another State. The grant was later approved and once awarded would be performed by a company which contracted with the State agency for which he had worked. The research would involve a study of clients which the contractor obtained through its contract with the State. The former employee would be a principal investigator for the grant. The agency where he had worked would not receive funds from the proposed grant, but had entered an agreement endorsing the grant application and agreeing to work with the contractor on certain aspects of the research, such as providing a point of contact for information sharing, attending research team meetings, insuring the research did not affect another contract the agency already had with the contractor, referring eligible consumers to the research program, etc. The Commission found that the employee's participation in the research program would not violate the post-employment restriction which prohibits former employees from representing a private enterprise on matters pending before the State for 2 years after terminating employment if the individual gave an opinion, conducted an investigation, or was otherwise directly and materially responsible for the matter in the course of official duties while employed by the State. 29 Del. C. § 5805(d). (Commission Opinion 93-13). PERSONAL OR PRIVATE INTERESTS A State officer notified the Commission that in his official position he reviewed and approved contracts for services for his Department. A private enterprise which contracted with his Department employed his spouse. He noted that her employment represented a financial interest on his part and his review of such contract might appear improper. See, 29 Del. C. § 5806(a). He delegated his authority to review such contracts to another individual in the agency. The Code prohibits officers from reviewing or disposing of matters where there is a personal or private interest that tends to impair judgment. 29 Del. C. § 5805(a). The Code specifically identifies as an interest which "tends to impair judgment," one where the individual reviews or disposes of matters where action or inaction would result in a financial benefit to the person or close relative to a greater extent than would occur for others who are in the same class or group. 29 Del.C. § 5805(a)(2)(a). A "close relative" means "a person's parents, spouse, children (natural or adopted) and siblings of the whole and half-blood." 29 Del. C. § 5804 (1). Where there is such an interest, the person can delegate such authority. However, if the responsibility cannot be delegated, the individual must fully disclose to the Commission why the matter cannot be delegated. 29 Del. C. § 5805(a)(3). The Commission found the delegation to be appropriate. (Commission Opinion 93-3). An individual seeking State employment was requested by the agency for which he intended to work, to seek a determination of whether his spouse's operation of a private enterprise created a conflict of interest. The individual would be working in an area dealing with transportation and his spouse owned and operated a company that provided certain transportation services. While the spouse had to obtain a business license and the necessary permits for her company from the State, the company was not otherwise regulated by the State and did not contract with the department to which he had applied for a job or with any State agency. The individual seeking State employment did not have any direct involvement in the company's operation, decision making or direction; did not own stock in the corporation; and was not an officer or director of the corporation. If he were hired by the State, he would not be involved in any decisions in his official capacity regarding his spouse's business interest. The Code prohibits employees from reviewing or disposing of matters before the State where there is a personal or private interest. 29Del. C. § 5805(a). It also prohibits employees from acquiring a financial interest in a private enterprise where he has reason to believe it may be directly involved in decisions to be made by him in his official capacity. 29Del. C. § 5806(c). The Commission found no violation of the Code of Conduct under these circumstances. (Commission Opinion 93-6). Note: No State employee, officer or honorary official shall acquire a financial interest in any private enterprise which he has reason to believe may be directly involved in decisions to be made by him in an official capacity on behalf of the State. 29 Del. C. § 5806(c). Any State employer or officer who has a financial interest in any private enterprise which is subject to the regulatory jurisdiction of, or does business with, any State agency (and any honorary State official who has a financial interest in any private enterprise which is subject to the regulatory jurisdiction of, or does business with, the State agency on which he serves as an appointee) shall file with the Commission a written statement fully disclosing the same. The filing of such disclosure statement shall be a condition of commencing and continuing employment or appointed status with the State. 29Del. C. § 5806(d). Complainant alleged that municipal officials improperly voted on a matter where they had a financial interest. Effective January 23, 1993, the Code of Conduct applied to local governments if they had not adopted a code at least as stringent as the State Code.68 Del.Laws § 1, c. 433. The Code prohibits officials from participating in the review or disposition of matters where there is a personal or private interest which tends to impair a person's independence of judgment in the performance of duties. 29 Del. C. § 5805(a)(1). A person has an interest which tends to impair judgment if action or inaction would result in a financial benefit to the person to a greater extent than such benefit would accrue to others of the same class or group of persons. 29 Del. C. § 5805(a)(2)(b). The "action" was a vote to impose a moratorium on a certain matter due to weather related reasons so that there could be a discussion at the next public meeting. There were no facts alleged showing that the vote resulted in any financial benefit to the town officials charged, and no prejudice accrued to any party. Accordingly, the complaint was dismissed. (Commission Opinion No. 93-8). Complainant alleged that a local government official, in a legislative capacity, prepared a revised ordinance and submitted it to the town's Board of Commissioners. Complainant alleged that the official violated the Code of Conduct by reviewing and disposing of matters where there was a personal and private interest which tended to impair judgment in official decisions. 29 Del. C. § 5805(a). Complainant also alleged that the official had worked, not only with the town's attorney, but with unidentified citizens in preparing the revised ordinance. Upon request for identification of these individuals at a public meeting, the official refused to identify such persons, which complainant believed violated the Freedom of Information Act. See, 29 Del. C. § 10001, et. seq. The Commission found no allegation that there was an attempt to pass the proposed revision without proper notice and an opportunity for opponents to be heard. The draft legislation had been made public. The Commission noted that officials are entitled to draft proposed legislation and can be assisted by a government attorney and other employees hired by the legislative body. It found that legislators are not prohibited from being assisted by unidentified private citizens in drafting proposed legislation under the Code of Conduct provisions. There were no facts to support the allegation that the official had any personal or private interest in the matter. To the extent the activities violated the Freedom of Information Act (FOIA), that was not a matter for the Commission, as its jurisdiction is limited to the Code of Conduct. Enforcement of FOIA is within the Attorney General's jurisdiction. 29Del. C. § 10005. (Commission Opinion 93-10). An individual was appointed to serve on a regulatory agency but did not wish to execute the appointment until there was a determination that his financial holdings did not create a conflict of interest. In accepting the appointment, the individual would receive more than $5,000 compensation per year. The Code of Conduct defines such persons as "State employees." See, 29 Del.C. § 5804(11)(a)(2). The Code requires State employees with a financial interest in a private enterprise which is subject to the regulatory jurisdiction of, or does business with, any State agency to file a disclosure statement. 29 Del. C. § 5806(d). The disclosure from this employee revealed that he was the president and majority stock holder in two corporations. Neither corporation was subject to the regulatory jurisdiction of, nor did they do business with, any State agency. However, the corporations had contracts with a company which was regulated by the agency to which the individual was appointed. The individual disclosed that the corporations would not, in the future seek contract work with any company regulated by the agency to which he was appointed. However, the corporations, to avoid default on the existing contracts, needed to complete the projects with the company regulated by the agency. The work was not a significant part of the corporations' business and the work was in its final phase. The Code also prohibits employees from acquiring financial interests in a private enterprise directly affected by decisions to be made by them. 29 Del. C. § 5806(c). It also prohibits employees from having an interest in any private enterprise which is in substantial conflict with the proper performance of public duties. 29 Del.C. § 5806(b). The Commission found that neither of these provisions was implicated because the corporations were not affected by the regulatory agency; did not directly or indirectly benefit from any decisions made by the regulatory agency; and had insignificant business with a regulated company. The Commission also found that performing responsibilities for the regulatory agency would not create an appearance of impropriety, which is addressed by 29 Del. C. § 5806(a), § 5806(b)(4) and § 5811(2). It found that not only were the businesses not regulated by his agency; that the contracts were inconsequential to agency action; that the contracts were almost completed and no further contracts would be pursued, but that the individual had initiated the request for an opinion and filed a disclosure statement on his own and had initiated discussion and disclosed these facts during Senate confirmation hearings. (Commission Opinion 93-12). *JURISDICTION* Complainant alleged that State officers contracted with a private enterprise for services which complainant alleged resulted in unnecessary expenditure of State funds and could have led to unjust enrichment of the non-State persons entering the contract because they were paid more than complainant believed should have been paid. The Commission found that to the extent the complaint alleged unjust enrichment by the private contractor, it had no jurisdiction, as the Commission's jurisdiction is limited to State employees, officers and officials, not private individuals or enterprises. See,e.g., 29 Del. C. § 5805, § 5806. To the extent the complaint alleged the conduct of the State officers in entering the contract was improper, the Commission held that its jurisdiction extended only to conflicts of interest identified in the Code and that no facts indicated that the officers' actions fell within the statutory provisions. The Commission noted that it does not have the unrestricted, roving authority to review the wisdom or propriety of contracts entered by State agencies and officers or to review administrative efficiency of State government where no violation of the Code of Conduct is involved. The Commission recommended that complainant contact the State Auditor or other appropriate authority. (Commission Opinion 93-7). Complainant alleged that he and other employees were directed by medical professionals to perform certain actions complainant believed to be illegal. The Commission declined jurisdiction because it is not empowered to review every alleged violation of laws and regulations that are not within the acts over which the Commission has authority. The individual was advised that under the specific facts, the alleged charges might more appropriately be referred to the State Board of Medical Practice. (Commission Opinion 93-7). Complainant alleged that certain elected municipal officials engaged in activities prohibited by the Code of Conduct. Some of the alleged activities occurred before January 23, 1993. The General Assembly had provided that, "It is the desire of the General Assembly that all counties, municipalities and towns adopt code of conduct legislation at least as stringent as this [Code of Conduct] act to apply to their employees and elected and appointed officials." 67 Del. Laws c. 417 § 2. "Subchapter I, Chapter 58 of Title 29 shall apply to any county, municipality or town and the employees and elected and appointed officials thereof which has not enacted such legislation by January 23, 1993." 68 Del. Laws c. 433 § 1. The Commission found that as the municipality had not adopted a Code of Conduct, it became subject to the law on January 23, 1993. However, the Commission held that it would be an anomaly to hold the Code violated by acts occurring well before the Code applied to municipalities because at the very least public servants should have notice of the specific standards to which they are held. Bouie v. City of Columbia, 378 U.S. 347, 350-51(1964). It therefore dismissed the charges that occurred prior to January 23, 1993. (Commission Opinion 93-8). Complainant alleged that a State regulatory agency failed to: (1) hold a licensing hearing for him; (2) properly interpret the law during a hearing; (3) ascertain the actual ownership of property during a hearing; (4) publish an opinion in a timely manner, allegedly affecting complainant's appeal rights; (5) hear certain evidence; (6) prevent an agency member from speaking during a hearing because complainant believed the speech constituted testimony on behalf of an applicant; (7) obtain evidence of an applicant's debts; and (8) announce meetings as required by the Freedom of Information Act. The Commission's jurisdiction is limited to the Code of Conduct. It does not have the unrestricted, roving authority to review administrative actions where there is no alleged specific violation of the Code of Conduct. The Commission recommended the individual file an appeal or take proper court action concerning the agency's procedures and decisions. The Freedom of Information Act concern would be within the Attorney General's jurisdiction. 29 Del. C. § 10005. (Commission Opinion 93-17). PROCEDURE An individual sent a letter to the Commission alleging improper activities by certain local government officials. He also asked if the State Code of Ethics applied to the specific municipality. The Commission responded that the Code of Conduct applies to municipalities that did not adopt their own code of conduct by January 23, 1993. See, 68 Del. Laws c. 433 § 1. The Commission advised it had jurisdiction over the specific municipality referred to in the letter and advised the writer that if he wished to initiate an investigation into possible violations of the Code of Conduct, a sworn, detailed complaint must be filed. See, 29 Del.C. § 5810(a). (Commission Opinion 93-9). An individual wrote the Commission regarding an investigation by a State officer. The officer's authority to investigate was not questioned, but his motives were. The Commission advised that the Code of Conduct and the Commission Rules and Regulations require complaints to be in the form of a sworn statement with specific facts, and upon receipt the Commission would consider the complaint. See, 29 Del. C. § 5810(a). (Commission Opinion 93-15). CONFLICT OF INTEREST A State officer asked whether it would be an ethical violation for him to rent an apartment to a State employee. The employee was not assigned to his agency and did not report to the officer or anyone in his agency. She performed reception work for a suite of offices that the State officer used about three days a week. The offices were occupied full time by the individual to whom the employee reported. The employee served as the receptionist to all users of the suite and was available to do secretarial work for all persons in the office. The employee was looking for a temporary rental while she purchased a home. The officer had a condominium for rent. The Commission found no violation as he was not incurring any obligation "in substantial conflict" with performing his official duties. 29 Del. C. § 5806(b). (Commission Opinion 93-14). STATE PUBLIC INTEGRITY COMMISSION SYNOPSES OF 1994 OPINIONS JURISDICTION Complainant, who was a prisoner, alleged that a State attorney was negligent in handling a case. It was alleged that the attorney had not pursued matters and had not zealously represented his client. Complainant alleged that the attorney had violated numerous Delaware Lawyers' Rules of Professional Conduct. The Commission's jurisdiction is limited to interpreting and enforcing the provisions of Title 29, Chapter 58. See, e.g., 29 Del. C. § 5809. Complainant did not allege any violation of any provision in Chapter 58. The Commission held that interpretation and enforcement of the Lawyers' Rules of Professional Conduct was not within the Commission's jurisdiction and referred complainant to the Office of Disciplinary Counsel. (Commission Opinion 94-01). NOTE: The comments to the Delaware Lawyers' Rules of Professional Conduct provide that "A lawyer representing a government agency, whether employed or specially retained by the government, is subject to the Rules of Professional Conduct . . . and to statutes and government regulations regarding conflict of interest." See,Rules of Professional Conduct, R. 1.11, comment. Complainant, who was a prisoner, alleged that a State attorney provided ineffective assistance of counsel because the attorney refused to file a motion relating to the case. Complainant alleged the attorney was violating numerous rules of the Delaware Lawyers' Rules of Professional Conduct. It was not alleged that the attorney violated any provisions of Title 29, Chapter 58. The Commission held that it had no jurisdiction over the Rules of Professional Conduct and referred complainant to the Office of Disciplinary Counsel. (Commission Opinion 94-02). (See also, Commission Opinion 94-01). Complainant, who was a prisoner, alleged that a State attorney violated numerous rules of the Delaware Lawyers' Rules of Professional Conduct because the attorney allegedly failed to check crucial facts and failed to file a motion to dismiss. Complainant did not allege violations of any provisions of Title 29, Chapter 58. The Commission held it had no jurisdiction to interpret and enforce the Rules of Professional Conduct and referred complainant to the Office of Disciplinary Counsel.(Commission Opinion 94-03). (See also, Commission Opinion 94-01 and 94-02). Complainant alleged that the prison facility in which he was housed was overcrowded; that the prison tried to conceal that information; and that he and other inmates were denied access to the courts. He did not allege any violation of Title 29, Chapter 58. The Commission found it did not have jurisdiction and suggested complainant address his complaint through the prison grievance process or possibly through the court system. (Commission Opinion 94-04). Complainant, who was convicted of a crime, filed a complaint with an agency alleging improper conduct by a number of attorneys employed by a State agency. Complainant asserted that the prosecuting attorney had solicited misleading statements from a witness at trial and that the defense attorney had not used the right strategy and tactics in defending the case. The agency's attorney issued an opinion finding there was no violation of the Rules of Professional Responsibility, and that most of his concerns would be more properly addressed in the courts. Complainant then filed a complaint with the Public Integrity Commission alleging the decision was "erroneous" and that the attorney had "sherked [sic] his ethical responsibility." He identified no violation of Title 29, Chapter 58. The Commission found it had no jurisdiction and advised complainant to submit the matter to either the Board on Professional Responsibility or the Delaware Supreme Court. (Commission Opinion 94-08). Complainant filed a complaint against a member of the Delaware General Assembly. The Commission ruled that members of the General Assembly were excluded from the definitions of State employee, State officer, and Honorary State official found in 29 Del.C. § 5804. As the Code of Conduct applies to State employees, officers and honorary officials, and members of the General Assembly are not within those definitions, the Commission held it had no jurisdiction over the complaint. Complainant argued that because the General Assembly member had previously filed a complaint against complainant, the member of the General Assembly had subjected himself to the Commission's jurisdiction. The Commission held that the argument was without merit. The Commission referred the matter to the Attorney General and the appropriate Ethics Committee of the General Assembly. (Commission Opinion 94-14). POST-EMPLOYMENT A State agency requested an advisory opinion on the post-employment restriction. Advisory opinions may be issued on the written request of a State employee, officer, honorary official or a State agency. 29 Del. C. § 5807(c). The restriction provides that former employees cannot represent or assist a private enterprise on any matter involving the State, for a period of two years after termination of employment or appointed status with the State, if they gave an opinion, conducted an investigation or otherwise were directly and materially responsible for such matter in the course of official duties. 29 Del.C. § 5805(d). In this instance, while employed by the State, the employee was responsible for conducting a technical evaluation that was part of the selection process which led to the award of a contract. Less than a year after the evaluation, the employee left State employment and after working in private employment in other areas, accepted a position with the private enterprise that was selected to perform the State contract. The Commission found that the employee gave an opinion when he conducted the technical evaluation, and therefore was prohibited from working on that specific contract for the private enterprise for a period of two years after his State employment terminated. (Commission Opinion 94-05). A waiver of post-employment restrictions was granted to a Department of Health and Social Services (DHSS) employee, who was the lead person with the Delaware Health Care Commission in developing policy for the managed care program, and was assigned the lead responsibility within DHSS to oversee implementing the program. She subsequently retired and the Department sought a waiver to the post-employment restriction, which prohibits former employees from representing or assisting private enterprises in matters before the State for two-years after leaving employment, in order to award her a contract to continue carrying out the assignment. 29 Del. C. § 5805(d). "Private enterprise" means any activity conducted by any person, whether conducted for profit or not for profit. 29 Del. C. § 5804(8). The Commission found that the broad definition of "private enterprise" encompassed such contract and that her actions, while an employee, made her "materially responsible" for the matters upon which she would continue to work. It granted a waiver to the post-employment prohibitions because if she were not permitted to continue the work after retirement, it would cause an undue hardship upon the Department in carrying out its mandated time limitations in implementing the program. See, 29 Del. C. § 5807(a)(waivers may be granted if a literal application of the prohibition in a particular case is not necessary to achieve the public purposes or would result in an undue hardship on any employee, officer, honorary official or State agency). The Commission also noted that the post-employment contract would not be an increase in her hourly rate and she would not be working full-time. (Commission Opinion 94-10). A private enterprise, which had a contract with a State agency, wished to employ one of the agency's former employees. The Commission found that the employee, in the course of State duties, had not given an opinion, conducted an investigation and was not directly responsible for "such matter" [the contract]. The Commission based its conclusions on the fact that the employee had no input to or control over the subject matter of the contract. (Commission Opinion 94-11). PROCEDURE The Code of Conduct provides that the Commission may act "upon the sworn complaint of any person." 29 Del. C. § 5810(a). It also provides that the Commission is to follow the procedural rules in § 5810 and can establish such other procedural rules as shall not be inconsistent with the rules prescribed in the Code. 29 Del.C. § 5809 (6). The procedural rules require that a complaint: (1) be sworn; (2) contain particular facts; and (3) identify the section of the Code believed to be violated. Complainant submitted two unsworn complaints; did not detail facts sufficiently for the Commission to determine jurisdiction; and did not identify the Code sections believed to be violated. Complainant was notified to submit sworn complaints with more facts and with Code sections identified. Copies of the Code and Commission's rules were provided. (Commission Opinion 94-09 and 94-12). The Commission issues advisory opinions based on a "particular fact situation." 29 Del. C. § 5807(c). A State employee asked if contact with a private firm where the employee's spouse worked created a conflict. The issue became moot because the spouse left the firm. Thus, there was no longer a "particular fact situation" on which the Commission could act. (Commission Opinion 94-07). The Commission was asked if a State officer's appointment to a nonprofit organization created a conflict. The requesting agency submitted the legislation creating the organization, but provided no details allowing a decision based on "a particular fact situation," as required by 29 Del. C. § 5807(c). The Commission requested additional facts. (Commission Opinion 94-15). CONCURRENT EMPLOYMENT Some State employees asked if a conflict would exist if they started a private enterprise, while employed by a State agency. No State employee, officer or honorary official shall have any interest in any private enterprise nor shall he incur any obligation of any nature which is in substantial conflict with the proper performance of his duties in the public interest. No employee, officer, or honorary official shall accept other employment, any compensation where such acceptance may result in: (1) impairment of independence of judgment in the exercise of official duties; (2) giving preferential treatment to any person; (3) making government decisions outside official channels; or (4) any adverse effect on the confidence of the public in the integrity of the State government. 29 Del. C. § 5806(b). The Commission concluded the proposed endeavor would conflict with their agency duties because the proposal entailed technical assistance to private enterprises in areas evaluated by the employees in their State jobs. No facts were presented to justify a waiver under 29 Del. C. § 5807(a).(Commission Opinion 94-13). The Commission granted a limited waiver to an appointee on the Criminal Justice Council, to complete a grant application for SODAT-Delaware, Inc., for which she was contracted. Prior to being appointed to the Criminal Justice Council, the appointee had contracted to complete four applications. She had completed three and was working on the fourth at the time of her appointment. The waiver was limited to the completion of the fourth application. The waiver was granted because it would be an undue hardship on the appointee if she were required to break the contract and it would be an undue hardship on the organization to find a new contractor at that stage.(Commission Opinion 94-16). STATE PUBLIC INTEGRITY COMMISSION SYNOPSES OF 1995 OPINIONS *APPEARANCE OF IMPROPRIETY* A State employee managed certain State housing facilities. The employee hired a tenant from one facility for child care. The Commission held that the arrangement violated the prohibition on engaging in acts in violation of the public trust and which would not reflect favorably on the State. 29 Del. C. § 5806 (a) and (b). The Commission's concern was that, as a minimum, it might appear that the tenant would receive preferential treatment from the State employee. The Commission may grant a waiver if it determines the literal application of such prohibition in a particular case is not necessary to achieve the public purpose of the statute or would result in undue hardship on any employee, officer, honorary official or State agency. 29 Del. C. § 5807(a). The employee testified that she had no relatives to care for the children, the costs of child care with other sources were prohibitive, and she could not find feasible alternative care, among other things. Agency testimony was that the employee's responsibilities involving the exercise of discretion regarding this tenant could be given to the employee's supervisor or another agency official. With that restriction, the Commission granted a waiver. (Commission Opinion 95-16). A State regulatory commission asked whether its members would be in violation of the Code of Conduct if they contracted with a private firm to provide legal counsel when that firm also would represent private clients before the same regulatory agency. "State employee" includes "an appointed member, trustee, director or the like of any State agency and who receives or reasonably expects to receive more than $5,000 in compensation for such services in a calendar year." 29 Del. C. § 5804(11)(a)(2). Members of this agency are appointed and each receives more than $5,000 annually. Thus, they are subject to the Code of Conduct. The applicable provisions in this situation are: Pursuing a course of conduct which would raise suspicion among the public that he is engaging in acts in violation of the public trust and which will not reflect favorably on the State and its government. 29 Del. C. § 5806(a); and Disclosing confidential information. 29 Del. C. § 5806 (f) and (g). In determining the applicability of these provisions, the Commission noted that State employees, officers or honorary officials cannot represent or otherwise assist private enterprises in matters before the State agency with which they are associated by employment or appointment. 29 Del. C. § 5805 (b)(1). Contracts violating the Code of Conduct may be voidable. 29 Del. C. § 5805(g). Here, the contractor may not be subject to the Code of Conduct, but the effect would be that the agency could achieve by contract that which otherwise is not permitted. Specifically, the contractor, while working for the State, could also represent or assist their private enterprise in matters before the same agency. The risk exists that the power or discretion vested in public authority might be used to benefit a private client or that an unfair advantage could accrue to the private client by access to confidential government information about the client's adversary. See, Midboe v. Com'n. on Ethics for Pub. Employees, La. Supr., 646 So.2d 351 (1994); Howard v. Florida Com'n. on Ethics, Fla. App., 421 So.2d 37 (1982); Delaware Lawyers' Rules of Professional Conduct, Rule 1.11 Comment (lawyer representing government, whether employed or specially retained, is subject to Rules of Professional Conduct and to statutes and government regulations on conflicts of interest). While it is presumed the attorney would not improperly use or disclose such information, there is a question of whether such access would appear improper. As a factual matter, it was not feasible to make a complete and isolated separation of the private clients from the agency representation. For example, while representing the agency, the attorney/firm could perhaps establish precedent applicable to all regulated entities appearing before the agency--including the private clients. The Commission also considered the statutory purpose of the agency. That statute identified a very public purpose for the agency. In light of its statutory duties to the public, the public could well look with suspicion on an agency hiring an attorney to "work both sides of the street." The Commission concluded that for the agency and/or its members to agree to a contract with such results would, as a minimum, create an appearance of impropriety. (Commission Opinion 95-20). The head of a State agency was asked to appear in a video prepared by a private enterprise. In the past it had contracted with the agency, and was expected to seek future contracts. The contracts were in a highly competitive area. In reviewing the video script, the Commission found that it was a promotional/marketing tool for the firm, and statements to be made by the agency head served little, if any, public purpose. The Commission found that appearance in the video might be seen by competitors and/or the public as an endorsement of that firm. While the agency said it was willing to appear in videos for all competitors, the Commission found that was not a viable solution because some firms might not have the capacity to engage in such marketing efforts. Further, because the individual participated in reviewing the contract applications, there could be a perception that the individual's judgment was impaired or that preferential treatment could result. The Commission held that the individual could not appear in the video. (Commission Opinion 95-36). Complainant alleged that a State agency conducted an investigation and did not inform complainant until the investigation was completed and referred to another agency for determination of whether any administrative, civil or criminal action, might be taken against complainant as a result of the investigatory findings. Complainant alleged that failing to inform her of the investigation violated the prohibitions against: (1) engaging in conduct that would raise suspicion among the public that the employee/officer was engaging in acts in violation of the public trust, 29 Del. C. § 5806(a); (2) using public office to secure unwarranted privileges, private advancement or gain, 29 Del. C. § 5806(e); and disclosing confidential information beyond the scope of the employee/officer's public position, 29 Del.C. § 5806(g). The Commission found federal and State laws recognizing that investigations may be kept confidential (citations omitt